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Commonwealth v. Ramirez

Appeals Court of Massachusetts, Essex

February 9, 2018

COMMONWEALTH
v.
WILLIAM J. RAMIREZ

          Heard: October 6, 2017.

         Complaints received and sworn to in the Haverhill Division of the District Court Department on April 2 and 7, 2015.

         A pretrial motion to suppress evidence was heard by Patricia A. Dowling, J., and the case was heard by Stephen S. Albany, J.

          Suzanne Lynn Renaud for the defendant.

          Philip A. Mallard, Assistant District Attorney, for the Commonwealth.

          Present: Wolohojian, Maldonado, & Wendlandt, JJ.

          MALDONADO, J.

         After a bench trial, the defendant was convicted of carrying a loaded firearm without a license and defacing a firearm serial number.[1] The defendant appeals only from the denial of his motion to suppress the firearm. The issue before us is whether a police officer was justified in stopping the defendant, who was walking with a man for whom the officer had an active arrest warrant involving the use of a firearm in the commission of a violent felony. Concluding that under these narrow circumstances police and public safety concerns outweighed the minimal intrusion on the defendant's liberty for the time it took for police to take control of the scene and effectuate the other individual's arrest, we affirm.

         Background.

         The judge made the following factual findings. In the afternoon of March 25, 2015, shots were fired down Winter Street in Haverhill and struck and wounded a passerby. Haverhill police officers received reports that a man named Joshua Perez had fired the shots, and they obtained a warrant for his arrest.[2]

         A few days later, on April 1, at approximately 5 £.M., local, State, and Federal law enforcement officers converged on Brook Street and Hilldale Avenue in Haverhill believing that Perez was in that area. Detective Glen Fogarty, who was alone in an unmarked police cruiser, heard a radio transmission that indicated that Perez was walking toward his position. Fogarty then saw Perez, who was walking down the street with another man -- later identified as the defendant, William Ramirez. Fogarty drove his cruiser to the side of the road just ahead of the two men. He stepped from his cruiser, "identified [himself] as a police officer, " and said, "Haverhill Police. Come here, I want to talk to you"[3] to the two men. Perez walked to the rear of Fogarty's cruiser but the defendant walked away -- adjusting his waistband as he did so.[4] In Fogarty's experience, the defendant's gesture to his waist was consistent with someone concealing a firearm.

         Fogarty ordered the defendant to come back and the defendant complied, joining Perez with his hands on the back of the cruiser. Fogarty called for back-up, which arrived within minutes. Perez was arrested and the defendant was pat frisked. Police officers found a knife and a firearm on the defendant's person.

         Discussion.

         "[W]e accept the [motion] judge's subsidiary findings of fact absent clear error"; however, we review independently his ultimate findings and conclusions of law. Commonwealthv.Scott, 440 Mass. 642, 646 (2004), quoting ...


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