Heard: October 6, 2017.
received and sworn to in the Haverhill Division of the
District Court Department on April 2 and 7, 2015.
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.
A. Mallard, Assistant District Attorney, for the
Present: Wolohojian, Maldonado, & Wendlandt, JJ.
bench trial, the defendant was convicted of carrying a loaded
firearm without a license and defacing a firearm serial
number. 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,
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
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" 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. In Fogarty's experience,
the defendant's gesture to his waist was consistent with
someone concealing a firearm.
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
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 ...