Commonwealth v. Depina

On appeal from firearm convictions, the defendant contends that a judge of the Superior Court (motion judge) erred in concluding that the facts provided an adequate basis to support the stop and frisk of the defendant by Trooper Eric Telford. We affirm.

1. Background. We summarize the motion judge's factual findings, supplementing with additional testimony of Trooper Telford, whom the judge expressly found credible. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). At approximately 8:00 P.M. on May 23, 2010, Telford and his partner, Trooper Steve Connolly, were patrolling in an unmarked cruiser in Brockton. Although in plain clothes, they wore badges and identifying attire that made them readily recognizable as police officers. As their cruiser approached Jackson Street, they observed a red Acura automobile parked directly across from the front door of 27 Jackson Street facing in the wrong direction. Telford knew that address to be associated with Nadir Cabral, who was out on bail awaiting trial on Federal firearms charges following an arrest by Telford. Telford's numerous past encounters with Cabral and his associates always involved guns and drugs. Telford also knew Jackson Street as a hangout for the Perkins Ave. street gang and a location for calls regarding shots fired. Two days prior, there had been two separate calls regarding shots in that area. Telford observed eight men in or around the Acura; five, including Cabral, were standing outside, and three were inside the vehicle. One of the individuals standing on the driver's side of the Acura was holding an item over his head that he appeared to be attempting to light on fire. Telford stopped the cruiser across from the Acura, and he and Connolly proceeded to investigate. As Telford opened the driver's side door and turned towards the Acura, he made eye contact with the defendant, who was closest to him.

Upon making eye contact with Telford, the defendant immediately made a grabbing motion on the right side of his waistband, “grab[bing] an item that looked like it was ... of significant weight and turned to the left.” The defendant's sudden movement alarmed Telford, who had extensive specialized training and experience in dealing with concealed firearms. It was after 8 P.M . and dark, there were eight individuals in or around the Acura, including Cabral, who was known to carry firearms illegally, and the defendant had reached suddenly to adjust a weighty object on the right side of his waistband and turned to the left. Based on Telford's specialized training and experience, he knew that people who carry firearms unlawfully usually do not carry them in a holster, necessitating the need to adjust them to keep them in place .

As Telford approached closer, the defendant, who looked to be under the age of twenty-one, appeared more nervous. The defendant moved his eyes to the left and to the right, made another quick touch of his waistband area, and said, “This is bullshit, I'm going inside.” Informed by his specialized training and experience, Telford viewed the defendant's demeanor, including his eye movements, and the touch and adjustment of his waistband as a “fight or flight” response, a term understood in law enforcement survival training to mean “they're either going to fight you or they're going to try to run away.” Based on all his observations and informed by his experience and training, Telford formed the opinion that the defendant had a handgun in his waistband.

Telford walked up to the defendant, and without moving the defendant's clothing, quickly tapped the defendant's waistband area, where he thought the gun was. Telford felt a hard metal object like a gun. Upon feeling the object, Telford grabbed the defendant's arms, spun him around, and put the defendant's hands behind his back. Telford then lifted the front of the defendant's shirt so that Trooper Connolly could observe the object. Connolly confirmed it was a handgun. After noting that the defendant had tucked the gun under a red nylon belt into a pocket on the front right side of his waistband, Telford decided to call for backup. He concluded it was safer to leave the gun there until backup arrived given the number of other individuals present and unsecured. When backup arrived, the police photographed the gun in place and removed it from the defendant's person.

2. Discussion. The motion judge concluded that the case was controlled in all material respects by Commonwealth v. DePeiza, 449 Mass. 367, 371–375 (2007). We agree. “This conclusion follows from the combination of the many factors found by the motion judge.” Id. at 371. We examine the situation in its entirety, not parsing seemingly innocent activities in isolation. The encounter took place shortly after dark in a location known for gun violence, and directly in front of the residence of Nadir Cabral, who was one of the eight men present and was known to Telford from numerous past encounters featuring guns.

Based upon his extensive specialized training and experience in the investigation of street activity, including the characteristics, mannerisms and behavior of those carrying concealed weapons on the street, Telford attached special significance to the defendant's sudden movement to his left to adjust the weighty object in his waistband. Adding to the heightened awareness of danger that movement engendered, the defendant's “fight or flight” demeanor, shifting of his eyes from left to right, and second adjustment of the weighty object in his waistband provided Telford reasonable suspicion that the defendant, who was under twenty-one years of age, was carrying a firearm unlawfully, and posed a danger to the police or others. See id. at 371–372;Commonwealth v. Narcisse, 457 Mass. 1, 7 (2010).

Judgments affirmed.
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