Commonwealth v. Samuel
Commonwealth v. Samuel
Opinion of the Court
On August 3, 2007, a three-count criminal complaint was issued by the Chelsea Division of the District Court Department, charging the defendant, Vladimir Samuel, with possession of a firearm without a firearm identification card, carrying a firearm without a license, and carrying a loaded firearm without a license.
We summarize the judge’s findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
On August 2, 2007, at 11:45 p.m., Officer Edwin Hernandez of the Chelsea police department was working at the front desk when he received a telephone call from a Spanish-speaking man. The caller identified himself to Officer Hernandez and stated that he was at 262 Maple Street, apartment 1, in Chelsea.
At the hearing on his motion, the defendant argued that because the search of the apartment exceeded the consent given for the officers’ entry, the seizure of the firearm was improper. The Commonwealth responded that the circumstances constituted an exigency, and therefore the police seizure of the firearm was proper.
Based on his findings of fact, the judge concluded that the entry of the police into the apartment was proper because the resident had consented to their entry. The judge ruled, however, that once the police were in the apartment, their subsequent conduct in lifting the pillow and removing the firearm constituted an improper search because it exceeded the scope of the consent. The judge dismissed the exigency argument, citing Commonwealth v. Alvarado, 423 Mass. 266, 273 (1996), and noting that no court decision has held that reasonable suspicion arises “simply on a report of gun possession.”
On appeal, the Commonwealth claims, among other things, that the nature of the circumstances created an emergency that justified the seizure of the firearm and the arrest of the defendant.
Discussion. Our courts have held that “ ‘[t]he need to protect
Here, the police received information from an identified citizen that an individual at a named location had displayed a loaded firearm to persons in a room, had announced that he was hired to kill someone, and had placed the firearm under the pillow next to him. The caller reported that he became frightened.
As a result of the information, the police had reasonable grounds to believe that an emergency existed and that lives were in danger. We agree with the motion judge (and the defendant) that the police entry into the apartment was justified. Once inside the apartment, the emergency did not abate because it was necessary to remove the firearm in order to protect life and to prevent injury to others. Upon entering the back room, the police corroborated the information given by the identified caller to Officer Hernandez, including the seating of the black male on the couch with a pillow beside him. At that point, the officers had reasonable suspicion, if not probable cause, to believe that a loaded firearm was under the pillow, a firearm that was to be used to kill someone.
The Commonwealth contends that the conduct of the police in lifting the pillow and seizing the firearm was reasonable. We
Accordingly, we reverse the order allowing the motion to suppress, and the matter is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
Two police officers were the only witnesses to testify at the hearing, and although the motion judge did not explicitly state that he credited their testimony, he did rely on the officers’ testimony as the sole basis of his findings. See Commonwealth v. Perkins, 450 Mass. 834, 842 (2008).
In addition to the caller identifying himself, Officer Hernandez also had the caller’s telephone number in case the officer had to call him back.
The motion judge in his findings described the person who gave the police permission to enter the apartment as an “occupant” of the apartment. The undisputed evidence was that the person resided at the apartment.
The judge stated that “[t]here was no report of a crime here. Defendant was reported to have shown a gun and talked about using it. He had not assaulted anyone.” However, reliable information that an individual has threatened to kill someone and has the means to accomplish that goal requires investigation by the police.
On appeal, the Commonwealth argues that the defendant did not have a reasonable expectation of privacy in the apartment and, therefore, no search in the constitutional sense occurred. The Commonwealth did not make that argument below and, after the motion judge issued his decision, moved for reconsideration, raising the issue of lack of reasonable expectation of privacy. The motion judge denied the Commonwealth’s motion. We do not consider
The Commonwealth also argues that because there was consent to enter the apartment, it was proper for the police to seize the firearm. The Commonwealth, however, specifically told the motion judge that it was not relying on consent to justify the seizure of the weapon. “It has long been our rule that we need not consider an argument that urges reversal of a trial court’s ruling when that argument is raised for the first time on appeal.” Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.