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15-P-1746                                            Appeals Court

            COMMONWEALTH     vs.   SHANE S., a juvenile.


                            No. 15-P-1746.

     Suffolk.       February 14, 2017. - September 27, 2017.

                Present:   Green, Meade, & Agnes, JJ.


Firearms. Practice, Criminal, Motion to suppress.
     Constitutional Law, Search and seizure, Reasonable
     suspicion. Search and Seizure, Pursuit, Reasonable
     suspicion.



     Complaint received and sworn to in the Suffolk County
Division of the Juvenile Court Department on January 7, 2015.

     Indictment found and returned in the Superior Court
Department on March 12, 2015.

     Following joinder of the delinquency complaint and youthful
offender indictment, a pretrial motion to suppress evidence was
heard in the Juvenile Court by Peter M. Coyne, J., and the case
was heard by him.


     Rebecca L. Rose for the juvenile.
     Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    This appeal follows a jury-waived trial which

resulted in a determination that the juvenile was a youthful
                                                                   2


offender by unlawfully possessing a firearm in violation of

G. L. c. 269, § 10(a), and delinquent by reason of carrying a

loaded firearm without a firearm identification card in

violation of G. L. c. 269, § 10(n).   The juvenile was committed

to the custody of the Department of Youth Services until age

twenty-one.   The sole question on appeal is whether the motion

judge, who also was the trial judge, erred in denying the

juvenile's pretrial motion to suppress evidence.   More

particularly, the juvenile contends that he was unlawfully

seized by the police without reasonable suspicion or probable

cause, and that the firearm and ammunition offered in evidence

at his trial should have been suppressed as the fruits of that

claimed unlawful seizure.   We affirm.

    Background.    Two Boston police officers testified at the

hearing on the juvenile's motion to suppress.   The following

account is based on the judge's findings of fact and other

testimony by the officers, which the judge implicitly credited.

See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

On January 6, 2015, Officer Eric Merner responded to a radio

broadcast that a person on conditional release from a pending

criminal charge, Dion Ruiz, was in a global positioning system

(GPS) exclusion zone in the area of Washington and Ruggles
                                                                   3


Streets in Boston.1   Officer Merner received a picture of Ruiz on

his cellular telephone (cell phone), and proceeded to the area

to search for Ruiz.   As he approached the area in question,

Officer Merner observed the juvenile in this case standing on

the corner of Washington and Ruggles Streets.   Officer Merner's

attention was initially drawn to the juvenile because the

juvenile was near the area where he was searching for Ruiz.

Further down Washington Street, Officer Merner located Ruiz,

whom he identified based on the photograph he had received.

While observing Ruiz, Officer Merner noticed the juvenile

approaching Ruiz at a "light jog" while maintaining eye contact

with Ruiz.   As the juvenile jogged toward Ruiz, he held both of

his hands in front of his "belt buckle area" at his waist, with

his elbows sticking out to the sides.   This drew Officer

Merner's attention as an unnatural way of jogging.    Officer

Merner had undergone specialized training on the characteristics

of an armed person, one of which included walking or running

with arms pinned down so as to hold onto a firearm.

     Officer Merner observed the juvenile meet Ruiz and have a

conversation before they walked away together along Washington

Street.   Officer Merner, in plain clothes and in an unmarked

     1
       Ruiz had been charged in connection with a prior shooting
incident, and was under conditions of release that required him
to wear a GPS monitoring bracelet and to stay away from the area
of Washington and Ruggles Streets, where the victim lived.
                                                                      4


car, then radioed for a patrol car to stop Ruiz.     Officer David

Crabbe and his partner responded to the call.     Upon arriving on

the scene, Officer Crabbe observed the juvenile and Ruiz walking

together.    Officer Crabbe and his partner exited their vehicle

approximately thirty feet in front of the juvenile and Ruiz, who

were walking in the officers' direction, and waited on the

sidewalk for them to approach.     When the juvenile and Ruiz drew

near, Officer Crabbe said, "Hey, guys, can I talk to you for a

sec?" and the juvenile and Ruiz stopped walking.     It was Officer

Crabbe's intention to retrieve a picture of Ruiz on his cell

phone and ask, "Are you Dion Ruiz?"     However, as he was taking

out his cell phone and asking the question, the juvenile fled,

running past Officer Crabbe, who dropped his cell phone.

    After picking up his cell phone from the ground, Officer

Crabbe turned around and observed the juvenile running away.        At

that point he had not made a decision whether to follow the

juvenile.    Officer Crabbe, like Officer Merner, had undergone

training in identifying the characteristic movements of someone

who is armed with a firearm.     He observed the juvenile running

with "his right arm being pinned up against his -- the right

side of his body as he was running with his left hand swinging

fully."     Based on this observation, Officer Crabbe believed that

the juvenile might be carrying a firearm, and decided to run

after him.     Officer Crabbe did not call out to the juvenile to
                                                                      5


stop, or otherwise indicate to the juvenile that he was

following him.      While following the juvenile, Officer Crabbe

observed him pause near two grills against the side of a

building, bend over at the waist next to the grills, then

straighten up and resume running.      Officer Crabbe observed that

after bending down near the grills, the juvenile ran for the

first time with both arms swinging freely.

       While running after the juvenile, Officer Crabbe lost sight

of him several times.       Shortly thereafter, roughly one block

away, Officer Crabbe and Officer Merner, who had driven his car

around the block, encountered the juvenile.        He was walking

toward the officers at a normal pace, "as if trying to blend

in."       The officers approached the juvenile.   They had a brief

conversation during which Officer Crabbe placed his hand on the

juvenile's chest and felt his heart beating "very quickly."

Officer Crabbe also observed that the juvenile was breathing

heavily.      Officer Merner noted that the juvenile appeared "a bit

excited."      Shortly thereafter, the juvenile was placed in

handcuffs; a patfrisk of his person did not yield any weapons.2

Officer Crabbe retraced the juvenile's flight path to where he


       2
       Officer Crabbe was unsure if the juvenile was handcuffed
before or after discovery of the firearm while Officer Merner
testified that the juvenile was handcuffed "shortly after" they
encountered him. However, the precise moment the juvenile was
handcuffed is not material to our analysis.
                                                                      6


had observed the juvenile pausing to bend down near the two

grills.   In the area of the grills Officer Crabbe discovered a

loaded firearm.

    Discussion.    1.   Standard of review.   "In reviewing a

ruling on a motion to suppress evidence, we accept the judge's

subsidiary findings of fact absent clear error and leave to the

judge the responsibility of determining the weight and

credibility to be given [to the] testimony presented at the

motion hearing."   Commonwealth v. Wilson, 441 Mass. 390, 393

(2004).   However, "[w]e review independently the application of

constitutional principles to the facts found."     Ibid.   The

Commonwealth bears the burden of demonstrating that the actions

of the police officers were within constitutional limits.

Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).

    2.    Police surveillance does not constitute a seizure.     In

cases involving street encounters between the police and

civilians that result in the seizure of contraband such as

firearms or drugs, determining the moment when the person was

seized is often the critical question that the judge must

decide.   See Commonwealth v. Barros, 435 Mass. 171, 173 (2001).

Massachusetts law adheres to an objective standard whereby a

person has been "seized" by a police officer "if, in view of all

of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave."
                                                                  7


Commonwealth v. Borges, 395 Mass. 788, 791 (1985), quoting from

United States v. Mendenhall, 446 U.S. 544, 554 (1980).

"Whether, and when, a seizure has occurred 'will vary, not only

with the particular police conduct at issue, but also with the

setting in which the conduct occurs.'"   Commonwealth v. Evans,

87 Mass. App. Ct. 687, 690-691 (2015), quoting from Michigan v.

Chesternut, 486 U.S. 567, 573 (1988).    See Terry v. Ohio, 392

U.S. 1, 13 (1968).

     In the present case, before the police approached the

juvenile, Officer Merner observed him jog toward Ruiz while

holding his hands at his waist with his elbows sticking out.

Police surveillance, consisting of observations of a person's

movements in public places, is not a seizure and does not

require any level of suspicion.   Commonwealth v. Williams, 422

Mass. 111, 116 (1996).3

     3.   The police questioning did not constitute a seizure.

The Supreme Judicial Court and this court have often considered


     3
       See Commonwealth v. Stoute, 422 Mass. 782, 789 (1996) ("no
Terry-type stop occurred when [o]fficer initially asked the
defendant and his companion to 'hold up a minute'");
Commonwealth v. Grandison, 433 Mass. 135, 138 (2001) (following
individual for surveillance purposes without use of blue lights,
flashers, or sirens is not pursuit); Commonwealth v. Moore, 32
Mass. App. Ct. 924, 924 (1992) (surveillance does not implicate
constitutional protections). See also Evans, 87 Mass. App. Ct.
at 689 ("The fact that the police offered no justification for
deeming the defendant worthy of investigation does not turn
their initial actions into a seizure").
                                                                      8


street encounters between the police and a civilian in which the

police ask a question in an effort to identify the civilian or

to gather information about a report of criminal activity in the

area.     "There is no seizure where police merely ask questions

unless a reasonable person, given the circumstances of the

encounter, would believe he was not free to walk away."

Commonwealth v. Franklin, 456 Mass. 818, 820 (2010).4    Contrast

Evans, 87 Mass. App. Ct. at 692 (explaining that duration and

intensity of police questioning can be "sufficiently

intimidating" that reasonable person in defendant's position

would feel compelled to answer).     Here, the judge was correct in

ruling that by approaching Ruiz and the juvenile and simply

asking, "Hey, guys, can I talk to you for a sec?" Officer Crabbe

did not seize the juvenile.

     4.    The police pursuit did not constitute a seizure.

"Whether a police 'pursuit' will be considered a seizure depends

on the particular nature of the law enforcement action."

Commonwealth v. Sykes, 449 Mass. 308, 312 (2007).     Here, the

     4
       See Commonwealth v. Murdough, 428 Mass. 760, 763 (1999)
("officers may make inquiry of anyone they wish . . . so long as
they do not implicitly or explicitly assert that the person
inquired of is not free to ignore their inquiries"); Barros,
supra at 173-176 (consensual encounter transformed into seizure
by police pursuit after command to "[c]ome here"); Commonwealth
v. Martin, 467 Mass. 291, 303 (2014) (conduct of police who
called out to defendant, "hold up," "stop," or "we want to talk
to you," treated as request and not command and did not convert
encounter into seizure).
                                                                    9


juvenile argues in the alternative that he was seized by the

police as soon as Officer Crabbe began to pursue him.   There is

no evidence in the record that Officer Crabbe called out to the

juvenile to stop or that the juvenile was aware that Officer

Crabbe was chasing him.5   Officer Crabbe testified that when the

juvenile ran past him, "I let him run for a little bit so I

could observe."   Officer Crabbe then explained that he began to

run after the juvenile, observed the juvenile appear to hide

something in the area where the police later discovered a

firearm, and eventually, after losing sight of him several

times, saw the juvenile walking from the corner of a building.

There is no evidence that the juvenile looked back at Officer

Crabbe.   When he saw the juvenile, Officer Crabbe approached

him, asked a question, and put his hand on the juvenile's chest.6


     5
       The judge did not express any reservations about the
credibility of the police officers who testified at the motion
to suppress hearing. Rather, he accepted the testimony of the
officers in making his findings and rulings. When testimonial
evidence is uncontroverted, as in this case, and implicitly
credited by the judge, we are authorized to draw on that
evidence to supplement the judge's findings of fact. See
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
     6
       At this point, the juvenile was seized. See Borges, supra
at 790-794. The pertinent testimony regarding the police
pursuit was as follows. Officer Crabbe stated: "I didn't
follow him directly, because he basically ran an L-shaped
pattern. I tried to cut it off and ran at an angle. He made
that next corner, and at this point, I just followed him through
the Lennox Projects, with the assistant [sic] of -- assistance
of some of the residents that told me where he turned. . . . I
had lost sight of him a couple of times, but the residents
                                                                  10


    Massachusetts law, unlike Federal law, provides that a

seizure, in the constitutional sense, may occur before police

officers, in pursuit of a suspect, physically detain the person.

Commonwealth v. Stoute, 422 Mass. 782, 785-789 (1996)

(explaining why test for determining when seizure has occurred

that was set forth in California v. Hodari D., 499 U.S. 621

[1991], is not compatible with requirements of art. 14 of the

Declaration of Rights).   However, a "claim of police 'pursuit'

by [a] defendant . . . is not a talismanic formula for

converting all police investigation into a stop and seizure."

Commonwealth v. Laureano, 411 Mass. 708, 709-710 (1992).    The

test we apply is an objective one that is based on the

perspective of the person being pursued, i.e., we do not

consider the subjective intent of the police officer, see

Depeiza, 449 Mass. at 370; Commonwealth v. Pearson, 90 Mass.

App. Ct. 289, 292 (2016), but instead ask whether a reasonable

person in the position of the person being pursued "would have



pointed in the right direction, and I picked him up twice and
then lost him one final time." The juvenile was later located
about one block from where Officer Crabbe last saw him. "We
kind of set up a perimeter. I had turned around and I saw him
walking from a corner of a building, walking towards me as if
trying to blend in. I immediately recognized him, and I believe
officer Merner did the same thing, and we both -- both
approached." The juvenile did not attempt to flee. "I asked
him where he was coming from, I felt his -- I put my hand on his
chest, it was beating very quickly, and he appeared to be out of
breath."
                                                                   11


believed that he was not free to leave."    Borges, 395 Mass. at

791, quoting from United States v. Mendenhall, 446 U.S. at

554.7,8   See generally Grasso & McEvoy, Suppression Matters Under

Massachusetts Law § 4-2 (2017).



     7
       "[S]tops provoke constitutional scrutiny because they
encumber [a person's] freedom of movement. Pursuit that appears
designed to effect a stop is no less intrusive than a stop
itself. Framed slightly differently, a pursuit, which,
objectively considered, indicates to a person that he would not
be free to leave the area (or to remain there) without first
responding to a police officer's inquiry, is the functional
equivalent of a seizure, in the sense that the person being
pursued is plainly the object of an official assertion of
authority, which does not intend to be denied, and which
infringes considerably on the person's freedom of action."
Stoute, supra at 788-789 (quotation and footnotes omitted).
     8
       The following cases illustrate how this principle has been
applied when the pursuit is by means of a vehicle. See
Commonwealth v. Battle, 365 Mass. 472, 475 (1974) (when two
persons ran into building in "apparent response" to approaching
police car, "police had the right -- if not the duty -- to
conduct further visual investigation while the two persons
remained in public view"); Commonwealth v. Thibeau, 384 Mass.
762, 764 (1981) (pursuit designed to effect stop encumbers
freedom of movement, necessitating constitutional scrutiny);
Commonwealth v. Smigliano, 427 Mass. 490, 491–492 (1998)
(activation of police car's blue lights constituted seizure,
requiring reasonable suspicion of criminal activity);
Commonwealth v. Grandison, 433 Mass. 135, 138 (2001) (following
individual for surveillance purposes without use of blue lights,
flashers, or sirens is not pursuit); Commonwealth v. Lopez, 451
Mass. 608, 612 n.2 (2008) (no seizure where police followed
defendant but did not issue any orders, block him from leaving,
or activate cruiser's blue lights); Commonwealth v. Dasilva, 56
Mass. App. Ct. 220, 224–225 (2002) (police conduct in following
lone bicyclist and twice ordering him to stop with unmistakable
intent of requiring him to submit to police inquiries amounted
to seizure). See also Cypher, Criminal Practice and Procedure
§ 4.7, at 185-186 (4th ed. 2014).
                                                                 12


    In Franklin, 456 Mass. at 821-823, the court clarified the

application of the objective test for determining whether a

seizure has occurred in the setting of police pursuit.     The

facts in Franklin, supra, were as follows.

         "At approximately 6:40 P.M. on November 18, 2006, four
    police officers of the youth violence strike force were
    patrolling the Harmon Street area in the Mattapan section
    of Boston, which had been identified by police as a high
    crime area. The officers were in an unmarked Ford Crown
    Victoria automobile usually recognized in this area as an
    unmarked police car. The officers observed two young black
    males talking in front of 43 Harmon Street. None of the
    officers knew either of the men. As the police car
    approached the two men, one of them, the defendant, looked
    at the car, stopped talking, and began looking around. The
    police car stopped; immediately after that, the defendant
    took off running down Harmon Street away from the police
    car. One of the officers said, 'He's running,' and three
    of the officers got out of the car, with two of them
    running after the defendant. As they ran, the two officers
    saw the defendant holding his hand to his waist. Based on
    their experience and training, they both concluded that he
    had contraband, probably a weapon, in his waistband. The
    defendant ran toward a six foot tall stockade fence. Both
    officers saw him throw an item over the fence and they both
    heard a metallic sound when the item hit something hard
    like cement or asphalt on the other side of the fence. The
    defendant was stopped by the officers as he attempted to
    climb over the fence. He was brought to the ground and
    handcuffed."

Id. at 819-820 (quotations omitted).

    In Franklin, the court rejected the defendant's argument

and the judge's ruling that a seizure occurred when the police

left their cruiser and began to chase the defendant.     The

defendant's flight in Franklin "was not prompted by anything the

police did and, indeed, began before the officers got out of
                                                                   13


their vehicle.   There was no evidence that the police exercised

any show of authority or commanded the defendant to stop."      Id.

at 822-823.9   In other words, as we observed six years before

Franklin, "[t]hough flight alone does not create reasonable

suspicion to justify a threshold inquiry, merely running after a

running person, without more, does not effect a seizure in the

constitutional sense."   Commonwealth v. Perry, 62 Mass. App. Ct.

500, 502 (2004).

     In the present case, the judge found that the officers were

at the scene in order to arrest Ruiz for violating a pretrial

condition of his release.   When Officer Crabbe approached Ruiz

and the juvenile, "it was specifically to stop Mr. Ruiz."    The

question directed to the pair by Officer Crabbe did not signal

to the juvenile that he was not free to leave.   This case is

governed by the reasoning in Franklin, supra, because the police


     9
       The concurring opinion in Franklin, supra, underscored the
nature of the majority's holding by suggesting that in different
circumstances, in which the police communicate to the suspect an
intention to restrain that person's liberty, a seizure in the
constitutional sense has occurred. "Being chased by police
officers at close quarters at a fast running pace and for some
distance, a reasonable person would conclude 'that "the object
of chase is capture," that is, that the police purpose is "to
restrain his liberty, not merely to be afforded the opportunity
to talk to him," that consequently "if he stopped running, he
would not be free to leave," and that "in effecting his capture,
the police will resort to physical force if necessary"'
(footnotes omitted). 4 W.R. LaFave, Search and Seizure
§ 9.4(d), at 459 (4th ed. 2004), and cases cited." Franklin,
supra at 824 (Marshall, C.J., concurring).
                                                                   14


pursuit was not accompanied by words or conduct that would

communicate to a reasonable person in the position of the person

walking, running, or otherwise leaving the scene that the police

are making an effort to capture him.10

     5.   The seizure was justified.   "An officer has the right

to 'make a threshold inquiry where suspicious conduct gives the

officer reason to suspect that a person has committed, is

committing, or is about to commit a crime.'"    Commonwealth v.

Watson, 430 Mass. 725, 729 (2000), quoting from Commonwealth v.

Silva, 366 Mass. 402, 405 (1974).   Reasonable suspicion must be

based on "specific and articulable facts and the specific

reasonable inferences which follow from such facts in light of

the officer's experience."   Silva, supra at 406.   "The facts and

inferences underlying the officer's suspicion must be viewed as

a whole when assessing the reasonableness of his acts."

Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).   Here, we

conclude that the officers had reasonable suspicion to believe

that the juvenile was armed based on the factors described




     10
       See Commonwealth v. Powell, 459 Mass. 572, 578 (2011)
("When [the o]fficer began following the defendant on foot, he
had not exercised any show of authority or commanded the
defendant to stop; and the officers had not blocked or impeded
the defendant's path. It was not until [the o]fficer drew his
weapon, pointed it at the defendant, and commanded the defendant
to '[d]rop it,' that a seizure occurred").
                                                                  15


below, all of which were found by the judge to support the

actions taken by the officers.

     Here, the moment of seizure was when Officer Crabbe put his

hand on the juvenile's chest.    Under the circumstances, a

reasonable person in the juvenile's position would not feel free

to leave.    See Borges, 395 Mass. at 790-793.   Officer Merner and

Officer Crabbe had observed the juvenile jogging and running

with his arms held in an unusual manner against his body.      Based

on their training and experience, the officers were aware that

this behavior was consistent with a person concealing an

unholstered firearm.11   This behavior took on greater

significance after Officer Crabbe observed the juvenile stop

running, pause and bend down near two grills, and resume running

with both his arms swinging freely (instead of only one) in the

manner associated with the natural stride of a person who is

running.    These observations were sufficient to support an

inference that the juvenile was carrying a firearm while holding

his hands to his waistband and running, and that he removed the

     11
       The juvenile, without citing any authority, argues in a
footnote in his brief that the judge erred by considering
Officer Merner's observations of the juvenile's unnatural
jogging style when discussing Officer Crabbe's reasonable
suspicion, claiming that Officer Merner's knowledge cannot be
attributed to Officer Crabbe. Our courts have routinely imputed
a police officer's knowledge of certain facts to other officers
engaged in a joint enterprise when determining questions of
reasonable suspicion or probable cause. See Commonwealth v.
Montoya, 464 Mass. 566, 576 (2013).
                                                                    16


firearm and placed it in the vicinity of the two grills before

resuming his run without his hands at his waistband.    See

Commonwealth v. Gunther G., 45 Mass. App. Ct. 116, 119 (1998)

(because license to carry firearm only may be issued to persons

twenty-one years of age or older, G. L. c. 140, § 131(d)(iv),

apparent minor's possession of firearm "may be viewed as

presumptively illegal").

     In addition, there was testimony that the area in which

these events occurred were areas where there had been gang

activity, and had been the scene of previous firearm incidents.12

In fact, Ruiz, with whom the juvenile was observed associating,

had been charged in connection with a prior shooting.     This

combination of factors, taken together, amounted to sufficient

reasonable suspicion necessary to justify Officer Crabbe's

seizure of the juvenile.   See Williams, 422 Mass. at 117.    See

also Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) ("a

combination of factors that are each innocent of themselves may,

when taken together, amount to the requisite reasonable

belief").

     12
       While the judge here explicitly found that there was not
sufficient evidence to support a finding that the area was a
"high crime area," he did find that the area had a history of
gang activity and at least one recent shooting. This finding is
supported by the record. Officer Merner testified that he had
personally responded to calls in that area for shots fired and
persons shot, and that he had made numerous firearm arrests in
that area.
                                                                     17


       The circumstances in this case are quite different from

those in Commonwealth v. Warren, 475 Mass. 530, 538-540 (2016),

where the court held that a black male's flight from the police

did not support a reasonable inference of consciousness of

guilt.13    In Warren, the defendant was walking in the company of

another black male at 9:40 P.M. in the Roxbury section of

Boston.     The defendant fled when approached by a police officer

who was searching for three perpetrators of a burglary that took

place in a home about one mile away.    The officer had only a

vague description of the three perpetrators as black males

wearing red and black hoodies and dark clothing.     Id. at 531-

532.    See Commonwealth v. Meneus, 476 Mass. 231, 235 (2017)

(backing away from police encounter to avoid patfrisk, absent

other indicia of connection to reported shooting in area, did

not justify reasonable suspicion).     Here, by contrast, Officer

Crabbe approached the juvenile and Ruiz only after Ruiz had been

identified by Officer Merner as being in violation of his

conditions of release in a pending case involving a firearm.        It

appeared that Ruiz and the juvenile knew each other.     Prior to

his flight, it was both the manner in which the juvenile

approached Ruiz, with both hands placed together at his waist

with his elbows sticking out, and the manner in which he ran


       13
       The parties have not provided us with any citation to the
record that suggests the juvenile's race.
                                                                   18


away from the police with one arm pinned against his waist that

supported the officers' suspicion that he was armed.     The

officers' suspicion that the odd way of jogging and running was

a sign that the juvenile had a firearm was not a mere "hunch,"

Commonwealth v. Wren, 391 Mass. 705, 707 (1984), but was the

result of the application of their experience and training to

their observations of the juvenile.   See Commonwealth v.

Resende, 474 Mass. 455, 461 (2016) (State trooper "observed the

defendant holding his hand at his waist in a manner that [the

trooper] believed from his training and experience was

consistent with someone holding a gun in the waistband of his

pants"); Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 583

(2009) (defendant's flight, where he "grabbed at his waistband

as he ran, . . . led [the police officer] to believe, based on

his training and experience, that the fleeing defendant

possessed a concealed firearm").   See Commonwealth v. Silva, 440

Mass. 772, 784 (2004) ("police officers' expertise and

experience may be considered as a factor in probable cause

determination").

    For the above reasons, we conclude that the juvenile was

not seized until the police put their hands on him after the

foot chase.   Accordingly, the police properly seized the loaded

firearm discovered next to the grills.   The judge's order

denying the juvenile's pretrial motion to suppress was correct.
                                                                  19


On the charge of possession of a firearm without a license, the

judgment is affirmed.   On the charge of possession of a loaded

firearm without a firearm identification card, the adjudication

of delinquency is affirmed.

                                    So ordered.
