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16-P-254                                                Appeals Court

                COMMONWEALTH    vs.   JUAN G. SURIEL.


                             No. 16-P-254.

           Hampden.       March 1, 2017. - May 26, 2017.

           Present:    Green, Wolohojian, & Sullivan, JJ.


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


     Complaint received and sworn to in the Springfield Division
of the District Court Department on December 2, 2013.

     A pretrial motion to suppress evidence was heard by Robert
A. Gordon, J., and the case was tried before Charles W. Groce,
III, J.


     William M. Driscoll for the defendant.
     Kelsey A. Baran, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.      The defendant, Juan G. Suriel, appeals from

his convictions of possession of a firearm without a license in

violation of G. L. c. 269, § 10(a), and possession of ammunition

without a firearm identification card in violation of G. L.
                                                                     2


c. 269, § 10(h)(1).1   He contends that his motion to suppress

should have been allowed because the police lacked reasonable

suspicion to conduct an investigatory stop.   We affirm.

     Background.   We recite the motion judge's factual findings,

supplemented by uncontroverted evidence in the record that is

consistent with those findings.   See Commonwealth v. Edwards,

476 Mass. 341, 342 (2017).   On November 30, 2013, at about 5:30

P.M., a police officer from the narcotics division of the

Springfield police department was surveilling a local

barbershop.   The narcotics officer was parked across the street

from the barbershop, in the parking lot of Springfield Technical

Community College on State Street.   At around 6:20 P.M., the

narcotics officer saw two men go into the barbershop.      A short

time later, another man, later identified as codefendant Glidden

Gotay, went into the barbershop holding a blue bag.   The three

men were talking by the front door and a fourth man, later

identified as the defendant, joined the conversation.   The men

then went into a back area of the barbershop, out of sight of

the narcotics officer.   Within a short period of time, the four

men came out of the barbershop, walked about ten to fifteen feet




     1
       A third charge of receiving stolen property over the value
of $250 in violation of G. L. c. 266, § 60, was nolle prossed.
                                                                     3


down the driveway next to the barbershop, and began to talk.2

Another man, later identified as codefendant Jose L. Vicente,

remained at the head of the driveway near the street and

sidewalk.   The narcotics officer then saw Gotay hand a gun to

one of the two men, who handed it back to Gotay.    Gotay next

handed the gun to the defendant.    The defendant then put the gun

inside his jacket.    The entire transaction took a matter of

seconds.

     The men then went their separate ways in separate cars.

The defendant drove away in a car (a Saturn), operated by

Vicente.    While observing the meet-up, the narcotics officer had

given support officers a running description of what he saw,

including the make, model, color, and license plate of the

Saturn.

     When support officers spotted the Saturn, they pulled in

front of it, positioning the unmarked cruiser so that the Saturn

had to stop.   When one of the support officers approached the

Saturn, he noticed the defendant "looking down to his right, and

gesturing feverishly to the right side of his seat with his

arm."    That officer shouted for the defendant to show his hands.

The defendant made eye contact with the officer, while still

reaching down to the right side.    The support officer continued

     2
       The area was lit by street lamps and lights from the
barbershop.
                                                                     4


to approach the Saturn and, with the help of another support

officer, "extracted" the defendant from the car.     A search of

the Saturn revealed a .22 caliber Smith & Wesson firearm in the

passenger side compartment and a magazine on the passenger side

floorboard.

      Discussion.   Motion to suppress.   "In reviewing a decision

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

findings of fact absent clear error "but conduct an independent

review of [the judge's] ultimate findings and conclusions of

law."'"   Commonwealth v. Jessup, 471 Mass. 121, 129 (2015),

quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

      The stop.   A stop of a motor vehicle is justified if "the

police [have] a reasonable suspicion, based on specific,

articulable facts and reasonable inferences therefrom, that an

occupant of the . . . [car] had committed, was committing, or

was about to commit a crime."    Commonwealth v. Alvarado, 423

Mass. 266, 268 (1996).    "An officer's suspicion must be grounded

in '"specific, articulable facts and reasonable inferences

[drawn] therefrom" rather than on a "hunch."'"     Edwards, 476

Mass. at 345, quoting from Commonwealth v. Lyons, 409 Mass. 16,

19 (1990).    Here, a stop in the constitutional sense occurred

when the police car pulled in front of the Saturn and stopped

it.   See Edwards, 476 Mass. at 345.
                                                                    5


     The defendant contends that the police lacked reasonable

suspicion to stop the Saturn based on the surveillance

information relayed by the narcotics officer.    He points out

that there is no evidence in the record to suggest that the

location was known to police for illegal gun sales.    There was

no explanation of the reasons for the surveillance.    Similarly,

none of the men involved were known to the police.    The

defendant further contends that the fact that the gun was

transferred to the defendant by another does not give rise to

reasonable suspicion, because ownership of a gun is not in and

of itself illegal.   See Alvarado, supra at 269 ("Carrying a gun

is not a crime.   Carrying a firearm without a license [or other

authorization] is").   "The mere possession of a handgun [is] not

sufficient to give rise to a reasonable suspicion that the

defendant was illegally carrying that gun."     Commonwealth v.

Couture, 407 Mass. 178, 183 (1990).

     As in Edwards, however, there is more to this case than

mere possession of a gun.3   Here there was a transfer of a gun.

The timing of the men's arrival permitted the narcotics officer

to infer that the men met by prearrangement.    None of the men

stayed to get a haircut or for any other reason unrelated to

     3
       "[W]hen . . . police observations are coupled with other
factors, there may be reasonable suspicion of a crime.
Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007). See
Edwards, 476 Mass. at 346-347.
                                                                     6


this transaction.    After speaking briefly at the back of the

barbershop, they left and walked together down a nearby

driveway, which was sheltered from view.    One man stayed at the

head of the driveway.   The narcotics officer could infer that he

served as a lookout.    A gun was passed from hand to hand in a

matter of seconds and pocketed, followed by a prompt departure

by all of the men.

     The circumstances of the transfer of the gun give rise to

reasonable suspicion, not a mere hunch.    The participants chose

to leave the barbershop, where what they were doing could be

witnessed, and to move outside to a secluded area.   They hastily

transferred the gun and left immediately.    "[T]he officer 'could

reasonably infer from the conjunction of these facts that

criminal activity might be afoot.'"    Edwards, supra at 347,

quoting from Commonwealth v. Thompson, 427 Mass. 729, 734, cert.

denied, 525 U.S. 1008 (1998).

     The location of the transaction also matters.    In this

case, the transfer occurred in a driveway in the early evening,

not in a building housing a business dedicated to the sale,

rental, or lease of firearms during customary business hours.4


     4
       A person who intends "to sell, rent or lease firearms,
rifles, shotguns or machine guns, or to be in business as a
gunsmith" must have a license to do so. G. L. c. 140, § 122, as
amended by St. 1957, c. 688, § 5. "Every license shall specify
the street and number of the building where the business is to
be carried on, and the license shall not protect a licensee who
                                                                   7


There was reason to suspect that this was not a lawful

commercial sale.

     The defendant points out that not all sales or transfers

must be made by a licensed gun dealer, relying on G. L. c. 140,

§ 128A.5   This is undoubtedly true, but the fact that the

transfer might have been lawful does not mean that the officers

lacked reasonable suspicion that it was not.   See Commonwealth

v. Rivas, 77 Mass. App. Ct. 210, 218 (2010), quoting from

Commonwealth v. Deramo, 436 Mass. 40, 44 (2002) ("[T]he police


carries on his business in any other place." G. L. c. 140,
§ 122, as amended through St. 1998, c. 180, § 10.
     5
       As is pertinent here, and as in effect at the time, that
statute permitted an individual who is not a licensed gun dealer
to sell or transfer up to four firearms in a calendar year,
provided that (1) the seller has a firearm identification card,
a license to carry firearms, or is otherwise exempted or
authorized by the statute, and (2) the purchaser has a permit to
purchase and a firearm identification card, license to carry
firearms, or is an exempt person, as defined in the statute.
G. L. c. 140, § 128A. In addition, "[a]ny sale or transfer"
pursuant to § 128A, must comply the provisions of G. L. c. 140,
§ 131E. G. L. c. 140, § 128A, inserted by St. 2014, c. 284,
§ 29. The requirements of § 131E are strict. A firearm may be
purchased "only upon presentment of: (i) a valid Class A or
Class B license to carry firearms issued under section 131; or
(ii) a valid firearm identification card issued under section
129B together with a valid permit to purchase a firearm issued
under section 131A; or (iii) a valid permit to purchase a
firearm issued under section 131A together with valid proof of
exempt status under section 129C." G. L. c. 140, § 131E, as
amended through St. 1998, c. 180, § 45. There was nothing in
the brief encounter in the driveway that suggested that any of
the statutory requisites had been met. From what the narcotics
officer could observe, the transfer of a gun was made without
any presentment of proof of licensure, authorization, or exempt
status.
                                                                        8


officer was not required to 'exclude all possible innocent

explanations of the facts and circumstances'").         Reasonable

suspicion does not mean absolute certitude; it means facts that

would cause an officer to draw the reasonable inference that

unlawful activity was taking place.         See Edwards, 476 Mass. at

347.       Those facts were present here.

       Considering all of the surrounding circumstances, the

officers had reasonable suspicion to believe that the defendant

was "participating in a gun [transaction] . . . [and] that the

[transaction] was unlawful."       Commonwealth v. Rupp, 57 Mass.

App. Ct. 377, 382 (2003).6

                                        Judgments affirmed.




       6
       In light of our disposition, we do not address the
defendant's argument that the judge erred in denying his motion
for directed verdict because the evidence should have been
suppressed. However, "we note that the constitutional
sufficiency of the evidence under Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), is to be measured upon that which was
admitted in evidence without regard to the propriety of the
admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,
98 (2010).
