noting that, “(w)hile the report of possession of a gun alone is not enough, there is a consistent theme in the gun cases and that is, if the police reasonably perceive danger to themselves or to members of the public, they have a duty to investigate, and may perform a patfrisk if they have a reasonable belief that the defendant is armed and dangerous” (internal quotations omitted)
How later courts described this case
- noting that, “(w)hile the report of possession of a gun alone is not enough, there is a consistent theme in the gun cases and that is, if the police reasonably perceive danger to themselves or to members of the public, they have a duty to investigate, and may perform a patfrisk if they have a reasonable belief that the defendant is armed and dangerous” (internal quotations omitted)
- officers with experience of shootings during after-hours parties on Armandine Street received information from a known bystander who, they could have inferred, had personal knowledge that one of the men seen on Armandine Street was *646 displaying a gun; officers acted reasonably when they pat frisked the men, believing them to be armed and dangerous
- tip that defendant had been displaying gun at 5:30 a.m. at street corner in high crime area, on leaving after-hours party, justified reasonable belief by officers that defendant was “armed and dangerous” and therefore patfrisk at time of encounter
- reasonable suspicion established where police observed persons matching physical description on same street and headed in same direction as indicated by informant
Written by the judges who cited it.
The opinion
Jacobs, J.
(concurring). At present, the governing case law in *680 this State does not permit a search or patfiisk of a person reliably reported to be armed merely because there is a possibility he may be in possession of an unlicensed gun. Commonwealth v. Couture, 407 Mass. 178 , cert. denied, 498 U.S. 951 (1990). Commonwealth v. Alvarado, 423 Mass. 266 (1996) (Alvarado I). As the majority opinion points out, an additional factor is required in the form of a reasonable suspicion based on specific, articulable facts of past, present or impending criminal behavior by that person, Commonwealth v. Silva, 366 Mass. 402, 405 (1974), or a reasonable belief that there is an “imminent threat to public safety,” Alvarado I, supra at 271; Commonwealth v. Alvarado, 427 Mass. 277, 283 (1998) (Alvarado II), or a showing (in the absence of a forcible stop) that the investigating officer reasonably believed that person to be “armed and dangerous.” Commonwealth v. Fraser, 410 Mass. 541 , 544-545 n.4 (1991). Notwithstanding the arresting officer’s uncontradicted testimony at the motion hearing that neither of the two men who were questioned on Washington Street exhibited any suspicious behavior, the majority discerns the requisite additional factor from the totality of circumstances, correctly concluding the two men were “dangerous” and posed a threat to the public.
I write to indicate that my concurrence relies not only on the stated facts but largely also on the unique and broadly recognized hazards to police officers and the public presented by guns in the streets. See United States v. Bold, 19 F.3d 99, 104 (2d Cir. 1994), cert. denied, 517 U.S. 1250 (1996); United States v. DeBerry, 76 F.3d 884, 886 (7th Cir. 1996); Commonwealth v. Johnson, 36 Mass. App. Ct. 336, 337 (1994) (“Particularly in a modem urban setting, ... the carrying of guns in public is, if not by itself indicative of crime . . . , at least a matter of serious public-safety concern to the police . . .”); Commonwealth v. Berment, 39 Mass. App. Ct. 522, 529-530 (1995) (Kass, J., dissenting). The inherent dangerousness of guns in the streets is not diminished by the fact that licensed carrying of a gun is lawful. It was this inherent dangerousness together with the circumstances described in the majority opinion that gave rise to an imminent threat that shots soon might be fired by the man who had displayed the gun. When the officers, then under a duty to investigate, see Commonwealth v. Fraser, supra, reasonably and quickly came upon the defendant, they had little choice but to pat frisk him while determining whether he presented a risk to public safety. *681 “Where the officer is justified in making inquiry, the law is clear that he may take prudent precautions for his own safety or that of others.” Commonwealth v. Johnson, supra at 338 , citing Terry v. Ohio, 392 U.S. 1, 27 (1968).