Search and seizure – Firearm – Plain view

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Where a juvenile moved to suppress a firearm, that motion should have been allowed because the firearm was seized without any articulable reason to suspect that the firearm was unlawfully possessed or used.

“After a jury trial, the juvenile was adjudicated delinquent by reason of unlawful possession of a firearm (G.L.c. 269, §10[a]), unlawful possession of ammunition (G.L.c. 269, §10[h][1]); and unlawful possession of a weapon (here, a switchblade knife) prohibited by G.L.c. 269, §10(b). On appeal, the juvenile argues that the loaded firearm, which the judge held was lawfully seized in plain view, should have been suppressed, because the incriminating nature of the firearm was not immediately apparent. Because we agree that the seizure of the firearm was unlawful, we reverse the order denying the juvenile’s motion to suppress the firearm, the ammunition, and the switchblade discovered incident to his arrest, and we set aside all three adjudications of delinquency. Further, we accept the Commonwealth’s concession that there was insufficient evidence the defendant knew the firearm was loaded, and we therefore order judgment for the juvenile on the ammunition charge. Finally, in light of the recent decision in Commonwealth vs. Canjura, 494 Mass. 508 (2024) (holding that statutory ban on possession of switchblade knives violates U.S. Constitution’s Second Amendment), we order judgment for the juvenile on the switchblade charge. …

“A police officer may seize objects inadvertently discovered in plain view if the officer: (1) is lawfully in a position to view the object, (2) has a lawful right of access to the object, and (3) its incriminating character is immediately apparent. …

“… Therefore, the incriminating character of the firearm in this case was immediately apparent only if there was probable cause to believe that the juvenile was unlicensed.

“Here, at the time of the seizure, police had no such probable cause. …

“Nevertheless, the Commonwealth argues that police could reasonably believe that the suspect waving a firearm was unlicensed because a licensed gun owner would treat a firearm with more respect. The cases cited by the Commonwealth in its brief do not adequately support this proposition. …

“In deciding that there was inadequate basis to seize the firearm in this case, we do not question whether police who spot a firearm in plain view under similar circumstances may make reasonable inquiry about the ownership of the firearm and the owner’s licensure status. Nor do we suggest that officers, while making those inquiries, could not take reasonable steps, such as placing themselves between the persons and the firearm, to ensure that no one within reaching distance could quickly grab and use the gun. It might also be permissible to temporarily secure the firearm if there is a reasonable suspicion that its presence poses a risk to officer safety. But these are not facts and arguments with which we have been presented, and we do not decide those issues. Instead, here we have a case where officers, armed with little more than the knowledge that the juvenile was seen in possession a firearm, seized a firearm without any articulable reason to suspect that the firearm was unlawfully possessed or used.

“In sum, we conclude that the firearm was unlawfully seized and that the knife found on the juvenile incident to his arrest was the fruit of that unlawful seizure. Therefore, the motion to suppress the firearm, the ammunition contained in the firearm, and the switchblade should have been granted. …

“The order denying the juvenile’s motion to suppress is reversed. The adjudications of delinquency are vacated and the verdicts are set aside. On the charges of delinquency by reason of unlawful possession of ammunition and unlawful possession of a weapon prohibited by G.L.c. 269, §10(b), judgment shall enter for the juvenile.”

Commonwealth v. Leif L., a juvenile (Lawyers Weekly No. 81-114-24) (11 pages) (Docket No. 23-P-887) (Oct. 4, 2024).

Click here to read the full text of the opinion.