[Smith Wesson 686 Serial Number Search
Stephanie Dejoode
The United States Attorney's Office announced that during a federal court session in Great Falls, on November 8, 2011, before U.S. District Judge Sam E. Haddon, DENNIS LEE ALLAN, a 51-year-old resident of Great Falls, appeared for sentencing. ALLAN was sentenced to a term of:
On June 30, 2009, the Great Falls Police Department received an anonymous letter from an individual stating that ALLAN, the kitchen manager at a sports bar, was selling prescription drugs. Detectives began following up and spoke to a confidential informant (CI) who stated that ALLAN was selling prescription drugs. The CI said ALLAN recently received two .22 caliber handguns in exchange for prescription drugs. The CI reported that he/she saw the guns and advised that the serial numbers were scraped off of both. The CI said ALLAN kept one of the handguns in a safe in the home but didn't know about the other.
On October 19, 2009, a detective made contact again with the CI who said he/she "hangs out" with ALLAN and had been at his house as recently as October 15, 2009. The CI said he/she observed a gun sitting on the kitchen counter.
Based upon this and other information related to the ongoing drug investigation, a state district court search warrant for ALLAN's home was obtained. Law enforcement spoke to ALLAN on arrival and did a pat down search for weapons. ALLAN said he didn't have any weapons on him, but admitted there was a pistol on the kitchen counter with the serial number scratched off. Detectives recovered a Smith and Wesson, Model 422, .22 caliber semi-automatic pistol with an obliterated serial number. ALLAN admitted he knew the serial number was obliterated when he got it. Also found were 49 rounds of .22 caliber ammunition.
Because there is no parole in the federal system, the "truth in sentencing" guidelines mandate that ALLAN will likely serve all of the time imposed by the court. In the federal system, ALLAN does have the opportunity to earn a sentence reduction for "good behavior." However, this reduction will not exceed 15% of the overall sentence.
At the trial of a defendant charged with knowingly carrying firearms in a vehicle in violation of G. L. c. 269, Section 10(a), evidence that the firearms were found in the trunk of the defendant's automobile after he was stopped for a traffic violation, that he had in his pants pockets ammunition which fit two of the guns, and that he had assisted in packing the trunk warranted a finding beyond a reasonable doubt that the defendant had knowledge of, and the requisite control over, the firearms. [584-586]
At a criminal trial, evidence that a State trooper, on stopping the defendant's automobile for a traffic violation, had noticed a metal object protruding from the defendant's pocket and had asked the defendant what it was and that the defendant had removed the object, a metal case containing marihuana cigarettes, opened it and displayed it to the trooper warranted a finding that the defendant had voluntarily surrendered the case. [586-588]
GREANEY, J. Collins was convicted by a Superior Court jury on two indictments charging him with knowingly carrying firearms in a vehicle in violation of G. L. c. 269, Section 10(a), and sentenced to concurrent terms in a house of
correction. His appeal from these convictions [Note 1] raises questions with respect to: (1) the denial of his motion for a required finding of not guilty on the two charges (Mass.R.Crim.P. 25[a], 378 Mass. 896 [1979]); (2) the denial of his motion to suppress the firearms; (3) the propriety of the prosecutor's closing argument; and (4) the denial of his motion for a new trial. (Mass.R.Crim.P. 30[b], 378 Mass. 900 [1979]).
There was evidence that about 3:30 P.M. on September 19, 1979, Massachusetts State Trooper Thomas B. Duffy observed a red Cadillac with Maine license plates traveling west on Route 290 in Worcester. The car was straddling the
dividing line between two lanes and restricting movement in both lanes. After some difficulty Duffy stopped the car, intending to cite the driver for failing to stay within a marked lane (G. L. c. 89, Section 4A). The car was owned and driven by Collins and contained three other passengers.
Upon approaching the vehicle, the trooper observed that Collins was carrying a sheathed knife and wearing a brass-studded leather wristband. Duffy asked Collins to step out of the car so that he could examine the knife. After examining the knife, Duffy asked Collins about a pair of handcuffs attached to his belt. Collins removed the handcuffs and gave them to Duffy, who examined them for serial numbers.
Duffy then noticed a metal object protruding about one inch from Collins' vest pocket, and asked -- "what's that?" Duffy testified that Collins removed the object from his pocket, opened it and displayed it to him. Duffy observed it to be a metal case containing eight marihuana cigarettes. Collins was immediately arrested for possession of marihuana and advised of his rights. During a pat-down after the arrest, Duffy found thirteen rounds of 9 mm. Smith and Wesson ammunition and thirteen rounds of .32 caliber ammunition in Collins' pants pockets. Collins, in response to Duffy's inquiry, stated that he had "no authority" (see G. L. c. 269, Section 10[h]) to possess the ammunition and that he was carrying it to a friend in Rochester, New York.
Duffy then informed Collins of his belief that weapons were hidden in the car. He asked Collins for permission to search the trunk and advised him that he could refuse a search. Collins responded that he did not have a key for the trunk. About that time, one of the passengers told Duffy that he had put his jacket into the trunk a short time before. A pat-down of the other passengers led to the discovery of quantities of Class B and Class E controlled substances, more marihuana, and six or seven additional rounds of .32 caliber ammunition.
was forcibly opened and its contents searched. Inside a blue sleeping bag were found two pistols -- a 9 mm. Smith and Wesson model 39 semi-automatic and a .32 caliber Colt 1903 semi-automatic. Both weapons were loaded. Inside a brown canvas duffel-bag was found another sleeping bag which contained an unloaded nickel-plated 9 mm. Smith and Wesson model 69 semi-automatic pistol. Duffy also testified that, while the case was under investigation, Collins admitted to him that he had assisted in loading the car's trunk.
2. Collins sought suppression of the ammunition and pistols as the fruits of an illegal search and seizure. He concedes that the trooper had the right to stop the car, to look at his license and registration, and to have him step out of the car for the purpose of examining the knife. He maintains that once these items were found to be in order, Duffy
should have issued a traffic citation and let him go without further inquiry. The evidence at the pretrial hearing was substantially the same as the evidence at trial, with the following additions. Duffy testified that he was not afraid of Collins when he asked about the metal object, that he did not intend to search Collins, and that he had no desire to see or examine the object. He testified that his only purpose in asking about the object was to have it identified, and that, in response to the inquiry, Collins took the case from his vest pocket, opened it and handed it over. It is not seriously disputed that, if the metal case properly came into the trooper's possession, the seizure of its contents would have been justified, the arrest legal, and the discovery of the ammunition in the defendant's pockets lawful as incident to a valid arrest. It is also not disputed that these circumstances constituted probable cause to obtain a search warrant for the trunk of the vehicle and its contents. The judge made extensive findings of fact on the entire episode in which he accepted the trooper's version of the events as credible. The judge ruled that Collins voluntarily displayed the metal case in hopes of avoiding discovery of the ammunition on his person and the weapons in the trunk.
The determinative question is whether Collins freely and voluntarily surrendered the case to Trooper Duffy. We need not decide whether acquisition of the metal case constituted a search (see Coolidge v. New Hampshire, 403 U.S. 443, 489-490 [1971]; Grillo v. United States, 336 F.2d 211, 213 [1st Cir. 1964], cert. denied sub nom. Gorin v. United States, 379 U.S. 971 [1965]; United States v. Scheiblauer, 472 F.2d 297, 301 [9th Cir. 1973]; Commonwealth v. Aguiar, 370 Mass. 490, 496 [1976]), because the standards governing the voluntariness of the defendant's actions are the same, regardless whether a search in the technical sense was involved. Commonwealth v. Zeitler, 7 Mass. App. Ct. 543, 547 (1979). "The voluntariness of the defendant's consent is a question of fact to be determined by the judge based on the circumstances of the case in their totality and not `on the presence or absence of a single controlling criterion.'"
3. We have reviewed the questioned portions of the prosecutor's closing remarks in light of the final argument as a whole, the judge's instructions, and the evidence and reasonable inferences that could be drawn therefrom. There is nothing in the remarks which would call for us to wring our hands in print or which would justify a new trial. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416-418, 420-424 (1978).
795a8134c1