MA: Def readily submitted to arrest and came out; entry for protective sweep not reasonably justified

Defendant readily submitted to the police and came outside to be arrested. While the arrest warrant was for a defaced firearm, a protective sweep on that basis alone was unreasonable. Commonwealth v. Colon, 2015 Mass. App. LEXIS 171 (Oct. 26, 2015):

We are unpersuaded by the Commonwealth’s argument, based on facts not found by the judge, that the warrant-related charge, illegal possession of a firearm with a defaced serial number, describes a “prior violent felony” that justified entry and search of the apartment under these circumstances. Illegal possession of a firearm is certainly troubling, and clearly justifies caution. But possession alone is not per se a violent act. See, e.g., Commonwealth v. DeJesus, 70 Mass. App. Ct. 114, 120, 872 N.E.2d 1178 (2007) (articulable facts justifying protective sweep can be found in a defendant’s “record of violent felonies and firearm possession charges” [emphasis supplied]). Accordingly, while the charge to which the warrant relates is generally a relevant factor bearing on our consideration of the appropriate conduct of arresting officers, it must be viewed in context.

As stated, here the defendant opened the door, said, “let’s go,” and attempted to leave with the officers. The only individual claimed to represent a threat was cooperating with the police, had submitted to custody and, from all appearances, was completely compliant. The police had achieved their objective without conflict and in fairly short order. For this reason it would be irrelevant to our consideration even had the judge made the findings about the warrant-related charge asserted by the Commonwealth. In sum, the Commonwealth’s claim that a danger posed by the charge of previous illegal possession of a firearm justified entering the premises after the defendant had surrendered, and then conducting a search, does not withstand scrutiny.