6 Mass. App. Ct. 899

June 27, 1978

In this prosecution for unlawfully carrying a revolver (second offense) (G. L. c. 269, Sections 10[a] & [d], as amended through St. 1975, c. 585, Section 1), the defendant's motion to suppress was allowed after an evidentiary hearing, and the Commonwealth has appealed. See G. L. c. 278, Section 28E, as amended by St. 1972, c. 740, Section 16. The only question argued is: "Whether a police officer, when under a reasonable, good faith belief that arrest warrants are outstanding on an individual, has the lawful authority to briefly detain him?" There is no need to discuss the legal aspects of that question, as it is clear from a reading of the transcript of the colloquy between the judge and counsel as the hearing neared its close that the judge did not credit the testimony that the police officers believed that there was an outstanding warrant for the arrest of the defendant. In his findings the judge made no mention of the officers' supposed belief concerning a warrant and found only that the defendant was a known trafficker in drugs; that the area was one in which there was "frequent drug trafficking"; that the police saw the defendant alight from his car and approached him; that one of them ordered the defendant to put his hands on top of the car; that, when the defendant complied, the tail of his shirt lifted up, exposing the butt of a handgun in the waistband of the defendant's trousers; and that the gun was seized. The judge ruled that on those facts, without more, the stop and seizure was unreasonable, citing, among other cases, Terry v. Ohio, 392 U.S. 1 (1968), Commonwealth v. Silva, 366 Mass. 402 (1974), and Commonwealth v. Almeida, 373 Mass. 266 (1977). We conclude that the judge's omission of any reference in his findings to the matter of a warrant was deliberate and because of his disbelief of the testimony on that subject.

Order affirmed.

Home SHEILA F. BARRAGIA & others vs. MOJMIR F. MAZUR & another.

6 Mass. App. Ct. 899

June 28, 1978

1. It was error to dismiss the action as to the plaintiff Thomas A. Flanagan (Flanagan). a. It is clear from the various documents submitted in support of and in opposition to the defendants' motion for summary judgment that there is a disputed issue of fact as to whether Donovan was satisfactory to Flanagan for the purpose of the agreement of August 7, 1973 (agreement), at the time the agreement was executed and the subject premises were conveyed to the defendants. b. Although the undisputed fact that Flanagan maintained complete silence for more than two years (until this action was brought) following his receipt of advice that the defendants had employed Donovan to appraise the premises and following his receipt of a copy of Donovan's appraisal report would warrant an inference that Flanagan had assented to the employment of Donovan as the appraiser

Page 900

contemplated by the agreement (see Wheeler v. Klaholt, 178 Mass. 141 , 143-145 [1901], and cases cited), that fact, standing alone, does not require that any such inference be drawn as matter of law. c. There is nothing in any of the documents relied on by the defendants which would warrant (much less compel) an inference that either defendant took or refrained from taking any action in reliance on Flanagan's silence. Accordingly, there is no basis in the present record for working an estoppel against Flanagan to deny that Donovan was satisfactory to him as the appraiser contemplated by the agreement. Compare Panagiotes v. Plummer, 5 Mass. App. Ct. 821 (1977). d. In short, the defendants failed to satisfy their burden of demonstrating on any theory still argued that they were entitled to a judgment against Flanagan as a matter of law under Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Community Natl. Bank v. Dawes, 369 Mass. 550 , 554 (1976). 2. Nor is there anything in any of the documents relied on by the defendants which justified the dismissal of the action as to any of the plaintiffs other than Flanagan, none of whom was a party to the agreement (as to which see Van Dusen Aircraft Supplies of New England, Inc. v. Massachusetts Port Authy., 361 Mass. 131 , 141 [1972], and cases cited). 3. It follows from (1) and (2) above that there is no need to consider the sufficiency of the Barragia affidavit in light of the criteria set out in Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). 4. We note that no question has been raised as to whether the complaint states a claim upon which relief can be granted in favor of any of the plaintiffs. The judgment is reversed, and the case is to stand for further proceedings in the Superior Court; costs of appeal are not to be awarded to any party.

So ordered.