Rob,
The difference between Couture and the Cite is that in Couture there was a seizure. In the OP's scenario there was no seizure. There was only an encounter.
In Commonwealth v. Couture, 407 Mass. 178 (1990), the SJC held that the fact an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun, nor even give reasonable suspicion justifying a Terry stop. The reasoning behind this decision is that just because someone has possession of a firearm, it does not also mean that they are committing a crime. Therefore, if police desire to conduct a seizure of an individual possessing a firearm in public, they must have either:
1) a reasonable suspicion that he or she is violating the law, or
2) a reasonable belief that the subject is armed or otherwise dangerous.
NOTE ON THE INVESTIGATION: However, this will not preclude a police officer from conducting a lawful investigation. He or she can simply walk over to the subject and engage him or her in conversation relative to possessing the firearm.
In fact, in Commonwealthv. Johnson, 36 Mass. App. Ct. 336 (1994), the court stated that “the report from a known citizen that a gun is being carried in public warrants investigation by the police.” If the person at that point gives any indication that he or she is not licensed or that the officers safety is an issue, then a thorough patfrisk may be undertaken under the doctrine discussed in Commonwealth v. Fraser, 410 Mass. 541 (1991), which allows police to conduct non-seizure field interrogations. In other words, where police are in the immediate proximity of a person reasonably believed to be armed and dangerous, that person may be frisked for weapons.
Possessor Must Exhibit LTC or FID to Police on Demand per C. 140 § 129C
EDITOR’S NOTE: To date, there have been no decisions which clearly hold that a police officer may effect a seizure of an individual possessing a firearm in order to see if he or she is in compliance with the above statute. In Commonwealth v. Barros, 435 Mass.171 (2001), a concurring opinion stated that the Court has never addressed the power of an officer to stop someone in order to make a demand for a license under G. L. C. 140 § 129C. “It is, however, an intriguing suggestion, and one that would at least arguably justify a stop on the facts of this case,” stated the Court.
ENCOUNTERS PERMISSIBLE: If the above chapter and section does not automatically permit a police officer to conduct a seizure
of a person known to be merely carrying a firearm, it will definitely permit the inquiring officer to encounter the individual and request
his or her LTC or FID.
HEIGHTENED SENSE OF DANGER: Additionally, the case of Commonwealth v. Fraser, 410 Mass. 541 (1991), will permit police
to conduct a frisk of a person once the officer is in close proximity of a person reasonably believed to be armed or otherwise dangerous.
ADMINISTRATIVE INVESTIGATION DOES NOT PERMIT SEIZURE: Let us use the following analogy in helping to see why
a seizure is not permissible when making the statutory inquiry under C. 140 § 129C. If the police entered a gun shop to see if they were
appropriately licensed, would the inquiring police officer immediately grab the manager and throw him or her against the wall and make
the demand for the license? What if the police wanted to see if the bar had a liquor license? Would they “seize” the bartender and then
make the request? Obviously the answer is no to both situations. The same analogy should be used when making the demand under C.
140 § 129C. Remember what occurred in Couture? There was a seizure based on the gun, in and of itself, and then the demand—no good.
If the police followed Couture until he exited his vehicle and then made the demand, it would have been permissible.
Unable To Display License On Demand—Legal Presumption Of Being Unlicensed
Chapter 278 § 7 states that “ a defendant in a criminal prosecution, relying for his justification upon a license..[]..shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.”
EDITOR’S NOTE: Therefore, where a person in public is carrying a firearm and is unable to produce evidence of license to the inquiring
police officer, probable cause will exist that C. 269 § 10 is being violated. See Commonwealth v. Prevost, 44 Mass. App. Ct. 398 (1998).
Having a LTC is Only an Affirmative Defense—Not an Element of the Crime
In Commonwealth v. Jones, 372 Mass. 403 (1977), the SJC discussed the required elements to prove a violation of c. 269 § 10(a), the unlawful carrying statute. In Jones, the Commonwealth did not present any evidence showing that the defendant did not have a license to carry. Despite this, the defendant was convicted.