Opinion
20-P-845
02-03-2022
COMMONWEALTH v. Joshua PAULO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of unlawful possession of a firearm and unlawful possession of ammunition pursuant to G. L. c. 269, § 10 (a ) and (h ). On appeal he argues (1) that the motion judge erred by refusing to suppress evidence that the police recovered from a car because the search of the car was a warrantless, investigative search (allegedly) aided by keys seized from the defendant's person, and (2) that there was insufficient evidence at trial that the defendant constructively possessed the firearm. For the reasons discussed below, we affirm.
Background. At approximately 1 A.M. August 19, 2016, Officer Thomas Larkin of the Taunton Police Department (Department) arrived at Memorial Park in response to reports that a man with a rifle was moving between Memorial Park and a white vehicle parked outside the park, on Orchard Street. When he arrived, Officer Larkin parked his vehicle on Orchard Street near a white Chrysler, which was the only vehicle in the area at the time. Officer Larkin observed two men inside the park about fifty yards away, one of whom -- the defendant -- was apparently holding a rifle.
The facts herein are drawn from the evidence presented during the relevant suppression hearing and at trial. We consider only the evidence presented at the suppression hearing to evaluate the suppression issue presented. We consider only the evidence presented at trial to evaluate the constructive possession arguments.
The police later determined that the weapon that the defendant was holding was a BB gun.
Officer Larkin ordered the defendant to drop the weapon and ordered both men to put their hands up. When they complied, Officer Larkin handcuffed the defendant, pat frisked him, and located a set of keys in one of the defendant's pockets, which Officer Larkin then placed on the ground. The defendant reported to Officer Larkin that he had been target shooting at bottles in the park. Officer Larkin arrested both men for trespassing and disturbing the peace, as Memorial Park is closed to the public from sunset to sunrise. While other officers were escorting the defendant to a police cruiser, Officer Larkin was advised by a dispatcher that the white Chrysler had been reported stolen.
At that point, Officer Larkin and other police officers seized the white Chrysler, and conducted an inventory search. Officer Larkin could not recall whether the car was locked, but testified that he did not use the keys to identify or to locate the vehicle. In the Chrysler, on the floor of the driver's seat, Officer Larkin located an open backpack that held an unloaded chrome .38 special revolver and a satchel with six rounds of ammunition. The backpack also contained, among other items, the defendant's electronic benefits transfer card (EBT card) and prescription medication labelled with the defendant's name. The police subsequently learned that the car had been reported stolen because the defendant had rented the Chrysler from Hertz, and that he was supposed to return the car on June 22, 2016, but had failed to do so.
The defendant was charged with two counts of firearm possession (with enhancements for prior offenses), one count of receiving a stolen motor vehicle, and one count of larceny of a motor vehicle. The defendant filed a motion to suppress the evidence found in the Chrysler on the grounds that there was no probable cause to conduct a warrantless search of the vehicle. After an evidentiary hearing, a Superior Court judge denied the motion. The judge concluded that the officers learned that the Chrysler had been reported stolen before they began any search of the car, and that an inventory search of the car was appropriate once the officers learned that it had been stolen. The judge also found that Officer Larkin properly seized the car keys during a search incident to arrest, and that in any event, Officer Larkin had not used the keys to locate the car.
A bench trial was held before a different judge on April 1, 2019. At the close of the Commonwealth's case the defendant moved for a required finding of not guilty. The trial judge granted the motion as to the charges relating to the stolen vehicle, but denied it as to the two firearm charges. The judge then found the defendant guilty as to the two firearm charges.
Discussion. 1. Motion to suppress. The defendant first argues that his motion to suppress should have been granted, because Officer Larkin improperly used the keys seized from the defendant to access the Chrysler and to conduct a warrantless investigative search. In reviewing the judge's order we accept the judge's factual findings absent clear error, but make "an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Wilson, 486 Mass. 328, 334 (2020). We discern no error in the judge's denial of the motion to suppress.
As the defendant concedes, Officer Larkin could properly seize the keys during a search incident to arrest, to avoid having them used as a weapon. See Commonwealth v. Blevines, 438 Mass. 604, 608 (2003). The only disputed issue here is whether Officer Larkin used the keys appropriately once seized. The defendant contends that Officer Larkin violated his rights by using the keys "for purposes of investigation." Id.
To the contrary, the motion judge expressly found, based on Officer Larkin's testimony at the hearing, that Officer Larkin did not use the keys until after he received a dispatch stating that the Chrysler had been stolen. Officer Larkin did not use the keys to identify or to locate the Chrysler -- indeed, that was unnecessary as the Chrysler was the only car in the vicinity. Although Officer Larkin may have used the keys to enter the vehicle once he learned that the Chrysler had been stolen, this was appropriate because at that point the police had information "suggesting that the vehicle had [a] connection to criminal activity." Blevines, 438 Mass. at 609.
The defendant argues that Officer Larkin's testimony regarding the keys was inconsistent, in that his testimony varied between the dangerousness hearing, the motion to suppress hearing, and the trial. To the extent the defendant's argument is that Officer Larkin's testimony at the motion to suppress hearing was not credible, the proper avenue to address that was through cross-examination at the hearing. Having reviewed the record, the judge's findings were well supported by the testimony at the motion to suppress hearing, and not clearly erroneous. See Wilson, 486 Mass. at 333-334. To the extent that the defendant argues that Officer Larkin's testimony at trial was inconsistent with his previous testimony, we do not consider trial testimony when reviewing motion to suppress findings on appeal. See Commonwealth v. Rivera, 441 Mass. 358, 367 (2004).
We agree with the motion judge that, having learned that the car was stolen, Officer Larkin properly conducted an inventory search of the Chrysler. Under both the Federal and Massachusetts Constitutions, an inventory search may be conducted if (1) there are constitutionally appropriate reasons to impound the vehicle, and (2) "the conduct and scope of the search itself" complies with constitutional strictures. Commonwealth v. Ellerbe, 430 Mass. 769, 772-773 (2000). As to the first inquiry, police officers may impound vehicles that they have probable cause to believe are stolen. Commonwealth v. Pridgett, 481 Mass. 437, 442 (2019). Here, where Officer Larkin learned that the car had been reported stolen and knew the driver was currently under arrest for other charges, he had an appropriate basis to impound the Chrysler. See id.
As to the second inquiry, inventory searches of impounded vehicles do not violate constitutional protections if the police act reasonably and pursuant to standard written policies. See South Dakota v. Opperman, 428 U.S. 364, 383-384 (1976) (Powell, J., concurring); Commonwealth v. Davis, 481 Mass. 210, 219 (2019). The motion judge found that the Department's policy on motor vehicle tows and inventories (policy) required the officers to tow stolen cars and to inspect and inventory the contents of the car prior to the tow. The defendant does not appear to argue that the officers conducted the search in a manner that violated the policy. As such, the motion judge did not err by denying the motion to suppress.
2. Constructive possession. The defendant next argues that the trial evidence was insufficient to establish the defendant's constructive possession of the weapon and ammunition found in the Chrysler. We disagree.
When conducting a sufficiency review, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). When the Commonwealth's theory as to a possession crime is not actual, but constructive, possession, the Commonwealth must "show knowledge [of the contraband] coupled with the ability and intention to exercise dominion and control" (quotation and citation omitted). Commonwealth v. Romero, 464 Mass. 648, 653 (2013). Constructive possession cannot be proved by the defendant's mere proximity to the contraband; there must be an additional "plus factor" supporting the inference that the defendant had the requisite knowledge, dominion, and control as to the contraband. See Commonwealth v. Ortega, 441 Mass. 170, 174 (2004) ; Commonwealth v. Santana, 95 Mass. App. Ct. 265, 268 (2019).
Here, there were several plus factors that tended to show that the defendant had knowledge, dominion, and control over the gun. The Chrysler was the only car in the area, the car had been rented to the defendant, and it contained the defendant's driver's license as well as hotel receipts in his name. The gun was found in a backpack located on the floor of the driver's seat, and the holster and weapon were at the top of the backpack. The backpack also contained, among other things, prescription medications in the defendant's name and the defendant's EBT card. The presence of the defendant's medications and EBT card in the bag where the gun was found indicated that the defendant controlled and had dominion over the bag, since he apparently had placed important personal items in there that he would need to retrieve. The jury could have inferred from this evidence that the defendant had knowledge, dominion, and control over the weapon. We discern no error in the trial judge's ruling.
The Commonwealth's case did not deteriorate during the defendant's case-in-chief -- while the defendant testified that the gun was not his, the defendant also testified that he had driven the Chrysler to the park, and that the medications and EBT card in the backpack belonged to him.
Judgments affirmed.