Opinion
18-P-994
11-14-2019
COMMONWEALTH v. JAKUB PITRA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal, the defendant challenges the denial of his motion to suppress evidence seized during a warrantless patfrisk and the sufficiency of the evidence supporting his conviction of constructive possession of a firearm. For the reasons set forth here, we affirm.
1. Motion to suppress. The defendant contends that the exit orders directed to the defendant and the passenger were unjustified and that the subsequent patfrisk of the defendant was not supported by reasonable suspicion.
In reviewing the denial of a motion to suppress, we accept the motion judge's "subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). This court must "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
a. Exit orders. An order to exit a validly stopped vehicle may be justified in any of three scenarios. "First, an exit order is justified if 'a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.'" Commonwealth v. Cruz, 459 Mass. 459, 466 (2011), quoting Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). Second, an exit order may be justified by a police officer's "reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver." Cruz, supra. Third, an exit order justifiably may be given "for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement." Id. at 467. In the present case, both the first and second justifications are implicated. A "mere hunch" is not enough, but "it does not take much for a police officer to establish a reasonable basis to justify an exit order." Gonsalves, supra at 664. "That the occupant is not reaching for a weapon at the exact moment of the exit order does not lessen the danger posed" by the encounter with someone who may be armed. Commonwealth v. Stampley, 437 Mass. 323, 329-330 (2002). There need not be an "immediate threat" to safety. Id. at 328.
Here, the detectives had more than a "mere hunch" that the defendant had brass knuckles on his person. The motion judge found that "[t]here was no doubt in the mind of Detective McDonald that [the defendant] was carrying brass knuckles in his back pocket" around two hours earlier. In addition to the brass knuckles, the detectives also observed the defendant holding a steak knife, albeit as a tool for eating. Even after the defendant put the steak knife down, it was still within arm's reach. The possibility that these two weapons were in the vehicle near the defendant, even when not being brandished, created a reasonable suspicion of danger that justified the exit order of the defendant.
After the defendant exited from the vehicle, the knife was still in the vehicle with the passenger. The detectives also observed "a complete mess" of trash inside the vehicle, which they believed could conceal another weapon. Having already removed an armed individual from the vehicle, being aware of the knife, and being uncertain whether the vehicle might contain still other weapons, a reasonably prudent person in the detectives' position would be warranted in believing that the remaining occupant in the vehicle could pose a safety risk, and thus the exit order to the passenger was also justified.
b. Patfrisk. A police officer may "make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime." Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Reasonable suspicion "must be grounded in specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch" (quotations and citation omitted). Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). Police may frisk an individual where, in addition, there is "reason to believe that the individual is armed and dangerous." Silva, supra.
The defendant argues that there was no reasonable suspicion that he was committing or was about to commit a crime, where more than two hours had passed between when the detectives first saw the outline of the brass knuckles to the time when they stopped him.
Despite the passage of time, the detectives had reasonable suspicion that a crime had been (or was being) committed. Detective McDonald was "100 percent" certain that the defendant had brass knuckles in his back pocket. Carrying brass knuckles is an arrestable offense in Massachusetts. See G. L. c. 269, § 10 (b). Thus, when the defendant was stopped later, there was reasonable suspicion (if not probable cause) that the defendant had committed a crime. See Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). The detective's observation of the outline of brass knuckles also established an objectively reasonable belief the defendant was armed and dangerous, providing a permissible basis for the frisk. See Silva, 366 Mass. at 405.
2. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to prove beyond a reasonable doubt the elements of constructive possession of the firearm found within the vehicle, because the firearm was reachable by both the passenger and the defendant, and the defendant made no statements about the firearm to the detectives. Contrary to the defendant's assertion, the evidence, taken in its totality, was sufficient for a rational jury to conclude that the defendant constructively possessed the firearm.
In reviewing the sufficiency of the evidence, the "question is 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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
To prove a theory of constructive possession, the Commonwealth must prove that the defendant had knowledge of the firearm coupled with the ability and intention to exercise dominion and control over it. See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Whether the defendant had knowledge is a matter of fact that can be inferred "from all the facts and circumstances developed at the trial." Commonwealth v. Summers, 93 Mass. App. Ct. 260, 263 (2018), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Ability to control may also be inferred by the defendant's proximity to the firearm. See Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998) ("By virtue of the gun's location under the driver's seat, the defendant had easy access to it and thus the ability to exercise control over it"). A defendant's "proximity, access, and collateral conduct . . . permit[s] the inference of an intention to exercise control over contraband or forbidden weaponry in [a] vehicle." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 445 (2013).
In Summers, 93 Mass. App. Ct. at 263, this court held that "the evidence was sufficient to prove beyond a reasonable doubt that the defendant knew of the firearm and ammunition, and that he had the ability and intention to exercise control over them." The firearm was located in a backpack on the floor behind the driver's seat, directly adjacent to the defendant and "well within his reach." Id. The backpack was on the floor in front of the back seat, which was an area the defendant showed the intent to exercise dominion and control over by placing his cell phone on that seat next to him. See id.
Here, a reasonable fact finder could have inferred the defendant's knowledge of the firearm where it was found basically "at [the defendant's] feet." Id. A rational trier of fact could also have found that because the defendant was sitting in the driver's seat directly over the firearm, the defendant had easy access to the firearm and "thus the ability to exercise control over it." Sadberry, 44 Mass. App. Ct. at 936. Additionally, evidence of the defendant's proximity to the firearm, of him being the sole occupant of the driver's seat for approximately two hours, and his easy access to the firearm underneath his seat permitted an inference of his intention to exercise control over the firearm. See Crapps, 84 Mass. App. Ct. at 445. Contrast Commonwealth v. Almeida, 381 Mass. 420, 423 (1980) ("no evidence that the defendant saw the gun or knew of its presence in the automobile" where it was found inside center console of borrowed car).
Judgments affirmed.
By the Court (Green, C.J., Milkey & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 14, 2019.