COMMONWEALTH vs. MICHAEL UBILEZ.
No. 14-P-1108.
Middlesex. October 7, 2015. - January 7, 2016.
88 Mass. App. Ct. 814 (2016)
Present: KATZMANN, RUBIN, & WOLOHOJIAN, JJ.
Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Motor vehicle, Probable cause, Search incident to lawful arrest, Inevitable discovery. Probable Cause. Motor Vehicle, Registration, Operation. Receiving Stolen Goods.
Statement that the circumstances of a traffic stop would not permit a conclusion that a police officer‘s warrantless search of the criminal defendant‘s van was incident to a lawful arrest for operation of a motor vehicle with a revoked registration, where such an offense is a misdemeanor for which there is no statutory authority to arrest; where there was no evidence that the defendant‘s operation of the vehicle was erratic or negligent, or that it in any other way had a disturbing effect on the public; and where the officer could not reasonably have believed that the defendant might gain access to weapons inside the van or that evidence of the offense might be found in the van. [820-822]
At a criminal trial, the evidence was sufficient to permit the jury to determine, beyond a reasonable doubt, that the defendant received stolen property with a value greater than $250. [822-823]
COMPLAINT received and sworn to in the Woburn Division of the District Court Department on January 8, 2010.
A pretrial motion to suppress evidence was heard by Paul M. Yee, J., and the case was tried before Timothy H. Gailey, J.
J. Gregory Batten for the defendant.
David Bastian, Assistant District Attorney, for the Commonwealth.
Because we conclude that the inevitable discovery exception applies, we need not consider whether the search was also justified as incident to the defendant‘s arrest. However, because there is a split of opinion among trial court decisions and the issue has not been addressed by the appellate courts, we address whether the misdemeanor of operating a motor vehicle with a suspended registration is an arrestable offense, and the circumstances in which it is so. We conclude that there is no statutory authority to arrest an individual for operating a motor vehicle with a revoked1 registration but that, under circumstances not present here, an arrest could be made under the established common-law rule pertaining to warrantless arrests for misdemeanors. As to the defendant‘s second argument, we conclude that, even accepting that an excessive show of force was employed by the police in the circumstances presented, the inevitable discovery exception applies.
In addition, we reject the defendant‘s argument that the evidence was insufficient to prove possession of stolen property. Accordingly, we affirm.
Background. The defendant was charged in District Court with two counts of receiving stolen property having a value greater than $250,
After an evidentiary hearing consisting of one witness (the arresting officer) and one exhibit (the Burlington police department‘s inventory policy),3 the motion judge denied the defendant‘s pretrial motion to suppress, and found the following facts which we adopt wholesale, there being no claim or showing of clear error.
“Officer Peter Abaskharoun has been with the Burlington Police Department for six years with an additional two years as a New Hampshire state trooper. On the evening of January 7, 2010 at 8:45, he was dispatched to Wendy‘s at 120 Mall Road for a call that a victim of a theft who had reported that a motor vehicle with two suspects had just pulled out of Wendy‘s restaurant. The victim‘s cellular telephone had been stolen. The victim had used her Global Positioning System (GPS) tracker to locate her cellphone from Woburn to Burlington and obtained the license plate to the car, to which the GPS locator had led the victim.
“Officer Abaskharoun ran the license plate and learned that the registration to the Chrysler Town and Country van had been revoked. Detective Redfern had spoken to the victim relating to the identity of the motor vehicle. Detective Redfern advised the officer to ‘use caution.’ Detective Redfern with other officers were down the street with the victim.
“When the officer was on Mall Road, the vehicle with the queried license plate passed the officer. The officer activated his cruiser lights and stopped the vehicle on South Bedford
Street. Officer Abaskharoun called for other units. He conducted a ‘felony stop’ of the car with his gun directed at the van. He used the public address (PA) system to order the driver to shut off the engine, throw the car keys out of the window and exit the van. “Defendant Ubilez was the driver. The defendant complied and walked backwards with his hands in the air to the officer. Officer Abaskharoun ordered the defendant to his knees and handcuffed him. The officer pat-frisked the defendant, and no weapons were found. Officer Abaskharoun read Miranda rights to the defendant who refused to answer him.
“As he looked into the vehicle, the officer saw two purses in plain view. Neither the defendant nor the passenger was a woman. The officer obtained a description of the purse from the victim: a red Coach purse. The purse seen in the rear seat matched the description provided by the victim.
“Upon search [of] the motor vehicle, the police found a tan purse with a female identification behind the driver‘s seat. Other items found were laptops, GPS units and cellphone[s]. The Wendy‘s bag of food was still warm to the touch. There were tools to punch out a car window pane including a screw driver. The defendant was arrested.
“There were too many items to inventory. The motor vehicle was towed and left in the sally port of the Burlington Police Department. An inventory search was conducted pursuant to the Burlington Police Department Motor Vehicle Inventories . . . . The reporting party, Ms. Reynolds, identified her red Coach purse. The identification in the other purse was that of a Diane Stafford.”
Discussion. 1. Inevitable discovery. The defendant concedes that, given the contemporaneous report by the victim that her stolen cell phone was in the van driven by the defendant, and the officer‘s knowledge that the van‘s registration had been revoked, there was sufficient ground to stop the van. He argues, however, that discovery of the items in the van was not inevitable under the two-step analysis announced in Commonwealth v. O‘Connor, 406 Mass. 112 (1989). We disagree.
In the first step of the O‘Connor analysis, “the Commonwealth has the burden of proving the facts bearing on inevitability by a
Here, Officer Abaskharoun knew, before stopping the van, that its registration had been revoked. Under
In the second step, we are to consider the severity of the alleged constitutional violation. Commonwealth v. Perrot, 407 Mass. at 547. In this regard, “[b]ad faith of the police, shown by such activities as conducting an unlawful search in order to accelerate discovery of the evidence, will be relevant in assessing the severity of any constitutional violation.” Commonwealth v. O‘Connor, 406 Mass. at 118. Here, unlike the circumstances in Perrot and
However, relying on United States v. Rullo, 748 F. Supp. 36 (D. Mass. 1990), the defendant contends that the second step of the O‘Connor analysis is not satisfied because the officer used excessive force. In Rullo, officers, believing that the defendant had fired a gun at them and that the gun was still in his possession, beat him while repeatedly asking about the location of the gun. As a result, the defendant told the officers where the gun could be found. Ibid. The judge found that the defendant‘s statements were coerced, and that they led directly to the discovery of physical evidence leading directly to his conviction. Id. at 43. Although the judge determined that, given the gun‘s proximity to the location of the shooting, the weapon would inevitably have been found, he concluded that the inevitable discovery exception did not apply for two reasons. Id. at 44. First, he determined that the gun‘s discovery was not independent of the police misconduct because the search was conducted by the same officers who beat the defendant. Ibid. Second, he determined that application of the inevitable discovery doctrine in the circumstances presented “would encourage law enforcement officers to believe that they can avoid the burden of a prolonged area search by physically abusing a suspect, without significant risk of forfeiting the admissibility of any physical evidence.” Ibid.
At the outset, we note that Rullo deals with the United States Court of Appeals for the First Circuit‘s three-prong articulation of the inevitable discovery exception set out in United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986), cert. denied, 487 U.S. 1233 (1988), rather than the two-step analysis of O‘Connor. In addition, Rullo‘s analysis has not been adopted or cited approvingly elsewhere. See United States v. Ford, 22 F.3d 374, 380 (1st Cir.), cert. denied, 513 U.S. 900 (1994); United States v. Alexander, 540 F.3d 494, 503 (6th Cir. 2008), cert. denied, 556 U.S. 1173 (2009). That said, the decision in Rullo turned on an inquiry similar to the second step of the O‘Connor analysis; namely, whether the police conduct was taken in bad faith, or designed to obtain evidence while avoiding the warrant requirement. As noted above, the facts here do not fall within these parameters, even accepting, for purposes of discussion, that the force em-
Thus, even accepting the defendant‘s contention that the arresting officer employed excessive force, we conclude that the second step of O‘Connor is satisfied and that, accordingly, the inevitable discovery exception applies.
2. Search incident to arrest for operating motor vehicle with revoked registration. Given our conclusions above, there is no need for us to reach the defendant‘s argument that the search was not incident to a lawful arrest, either for receiving stolen property or for operating a motor vehicle with a revoked registration. That said, because the issue has not previously been considered at the appellate level in Massachusetts and trial court decisions are inconsistent as to whether it is an arrestable offense, we address the defendant‘s argument with respect to a charge of operating a motor vehicle with a revoked registration in violation of
“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009), citing Weeks v. United States, 232 U.S. 383, 392 (1914). Operating a motor vehicle with a revoked or suspended registration, in violation of
There are two additional reasons why this was not a permissible search incident to an arrest. “‘The purpose, long established, of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape.’ Commonwealth v. Santiago, 410 Mass. 737, 743 (1991). Thus, police may search an automobile incident to the arrest of its driver only where the arrestee ‘is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest.’ Arizona v. Gant, supra at 346.” Commonwealth v. Perkins, 465 Mass. 600, 605 (2013). Here, the defendant was handcuffed while kneeling after he had walked away from the van and towards Officer Abaskharoun. At that point, the officer “could not reasonably have believed that he might access weapons inside the automobile.” Id.
Moreover, the officer could not have reasonably believed that evidence of the offense might be found in the van. The situation presented here is almost identical to that in Perkins, 465 Mass. at 605, where the court held that the arresting officer did not have reason to believe that evidence of the crime of operating a motor vehicle without a valid license would be found in the automobile the defendant was driving. In that case, the defendant‘s operation of the vehicle combined with the officer‘s knowledge that the defendant did not have a license was insufficient to establish a
Thus, the search was not incident to a lawful arrest for operating a motor vehicle with a revoked registration. In the circumstances presented, it was not an arrestable offense, the defendant was not within reach of the vehicle, and there was no reason to believe that evidence of the offense would be found in the van.
3. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, the evidence and the reasonable inferences to be drawn from it were sufficient to prove beyond a reasonable doubt the elements of receiving stolen property with a value greater than $250.8 Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On January 7, 2010, Diane Stafford and Betsy Reynolds both discovered that their cars had been broken into while parked. In both cases, the car window had been smashed, and the women‘s purses had been stolen, together with other personal items that had been left in the cars.
Reynolds owned two cell phones; one was inside a red purse that had been stolen, the other was with her. Using a tracking function on the stolen cell phone, Reynolds was led to a 7-Eleven store in Woburn. There, she wrote down the license plate information of every car in the parking lot. She then tracked the stolen cell phone to a Wendy‘s restaurant in Burlington, where she observed a van similar to one she had observed at the 7-Eleven store and with a license plate number she had previously recorded. Reynolds observed the defendant leave the van and discard a “white trash bag” into a trash bin. The bag was later discovered to contain a wallet, receipts, and other personal items belonging to Reynolds and Stafford. The defendant then returned to the van and drove away. Reynolds reported the situation to the police, who stopped the van while she continued to track it. Reynolds‘s and Stafford‘s purses were in open view on the back seat of the van. The inventory of the van search conducted after the defendant‘s arrest uncovered multiple cell phones, a laptop computer, a center punch (an item commonly used to break into cars), various tools, and multiple credit cards in Stafford‘s name. Contrary to the defendant‘s argument, it was certainly within the jury‘s province to determine beyond a reasonable doubt, on these
Judgments affirmed.