Com. v. Concepcion

• Decision Date: 20 October 1980
• Citation: 411 N.E.2d 477,10 Mass.App.Ct. 613
• Parties: COMMONWEALTH v. Javier L. CONCEPCION.
• Court: Appeals Court of Massachusetts

Page 477

411 N.E.2d 477

10 Mass.App.Ct. 613

COMMONWEALTH v. Javier L. CONCEPCION.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 10, 1980.

Decided Oct. 20, 1980.

Milly Whatley, Arlington, for defendant.

William R. Wilson, Legal Asst. to the Dist. Atty. (Charles M. Campo, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before BROWN, DREBEN and KASS, JJ.

DREBEN, Justice.

The defendant appeals his convictions on indictments charging him with receiving stolen property (a revolver) and with unlawfully carrying firearms in a motor vehicle. The guns in issue were found in the glove compartment of the defendant's car pursuant to a warrantless search of the car made at a police station after the car had been seized by the police. The only issue on this appeal is whether the motion judge correctly denied the defendant's motion to suppress the guns by ruling that the police had probable cause to make the warrantless search. We uphold the ruling of the motion judge and affirm the convictions.

"We turn ... to the facts as found by the judge, with some additional detail drawn from the testimony at the suppression hearing and trial." Commonwealth v. Best, --- Mass. ---, ---, ^a 411 N.E.2d 442 (1980). At about 7:40 P.M. on May 21, 1975, John Phillips, a police officer with fourteen years' experience, observed the defendant driving alone in a red 1975 Pontiac. Phillips knew the defendant and had previously arrested him for carrying a gun. Earlier in the day, Phillips had been informed by his police commander that there had been a shooting that day and that the defendant had been seen in the area of the shooting. About a week before, Phillips had been informed by another police officer that the defendant's license to operate a motor vehicle had been suspended.

Phillips, who was on patrol with another officer in a marked police cruiser, saw the defendant drive through a stop sign, followed him, and ordered him to the side of the road. Phillips, in uniform, approached the defendant with his gun drawn. While he was between the rear end and the driver's door of the defendant's car, he saw the defendant lunge toward the glove compartment. ¹ Phillips and his partner took the defendant out of the car and patted him down. No weapon was found as a result of the patdown. The defendant produced and gave to the police his license and registration.

A crowd of approximately twenty persons gathered around the cars and was acting in a "rather hostile manner". Phillips knew the defendant had relatives living in the area. He took the keys from the ignition of the defendant's car, gave them to a special police officer, and told him to stay with the car to make sure that no one tampered with it or tried to take it away. Phillips then drove the defendant to the police station, where the defendant was booked for going through a stop sign and operating a motor vehicle after his license had been suspended. Prior to his being booked, the defendant had been arrested, but the record is not clear as to when the arrest occurred.

By the time Phillips returned to the defendant's car, the crowd had doubled. He drove the car to the police station, where he opened the glove compartment, which was unlocked, and found two guns, one loaded and one which had its serial number removed. Phillips testified at the suppression hearing that prior to the search he believed that the glove compartment contained a gun.

"Since the search of the defendant's automobile was conducted without a warrant, the burden was on the Commonwealth to show that it was reasonable under the Fourth Amendment to the United States Constitution." Commonwealth v. Moon, --- Mass. ---, ---, ^b 405 N.E.2d 947 (1980); Commonwealth v. Barnes, 2 Mass.App. 357, 359, 312 N.E.2d 575 (1974).

The defendant claims that there was no probable cause for the search. He concedes that the stop and arrest of the defendant for traffic offenses were valid. He also concedes that there were exigent circumstances, so that if the police had had probable cause, there would have been no need for a warrant to search the automobile. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). The Commonwealth properly concedes that the search was not incident to an arrest, Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), nor within the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, the only issue is whether there was probable cause for the search. The right to search and the validity of the seizure are "dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law", Carroll v. United States, 267 U.S. 132, 158-159, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925), or, as otherwise put in Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968), "the officers conducting the search" must "have 'reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." On that issue, where the search is warrantless, the Commonwealth, as indicated earlier, has the burden of proof. Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). Commonwealth v. Ortiz, --- Mass. ---, ---, ^c 380 N.E.2d 669 (1978).

We agree with the judge that the Commonwealth met its burden of showing that Phillips had probable cause to believe the defendant was unlawfully carrying a firearm in the glove compartment of his car. See G.L. c. 269, § 10(a ). See Commonwealth v. Lee, --- Mass.App. ---, ---, ^d 409 N.E.2d 1311 (1980). There are several factors which, when combined, lead us to this conclusion. No factor need be considered alone. Commonwealth v. Stewart, 358 Mass. 747, 751, 267 N.E.2d 213 (1971). Phillips, when approaching the defendant with his gun drawn, saw the defendant lunge toward the glove compartment. The lunge, taken together with the other circumstances known to Phillips, which "need not be evidence which would be admissible on the issue of guilt at the defendant's trial", COMMONWEALTH V. ORTIZ, --- MASS. AT ---, 380 N.E.2D 669,^E presented sufficient grounds for a finding of probable cause. ² See ibid; Commonwealth v. Battle, 365 Mass. 472, 476, 313 N.E.2d 554 (1974); Commonwealth v. Dupont, 2 Mass.App.Ct. 566, 570, 317 N.E.2d 83 (1974). The other circumstances are that at the time the defendant made the lunge to the glove compartment he was being approached by a uniformed policeman with a gun drawn, that the lunge was not for purposes of obtaining a registration, ³ that Phillips had previously arrested the defendant on a gun charge, and that Phillips had been informed by his commanding officer that there had been a shooting earlier that day and that the defendant had been seen in the area of the shooting. We conclude that Phillips' belief that the defendant was unlawfully carrying a gun in the glove compartment of his car was reasonable, and that there was the requisite "nexus between the item to be seized and the criminal behavior" of the defendant. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). See Commonwealth v. Ortiz, --- Mass. at --- n.6, ^f 380 N.E.2d 669 n.6; Commonwealth v. LEE, --- MASS.APP. AT ---, 409 N.E.2D 1311.^G Compare COMMONWEALTH V. MOON, --- MASS. AT ---, 405 N.E.2D 947,^H where "there was no 'nexus' between the car and the criminal activity of the person sought." The motion judge was, therefore, correct in ruling that Phillips had probable cause to search the glove compartment.

There were clearly exigent circumstances which justified the...