Com. v. Pena

• Citation: 69 Mass. App. Ct. 713,871 N.E.2d 531
• Decision Date: 14 August 2007
• Docket Number: No. 06-P-1062.,06-P-1062.
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Juan C. PENA & others.<SMALL><SUP>1</SUP></SMALL>

871 N.E.2d 531

69 Mass. App. Ct. 713

COMMONWEALTH v. Juan C. PENA & others.¹

No. 06-P-1062.

Appeals Court of Massachusetts, Suffolk.

Argued December 6, 2006.

Decided August 14, 2007.

David D. McGowan (Anne M. Thomas, Assistant District Attorney, with him) for the Commonwealth.

Samson Huang (David Rossman & Terrance W. Stone with him) for Pedro A. Valdez, Jr., & another.

Bruce L. Namenson for Jean C. Roy, Jr.

Present: GELINAS, GREEN, & GRAINGER, JJ.

GELINAS, J.

The Commonwealth appeals from an order of a judge in the Boston Municipal Court allowing the defendants' motion to suppress firearms found in a compartment under the rear seat of a Volkswagen in which the defendant was the front seat passenger. It argues that the judge erred in allowing the motion because the police had probable cause to conduct a warrantless search under a rear seat cushion in the vehicle, after discovering marijuana on the person of the defendant, Juan C. Pena. The Commonwealth also contends that the discovery was the result of a valid protective search based on the officers' concern for their safety. We reverse the judge's allowance of the motion, concluding that the discovery of the firearms was the result of a valid protective search.

The defendants, Pena, Pedro A. Valdez, Jr., and Jean C. Roy, Jr., were each charged with one count of unlicensed possession of a firearm, and one count of possessing a firearm and ammunition without a firearm identification card, in violation of G.L. c. 269, § 10. Pena and Valdez were also charged with one count of possessing a firearm with a defaced serial number, in violation of G.L. c. 269, § 11C. Roy was also charged with possession of a firearm with a defaced serial number while attempting to commit a felony, in violation of G.L. c. 269, § 11B. Pena was also charged with one count of possession of marijuana, a class D substance, and another count of possession of a class B substance, in violation of G.L. c. 94C, § 34.

We take the facts from the judge's findings, supplemented by uncontradicted evidence in the record. See Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412 (2007); Commonwealth v. Scott, 52 Mass.App.Ct. 486, 492, 754 N.E.2d 728 (2001). On September 29, 2005, at about 1:30 A.M., Boston police Officer Joseph Holmes stopped a black Volkswagen automobile on Knapp Alley, at the corner of Knapp Street in Boston. The Volkswagen was going the wrong way on a one-way street in the Chinatown section of Boston. Chinatown is a high-crime area, and Knapp Alley had been the scene of drug deals and shootings, including a shooting of a Boston police officer, prior to September 29, 2005.

Except for the windshield, the windows of the Volkswagen were tinted, limiting visibility into the vehicle. Valdez sat in the driver's seat, Pena sat in the front passenger seat, and Roy sat in the rear passenger seat.

Officer Holmes asked Valdez for his driver's license, which Valdez could not find. Holmes then asked that the car's windows be lowered so that he could see inside the vehicle. Upon seeing the other defendants inside the car, Holmes asked all the defendants to put their hands where he could see them. All three defendants responded by raising their hands above their heads. Holmes called for backup.

Valdez asked Officer Holmes for permission to get out of the Volkswagen in order to search his pockets for his driver's license. Valdez and Holmes went to the area between the rear of the Volkswagen and the front of Holmes's cruiser. Officer Lynwood Jenkins, Officer Jason Reid, and Sergeant Martin Kraft arrived. Holmes obtained Valdez's identifying information and went to his cruiser to check the status of Valdez's license. At that point, Holmes intended only to issue a motor vehicle citation.

Officer Jenkins stood at the front passenger side of the Volkswagen, keeping watch over Pena in the front passenger seat. Officer Reid searched the driver's seat where Valdez had been seated, looking under the seat and opening and looking into the console between the front seats.

Pena and Roy began complaining to each other about the stop of the car. Pena continually moved his hands, at times placing them out of Officer Jenkins's sight. Jenkins alerted Sergeant Kraft, who was standing next to the front passenger door, and asked that Pena be removed from the Volkswagen for the officers' safety.

After Pena got out of the car, Officer Jenkins conducted a patfrisk of Pena's outer clothing. During the course of this patfrisk, Jenkins felt a hard object in one of Pena's pockets. Thinking that the object might be a weapon, Jenkins removed it. The object was a cigarette lighter; a plastic bag of what appeared to be marijuana also came out of Pena's pocket with the lighter. A total of three small plastic bags of marijuana, along with a pill wrapped in plastic, were recovered from Pena. The officers arrested Pena and took him to the area between the Volkswagen and the police car.²

After Pena was placed under arrest, Officer Reid searched the glove box, the area under Pena's seat, and the area where Pena had been sitting. Roy, still in the back seat of the Volkswagen, continued to protest the stop. He was moving his hands around, and repeatedly told Reid, "Check the trunk!" Reid asked Roy to quiet down and keep his hands still, where they could be seen. When Roy instead continued moving his hands around, he was also removed from the Volkswagen and taken to the area between the Volkswagen and the police car. Only Pena was under arrest at that time.

When Roy left the back seat of the Volkswagen, Reid noticed that the back seat cushion "wasn't seated properly." Reid had owned two similar Volkswagens and was familiar with the car. Reid searched where Roy had been seated and pulled away the back seat cushion, lifting the upholstery under the cushion. He saw a layer of felt with lumps covering the sheet metal. The lumps felt like solid, hard objects. Lifting the felt, Reid saw two firearms. He yelled out, "Gun!" and told the other officers that he had discovered guns in the car.

At that point, Roy and Valdez were placed under arrest. The guns were later determined to be a .25 caliber firearm loaded with five rounds of ammunition, and a nine millimeter firearm loaded with ten rounds of ammunition. Neither the status of Valdez's driver's license nor the ownership of the Volkswagen was determined until after these events.

In allowing the motion to suppress, the judge specifically ruled that "[w]hile Mr. Roy was seated on the rear seat during the stop, he could not have gained access underneath the seat he was sitting on. Also, he could not have placed anything underneath the rear seat he was sitting on while being seated on it."

The defendants moved to suppress the evidence obtained during the stop, claiming violations of their rights under the Fourth and Fifth Amendments to the United States Constitution and under arts. 12 and 14 of the Massachusetts Declaration of Rights. The Boston Municipal Court judge allowed the motion as to the firearms only. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for interlocutory review and reported the appeal to the Appeals Court.

Standard of review. Our standard of review with respect to motions to suppress is well known. We accept the motion judge's findings of fact absent clear error, acknowledging that the weight and credibility of testimony is for the judge hearing the motion, but we review independently the motion judge's ultimate findings and conclusions of law. Commonwealth v. Clark, 65 Mass.App.Ct. 39, 43, 836 N.E.2d 512 (2005). "Our duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Ibid., quoting from Commonwealth v. Vesna San, 63 Mass.App.Ct. 189, 190, 824 N.E.2d 469 (2005). "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, 380 Mass. 751, 759-760, 405 N.E.2d 947 (1980). "Searches and seizures conducted outside the scope of valid warrants are presumed to be unreasonable. In such circumstances, the burden is on the Commonwealth to show that the search or seizure falls within a narrow class of permissible exceptions." Commonwealth v. Rodriguez, 378 Mass. 296, 303, 391 N.E.2d 889 (1979).

Probable cause. The Commonwealth argues that the discovery of the plastic bag of marijuana on Pena's person provided probable cause for the officers to search under the seat cushion for...