Commonwealth v. Chown

• Decision Date: 20 May 2011
• Docket Number: SJC–10779.
• Citation: 459 Mass. 756,948 N.E.2d 394
• Parties: COMMONWEALTHv.Kristian A. CHOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 756

948 N.E.2d 394

COMMONWEALTH

v.Kristian A. CHOWN.

SJC–10779.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 7, 2011.Decided May 20, 2011.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.James Silver for the defendant.Present: IRELAND, C.J., SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. ¹IRELAND, C.J.

On January 20, 2006, the defendant, Kristian A. Chown, was stopped for speeding and then arrested for operating a motor vehicle without a license in violation of G.L. c. 90, § 10. During the subsequent inventory search of his motor vehicle, police recovered drugs, cash, and other items. As a result, the defendant was indicted for trafficking in cocaine, in violation of G.L. c. 94C, § 32E ( b ) (2), and possession of marijuana with intent to distribute, in violation of G.L. c. 94C, § 32C ( a ). The defendant moved to suppress the evidence recovered from the inventory search, contending that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights ² the evidence was the fruit of an unlawful arrest, the arrest being unlawful because the defendant did not need a Massachusetts driver's license and possessed a valid Canadian driver's license at the time of the stop. After an evidentiary hearing, a Superior Court judge agreed and allowed the motion. A single justice of this court granted the Commonwealth leave to pursue in the Appeals Court an interlocutory appeal from the judge's order, see Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).³ A divided panel of the Appeals Court reversed the order of suppression. Commonwealth v. Chown, 76 Mass.App.Ct. 684, 690, 925 N.E.2d 562 (2010). We granted the defendant's application for further appellate review. Because the arresting officer did not, in connection with the defendant's arrest, take into account the statutory factors enumerated in G.L. c. 90, § 3 1/2, for determining Massachusetts residency, and thus lacked probable cause to arrest the defendant for operating without a Massachusetts driver's license, we affirm the order allowing the defendant's motion to suppress.

1. Background. In reviewing a ruling on a motion to suppress, “we accept the 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, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005).

The defendant worked part time in Hyannis as a bartender at a restaurant that was owned by his stepfather.⁴ During the late evening on January 20, 2006, the defendant left the restaurant parking lot in his extended cab pickup truck and was observed exceeding the posted speed limit by Sergeant Kevin J. Tynan of the Barnstable police department. Sergeant Tynan activated his overhead lights on his marked cruiser and the defendant pulled his truck into a commercial parking lot.

As Sergeant Tynan approached the truck he noticed that it had a registration plate from New Brunswick, Canada. He also observed that the rear window of the truck had been smashed, with weather stripping hanging out. As he approached the driver's side of the truck, he recognized the driver. Sergeant Tynan had been a patron at the restaurant a few times. The defendant also was familiar to Sergeant Tynan because Sergeant Tynan had interacted with him previously, including in 2005, in response to a call made by the defendant and his then girl friend from a house owned by the defendant at 585 Old Falmouth Road in Marstons Mills.⁵

The defendant presented Sergeant Tynan with a New Brunswick license, listing a New Brunswick address and containing an expiration date of July 8, 2007, but could not locate and produce the truck's registration.⁶ Sergeant Tynan informed the defendant that he had been stopped for speeding. Sergeant Tynan had personal prior knowledge that the defendant previously had possessed a Massachusetts driver's license (that had expired). Sergeant Tynan inquired why the defendant did not have a Massachusetts driver's license. The defendant replied that he planned on going to the registry of motor vehicles (registry) the next morning to obtain one.

Sergeant Tynan returned to his cruiser to run a record check with the registry, which confirmed that the defendant's Massachusetts driver's license had expired and revealed a lengthy history of in-State motor vehicle violations committed by the defendant, dating back to 1989, with various license suspensions and reinstatements.⁷ At the time of the stop, however, there were no current suspensions or revocations. Because Sergeant Tynan did not have access to Canadian registry records, he was not then able to verify the validity of the defendant's Canadian driver's license; the Commonwealth does not dispute that the license was valid.

Sergeant Tynan informed the defendant that he was under arrest for operating a motor vehicle without a Massachusetts license. The defendant also was charged with failing to have his registration in possession and speeding. ⁸ Sergeant Tynan testified at the evidentiary hearing that he made the arrest because he had learned at the police academy that, “if you're gainfully employed in the Commonwealth, residing there, have a place of address, [then] you have to get a Massachusetts driver's license.”

Sergeant Tynan requested the assistance of another officer who, on his arrival, transported the defendant to the police station. Pursuant to the department's written inventory policy, because of the damage to the truck's rear window, Sergeant Tynan needed to secure the vehicle and conduct an inventory. While conducting the inventory search, he smelled a strong odor of marijuana emanating from the back seat. There, under the rear seat, he recovered a backpack that contained drugs and two scales. He also found credit cards, a check from an account in the defendant's name with the Old Falmouth Road address, a piece of mail addressed to the defendant at the Old Falmouth Road address, and cash in the amount of $6,355. Affixed to the window of the truck, Sergeant Tynan noticed a 2002 local “dump sticker.”

In allowing the defendant's motion to suppress, the judge noted that the defendant had produced a valid Canadian license and that, under G.L. c. 90, § 10, a nonresident may operate a motor vehicle in Massachusetts “in accordance with section three [of G.L. c. 90]” and if “duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place.” While § 3 of G.L. c. 90 limits the operation of a motor vehicle owned by a nonresident and registered in a different country to no “more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance,” the judge noted that a violation of this section results in a fine and does not give a police officer authority to arrest. In addition, the judge concluded that the defendant could not have been in violation of § 3 because the period runs “in the aggregate within a calendar year” and the arrest was made fewer than thirty days into January, 2006. The judge rejected the Commonwealth's evidence of the defendant's ownership of property in Massachusetts as being relevant to the determination of probable cause at the time of the arrest. The judge concluded that Sergeant Tynan lacked probable cause to believe that the defendant was a resident of Massachusetts.

The Appeals Court, by a divided panel, reversed, concluding that Sergeant Tynan was warranted in believing the defendant was a Massachusetts resident and therefore was required to have a Massachusetts driver's license. Commonwealth v. Chown, 76 Mass.App.Ct. 684, 690, 925 N.E.2d 562 (2010). The Appeals Court reasoned that “it appears almost inescapable that the defendant was a [Massachusetts] resident [because] [f]rom the perspective of Sergeant Tynan, the defendant had lived and worked for years in Massachusetts, possessed a local driving record dating back to 1989, had at one point a Massachusetts license, drove a truck with a sticker on it for the local dump, and said he was planning on going the following day to the [r]egistry to obtain a license.” Id. Because Sergeant Tynan had probable cause to arrest the defendant, the Appeals Court determined that the evidence seized thereafter was admissible. Id. As previously noted, we granted the defendant's application for further appellate review.

2. Discussion. As an initial matter, there is no question that Sergeant Tynan had authority to stop the defendant for speeding. See Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980), and cases cited (“Where the police have observed a traffic violation, they are warranted in stopping a vehicle”). What we must decide is whether Sergeant Tynan thereafter had a lawful basis to arrest the defendant. An overview of the statutory scheme is in order.

a. Statutory scheme. As relevant here, under G.L. c. 90, § 10, a “person” ⁹ who is sixteen years of age or older is prohibited from “operat[ing] a motor vehicle upon any way [in Massachusetts]” without first obtaining a Massachusetts driver's license. Section 10 contains several exceptions to the Massachusetts driver's license requirement. Operation of a motor vehicle in Massachusetts without a Massachusetts driver's license, for example, is permitted “for persons licensed in another...