Commonwealth v. Guardado
| Decision Date | 13 April 2023 |
| Docket Number | SJC-13315 |
| Parties | COMMONWEALTH v. CARLOS GUARDADO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Held December 5, 2022.
Indictments found and returned in the Superior Court Department on June 26, 2019.
A pretrial motion to suppress evidence was heard by C William Barrett, J., and the cases were tried before Paul D. Wilson, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Elaine Fronhofer for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.
Patrick Levin, Committee for Public Counsel Services &Chauncey B. Wood, for Committee for Public Counsel Services &another, amici curiae, submitted a brief.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
In 2019, Boston police officers searched the defendant's vehicle without a warrant after having received a tip from a confidential informant, and discovered in the glove compartment a loaded firearm and a large capacity magazine. At the time of the search, the vehicle was parked in the parking lot of the business at which the defendant was employed.
Following a jury trial, the defendant was convicted of unlawfully carrying a firearm, unlawfully carrying a loaded firearm, unlawfully carrying ammunition, and unlawfully carrying a large capacity feeding device. The statute under which the defendant was convicted, G. L. c 269, § 10, contains two exemptions that are relevant here. First, it exempts anyone who, while in possession of a firearm, is present in or on his or her place of business. Second, the statute exempts someone who has been issued a firearms license. At the defendant's trial, the judge did not instruct the jury on either of these exemptions.
In this appeal, the defendant argues that there was no probable cause to search the glove compartment of his vehicle and that the judge erred in not instructing the jury on the two statutory exemptions. We conclude that there was probable cause to search the glove compartment, because the search was in response to a tip that was provided by an informant who had demonstrated reliability and who had personal knowledge of the firearm. We also conclude that there was no error in the judge's decision not to instruct on the place of business exemption, because the evidence was insufficient to establish that the parking lot where the vehicle was found was under the exclusive control of the business where the defendant worked.
We agree, however, that the judge erred in not instructing the jury on the licensure exemption. In the wake of the United States Supreme Court's decision in New York State Rifle &Pistol Ass'n v. Bruen, 142 S.Ct. 2111, 2122 (2022), in which the Court held that the Second Amendment to the United States Constitution protects an individual's right to carry a firearm in public, our existing precedent that licensure is an affirmative defense, and not an element of the offense the Commonwealth is required to prove, must be revisited. See Commonwealth v. Gouse, 461 Mass. 787, 807 (2012). Because possession of a firearm in public is constitutionally protected conduct, in order to convict a defendant of unlawful possession of a firearm, due process requires the Commonwealth prove beyond a reasonable doubt that a defendant did not have a valid firearms license. Accordingly, the defendant's convictions of unlawful possession of a firearm, unlawful possession of a loaded firearm, and unlawful possession of ammunition cannot stand. Because there is no constitutional right to possess a large capacity magazine, we affirm the defendant's conviction of unlawful possession of a large capacity feeding device. See Commonwealth v. Cassidy, 479 Mass. 527, 540, cert. denied, 139 S.Ct. 276 (2018), quoting District of Columbia v. Heller, 554 U.S. 570, 625 (2008) ().[1]
We recite the facts from the motion judge's findings, supplemented by other evidence in the record that supports the judge's conclusion and that was either explicitly or implicitly credited by the judge. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437-438 (2015).
On January 25, 2019, Lieutenant Mathew Pieroway of the Boston police department received information from a confidential informant, known as "Z," that an individual with the defendant's name was in possession of an unlicensed gun. At that point in time, Z was a "card-carrying" informant, which meant that Z had assisted Boston police in an investigation within the previous six months. In the prior year, information provided by Z in one instance had resulted in the seizure of narcotics and an arrest for a drug-related offense, and in a separate matter, Z had provided information that led to the recovery of a firearm that was stored near a playground.
Z informed Pieroway that the individual was in possession of a silver firearm and that the firearm was being stored in a black backpack in his vehicle. Pieroway was aware, from prior conversations with Z, that the individual operated a green Honda Accord with a Maine registration plate. Pieroway also knew the plate number. Z told Pieroway that the individual would be driving in the area of Watertown, in such a vehicle, later that day. Z also reported that the individual worked at a particular auto parts store, hereinafter referred to as "the Store."
While driving toward Watertown, Pieroway contacted other members of his unit, as well as Watertown police Detective Mark Lewis, whom Pieroway knew from prior investigations and prosecutions. Pieroway informed these officers that he had received information from a reliable informant that the defendant had a gun in his possession and that he would be in the Watertown area shortly.
Within an hour of speaking to the informant, Pieroway located the defendant a short distance from a mall in Watertown. Pieroway watched the defendant pull into the parking lot of the Store, get out of the green Honda with the Maine license plate, and enter the Store, where he appeared to be an employee. Other officers, including Lewis, arrived soon thereafter and set up surveillance around the car and the Store. While en route to Watertown, Lewis had had a license check conducted through Criminal Justice Information Services, which had revealed that the defendant did not have a license to carry a firearm, as well as a Criminal Offender Record Information check, which had indicated that the defendant had a prior firearm "incident" on his record.[2]
At roughly 6:45 P.M., Pieroway observed the defendant leave the Store and walk towards his vehicle. As the defendant was beginning to get into the vehicle, officers approached him, identified themselves, and asked him to move away from it. They also gave the defendant the Miranda warnings. Lewis searched the vehicle while the defendant stood with an officer to the rear of it. Lewis was unable to locate either a gun or a black backpack in the vehicle. The glove compartment, which was the only part of the interior that was not searched at that time, was locked. Lewis then conducted a patfrisk of the defendant and found nothing other than the keys to the vehicle. Lewis used the keys to open the glove compartment. Inside was a silver Smith &Wesson nine millimeter firearm that was loaded with a fifteen-round magazine containing two rounds of ammunition. Also inside was another fifteen-round magazine that was loaded with ten rounds of ammunition.
When the defendant left the Store, Detective Sergeant John Claflin, one of the officers who had been surveilling the scene, was told to go into the Store to find out whether the defendant had left any personal belongings, in particular a black backpack, behind. After entering the Store and having been directed to an employee storage area, Claflin saw a black backpack that was identified by a Store employee as belonging to the defendant. Claflin picked up the backpack and could feel what he believed, on the basis of his experience and training, to be a gun storage box. Claflin opened the backpack and found an empty gun storage box. Claflin left the Store and saw the green Honda being searched; at that point, the defendant had not yet been pat frisked.[3]
Once the gun and magazine were found, the defendant was placed under arrest. Shortly thereafter, he said, At the police station, the defendant again was given the Miranda warnings. He agreed to talk to police and told them that he had purchased the firearm for $650 from someone in Quincy and that he had been in possession of the gun for "awhile."
In June 2019, a grand jury issued indictments charging the defendant with one count of illegal possession of a firearm, G. L. c. 269, § 10 (a); two counts of illegal possession of a large capacity feeding device, G. L. c. 269, § 10 (m); one count of illegal possession of ammunition, G. L. c. 269, § 10 (h); and one count of illegal possession of a loaded firearm, G. L. c. 269, § 10 (n).[4]
In December 2019, the defendant filed a motion to suppress any evidence seized as a result of the search and seizure of his vehicle and person, on the grounds that he did not consent to a search of his person or of his automobile and the searches and seizure were in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.
At an evidentiary hearing on the motion to suppress, testimony was presented concerning the basis of Z's knowledge of the firearm. The...
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