Commonwealth v. Hernandez

• Decision Date: 29 December 2015
• Docket Number: SJC–11574.
• Citation: 42 N.E.3d 1064,473 Mass. 379
• Parties: COMMONWEALTH v. Ariel HERNANDEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 379

42 N.E.3d 1064

COMMONWEALTH

v.Ariel HERNANDEZ.

SJC–11574.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 2015.

Decided Dec. 29, 2015.

Dana Alan Curhan, Boston, for the defendant.

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, BOTSFORD, LENK, & HINES, JJ.

Opinion

HINES, J.

Based on an armed robbery that occurred during the evening of October 22, 2009, and an armed home invasion and double murder that occurred several hours later, a jury convicted on indictments charging the defendant with two counts of armed robbery; two counts of murder in the first degree on the theory of felony-murder (with armed home invasion and attempted armed robbery as the underlying felonies); and one count each of home invasion, unlawful possession of ammunition, and possessing a firearm without a license. The defendant's trial was joined with the trials of two codefendants, cousins Karon and Jamal McDougal,¹ on each of their indictments charging two counts of felony murder and one count of home invasion, and with Jamal's indictments for firearms offenses. Karon and Jamal were acquitted of all charges. On appeal, the defendant argues (1) error in the denial of his motion to suppress the firearm used in the armed robbery and murders and (2) error in the joinder of trial with his codefendants and in the joinder of the armed robbery charges and charges relating to the home invasion. We affirm the order denying the defendant's motion to suppress as well as the defendant's convictions, and we discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E.

1. Motion to suppress. a. Background. Prior to trial, the defendant filed a motion to suppress the firearm evidence, claiming, on State and Federal constitutional grounds, that police lacked probable cause for the warrantless search and the search exceeded the bounds of a proper inventory search. The motion judge, who was also the trial judge, held an evidentiary hearing, at which one witness, Officer Christian Hanson of the Lowell police department, testified. The judge denied the motion and made the following findings of fact, “which we supplement with evidence in the record that is uncontroverted and that was implicitly credited by the motion judge,” see Commonwealth v. Melo, 472 Mass. 278, 286, 34 N.E.3d 289 (2015). On October 23, 2009, Officer Hanson reported for his shift at approximately 1 a.m. and learned of a reported armed robbery of two females that had occurred at approximately 8:30 p.m. on October 22, 2009. The robbery had taken place on Second Avenue in Lowell and a handgun was used. The two female

victims who reported the robbery described the vehicle as a green Honda Civic sedan, bearing a specified license plate number, and with a Dominican Republic flag hanging from the rear view mirror. The perpetrators were described generally as Hispanic males.

Officer Hanson was assigned to Lowell's eastern sector and was driving alone and uniformed in a marked cruiser. At 1:33 a.m. , Hanson learned through a police dispatch that an armed home invasion had occurred at a home on Marshall Terrace, that a handgun had been used, and that two occupants had been shot. Hanson knew that the location of the invasion was approximately fifty yards from the earlier armed robbery. At approximately 2:20 a.m. , a dispatch alerted him that the same vehicle was involved in the earlier armed robbery and the home invasion and noted the address of the vehicle's registered owner as Phillips Street.²

Officer Hanson drove towards Phillips Street, looking for the vehicle. Within minutes of the second dispatch, while heading in a westerly direction on Broadway Street, he came up behind a vehicle matching the exact description, including the license plate number and the Dominican flag. Hanson followed the vehicle as it turned left twice so that it was heading parallel to Broadway in the opposite direction, away from Phillips Street. He called for backup. Hanson saw the vehicle fail to stop at a stop sign. Officer Hanson stopped the vehicle at an intersection as two other cruisers arrived. The driver of the vehicle pulled over at Officer Hanson's command. Hanson and two other officers got out of their cruisers and approached the vehicle with weapons drawn.

Officer Hanson and one of the officers approached the driver's side and Hanson ordered the occupants to raise their hands and keep them in plain sight. The defendant, who was the driver, was loud and belligerent and shouted, “What the fuck did I do?” The defendant was “moving around” in the driver's seat and then reached for the center console. At that point, the two officers pulled the defendant to the ground outside the vehicle and handcuffed

him. The third officer did the same to Giovanni Hill who was in the passenger's seat. The officers searched the vehicle, and after finding no weapons or contraband in the passenger's compartment, they opened the trunk and found a handgun. Officer Hanson testified that they had searched the trunk because they were looking for the firearm involved in the earlier armed robbery.

Shortly thereafter, one of the robbery victims was brought to the scene for a showup identification. She identified Hill as one of the robbers. Specifically, Officer Hanson testified that the victim said that Hill was standing “next to the man that was holding the gun with the hood or a mask over his face” during the robbery. The police arrested the defendant on firearms charges and Hill for armed robbery.

The judge concluded that the search was justified under the automobile exception to the warrant requirement because, quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925), there was enough evidence to “ ‘warrant a man of reasonable caution in the belief’ ... that the handgun would be in the vehicle, perhaps in the trunk and out of sight.” The judge reasoned that the six hours that had passed between the robbery and the automobile stop were not fatal where “it was reasonable to think that one or both of the occupants at the time of the stop had probably been using the vehicle at the time of the robbery,” the occupants of the vehicle “fit the very general description of the robbers,” and a handgun had been used in both the robbery and the later home invasion. Moreover, the judge concluded that the police had “ample probable cause” to search the entire vehicle, including the trunk, after the showup identification, at which Hill was identified as one of the robbers.

The defendant maintains on appeal that the firearm should have been suppressed because the police lacked probable cause to search the trunk and because the warrantless search was not justified under the inevitable discovery doctrine.³

b. Discussion. “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. Craan, 469 Mass. 24, 26, 13 N.E.3d 569 (2014), quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). “The judge determines the weight and credibility of the testimony.” Commonwealth v. Woods, 466 Mass. 707, 717, 1 N.E.3d 762, cert. denied, ––– U.S. ––––, 134 S.Ct. 2855, 189 L.Ed.2d 818 (2014), citing Commonwealth v. Sinforoso, 434 Mass. 320, 321, 749 N.E.2d 128 (2001). We, however, “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Woods, supra, quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

“Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, subject only to ‘a few specifically established and well-delineated exceptions.’ ” Commonwealth v. Gouse, 461 Mass. 787, 792, 965 N.E.2d 774 (2012), quoting Commonwealth v. Bostock, 450 Mass. 616, 624, 880 N.E.2d 759 (2008). “Under the automobile exception to the warrant requirement, the search of a motor vehicle is reasonable and permissible where probable cause exists to support the search.” Commonwealth v. Johnson, 461 Mass. 44, 49, 958 N.E.2d 25 (2011). If the police lacked probable cause under the automobile exception or otherwise performed an illegal search, the inevitable discovery doctrine permits the admission of evidence that ordinarily would be prohibited by the exclusionary rule. See Commonwealth v. Gray, 465 Mass. 330, 345–346, 990 N.E.2d 528, cert. denied, ––– U.S. ––––, 134 S.Ct. 628, 187 L.Ed.2d 407 (2013). The issue, then, is whether the police had probable cause to search the trunk before the showup identification; and if not, whether the Commonwealth met its burden to prove that the firearm is admissible under the inevitable discovery doctrine.

i. Automobile exception. A warrantless search of an automobile is permissible “where the police have probable cause to believe that a motor vehicle parked in a public place and apparently capable of being moved contains contraband or evidence of a crime.” Gouse, 461 Mass. at 792, 965 N.E.2d 774, quoting Bostock, 450 Mass. at 624, 880 N.E.2d 759. “The existence of probable cause depends on whether the facts and circumstances within the officer's knowledge at the time of making the search or seizure were sufficient to warrant a prudent man in believing that the defendant had committed, or was committing, an offense.” Bostock, 450 Mass. at 624, 880 N.E.2d 759, quoting Commonwealth v. Miller, 366 Mass. 387, 391, 318 N.E.2d 909 (1974). If the police had probable cause to search any part of the vehicle under the automobile exception, the police were entitled to search “all containers, open or closed, found within.” Gouse, supra, quoting Commonwealth v. Cast,

407 Mass. 891, 908, 556 N.E.2d 69 (1990).

Officer Hanson, acting on the reliable information before him,...