Commonwealth v. Johnson

• Citation: 958 N.E.2d 25,461 Mass. 44
• Parties: COMMONWEALTH v. Chevall JOHNSON.
• Decision Date: 02 December 2011
• Court: United States State Supreme Judicial Court of Massachusetts

461 Mass. 44
958 N.E.2d 25

COMMONWEALTH
v.
Chevall JOHNSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 2011.Decided Dec. 2, 2011.

[958 N.E.2d 27]

Elizabeth Caddick for the defendant.

Janis DiLoreto Noble, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

[958 N.E.2d 28]

SPINA, J.

[461 Mass. 45] On February 20, 2007, the defendant, Chevall Johnson, was indicted on charges of unlawful possession of a firearm under G.L. c. 269, § 10 ( a ); unlawful possession of ammunition under G.L. c. 269, § 10 ( h ); unlawful possession of a loaded firearm under G.L. c. 269, § 10 ( n ); resisting arrest under G.L. c. 268, § 32B; assault and battery on a police officer under G.L. c. 265, § 13D; operating a motor vehicle with a suspended license under G.L. c. 90, § 23; and being an armed career criminal under G.L. c. 269, § 10G. He filed a motion to suppress the firearm, ammunition, and marijuana seized from his vehicle, claiming that those items were obtained as the result of an unlawful search. After an evidentiary hearing, a judge in the Superior Court denied the motion, and the matter proceeded to trial in January, 2008. A jury found the defendant guilty of unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a loaded firearm, resisting arrest, and operating a motor vehicle with a suspended license. He was found not guilty of assault and battery on a police officer. In a subsequent bench trial, the defendant was convicted of being an armed career criminal.

The defendant appealed, and we transferred the case to this court on our own motion. He now argues that (1) the judge erred in denying his motion to suppress; (2) his conviction of unlawful possession of ammunition was duplicative of his conviction of unlawful possession of a loaded firearm; and (3) his firearm convictions violated his right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution. For the reasons that follow, we affirm in part and vacate in part.

1. Background. We summarize the motion judge's findings, [461 Mass. 46] supplemented with uncontested testimony from the suppression hearing. See Commonwealth v. Gomes, 453 Mass. 506, 507, 903 N.E.2d 567 (2009). We save for later discussion additional facts presented at trial that are pertinent to the defendant's trial-related claims.

On December 3, 2006, at approximately 5:30 p.m., Officer Patrick Rose of the Boston police department, and his partner, Officer Charles Kelly, were in plain clothes and sitting in an unmarked vehicle at a red light near the intersection of East Cottage Street and Dorchester Avenue in the Dorchester section of Boston. They observed a Cadillac Escalade sport utility vehicle (SUV) “blow [ ] through the red light” in front of them and continue along Dorchester Avenue. Officer Rose pulled his vehicle behind the SUV, checked its registration plate number on his computer, and learned that the SUV was registered to the defendant. Officer Rose activated his blue lights, but the SUV did not stop. Instead, the operator made several turns before finally parking in a legal space across from 8 or 10 Auckland Street, approximately twenty seconds after the police pursuit had begun. The operator got out of the vehicle, shut the door, and started to walk away.

Officer Rose maneuvered his vehicle in front of the operator. Officers Rose and Kelly got out, identified themselves, and approached the operator. He “reeked” of alcohol, was slurring his words, was unsteady on his feet, and was agitated. Officer Rose believed that the operator was under the influence of alcohol. The officer asked him for his license and registration. The operator responded that he did not have his wallet, that the vehicle belonged to his deceased twin brother, and that he was only trying to get to his nearby home. The operator told Officer Rose that his name was “Jacques Johnson,” and he provided

[958 N.E.2d 29]

a date of birth. This date of birth did not match the date of birth of the vehicle's registered owner based on the information that Officer Rose had received from the registry of motor vehicles. He then called for backup.

After further questioning, Officer Kelly told the operator that he was going to conduct a patfrisk. In the back pocket of the operator's pants, Officer Kelly discovered a wallet containing a Massachusetts driver's license in the name of “Chevall Johnson.” The operator acknowledged that the wallet and the license [461 Mass. 47] belonged to him. He also admitted that his license had been suspended, a fact that Officer Rose confirmed on his computer. At some point during his conversation with the defendant, Rose observed that there was a half-empty bottle of cognac on the dashboard of the SUV.¹

Officer Rose decided to arrest the defendant for operating a motor vehicle with a suspended license. Officer Rose informed the other officers who had arrived on the scene that, “he's going,” and signaled that the defendant should be handcuffed. One of the officers asked the defendant whether he had anything in his SUV.² The defendant responded by throwing his car keys at Officer Robert Charbonnier and saying, “I don't care, search, whatever.” Officer Stephen Doran made his way around to the driver's side door of the SUV, opened it, and then yelled, “gun.” ³ At that moment, the defendant pushed Officer Charbonnier and began to run down the street. After chasing the defendant for approximately one block, officers tackled him, subdued him with pepper spray, and placed him in handcuffs. Officer Doran recovered a loaded Smith and Wesson revolver from the open map pocket in the driver's side door. Also recovered from the SUV were the bottle of cognac and some marijuana.

In his written findings, the motion judge stated that he believed and adopted as part of his findings the testimony of Officer Rose.⁴ The judge opined that when the officers saw the defendant drive his SUV through a red light, they had a lawful basis for stopping the vehicle. Further, the judge continued, when the defendant did not pull over his SUV in response to the blue [461 Mass. 48] lights, and then walked away from the officers once he had parked his vehicle on Auckland Street, the officers had probable cause to arrest the defendant for his failure to stop. The fact that the defendant's license had been suspended was an additional arrestable offense. Finally, the judge stated that the search of the defendant's SUV was lawful because, among other reasons, the officers had probable cause to arrest the defendant for operating a motor vehicle while under the influence of intoxicating liquor (OUI).

2. Motion to suppress evidence seized from vehicle. When reviewing the

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denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error. See Commonwealth v. Gomes, 453 Mass. 506, 508–509, 903 N.E.2d 567 (2009); Commonwealth v. Jones, 375 Mass. 349, 354, 377 N.E.2d 903 (1978), and cases cited. We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found. See Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). Questions of credibility are the province of the motion judge who had the opportunity to observe the witnesses. See Commonwealth v. Martin, 447 Mass. 274, 280, 850 N.E.2d 555 (2006). Our review here is based on the facts as developed at the suppression hearing, not at trial. See Commonwealth v. Grandison, 433 Mass. 135, 137, 741 N.E.2d 25 (2001).

The defendant contends that the warrantless search of his vehicle was unlawful. As a consequence, he continues, the firearm and ammunition found therein were seized illegally and, therefore, must be suppressed.⁵ We disagree.

A warrantless search is presumptively unreasonable under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, unless it falls within one of the “few specifically established and well-delineated exceptions” to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Commonwealth v. Cast, 407 Mass. 891, 901, 556 N.E.2d 69 (1990). The burden is on the Commonwealth to show that a particular search falls within one of these permissible exceptions. See [461 Mass. 49] Commonwealth v. Antobene detto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). See also Commonwealth v. Franklin, 376 Mass. 885, 898, 385 N.E.2d 227 (1978). 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.⁶ See Commonwealth v. Antobenedetto, supra at 53, 315 N.E.2d 530. See also Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). “[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required by art. 14 beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.” Commonwealth v. Motta, 424 Mass. 117, 124, 676 N.E.2d 795 (1997). See Commonwealth v. Eggleston, 453 Mass. 554, 557, 903 N.E.2d 1087 (2009). See also Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (Fourth Amendment permits warrantless search of automobile on probable cause and without need for exigency). See generally J.A. Grasso & C.M. McEvoy,

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Suppression Matters Under Massachusetts Law § 14–2[a] and [b], at 14–19—14–24 (2011–2012).

Because the right to search an automobile without a warrant “is independent of any right to arrest, ... the occurrence of such an arrest makes little difference in determining the legitimacy of the search” (citations...