Commonwealth v. Lawson

• Decision Date: 25 April 2011
• Docket Number: No. 09–P–101.,09–P–101.
• Citation: 945 N.E.2d 976,79 Mass.App.Ct. 322
• Parties: COMMONWEALTHv.Antwan LAWSON.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 322

945 N.E.2d 976

COMMONWEALTH

v.Antwan LAWSON.

No. 09–P–101.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 2, 2010.Decided April 25, 2011.

Kathryn Karczewska Ohren for the defendant.Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.Present: CYPHER, GRASSO, & MILLS, JJ.CYPHER, J.

The defendant, Antwan Lawson, appeals from convictions of various drug and motor vehicle violations,¹ arguing that the motion judge should have allowed his motion to suppress evidence. The defendant also raises other trial-related issues. We affirm.

The motion to suppress. “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 from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). Where appropriate, we supplement the judge's findings with uncontradicted and uncontroverted testimony from the record of the suppression hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n. 5, 723 N.E.2d 501 (2000). The motion judge fully credited the testimony of Massachusetts Bay Transportation Authority (MBTA) police Officer Douglas Morgan, Boston police Officer Joseph Fisher, and MBTA police officer Kevin Foley ² and the facts are not in dispute. Rather, the defendant argues that the facts do not support a conclusion that the police had a requisite basis to detain the defendant for inquiry or to pat frisk him, and that the police did not have probable cause to search the vehicle. “[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

On October 18, 2007, at approximately 9:30 p.m., Officer Morgan and his partner Officer Foley were driving along Dorchester Avenue in the Dorchester section of Boston. Officer Morgan described the area as one known for drug violations, violent crimes, and shootings. He stated that there were shootings in Wainwright Park and that he had arrested an individual for robbery on Semont Road. As Officer Morgan continued along Dorchester Avenue, he noticed a Dodge Charger automobile in a crosswalk at Semont Road. The vehicle was stopped with its lights on and its motor running. Its rear end was in the crosswalk “sticking into Dorchester Avenue.” He looked at the registration plate and remembered that it was one posted by the Boston police for field interview observation purposes in connection with a shooting that had occurred earlier in the week. The notification received by Officer Morgan indicated the type of vehicle, the registration plate number, and that it was a rental vehicle.

Officer Foley parked two to three feet behind the vehicle on Dorchester Avenue. Officer Morgan exited the cruiser and walked to the driver's side and asked the driver for his license and registration. The driver, later identified as the defendant, reached for the registration “real quick” and gave the officer a car rental agreement. Officer Morgan asked him again for his license. At this time, Officer Morgan described the defendant as nervous and observed that his hands were shaking. He also noted that the vehicle was extremely clean and reeked of air freshener. Six air fresheners were strewn about the front and back seats and the floor of the vehicle.

Officer Morgan observed a large amount of cash (approximately one inch thick) “wrapped up with credit cards and I.D.'s sitting on the center console.” The officer again asked the defendant for his license but the defendant was hesitant to retrieve it. Officer Morgan could clearly see the defendant's identification card in plain view on the console.

The rental agreement had the name of one person, a female, with the last name Maxwell. The defendant was not authorized as a person who could drive the Dodge Charger. The defendant finally gave the officer an identification card. Officer Morgan ran the information on his mobile data terminal and learned that the defendant's license to operate a motor vehicle had been revoked.

Officer Morgan asked the defendant to exit the vehicle and arrested him for operating a vehicle after revocation of his license and use without authority. He also gave him a traffic citation for parking in a crosswalk.

Officer Morgan was concerned for his safety because he knew that the vehicle had been identified by the Boston police for possible involvement with a shooting, that the occupants were to be inquired of, and that the defendant had a criminal record (specifically, firearm possession and possession with intent to distribute class B and class D substances). Moreover, he observed that the defendant was nervous, his hands were shaking, and he was reluctant to produce his identification.

Describing his experience with past arrests of individuals who use or distribute narcotics, Officer Morgan stated they usually use air fresheners to try to disguise the smell of controlled substances. Officer Morgan called for assistance from a drug-sniffing canine, and Officer Fisher arrived with his dog, Tiburon. The dog alerted Officer Fisher to an area in the interior lining of the roof by the windshield on the driver's side where police recovered a bag of marijuana (later determined to weigh fifty-two grams). A one hundred dollar bill was found inside the vehicle on the floor.

At booking, fourteen sets of bundled money (totalling $1,700) were found in the defendant's pocket. The vehicle was searched and inventoried pursuant to the Boston police inventory policy.

Discussion. Analysis of whether a defendant's art. 14 or Fourth Amendment rights have been violated sometimes begins with a determination whether the defendant has demonstrated that there has been a “search in the constitutional sense,” in other words, whether the defendant has a reasonable expectation of privacy. See Commonwealth v. Carter, 424 Mass. 409, 411, 676 N.E.2d 841 (1997), quoting from Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). See also, e.g., Commonwealth v. D'Onofrio, 396 Mass. 711, 714–715, 488 N.E.2d 410 (1986). Some cases begin with the question whether a defendant has standing to assert a reasonable expectation of privacy.³ See, e.g., Montanez, supra at 300, 571 N.E.2d 1372; Commonwealth v. Morrison, 429 Mass. 511, 513, 710 N.E.2d 584 (1999). See also Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). See generally Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 3–4[1] (2010). Standing and the question of a reasonable expectation of privacy are “interrelated” concepts but are considered separately. Commonwealth v. Williams, 453 Mass. 203, 207–208, 900 N.E.2d 871 (2009). See Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3, 571 N.E.2d 1356 (1991) (“we think it is best to separate the issue of standing from the question whether there has been a search for constitutional purposes”).

The Commonwealth argues, for the first time, that the defendant had no expectation of privacy in the vehicle, and therefore there was no search in a constitutional sense when the officer searched the interior of the vehicle with a drug sniffing dog.

Here, because the defendant was charged with possessory offenses, the doctrine of automatic standing applies and the defendant may challenge the search. Commonwealth v. Mubdi, 456 Mass. 385, 392, 923 N.E.2d 1004 (2010). However, a defendant does not have a reasonable expectation of privacy where he has no right to be in the house or automobile where the evidence is found. Id. at 393 n. 8, 923 N.E.2d 1004. See Commonwealth v. Carter, 424 Mass. at 411–412, 676 N.E.2d 841. The defendant thus was in the position of a trespasser.⁴ See id. at 412, 676 N.E.2d 841 (art. 14 of the Massachusetts Declaration of Rights “does not relieve a defendant who unlawfully intruded on someone else's reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself”). Moreover, “[a] defendant may not ‘assert the constitutional rights of someone in no way involved with his allegedly criminal conduct.’ ” Commonwealth v. Rise, 50 Mass.App.Ct. 836, 841, 744 N.E.2d 66 (2001), quoting from Commonwealth v. Carter, 424 Mass. at 411 n. 3, 676 N.E.2d 841. Although the defendant may have had automatic standing, he did not have a reasonable expectation of privacy in the automobile that he was not authorized by the car rental agency to drive.⁵ Whether a defendant has a reasonable expectation of privacy may not be challenged for the first time on appeal by the Commonwealth, however. Commonwealth v. Rodriguez, 456 Mass. 578, 589, 925 N.E.2d 21 (2010). See Commonwealth v. Martinez, 74 Mass.App.Ct. 240, 249, 905 N.E.2d 592 (2009) (Commonwealth waived reasonable expectation of privacy argument by not raising it before motion judge). Thus, the Commonwealth waived this argument. We examine whether the Commonwealth has established that the warrantless search of the vehicle satisfied the Fourth Amendment and art. 14, and we conclude that it did.

The defendant argues that there was no justification for a search for narcotics or for a search of the interior of the vehicle with a drug-sniffing dog. We disagree.

Here, where the defendant was unable to provide a valid driver's license, demonstrated nervous behavior, possessed a large bundle of cash, had multiple air fresheners in the vehicle,⁶ and had a record of prior arrests for drug distribution, there was probable cause to search the vehicle, with or without a drug-sniffing dog.⁷ See Commonwealth v. Watts, 74 Mass.App.Ct. 514, 518–519, 908 N.E.2d 788 (2009). See also Commonwealth v. Cast, 407 Mass. 891, 900, 556 N.E.2d 69 (1990) (“It was in keeping with drug traffickers' practice of using rented vehicles...