Commonwealth v. Pereira

• Decision Date: 14 October 2021
• Docket Number: No. 20-P-906,20-P-906
• Citation: 177 N.E.3d 571
• Parties: COMMONWEALTH v. Luis H. PEREIRA.
• Court: Appeals Court of Massachusetts

177 N.E.3d 571

COMMONWEALTH

v.Luis H. PEREIRA.

No. 20-P-906

Appeals Court of Massachusetts, Bristol.

Argued July 14, 2021.

Decided October 14, 2021.

Benjamin Leatherman, for the defendant.

Mary O'Neil, Assistant District Attorney, for the Commonwealth.

Present: Blake, Shin, & Walsh, JJ.

BLAKE, J.

Following a jury trial in the District Court, the defendant, Luis H. Pereira, was convicted of carrying a firearm without a license, receiving stolen property with a value in excess of $250 (gun), and receiving stolen property with a value of $250 or less (holster).¹ Prior to trial, the defendant filed a motion to suppress, which was denied after an evidentiary hearing.² The defendant appeals, claiming that (1) the motion judge erred in denying the defendant's motion to suppress, (2) the trial judge erred in allowing the owner of the stolen property to testify to the details of the theft, (3) the trial judge should have declared a mistrial, and (4) the evidence was insufficient on the charges of receiving stolen property. We affirm.

Motion to suppress. 1. Facts. "We summarize the judge's ... findings of fact, supplementing with additional facts from testimony that the judge explicitly or implicitly credited." Commonwealth v. Soriano-Lara, 99 Mass. App. Ct. 525, 526, 168 N.E.3d 1130 (2021), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). On February 15, 2015, Detective Jonathan Lagoa of the New Bedford Police Department was contacted by a confidential informant (CI), who had previously provided information that had led to the seizure of heroin and cocaine and the arrest and conviction of a particular individual.

The CI informed Lagoa that "a male known to it^{[3 ]} as Louie was operating in a blue pickup truck and was attempting to sell a black firearm." The CI provided a specific Massachusetts registration number of the pickup truck and said that "Tabor Village Remodeling" was lettered on the side of the truck. The operator of the truck was a white male, five feet, ten inches tall, with a medium build, brown hair, brown eyes, and a first name of "Louie." The CI said that it last saw "Louie," who was attempting to sell a firearm, on Acushnet Avenue in the North End of New Bedford (city). Lagoa received the CI's call within an hour of the CI's observations. At the motion hearing, Lagoa was asked, "[D]id you know if Louie had a card to possess that firearm or to sell it?" Lagoa responded, "The [CI] didn't believe so."

Immediately after receiving the CI's tip, Lagoa relayed the information to Detective George Lozado, who was patrolling the North End of the city, undercover, with his partner. Lozado used the mobile data terminal in his unmarked police cruiser to obtain information on the license plate number provided by the CI from the registry of motor vehicles. He discovered that the registered owner of the truck, Protase Woodward of West Tisbury, had an expired license to carry firearms and a second, suspended license to carry firearms, and that Woodward's driver's license was revoked and nonrenewable.

At approximately 5:14 P.M. -- roughly ninety minutes after learning of the CI's tip -- Lozado learned that the blue pickup truck was heading south on Acushnet Avenue; officers located and followed the truck. After the driver, who was later identified as the defendant, took a right turn at the intersection of Deane Street and Acushnet Avenue, multiple police cruisers boxed in the pickup truck. Lozado approached the truck, asked the defendant to step from it, and pat frisked him for weapons. Finding none, Lozado asked the defendant "if there's anything in the vehicle that [he] need[ed] to be concerned with for safety reasons." The defendant responded that he did not know what Lozado was talking about. The defendant was placed in handcuffs and brought to the back of the truck. In the truck bed, police saw a metal toolbox along the side of the bed, in the left-hand corner; they opened the box and located a black Smith and Wesson M&P nine millimeter firearm, wrapped in a gray sweatshirt, along with a brown Cavalry shoulder holster, and fifteen rounds of ammunition. The police determined that the defendant did not have a license to carry firearms and that his driver's license was revoked.

2. Discussion. "Generally, [i]n reviewing a ruling on a motion to suppress, we accept the [motion] judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law .... It is then [o]ur duty ... to make an independent determination of the correctness of the [motion] judge's application of constitutional principles to the facts as found.... To the extent the motion judge made credibility determinations relevant to his subsidiary findings of fact, we adhere to the normal standard of review, affording such findings substantial deference and accepting them unless not warranted by the evidence" (quotations and citations omitted). Commonwealth v. Miller, 486 Mass. 78, 81-82, 156 N.E.3d 145 (2020).

Although there is a legal presumption that warrantless searches are unreasonable, they "may be justifiable, ... if the circumstances of the search fall within an established exception to the warrant requirement" (citation omitted). Commonwealth v. Arias, 481 Mass. 604, 610, 119 N.E.3d 257 (2019). One such exception involves automobiles. See Commonwealth v. Ortiz, 487 Mass. 602, 606, 169 N.E.3d 172 (2021) ; Commonwealth v. Motta, 424 Mass. 117, 123, 676 N.E.2d 795 (1997). "Because the inherent mobility of automobiles creates an exigency that they, and the contraband there is probable cause to believe they contain, can quickly be moved away while a warrant is being sought, less stringent warrant requirements have been applied to vehicles" (quotations and citations omitted). Ortiz, supra. "[P]olice are permitted to search a vehicle based upon probable cause to believe that it contains evidence of a crime." Commonwealth v. Davis, 481 Mass. 210, 220, 114 N.E.3d 556 (2019). Therefore, the question here is whether the police "had probable cause to believe that they would find the instrumentality of a crime or evidence pertaining to a crime in the [truck]." Id., quoting Commonwealth v. Johnson, 461 Mass. 44, 49, 958 N.E.2d 25 (2011).

Probable cause is defined as "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Commonwealth v. Hanright, 466 Mass. 303, 312, 994 N.E.2d 363 (2013), quoting Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972). The probable cause analysis "is a ‘fact-intensive inquiry, and must be resolved based on the particular facts of each case.’ "

Commonwealth v. Long, 482 Mass. 804, 809, 128 N.E.3d 593 (2019), quoting Commonwealth v. Holley, 478 Mass. 508, 522, 87 N.E.3d 77 (2017). Where, as here, the police seek to establish probable cause based on a CI's tip, we apply the two-pronged Aguilar- Spinelli test.⁴ See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Here, the defendant claims that his motion to suppress should have been allowed because the Commonwealth presented insufficient evidence to demonstrate probable cause that the defendant was committing a crime. Specifically, he argues that the evidence that the CI "did not believe" that "Louie" had a license to carry a firearm does not meet the basis of knowledge prong of the Aguilar- Spinelli test.⁵ Put another way, the defendant contends that the CI had insufficient knowledge that the defendant possessed a firearm illegally.

The Commonwealth responds that under these circumstances, the CI's use of the term "belief" indicated "an informed opinion based on knowledge of facts." Although the motion judge's findings are silent on this point, he did credit the police officers’ testimony. In any event, we may affirm a ruling on any grounds supported by the record. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997).

While being in possession of a firearm does not necessarily indicate illegal possession, see Commonwealth v. Alvarado, 423 Mass. 266, 269, 667 N.E.2d 856 (1996), we consider the circumstances as a whole, see Commonwealth v. Williams, 422 Mass. 111, 116, 661 N.E.2d 617 (1996). Here, the level of detail provided by the CI gave rise to a reasonable inference that its basis of knowledge was personal observation. Police officers saw the pickup truck described by the CI, being operated in the North End of the city -- the same area where the CI said "Louie" was trying to sell a firearm -- shortly after receiving the tip. The police quickly corroborated the location, color, registration number, and lettering of the pickup truck, all of which matched the CI's tip. Moreover, the police learned that the registered owner of the truck had an expired license to carry firearms and a second, suspended license to carry firearms, before determining who was driving the truck. These specific details indicated that the CI's information was not gleaned from "casual rumor." Commonwealth v. Alfonso A., 438 Mass. 372, 374, 780 N.E.2d 1244 (2003). Rather, this level of detail demonstrated the CI's "inside knowledge" of the defendant's activities. See Commonwealth v. Welch, 420 Mass. 646, 651-652, 651 N.E.2d 392 (1995) (level of detail permitted inference informant "had direct knowledge"). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 397-398, 923 N.E.2d 1004 (2010) (tip did not provide "any prediction of the suspects’ future behavior that could be corroborated by police officers and demonstrate the caller's inside knowledge of the suspects’ activities"). The CI's information was current as of the moment it was relayed, and it was received within a short time before the police saw, and ultimately stopped, the pickup truck. See Commonwealth...