Commonwealth v. Santos

• Decision Date: 26 August 2019
• Docket Number: No. 17-P-603,17-P-603
• Citation: 95 Mass.App.Ct. 791,132 N.E.3d 118
• Parties: COMMONWEALTH v. Luis SANTOS.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 791

132 N.E.3d 118

COMMONWEALTH

v.Luis SANTOS.

No. 17-P-603

Appeals Court of Massachusetts, Suffolk..

Argued September 6, 2018

Decided August 26, 2019

Daniel N. Marx, Boston, for the defendant.

Ian MacLean, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth.

Present: Vuono, Agnes, & Henry, JJ.

AGNES, J.

The defendant, Luis Santos, appeals from his convictions, after a trial by jury, of possession of a sawed-off shotgun in violation of G. L. c. 269, § 10 (c ), and possession of a loaded firearm without a license in violation of G. L. c. 269, § 10 (n ).¹ The charges arose out of the stop of the defendant as he alighted from a vehicle and the subsequent seizure of firearms from inside the vehicle. The defendant raises two issues. First, he argues that the motion judge, who heard his pretrial motion to suppress evidence, erred in ruling that the police had reasonable suspicion to conduct a threshold inquiry. Second, he argues that the Commonwealth's trial evidence was not sufficient to prove beyond a reasonable doubt that he had constructive possession of the sawed-off shotgun found in the back seat of the vehicle, and that he knew the shotgun was loaded. We affirm.

Background. The motion judge conducted an evidentiary hearing on the defendant's motion to suppress.² The motion judge credited the testimony of Boston Police Officer Jarrod Gero, the only witness.³

Around 9:45 A.M. on January 10, 2014, Officer Gero was in plainclothes, in an unmarked police vehicle. He heard an all points police radio broadcast (all points broadcast) for a "robbery involving a shotgun."⁴ The all points broadcast informed him that the suspects fled from the scene in a white Toyota Corolla station wagon. The dispatcher gave "Blue Hill Ave. and Dudley Street" as the location of the crime, but did not broadcast information about the direction in which the vehicle was headed.

When he first heard the all points broadcast, Officer Gero was in the Grove Hall neighborhood of the Dorchester section of Boston, about one and one-half miles from the location of the reported armed robbery. He was familiar with the area, having made numerous arrests there over the years. Within several minutes, Officer Gero spotted a white Toyota Corolla station wagon pass his vehicle, heading in the opposite direction, away from Blue Hill Avenue. He had observed white Toyota Corolla vehicles in that area in the past, but never a station wagon. He saw two male occupants in the vehicle, a driver and a front seat passenger. Suspecting that this could be the getaway car, he turned his vehicle around and informed dispatch that he was following a white Toyota Corolla station wagon. Officer Gero followed the vehicle for three to five minutes, over "Geneva[,] ... Bowdoin[,] ... Greenbrier, ... Dakota, ... Washington[,] ... and School Street[s]. After turning onto School Street, Officer Gero observed the vehicle turn into the driveway of a multifamily house and drive toward the rear of the home.

After notifying police dispatch of his location and his intention to pursue the vehicle on foot, Officer Gero got out of his vehicle and followed the white Toyota Corolla station wagon down the driveway. He saw it park, and as he approached, the driver's side door opened. As the operator, later identified as the defendant, stepped out, Officer Gero, who had drawn his weapon, instructed the defendant to show his hands and not to move. Officer Gero could see into the vehicle, and he observed the front seat passenger trying to stuff a silver handgun between the seat and the door. Officer Gero took control of the defendant, positioning the defendant between the passenger and him. At this point, other officers arrived. Officer Gero informed the arriving officers of the handgun, and then put the defendant on the ground and handcuffed him. At some point, Officer Gero realized that there was a third male, in the rear seat of the vehicle. Other officers removed the front and rear seat passengers from the vehicle and arrested them. The handgun was recovered under the front passenger seat. Officer Gero also observed the barrel of a shotgun in the rear seat, underneath some clothing.

The motion judge ruled that the stop and detention of the defendant was a valid threshold inquiry based on the all points broadcast of an armed robbery heard by Officer Gero and his subsequent observations, and that given the nature of the suspected crime, it was a reasonable safety precaution to handcuff the defendant as he got out of the vehicle. He also rejected the defendant's argument that Officer Gero's entry into the driveway where the white Toyota Corolla station wagon stopped was unlawful.

Discussion. 1. Denial of motion to suppress. a. Standard of review. The defendant's argument, raised for the first time on appeal, is that the motion judge erred by relying on Officer Gero's testimony about the contents of the all points broadcast without any foundation evidence regarding the source of the broadcast and its basis of knowledge.

At the hearing on the defendant's motion, the defendant did not object when the Commonwealth offered and the motion judge admitted in evidence the multiple "turret" tape recordings relating to the crime in question, although subsequently the motion judge excluded the exhibit. Defense counsel stated that his motion was limited to the proposition that the police had intruded into an area where the defendant had an expectation of privacy, namely, the defendant's driveway. In particular, defense counsel told the judge, "My argument is that there was not probable cause at this point or at any point.... Number two, my argument is that there's an entry into a dwelling without a warrant." In fact, defense counsel made a concession regarding the existence of reasonable suspicion based on the all points broadcast and Officer Gero's observations: "I think it really boils down to the issue that there's absolutely no probable cause here; that reasonable suspicion, sure. I mean, ... I don't think there's any problem with that" (emphasis added). The Commonwealth's position was that Officer Gero had reasonable suspicion to enter the open driveway to conduct a threshold inquiry, which then evolved into probable cause and exigent circumstances for the arrests and the search of the vehicle.

For the first time on appeal, the defendant argues that the motion judge erred when he considered the contents of the all points broadcast without evidence demonstrating the source's reliability and basis of knowledge. See Commonwealth v. Pinto, 476 Mass. 361, 364, 67 N.E.3d 713 (2017) ; Commonwealth v. Lyons, 409 Mass. 16, 19-20, 564 N.E.2d 390 (1990). The Commonwealth is correct that the defendant has waived this issue because it was not raised in his motion to suppress, see Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004),⁵ or at the hearing on the defendant's motion to suppress. ⁶

The issue presented is whether we should review the alleged error for a substantial risk of a miscarriage of justice.

The governing law is that waived claims, no less than preserved claims, are reviewed on appeal. The "waiver doctrine is inapplicable where an error below would create a substantial risk of a miscarriage of justice." Commonwealth v. Vuthy Seng, 436 Mass. 537, 550, 766 N.E.2d 492, cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002), S.C., 456 Mass. 490, 924 N.E.2d 285 (2010). Accord Commonwealth v. Randolph, 438 Mass. 290, 294–295, 780 N.E.2d 58 (2002). The difference between our review of a waived claim versus a preserved claim "lies in the standard of review that we apply when we consider the merits of an unpreserved claim." Id. at 293-294, 780 N.E.2d 58.⁷ Appellate review of a waived claim may result in one of following outcomes: (1) if the record is incomplete or otherwise not adequate to permit review on the merits, the defendant, who has the burden of producing a record that is adequate to permit review, is left to pursue a remedy, if any, in the trial court and appellate relief is denied, or (2) if the record permits review on the merits and (a) there is no error, then there is no risk of a miscarriage of justice and appellate relief is denied, or (b) there is error, we review the record as a whole to determine whether the error created a substantial risk of a miscarriage of justice.

The proposition that we review both waived claims and preserved claims is exemplified by the opinion in Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999).⁸ See Commonwealth v. LaChance, 469 Mass. 854, 857-858, 17 N.E.3d 1101 (2014), cert. denied, ––– U.S. ––––, 136 S. Ct. 317, 193 L.Ed.2d 227 (2015) (acknowledging that waiver doctrine protects society's interest in finality and promotes judicial efficiency, but nevertheless reiterating that appellate courts review unpreserved errors to determine whether there has been substantial risk of miscarriage of justice).

The most recent statement by the Supreme Judicial Court regarding our duty to examine claims not included in a defendant's pretrial motion to suppress and raised for the first time on appeal is found in Commonwealth v. Dew, 478 Mass. 304, 309-310, 85 N.E.3d 22 (2017), citing Commonwealth v. Arzola, 470 Mass. 809, 814, 26 N.E.3d 185 (2015), cert. denied, ––– U.S. ––––, 136 S. Ct. 792, 193 L.Ed.2d 709 (2016). In Dew, the court acknowledged that the defendant failed to comply with Mass. R. Crim. P. 13 (a) (2), and was raising the issue of an unnecessarily suggestive police show-up identification procedure for the first time on appeal. Dew, 478 Mass. at 309, 85 N.E.3d 22. The court stated that "[b]ecause the defendant did not raise this issue before the motion judge, he has waived the argument.... We nonetheless review to determine whether there was a substantial risk of a miscarriage of justice." Id. at 309-310, 85 N.E.3d 22.

This is the approach most...