COMMONWEALTH v. JUSTICE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from a portion of an order denying the defendant's motion to suppress following an evidentiary hearing. A single justice of the Supreme Judicial Court granted the defendant's application for leave to pursue an interlocutory appeal of that ruling, and directed the appeal to this court. The defendant, Laurence Justice, argues that the Commonwealth failed to present evidence establishing that the seizure of two cell phones and $810 in cash from him was constitutional. The Commonwealth, in lieu of a brief, submitted a memorandum in support of the defendant's position. We reverse so much of the order that suppresses the two cell phones and $810 in cash.

Background. We summarize the judge's findings of fact, as the defendant contests them for lack of record support. At approximately 1:50 a.m., in an area of Boston characterized as a “hotspot” for firearm and gang violence, two Boston Police officers randomly ran the license plate of a white sedan automobile driven by the defendant. Upon learning that the registration was revoked, the officers attempted to stop the car. After a brief chase, the defendant's car was ensnared in a police blockade and neighborhood traffic, and came to a stop. The defendant was instructed by police to put the vehicle in park, which he did, and he was subsequently removed from the vehicle.² The police conducted a search of the defendant's person “to a negative result.” Very soon thereafter, as police canvassed the area, an officer located a firearm with distinctive scratch marks on the sidewalk approximately one and one-half car lengths from where the defendant's car had stopped. Police eventually obtained exterior video surveillance footage from the area that showed a black firearm being thrown from the defendant's sedan as it came to a stop.³

The police then conducted an inventory search of the car before towing it back to the police station. The search yielded fifteen bags of what appeared to be “crack” cocaine from the center console. The defendant's wallet, also in the center console, contained a single bag of what appeared to be crack cocaine. The defendant was arrested. “At some point following [the defendant's] arrest police seized $810 in cash and two cellphones.” The testifying officer at the motion to suppress hearing “could not remember when or where the Boston Police came into possession of the cash and two cell phones.”⁴

The defendant was charged with trafficking in cocaine in violation of G. L. c. 94C, § 32E (b); carrying a loaded firearm in violation of G. L. c. 269, § 10 (n); possession of ammunition in violation of G. L. c. 269, § 10 (h); and possession of a firearm without a license, subsequent offense, in violation of G. L. c. 269, § 10 (a). The defendant filed a motion to suppress “all evidence recovered as a result of the warrantless stop, search and arrest,” including the “firearm, controlled substances, the cell phones, and U.S. currency.”

After the evidentiary hearing, the judge issued her findings of fact and rulings of law that denied the defendant's suppression motion. Regarding the two cell phones and the quantity of cash in question, and despite an admitted “dearth of evidence concerning when and where the two cell phones and $810 in cash were seized,” the judge ruled “it is clear these items were taken from [the defendant] at some point following his lawful arrest.” The defendant timely appealed, challenging only so much of the order as pertained to the two cell phones and the $810 in currency.

Discussion. The defendant argues, and the Commonwealth concedes, that because there was no evidence presented during the evidentiary hearing regarding the seizure of these items, the Commonwealth failed to meet its burden to establish the constitutionality of the seizure. We agree. “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” (quotation and citation omitted). Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Once a defendant shows that a search occurred, the burden shifts to the Commonwealth to show that the search and the resulting seizure fell within the narrow class of exceptions to the warrant requirement. See Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986).

Here, not only is the record devoid of support regarding how, where, or when these objects were obtained by police, but there is affirmative testimony from the Commonwealth's sole motion witness that confirms a lack of knowledge regarding how the items came into police possession. In such circumstances, the Commonwealth cannot show, and the judge cannot conclude, that the search fell under a recognized exception to the warrant requirement. See Commonwealth v. Lewin (No. 3), 408 Mass. 147, 159 (1990) (when police cannot “account for the seizure of the evidence in any material respect ․ [t]he Commonwealth cannot avoid a motion to suppress simply by showing that the police cannot establish where, when, or how the evidence was seized”). Therefore, so much of the order as denied the defendant's motion to suppress regarding the two cell phones and the $810 in currency is reversed and those items must be suppressed.

So ordered.

reversed

FOOTNOTES

2.   Simultaneously, the passenger of the vehicle swung the door open and attempted to flee. He was quickly apprehended by other officers.

3.   Officers could not determine from the footage whether the gun was thrown by the defendant or the individual in the passenger seat.

4.   Defense counsel: “Are you aware that there was a booking search that was done at that time?”Officer: “That would be Boston Police rules and procedure that you would conduct a police booking search, yes.”Defense counsel: “And that was when the cash and the two cellphones were recovered at booking?”Officer: “I don't remember.”Defense counsel: “Okay. So you don't know when those items were recovered?”Officer: “Correct.”Defense counsel: “Or where they were recovered from?”Officer: “Correct.”