COMMONWEALTH v. GOMEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following the denial of his motion to suppress, the defendant, Pedro Gomez, entered conditional guilty pleas to charges of possession of a firearm without a license and possession of a loaded firearm without license. He appeals, arguing that the judge erred in denying his motion to suppress a loaded firearm seized during a search incident to his arrest for violation of Boston municipal code § 16-12.28 ² prohibiting, inter alia, public possession of an open container of alcohol.³ On appeal, the defendant contends that the officer who arrested him lacked probable cause to believe that he violated the ordinance because the defendant did not constructively possess a half-full bottle of vodka located between his legs. We affirm.

Background. We set forth the facts as found by the judge, supplemented only by undisputed facts in the record that were implicitly credited by her. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436-438 (2015); Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

At approximately 11:10 p.m. on August 30, 2017, Boston Police Officers Nicholas Litterio and Patrick Curtin observed a group of five people gathered around a bench in a courtyard of a housing development on Ruggles Street in Boston. The defendant was sitting on the bench along with another man, a woman stood behind the bench, and two other men were leaning on a fence, approximately seven to ten feet away from the bench. The officers, who were wearing police uniforms, stepped out of their marked cruiser and approached the group.

The other individuals in the group were drinking from small plastic cups; the defendant was not. On the ground, between the defendant's legs, was an open bottle of vodka. The officers did not see the defendant drink from the bottle, and as noted, he was not holding a cup. The bottle was closer to the defendant than to anyone else in the group.

The officers arrested the defendant for violation of the open container ordinance. They searched him and found a firearm in his waistband.

Discussion. In our review of a judge's decision on a motion to suppress, we adopt the judge's factual findings absent clear error. Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). We then determine independently the correctness of the judge's application of constitutional principles to the facts as found. Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). The Commonwealth bears the burden of proving that the arrest was supported by probable cause. See Commonwealth v. Chown, 459 Mass. 756, 763 (2011).

On appeal, the defendant only challenges the existence of probable cause that he constructively possessed the open container of vodka. Proof of constructive possession requires the Commonwealth to show “knowledge coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). “Proof of possession of [contraband] may be established by circumstantial evidence, and the inferences that can be drawn therefrom.” Brzezinski, supra, quoting Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 426 (1985). However, “[p]resence alone cannot show the requisite knowledge, power, or intention to exercise control over [contraband], but presence, supplemented by other incriminating evidence, ‘will serve to tip the scale in favor of sufficiency.’ ” Commonwealth v. Albano, 373 Mass. 132, 134 (1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976).

Here, we are concerned not with the sufficiency of the evidence to show that the defendant constructively possessed the vodka bottle beyond a reasonable doubt; instead, we examine whether the facts and circumstances known to police warranted a reasonably prudent person in concluding that the defendant constructively possessed the vodka bottle. See Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992) (“[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense” [citation omitted] ). More than a mere suspicion of criminal activity, but less than proof necessary for a conviction, is required. Id.

The bottle was half full and in plain view. It was directly between the defendant's legs, at his feet, and closer to him than to any of the other members of the group. See Commonwealth v. Gonzalez, 452 Mass. 142, 147 (2008) (knowledge element satisfied where three small packets of cocaine as well as larger quantities of heroin and cocaine in loosely covered bucket were in plain view of defendant); Commonwealth v. Gonzalez, 42 Mass. App. Ct. 235, 237 (1997) (defendant's access to common porch where drugs were found sufficient to find control element of constructive possession). Unlike the cases relied on by the defendant, he was not merely proximate to the bottle. Compare Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003) (defendant's presence and residency, along with two other individuals, in apartment where cocaine was found hidden in living room VCR insufficient to show constructive possession).

Because the officers had probable cause to arrest ⁴ at the moment they searched the defendant, we conclude that the search was a valid search incident to the arrest. See G. L. c. 276, § 1; Commonwealth v. Sabetti, 411 Mass. 770, 776 (1992); Commonwealth v. Gullick, 386 Mass. 278, 283 (1982).

Judgments affirmed.

FOOTNOTES

2.   Boston municipal code § 16-12.28 (1982), provides: “No person shall drink any alcoholic beverage as defined in Chapter 138, Section 1 of the General Laws of the State, or possess an open container, full or partially full, of any alcoholic beverages, while on, in or upon any public way, upon any way to which the public has right of access, in any place to which members of the public have access as invitees or licensees, in any park or playground, conservation area or recreation area, on private land or place without consent of the owner or person in control thereof.”

3.   The defendant was also charged with possession of ammunition without a firearm identification card; that charge was dismissed.

4.   See G. L. c. 272, § 59 (providing that person who, in public, willfully violates ordinance “the substance of which is the drinking or possession of alcoholic beverage,” is subject to arrest). See also Commonwealth v. Jones, 83 Mass. App. Ct. 296, 297 n.1 (2013).