COMMONWEALTH v. ALMEIDA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction after a jury-waived trial of carrying a firearm without a license. He argues that the firearm should have been suppressed as the fruit of an unlawful search and that the evidence was insufficient to show that he constructively possessed the firearm. We affirm.

1. Motion to suppress. We summarize the motion judge's factual findings. Around 7:10 p.m. on June 30, 2017, New Bedford Police Detective Kevin Barbosa initiated a stop of a car, driven by the defendant, upon learning that its inspection sticker was expired. Barbosa went to the driver's window, and the defendant identified himself. There were three male passengers in the car, one in the front seat and two in the rear.

Because the windows had a dark tint that made it difficult to see in the car, Barbosa asked the defendant to roll down the rear window.² Once he did so, Barbosa saw that the passenger sitting behind the defendant, later identified as Justin Godoy, had what appeared to be an ounce of marijuana in a clear plastic bag on his lap. Barbosa asked if there were any other drugs in the car, and Godoy immediately looked down to the floor. On the floor was a shopping bag with more marijuana inside. After ordering Godoy to exit the car, Barbosa looked in the shopping bag and found three to four bags of marijuana, similar to the one Godoy was holding, which appeared to be packaged for sale. At this point Barbosa and another detective ordered the defendant and the two other passengers to exit the car and pat frisked each of them.³

The detectives then searched the car and discovered that the glove box was locked. When asked for the keys, the defendant replied that he did not have them and that the car was not his. When asked if there was anything in the glove box, the defendant did not answer. One of the detectives saw the keys in the cup holder, opened the glove box, and found a loaded firearm.

On appeal the defendant argues that the firearm should have been suppressed because the detectives had no valid basis to order him to exit the car, to pat frisk him, or to search the car. In assessing the defendant's arguments, we accept the motion judge's factual findings absent clear error but review his legal conclusions de novo. See Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).

We conclude that the search of the car was lawful because the bags of marijuana, which were packaged in a manner consistent with distribution, gave rise to probable cause to believe that a crime was afoot and that evidence of that crime would be found in the car.⁴ “It is widely accepted that the discovery of some controlled substances gives probable cause to search for additional controlled substances in the vicinity.” Commonwealth v. Skea, 18 Mass. App. Ct. 685, 690 n.8 (1984). See Commownealth v. Moses, 408 Mass. 136, 145 (1990) (discovery of cocaine and firearm during protective search gave rise to probable cause to search entire vehicle for contraband and weapons); Commonwealth v. Crespo, 59 Mass. App. Ct. 926, 927 (2003) (“discovery of a substantial amount of white powder that appeared to be cocaine in plain view on the ground near the [car] provided probable cause to believe there was other contraband in the car”). The cases relied on by the defendant -- Commonwealth v. Alvarado, 420 Mass. 542, 555 (1995), and Commonwealth v. Pena, 69 Mass. App. Ct. 713, 717 (2007) -- are distinguishable because, in both cases, the contraband was found on the person of an occupant of the vehicle, and not in a “location[ ] having some connection to the vehicle searched.” Pena, supra at 718. Here, in contrast, the detectives discovered a large amount of marijuana in plain view in the passenger compartment of the car. The detectives therefore had probable cause to search the car, including “the locked glove compartment (to which [they] had a key),” and could do so without a warrant pursuant to the automobile exception to the warrant requirement. Commonwealth v. Davis, 481 Mass. 210, 222 (2019).

2. Sufficiency. The evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), established the following facts. After Barbosa ordered the defendant to exit the car,⁵ the defendant immediately stated, unprompted, “This isn't my car.” As another detective was searching the car, he discovered that the glove box was locked and informed Barbosa of that fact. Barbosa then asked the defendant whether he had the keys to the car, and the defendant replied, “No.”

A third detective located a set of keys in the center cup holder of the car, “[j]ust ․ to [the] right” of the driver's seat. The set of keys included a fob that could be used to start the ignition, and there was a button on the fob that released the key for the glove box. The detective released the key and used it to open the glove box. Inside he discovered three bags of marijuana and a firearm loaded with five rounds. The detectives later learned that the car was registered to the defendant's mother.

We conclude that this evidence, while not overwhelming, was sufficient to prove that the defendant constructively possessed the firearm. To establish constructive possession, the Commonwealth had the burden of proving that the defendant had “knowledge [of the weapon] coupled with the ability and intention to exercise dominion and control.” Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 846 (2010), quoting Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). Although “mere presence in the area of contraband, without more, is insufficient to prove constructive possession,” presence “supplemented by other incriminating evidence ․ will serve to tip the scale in favor of sufficiency [quotations and citation omitted].” Elysee, supra.

The evidence in this case established more than the defendant's mere presence. The defendant was driving the car, which was registered to his mother. A fact finder could have inferred that the defendant's unprompted comment, “This isn't my car,” was an attempt to distance himself from the contraband in the glove box. Similarly, a fact finder could have inferred that the defendant was attempting to distract the detectives from the glove box when he denied having the keys to the car that he had just been driving. Knowledge and ability and intent to control “can be inferred from the defendant's conduct.” Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 41 (2010). Here, a rational fact finder could have found, based on the defendant's statements and his control over the car, that he constructively possessed the firearm. See Alicea v. Commonwealth, 410 Mass. 384, 387-388 (1991) (sufficient evidence that defendant knew of drugs in vehicle where his demeanor changed when officer began looking in area where drugs were located); Commonwealth v. Summers, 93 Mass. App. Ct. 260, 263-265 (2018) (sufficient evidence that defendant constructively possessed firearm in vehicle where he created ruse to leave scene of vehicle stop and made statements attempting to distance himself from firearm); Elysee, 77 Mass. App. Ct. at 847 (sufficient evidence that defendant constructively possessed firearm in vehicle where firearm was found under his seat and he attempted to exit vehicle when not ordered to do so).

Judgment affirmed.

FOOTNOTES

2.   The motion judge found that Barbosa asked the rear seat passenger to roll down the window, but Barbosa testified that he asked the defendant. This discrepancy is not material to our decision.

3.   The motion judge found that $990 was recovered from the defendant's person. Barbosa testified, however, that the defendant had $600 and Godoy had $990. This discrepancy is also not material to our decision.

4.   The existence of probable cause also justified the exit order and the patfrisk. In any event, the defendant moved to suppress only the firearm (on the ground that the search of the car was unlawful); he did not move to suppress the cash found on his person. See Commonwealth v. Dew, 478 Mass. 304, 309 (2017) (issues not raised in motion to suppress are waived and any review is only for substantial risk of miscarriage of justice).

5.   The evidence regarding the circumstances leading up to the exit order was substantially similar to that adduced at the suppression hearing.