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Appeals Court of Massachusetts.



Decided: March 01, 2021

By the Court (Green, C.J., Meade & Rubin, JJ.1)


The defendant was charged with trafficking over twenty-eight grams of opium in violation of G. L. c. 94C, § 32E (c). After a jury trial, he was convicted of the lesser included offense of possession of a class B substance. On appeal, the defendant claims that (1) where the police officer lacked probable cause for the warrantless search, the defendant's motion to suppress was improperly denied; and (2) the prosecutor's closing argument improperly shifted the burden of proof to the defendant. We affirm.

1. Probable cause for the search. A police officer working a detail at a Shaw's supermarket suspected the defendant of shoplifting; asked the defendant to hand over his glove, which contained an unpaid food item; and then pat frisked the defendant for further items and discovered a bag in the defendant's jacket that contained 180 pills.2 The defendant claims that the officer lacked probable cause to conduct a search for the shoplifted items. We disagree.

When reviewing the denial of a motion to suppress, we adopt the motion judge's factual findings absent clear error and independently review the ultimate findings and conclusions of law. See Commonwealth v. Washington, 449 Mass. 476, 480 (2007). While a police search or seizure must ordinarily be supported by a valid warrant, certain “exigent circumstances” making a warrant impracticable will permit a warrantless search or seizure when justified by probable cause.3 Id. “[P]robable cause exists where ․ the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual ․ has committed or was committing an offense.” Id. at 481, quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980).

Here, the officer observed the defendant (1) look around as if checking to see if he was being watched; (2) place something from his basket into his glove; (3) shove the glove into his pocket; and (4) proceed through checkout while appearing nervous and without removing the visibly bulky item from his pocket for payment. In these circumstances, the officer had an objectively reasonable belief that the defendant had shoplifted store merchandise, and the officer had probable cause to search the defendant. See Commonwealth v. Hill, 49 Mass. App. Ct. 58, 64 (2000), quoting Commonwealth v. Welch, 420 Mass. 646, 650 (1995) (“Reasonable inferences and common knowledge are appropriate considerations for determining probable cause”).

In addition, the officer had probable cause to search the defendant for further items where, in addition to the facts above, (1) he discovered the initial shoplifted item in the glove; (2) the defendant lied about a proprietary Shaw's brand item, claiming that it was purchased at another shop; (3) in the officer's professional experience, shoplifters often steal multiple items at a time. See Commonwealth v. Amado, 474 Mass. 147, 159 (2016), quoting Commonwealth v. Gentile, 437 Mass. 569, 574 (2002) (“inconsistent, false, [and] implausible” statements to police contribute to probable cause). See also Commonwealth v. Pina, 453 Mass. 438, 444 (2009) (officer's experience and expertise is relevant consideration for probable cause determination).4

The defendant attempts to differentiate the hidden shoplifted items in the instant case from the case relied upon by the motion judge, which involved contraband in plain view. See Commonwealth v. Skea, 18 Mass. App. Ct. 685, 689 (1984) (marijuana cigarette in vehicle's center console in view of officer). However, the motion judge's discussion of Skea related to the issue of exigency; specifically, whether exigent circumstances exist when an officer has no intention of arresting the defendant for the initially identified violation. But, as stated above, exigency has not been challenged here. Moreover, the existence of probable cause does not necessarily turn on whether contraband is found in plain view so long as there are “enough facts and circumstances ‘to warrant a person of reasonable caution in believing that the defendant had committed or was committing a crime.’ ” Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), quoting Commonwealth v. Gullick, 386 Mass. 278, 283 (1982).5

2. Prosecutor's closing argument. The defendant also claims that the prosecutor's closing argument improperly shifted the burden of proof to the defendant. We disagree. Since the defendant objected at trial, this claim is reviewed for prejudicial error.6 See Commonwealth v. Kater, 432 Mass. 404, 423 (2000).

Here, defense counsel suggested in the opening and closing arguments, and throughout the trial, that the defendant may have possessed the pills, a prescription painkiller, for personal use. In light of this argument, the prosecutor was entitled argue that the evidence admitted did not support defense counsel's claim. It is well established that a prosecutor is “entitled to respond to the defense argument and also to comment on the strength of its case and weakness of the defense, ‘as long as argument is directed at the defendant's defense and not at the defendant's failure to testify.’ ” Commonwealth v. Silva, 471 Mass. 610, 623 (2015), quoting Commonwealth v. Garvin, 456 Mass. 778, 799 (2010).

However, even assuming that the prosecutor's comment was an error, there was no prejudice. The entire record, including the prosecutor's full argument and any jury instructions given by the judge, are relevant to determining whether a claimed error warrants reversal. See Kater, 432 Mass. at 422-423. Here, the prosecutor's comment went to the issue of the defendant's intent to distribute. Yet the defendant was not convicted on the distribution charge, and his trial counsel explicitly conceded possession. Furthermore, the judge properly instructed the jury at numerous times that closing arguments were not evidence; that the Commonwealth always bears the burden of proving its case beyond a reasonable doubt; that there was no burden on the defendant; and that the defendant had an absolute right not to testify. See Commonwealth v. Johnson, 463 Mass. 95, 114 (2012) (potential harm of burden-shifting statement mitigated by numerous proper instructions).

Judgment affirmed.


2.   When tested, the pills were determined to be Oxycodone.

3.   The defendant does not challenge whether exigent circumstances existed in this case.

4.   The defendant also claims that the officer lacked reasonable suspicion to stop the defendant at the store exit. Because this argument is raised for the first time on appeal, it is waived. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999); Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). In any event, the stop and the initial request to search the defendant's glove happened nearly simultaneously. Therefore, the officer had reasonable suspicion that the defendant had shoplifted based on the same specific and articulable facts that support the probable cause determination. See Commonwealth v. Santiago, 452 Mass. 573, 577 (2008) (noting probable cause is more rigorous standard than reasonable suspicion).

5.   The defendant's reliance on Commonwealth v. Craan, 469 Mass. 24 (2014), is also misplaced. There, the Commonwealth argued that the contested search was performed incident to arrest, despite the fact that the defendant was not arrested. Id. at 29. Here, there is no claim that the defendant was searched incident to a lawful arrest. Further, the facts in Craan bear no similarity to the facts of this case. See id. at 30 (no probable cause for operating “under the influence” where there was no evidence of driver impairment, no field sobriety test was requested, and driver was permitted to drive away from scene).

6.   Specifically, the defendant objected to the following section of the prosecutor's closing:“And what about the chronic pain that we heard. You heard no evidence from the witnesses who testified about observing this defendant in any pain. It is a suggestion, I would suggest, from [defense counsel]. But what you do have is a videotape, a five to ten minute videotape where you can watch this defendant, watch him while he walks around that Shaw's Supermarket․ Do you see any evidence of this chronic pain, that would require somebody to self-medicate and go out and purchase 180 pills, of [eighty] milligram Oxycontin, do you see that anywhere? Is there any evidence of that in that videotape? I would suggest to you that there is not.”

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