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Appeals Court of Massachusetts.



Decided: March 08, 2021

By the Court (Wolohojian, Henry & Singh, JJ.1)


After conviction on two counts of firearm violations with one prior violent/drug offense, the defendant appeals claiming error in (1) the denial of his motion to suppress a firearm and (2) a jury instruction on the humane practice rule. Finding no error, we affirm.

1. Motion to suppress. Prior to trial, the defendant moved to suppress a firearm and ammunition seized by the police at the time of his arrest. After an evidentiary hearing, the motion judge determined that the police were lawfully present in an apartment where they went to execute an arrest warrant for the defendant. The motion judge found that, upon turning and facing the police, the defendant took a couple of steps and placed something on the counter. The police then secured the defendant in handcuffs. As the defendant was being escorted out, an officer “stepped a foot or two towards the counter,” and saw a gun. Knowing that the defendant was a convicted felon who could not possess a firearm, the officer seized the gun and found it to be loaded. Upon these facts, the motion judge ruled that the seizure of the firearm and ammunition were justified both as a search incident to arrest and as a plain view seizure.

In reviewing a judge's decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007).

On appeal, the defendant does not take issue with the motion judge's plain view determination. On the facts found by the motion judge, we agree that the loaded firearm was properly seized in plain view as the police were “lawfully in a position to view” it, they had a “lawful right of access” to it, and it was “immediately apparent” that the firearm was a weapon that was “illegally possessed” by the defendant (citation omitted). Commonwealth v. White, 469 Mass. 96, 102 (2014) (requirements of plain view seizure). Because the ruling can be affirmed on this ground, we need not address the defendant's argument that the seizure of the gun was not a search incident to arrest because the defendant had already been arrested and was being taken away, such that the gun was no longer within the defendant's immediate control. First, it is well-established that police may secure a defendant under arrest before searching the area within his immediate control. See Commonwealth v. Figueroa, 468 Mass. 204, 215-216 (2014), citing Commonwealth v. Netto, 438 Mass. 686, 694-96 (2003) (defendant arrested and escorted out of motel room before police seized items noticed in room during arrest). Second, whether an item is within an arrestee's “immediate control” is determined at the moment of arrest, not at the time of search when the defendant may be restrained or handcuffed. See Figueroa, 468 Mass. at 215, quoting Commonwealth v. Elizondo, 428 Mass. 322, 323-324 (1998) (search of bathroom from which contraband was seized proper where defendant “arrested, handcuffed and secured” four or five feet away from bathroom).

Here, the motion judge made a factual finding (not argued to be clearly erroneous) that, at the moment of arrest, the defendant was “clearly ․ seized within lunging area of that particular area of the counter [where the gun was found] at the time of his arrest.” The scope of the search extends beyond the arrestee to areas within his immediate control. See Figueroa, 468 Mass. at 215-216. The timing of the arrest and search need not be precisely aligned but the two events must be “roughly contemporaneous.” Commonwealth v. Vick, 90 Mass. App. Ct. 622, 627-628 (2016), quoting Washington, 449 Mass. at 481. The motion to suppress was properly denied.2

2. Jury instruction. Prior to trial, the defendant moved to suppress statements he made to the police at the time of his arrest. Among other things, the defendant argued that the statements were not voluntary because there was a “question of intoxication” raised by a notation in a booking document where the defendant checked off a box, reporting that he had “used alcohol” that day. Although the motion to suppress was denied, the trial judge agreed to submit the question of the voluntariness of the defendant's statements to the jury. The defendant requested that the judge give a “humane practice” instruction, including the supplemental instruction to consider intoxication as a relevant factor. See Instruction 3.560 of the Model Jury Instructions for Use in District Court (Confessions and Admissions) (2009) (model instruction). The trial judge declined to give the supplemental instruction on the basis that there was no evidence at trial that the defendant was intoxicated. He did, however, instruct that the defendant's level of sobriety was one of the relevant factors to be considered when determining whether the statements were voluntary.3

On appeal, the defendant contends that the trial judge erred in declining to give the supplemental instruction.4 We review the denial of a requested jury instruction for prejudicial error. See Commonwealth v. Gallett, 481 Mass. 662, 678 (2019). A “humane practice” instruction is required to be given when the issue of voluntariness of the defendant's statements is a “live issue” at trial; in other words, the instruction must be given if there is “substantial evidence of involuntariness” produced at trial (citations omitted). Id. at 686-687.

As to involuntariness based on intoxication, the only evidence was the defendant's self-report that he “used alcohol” on the date of his arrest. Passing over the question of whether any humane practice instruction was required on these facts, the instruction in substance was given. Although the requested supplemental instruction regarding intoxication was denied, the instruction that was given explained to the jury that they could not consider any statements made by the defendant unless they found beyond a reasonable doubt that the defendant made the statements and made them voluntarily. It also explicitly advised the jury that they could consider the defendant's “level of sobriety” in making this determination. Because the “the charge, as a whole, adequately cover[ed] the issue,” the judge was not required to grant the particular instruction requested by the defendant. Commonwealth v. McGee, 467 Mass. 141, 154-155 (2014). See Gallett, 481 Mass. at 679 (no error to decline supplemental instruction where general instruction sufficiently covered topic). There was no error.

Judgments affirmed.


2.   The defendant also argues that the gun could not have been seized because (1) it was not observed prior to the defendant's arrest and there was no specific testimony justifying delay in the search, and (2) it was not evidence of the crime for which he was arrested. The case law cited by the defendant does not support the proposition that an item must be viewed before arrest in order to be seized after arrest, see Netto, 438 Mass. at 696, or that an item may not be seized following arrest without specific testimony justifying delay, see Commonwealth v. Pierre, 72 Mass. App. Ct. 580, 585-586 (2008). Additionally, the gun was, of course, a weapon, which may be seized upon arrest. G. L. c. 276, § 1.

3.   The trial judge instructed in relevant part:“[T]he Commonwealth must prove to you beyond a reasonable doubt that the defendant made the statement that he is alleged to have made, number one; and number two, that he made it voluntarily, freely and rationally.“In determining whether any statement made by the defendant was voluntary or not, you may consider all of the surrounding circumstances. These include when and where the statement was made, the nature of any conversations with the police or questioning by the police, and the defendant's physical and mental condition, including his level of sobriety, intelligence, age, education, experience and personality. Your decision does not turn upon any one factor. You must consider the totality of the surrounding circumstances.”Compare model instruction 3.560.

4.   At the time of trial, the model supplemental instruction requested by the defendant stated, in relevant part:“If you conclude that ․ extreme intoxication with alcohol ․ had rendered the defendant incapable of understanding the meaning and effect of his ․ statement, or incapable of withholding it, then you must exclude the defendant's statement from your deliberations as being involuntarily given.”“However, ․ intoxication [does] not automatically make an otherwise voluntary act involuntary. You must look to all the circumstances to determine whether any statement was made freely and rationally.”

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