Commonwealth v. Mizrahi

181 N.E.3d 1104

COMMONWEALTH

v.Nathan MIZRAHI.

No. 21-P-93

Appeals Court of Massachusetts, Suffolk.

Argued December 1, 2021.

Decided February 2, 2022.

Kathryn Karczewska Ohren, Boston, for the defendant.

Brooke Hartley, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Blake, & Grant, JJ.

BLAKE, J.

Approximately one week after a violent protest in Charlottesville, Virginia, resulted in the murder of a counter protestor, and days after the New England Holocaust Memorial in Boston was vandalized, a "free speech" rally was scheduled to take place at the rotunda on Boston Common.¹ The defendant, Nathan Mizrahi, traveled from New York to attend the rally. As the defendant approached the entrance to the rotunda, he was met by counter protestors who verbally attacked him and threw projectiles, including bottles full of liquid, at him. Before he could be admitted into the area set aside for rally attendees, Captain John Danilecki of the Boston Police Department (department) seized the tactical steel-plated body armor (vest) that the defendant wore. A loaded firearm was found in an inside front compartment of the vest. Because the defendant did not have a Massachusetts license to carry a firearm, he was arrested and charged with various firearm offenses.

The defendant's attorney (suppression counsel) filed a motion to suppress all evidence seized from the defendant. After an evidentiary hearing, a judge of the Superior Court (suppression judge) denied the motion. Following a jury trial before a different judge, the defendant was convicted of possession of a loaded firearm without a license, possession of a firearm without a license, and possession of ammunition without a firearm identification (FID) card. The defendant, now represented by new counsel, filed a motion for a new trial that was assigned to a third judge (motion judge), the trial judge having retired. The motion was denied without a hearing.

In this consolidated appeal from his convictions and the order denying his motion for a new trial, the defendant claims that suppression counsel was constitutionally ineffective for not pursuing a different strategy in the motion to suppress. He also contends, and the Commonwealth agrees, that the conviction of unlawful possession of ammunition is duplicative of the conviction of unlawful possession of a loaded firearm. As that conviction relates only to the ammunition that was located inside the firearm, we agree and vacate that conviction. We affirm the remaining convictions.

Background. 1. The hearing on the defendant's motion to suppress. a. Findings of fact. We recite the facts as found by the suppression judge, none of which the defendant challenges on appeal. The city of Boston issued a permit for a free speech rally² to be held on August 19, 2017, at the rotunda on Boston Common. The department was concerned for the safety of the rally attendees and the anticipated 40,000 counter protestors, particularly in the wake of the violence at the Charlottesville rally the week prior. In response, the department set up what they called a "buffer zone" area³ (permitted area) to separate the rally attendees in a secure area near the rotunda. Also, in advance of the rally, the department made multiple public statements to the news media and on social media to alert the public of security protocols that would be in place to ensure a safe and peaceful rally. As part of the media campaign, the department issued a community advisory two days prior to the rally. Among other things, the advisory notified the public that there would be a large presence of police officers in uniform and in plainclothes, and fixed and mobile video cameras. The advisory also alerted attendees not to bring large bags or backpacks, that these items may be subject to search, and that there was no storage available for personal items. The department also released a list of prohibited items that, as relevant here, included firearms, knives, weapons, sharp objects, shields, and other items that could be used as weapons.

The rally was scheduled to begin at noon. To enter the permitted area, attendees were required to submit to a search and screening of their bags, to walk through metal detectors, and to be scanned with a handheld wand. There were two entrance points to the permitted area, each with a large police presence. Captain Danilecki arrived at Boston Common at 9 A.M. At that time, there were already approximately ten to fifteen thousand counter protesters, who significantly outnumbered the rally attendees. The counter protestors were taunting, shouting profanities, and throwing projectiles at the rally attendees.

Danilecki's attention was drawn to two men in the crowd, one of whom was later identified as the defendant. The men, who were moving toward him, wore United States Army fatigues, steel-plated tactical body armor, and military helmets. Counter protestors tried to grab the two men and shouted profanities at them.⁴ Danilecki believed that the men's attire was inciting the counter protestors and that, as a result, the two men were in danger. To ensure their safety, six officers separated the opposing parties and surrounded the two men. Counter protestors continued to taunt and throw projectiles. Danilecki asked the men whether they intended to go in to the permitted area. The defendant, who was calm and well behaved, said that they did. Danilecki advised the men that they could not do so while wearing the vests⁵ and helmets. The defendant did not want to remove his vest. Danilecki told him that he would confiscate the vest if the defendant wanted to go in to the permitted area. Ultimately Danilecki removed the defendant's helmet and the vest. Danilecki said the vest was very heavy, weighing between fifteen and twenty pounds, and had compartments that could conceal items. The defendant asked for a receipt; Danilecki was unable to provide one, but he advised the defendant, who refused to identify himself, that he could retrieve the items at the area A-1 police station (police station) after the rally. After a search of the defendant's backpack (which revealed no prohibited items), the men were escorted into the permitted area.

At Danilecki's request, an officer transported the vest to the police station for safekeeping. Pursuant to the department's rules and procedures for the safeguarding of personal property, an inventory search of the vest was conducted. A loaded firearm was located in an inside front compartment of the vest under a Velcro strap. After the rally, the defendant arrived at the police station to pick up his belongings. He provided identification and confirmed that the vest belonged to him. When asked whether he had a license to carry firearms, the defendant produced one from New York. He was not licensed in Massachusetts.

b. Rulings of law. The suppression judge made the following rulings of law, none of which the defendant challenges on appeal. The police purpose of ensuring a safe and peaceful free speech rally on Boston Common satisfied the threshold requirement for a lawful administrative search. In analyzing the reasonableness of the search, the judge considered whether the department implemented measures to reduce the intrusiveness of the search without compromising the administrative goals of the search, and whether the defendant was given notice that he could decline to be searched. She found that the defendant had actual and constructive notice of the event's security requirements based on the significant public advisory campaign in advance of the rally; he made the choice to enter the permitted area with full knowledge that as a consequence of that decision he would have to turn over his tactical vest and helmet to the police; and he was aware the vest would be taken to a police station for safeguarding. She concluded that the defendant consented to the search. The defendant, through counsel, reaffirmed at oral argument before this court that he was not challenging the suppression judge's findings of fact and rulings of law.

2. Motion for new trial. The defendant filed a motion for a new trial, contending that suppression counsel was ineffective where he did not argue that the seizure of the vest was unlawful because it was based on police determinations that the vest projected militaristic imagery and incited violence, and that its civilian use was illegitimate. In denying the motion without a hearing, the motion judge concluded that the vest was seized as part of a lawful administrative search. Citing Commonwealth v. Comita, 441 Mass. 86, 90-91, 803 N.E.2d 700 (2004), she concluded that the grounds raised by the defendant "would not have accomplished anything material for the defendant."

Discussion. 1. Administrative search. Here, the suppression judge and the motion judge concluded that the police lawfully seized the defendant's vest as part of an administrative search. Administrative searches must be conducted "as part of a scheme that has as its purpose something ‘other than the gathering of evidence for criminal prosecutions.’ " Commonwealth v. Carkhuff, 441 Mass. 122, 126, 804 N.E.2d 317 (2004), quoting Commonwealth v. Harris, 383 Mass. 655, 657, 421 N.E.2d 447 (1981). As the motion judge found, that purpose was to ensure a safe and peaceful free speech rally on Boston Common. See Commonwealth v. Roland R., 448 Mass. 278, 281, 860 N.E.2d 659 (2007) ("area-entry inspections at court house entrances" permissible without warrant for safety and security purposes). Cf. Commonwealth v. Gray, 466 Mass. 1012, 1013, 997 N.E.2d 104 (2013) ("sobriety checkpoint must be conducted in strict compliance with the written guidelines applicable to that particular checkpoint").

"An administrative search must also be ‘reasonable’ in the sense that it ‘must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it’ " (citation omitted). Carkhuff, 441 Mass. at 127, 804...