Commonwealth v. Mubdi

923 N.E.2d 1004

456 Mass. 385

COMMONWEALTH

v.Martel MUBDI.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 2009.

Decided March 29, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Christopher L. Maclachlan, Boston, for the defendant.

Kathleen Celio, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

The defendant was charged in the Dorchester Division of the Boston Municipal Court Department with possession of marijuana, in violation of G.L. c. 94C, § 34; possession of marijuana with the intent to distribute, in violation of G.L. c. 94C, § 32C (a); and possession of marijuana with the intent to distribute within 1, 000 feet of a school or public park, in violation of G.L. c. 94C, § 32J.¹ The defendant filed a motion to suppress evidence, including the marijuana he is charged with possessing, seized by Boston police officers on May 16, 2007, from a parked vehicle during an investigatory stop. After an evidentiary hearing, a judge denied the motion to suppress, finding that the police had reasonable suspicion to make the investigatory stop and that the protective sweep of the vehicle in which the defendant had been seated was reasonable to protect the safety of the police officers and appropriately limited in scope. A single justice of this court granted the defendant leave to file an interlocutory appeal in the Appeals Court from the denial of the motion. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).

The Appeals Court issued an unpublished memorandum and order pursuant to its rule 1:28, affirming the denial of the defendant's motion to suppress, but on grounds different from the motion judge. Commonwealth v. Mubdi, 74 Mass.App.Ct. 1110, 905 N.E.2d 603 (2009). The Appeals Court concluded that the information that prompted the investigatory stop fell short of reasonable suspicion, but held that the defendant's motion to suppress should still have been denied because, in the affidavit he filed under Mass. R.Crim. P. 13(a)(2), as appearing in 442 Mass. 1516 (2004), he failed to assert that he had an expectation of privacy in the vehicle in which the police located the challenged evidence and, at the evidentiary hearing, he failed to establish his reasonable expectation of privacy in the vehicle. We granted the defendant's application for further appellate review. We now reverse the denial of the motion to suppress.

Facts. We summarize the facts concerning the stop of the defendant and the seizure of the marijuana as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n. 5, 723 N.E.2d 501 (2000).

On May 16, 2007, two uniformed Boston police officers, Wilson Quiles and David O'Connor, were patrolling the area of Lyn-dhurst and Washington Streets in the Dorchester section of Boston in a marked cruiser as part of a rapid response unit. Both officers were familiar with the corner of Lyndhurst and Washington Streets, knowing it to be a high crime area, and had responded to calls there for violent crime and drug and firearm-related offenses in the past. At approximately 5:15 p.m., they received a radio dispatch that relayed the contents of an anonymous call to the 911 emergency telephone line. The tape recording of the police dispatch was played at the hearing on the motion to suppress, and the parties have stipulated to the accuracy of a transcription, which reads:

"Stay on lookout for FIO [field interrogation observation] purposes at this time, stay on lookout for Blue Dodge Charger, Georgia registration AHT4351, should be occupied by two black males. They were observed 15 minutes ago on Lyndhurst St., next [to] the Post Office. Observed money and an object being passed, believed to be a firearm."

The dispatcher also informed the officers that gun shots had been fired the night before on Lyndhurst Street.

Officers Quiles and O'Connor were driving on Washington Street at the time of the radio bulletin, and observed a blue Dodge Charger automobile, with a Georgia registration plate matching the plate number given by the dispatch, parked on Lyndhurst Street. Officer O'Connor observed an individual leaning into the passenger side of the Dodge Charger and speaking to the vehicle's two occupants. Officer Quiles, who was driving, turned the police cruiser around and drove the wrong way up Lyndhurst Street. As he did this, the individual who had been standing outside the Dodge Charger began walking away from the vehicle toward Washington Street in the direction of the oncoming cruiser. The two officers left the cruiser and approached the three men. Officer Quiles had his gun drawn.

As Officer Quiles held his gun on the individuals in the vehicle, Officer O'Connor pat frisked and handcuffed the individual on the sidewalk who had been speaking to the occupants of the vehicle. No weapons or drugs were found. Officer Quiles then removed the defendant, who had been in the driver's seat, and the passenger from the vehicle. They, too, were handcuffed and frisked for weapons, and no weapons or drugs were found. After the three men were placed in the back seat of police cruisers, ² Officer O'Connor began to search the inside of the vehicle for a firearm. He did not find a firearm, but in the center console between the two front seats he located two bags containing a leafy, green substance that he believed to be marijuana.³

Discussion. "In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error." Commonwealth v. Damian D., 434 Mass. 725, 726, 752 N.E.2d 679 (2001). We find no clear error as to any fact relevant to this decision. We then "conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). Our duty is to determine "the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

1. Reasonable expectation of privacy and the adequacy of the affidavit filed under rule 18(a)(2). We consider first the grounds for denying the motion to suppress relied on by the Appeals Court that the defendant failed, in the affidavit he filed under rule 13(a)(2), to assert that he had an expectation of privacy in the vehicle searched, and failed to establish at the evidentiary hearing his reasonable expectation of privacy in the vehicle.

Rule 13 (a)(2) codifies the standard requirements for a defendant's pretrial motion, including a motion to suppress evidence alleged to be the product of an unreasonable search or seizure. The motion papers must contain: (1) a pretrial motion stating "the grounds on which it is based" and including "in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity"; and (2) an affidavit giving in detail "all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion." Mass. R.Crim. P. 13(a)(2).⁴

Where a defendant has filed a motion to suppress alleging an unconstitutional search or seizure, the detail required in the motion and accompanying affidavit under rule 13(a)(2) must be sufficient to accomplish two practical purposes. First, it must be sufficient to enable a judge to determine whether to conduct an evidentiary hearing. See Costa v. Commonwealth, 440 Mass. 1003, 1004, 794 N.E.2d 1181 (2003), quoting Commonwealth v. Santosuosso, 23 Mass.App.Ct. 310, 313, 501 N.E.2d 1186 (1986) (one purpose of rule 13[a][2] is to provide judge with "statement of anticipated evidence... to meet the defendant's initial burden of establishing the facts necessary to support" motion). An evidentiary hearing is necessary only when the defendant has alleged facts that, if true, would establish (1) that evidence was obtained through a search or seizure for which the Commonwealth must prove probable cause, reasonable suspicion, or consent to search; and (2) that the defendant has standing to challenge the constitutionality of the search or seizure. Cf. Commonwealth v. Costa,, 65 Mass.App. Ct. 227, 228-229 n. 1, 838 N.E.2d 592 (2005). Second, the affidavit required under rule 13(a)(2) must be sufficiently detailed to give fair notice to the prosecution of the particular search or seizure that the defendant is challenging, so that the prosecution may determine which witnesses it should call and what evidence it should offer to meet its burden of proving probable cause, reasonable suspicion, or consent. Costa v. Commonwealth, supra, quoting Commonwealth v. SaMosuosso, supra (second purpose of rule 13[a][2] is to give Commonwealth "fair notice of the specific facts relied on in support of the motion"). See Commonwealth v. Silva, 440 Mass. 772, 781, 802 N.E.2d 535 (2004) (compliance with rule 13[a][2] "alerts the judge and the Commonwealth to the suppression theories at issue, and allows the Commonwealth to limit its evidence to these theories").

The degree of detail required in a rule 13(a)(2) affidavit must be evaluated in light of these two practical purposes. In this case, the affidavit was not needed to establish standing, because the defendant was charged with crimes alleging possession of the marijuana found in the automobile, that is, crimes where possession at the time of the contested search is an essential element of the charges, which provided him with automatic standing. See Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991); Commonwealth v. Amendola, 406 Mass. 592, 601, 550 N.E.2d 121 (1990). The affidavit, however, needed to make clear that the defendant was contesting the constitutionality of the search of the vehicle and the subsequent search of his person incident to arrest. The...