Opinion
15-P-1248
04-13-2017
COMMONWEALTH v. George Luis ANDUJAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted on indictments charging trafficking in heroin and receiving stolen property (three indictments). He appeals, arguing that the judge erred in denying his motion to suppress a locked toolbox and its contents; the Commonwealth presented insufficient evidence to support the convictions; and other shortcomings at trial deprived him of a fair proceeding. We affirm.
Background. We first summarize the facts found by the motion judge after the evidentiary hearing on the defendant's motion to suppress. On March 2, 2012, the Massachusetts State Police received a report that a generator had been stolen from a construction site in East Boston; surveillance footage showed a black Chevrolet or GMC truck leaving the site with the stolen trailer-mounted generator attached to it. On March 5, 2012, the State Police received another report that the replacement generator had been stolen from the same construction site; surveillance footage showed the same truck towing the equipment and traveling through the Ted Williams tunnel, then heading south on Route 93.
On March 12, 2012, D.F. Pray Construction Company reported to the Dedham Police Department that a trailer-mounted generator had been stolen from a construction site in Dedham. That morning, a signal was being received from a wireless GPS tracking device installed on the equipment, indicating the tracking device was in the area of Magnolia and Kineo Streets in the Dorchester section of Boston. When Dedham police officers went to that location, they observed a fenced-in parking area and a three-car garage in the location where the device was signaling. The officers looked through the fence and saw an older model Chevrolet pickup truck and a large generator (with the name "D.F. Pray Contractors" written on the side) and mounted on a trailer. The officers then sought, in the Dedham Division of the District Court Department, a search warrant for the property. They returned the same day, accompanied by Officer Kenneth Lamb, of the Boston Police Department's automobile theft unit.
Later that same day, Lamb applied for a warrant to search a 1999 Chevrolet pickup truck located at 197 Magnolia Street, Dorchester, and one garage bay (of an adjacent three-car brick garage). The resulting warrant authorized a search for the pickup truck, a magnum light tower, and various generators, along with construction equipment the police suspected had been stolen. Lamb's affidavit in support of his application stated that he initially had entered the Magnolia Street property with Dedham police officers pursuant to their search warrant for the stolen generator. He then obtained a subsequent search warrant to investigate the State Police reports about generators stolen from the East Boston construction site. While he was at the property, Lamb received some information from neighbors, and observed through a space at the bottom of the first garage door (on the left) a "metal stabilizer that would hold up the front part of a trailer."
One "anonymous" neighbor reported to officers that he had seen individuals storing generators on trailers in the first garage bay; the first-floor tenant told the officers that the owner of the property had rented the backyard and garage space and that she had observed several individuals bringing in construction equipment and taking it out of the garage over a lengthy period of time.
At both the hearing on the motion to suppress and at trial, Lamb testified that, when he was executing his search warrant in the first bay of the garage, he and another detective found and seized a Power Pro generator sitting on a trailer, five cans of spray paint, a locked orange plastic toolbox, and a clear plastic container. At trial Lamb testified that he took the locked toolbox because he "didn't know whether [he] might find some paperwork that would indicate to [him] who was responsible for the garage or if this [generator] unit was in the process of being shipped someplace. Maybe [he] could find some identifiers in that toolbox."
Identifying marks on the trailer had been removed or painted over.
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On March 14, 2012, Lamb obtained another search warrant, specifically for the toolbox, requesting authorization to break the lock and look inside, and to "process those paint cans for latent prints." Inside the toolbox, Lamb found, among other things, three separate baggies containing a quantity of drugs, a digital scale, a spoon (with residue), a plate, a box of plastic baggies, a brush, and a strainer.
Discussion. Suppression. The defendant first argues that the locked orange toolbox and its contents should have been suppressed. He contends that the initial seizure of the toolbox under the first search warrant was unlawful because the item was outside the scope of the warrant; he also claims that the second search warrant was unsupported by probable cause to permit breaking the lock and opening the toolbox. The defendant's argument fails for two reasons.
First, the initial seizure of the toolbox was proper under the plain view doctrine. "When a search or seizure is conducted outside of the scope of a warrant, the burden is on the Commonwealth to demonstrate that the activity falls within an exception to the warrant requirement. ... The plain view doctrine is one of those exceptions." Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Commonwealth v. White, 469 Mass. 96, 102 (2014). To seize an object without a warrant, however, the police must come across the item inadvertently; in other words, the police did not know or anticipate that the item would be at the locus of the search. Ibid.
Here, the defendant concedes that the initial entry into the garage was lawful. As Lamb testified, the warrant for the garage was issued based on a suspicion that one of the stolen generators was there; the warrant did not authorize seizing or searching a toolbox. However, once inside the garage, the detectives saw several items, including the locked orange toolbox and spray paint cans, on the floor, along one wall of the garage. Based on what Lamb knew at the time, including the initial search of the yard, along with the subsequent search of the garage, it was reasonable for him to believe that the locked toolbox might contain information relating to the crime being investigated. As the motion judge observed, "[t]he incriminating nature of the plastic container, spray paint and tool box as instrumentalities of crime and as sources of evidence as to the identities of the perpetrators was immediately apparent." "[I]t is proper for police to seize evidence relevant to establishing the defendant's connection with and control over the premises." Commonwealth v. Alvarez, 422 Mass. 198, 206 (1996).
Second, once Lamb decided it was necessary to look inside the locked toolbox to attempt to identify the people who had possession of the stolen generators, he sought and obtained a second search warrant to search the box. See Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). Contrast Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 577 (2015) (officers' inventory search "simply a pretext for using the [police] inventory policy to conduct an investigatory search of the [defendant's] backpack for evidence of drug activity without a warrant"). We see no error and conclude that the motion to suppress was properly denied. See Commonwealth v. Jessup, 471 Mass. 121, 129 (2015).
Sufficiency of the evidence. The defendant also argues that the judge erred in denying his motion for required findings of not guilty. He claims that evidence of constructive possession of the suspected stolen equipment and toolbox located in the garage, which was rented to multiple tenants, was insufficient to support his convictions. He also contends that fingerprint evidence was admitted improperly and undermined the fairness of his trial. This argument also fails.
We review the defendant's motion for required findings, applying the familiar Latimore test. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). At trial, the Commonwealth proceeded on the theory of the defendant's constructive possession of the heroin and three stolen generators. The jury heard evidence that there was video surveillance showing a black Chevrolet pickup truck towing the stolen generators on certain dates. The pickup truck in the recordings was located at 197 Magnolia Street, along with the stolen generators, when the Dedham police executed the initial search warrant. The owner of the property and the adjacent garage testified that she rented the backyard and left bay of the garage to the defendant; she also stated that she had seen the defendant keep his truck and "big machines" at the property. A tow truck driver testified that on six or seven separate occasions the defendant paid him to move large construction generators from the Magnolia Street property to a shipping location in Quincy; each time, the defendant towed the generators out of the backyard with a black pickup truck.
Lamb testified that, during the execution of his search warrant, he discovered the stolen Power Pro generator in the left bay of the three-bay garage; he observed that markings on the generator trailer had been painted over, and found cans of white spray paint nearby inside the garage. The locked toolbox was located immediately next to the spray paint cans; inside the toolbox, Lamb found, among other things, three bags of heroin, together weighing 84.99 grams, and a white plate. Witnesses from the Boston Police Department testified, without objection, regarding processing and identification of the defendant's fingerprints lifted from one of the spray paint cans and the plate found in the locked toolbox.
On this evidence, we are satisfied that the jury, viewing the evidence and the reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, could find beyond a reasonable doubt that the defendant did, in fact, receive the stolen generators and possess the heroin; in addition, the quantity of heroin seized permitted the inference that the defendant intended to distribute at least a portion of it. See id. at 677. Accordingly, the motion for required findings of not guilty was properly denied.
Fingerprint evidence. Finally, contrary to the defendant's argument, the Commonwealth presented sufficient other evidence, in addition to the fingerprints, linking the defendant to the charged crimes. Contrast Commonwealth v. French, 476 Mass. 1023, 1024 (2017) ("Where, as here, a defendant's fingerprint at a crime scene constitutes the only identification evidence, ‘the prosecution must prove beyond a reasonable doubt that the fingerprint was placed there during the crime.’ Commonwealth v. Morris, 422 Mass. 254, 257 [1996], citing Commonwealth v. LaCorte, 373 Mass. 700, 703 [1977]. ‘The prosecution must couple the fingerprint[ ] with evidence which reasonably excludes the hypothesis that the fingerprint[ ] w[as] impressed at a time other than when the crime was being committed.’ Commonwealth v. Fazzino, 27 Mass. App. Ct. 485 [1989]").
Nor do we see any error in the testimony of the fingerprint witnesses. As the Commonwealth argues, their testimony was admitted without objection. Each was thoroughly cross-examined; specifically, one witness agreed that fingerprint comparison "could be left on an object and it could stay on that object for ... ten years, twenty years, or perhaps longer ... [and that] fingerprint comparison is a subjective thing." This case was tried before Commonwealth v. Drayton, 473 Mass. 23, 30 (2015), was issued, and, even if the court in Drayton suggested that a different manner of presenting the evidence would be preferable, we see no error here, and certainly no substantial risk of a miscarriage of justice. Ibid.
Judgments affirmed.