Opinion
14-P-355
08-05-2015
COMMONWEALTH v. FRED J. ELWELL, JR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of carrying a firearm without a license in violation of G. L. c. 269, § 10(a). He now appeals.
The defendant argues first that the judge erred in denying his motion to suppress the firearm. The motion judge credited the testimony of Salisbury police Officer Craig LeSage, finding the following facts. At 8:30 P.M. on the night in question, LeSage was driving on Route 1 in Salisbury behind the car driven by the defendant. LeSage saw sparks coming from underneath that car; he inferred that a problem with the car's exhaust or undercarriage was causing the sparks. Activating the police car's lights, LeSage pulled over the car driven by the defendant. The officer approached the car and noticed a silver firearm lying on the back seat. The defendant, without being asked, gave LeSage his license and registration, and informed him that he had a loaded firearm in the vehicle. LeSage had the defendant and the passenger exit the vehicle. Since the defendant lacked a license to carry the firearm, the officer arrested him. LeSage permitted the passenger of the vehicle to drive it away. The only question with respect to the motion to suppress is whether the stop of the vehicle was permissible. The trial judge concluded that the officer's observation gave him reasonable suspicion to believe that the car was dragging its muffler in violation of G. L. c. 90, § 7. The defendant argues that dragging a muffler does not violate G. L. c. 90, § 7, so long as the vehicle is not making unnecessary noise. That statute requires every motor vehicle "be provided with a muffler or other suitable device to prevent unnecessary noise."
The defendant does not argue that even if the stop was justified, the officer's search was impermissibly broad.
We need not resolve the statutory question as we think the stop of the motor vehicle was a permissible exercise of the officer's "community caretaking function[], totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Commonwealth v. Evans, 436 Mass 369, 372 (2002), quoting from Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
An insecurely fastened car muffler raises a public safety concern. The Registry of Motor Vehicles (Registry) requires all noncommercial vehicles in the Commonwealth to be inspected annually, and this inspection includes the muffler and exhaust system. See 540 Code Mass. Regs. § 4.04(5) (2008). Among other things, the regulation requires the muffler and exhaust parts to be "securely fastened with fasteners in place and undamaged." Ibid. This regulation reflects a judgment by the Registry that a loose or low hanging muffler is a safety concern. Most obviously, the muffler could fall off the car causing an accident. This safety concern was present in the instant case and, given the sparks coming from the underside of the car, would have been apparent to the officer. Because "concern for the safety of the public using the roadway" is a permissible justification for a community-caretaking stop, the seizure in this case was permissible. Commonwealth v. McDevitt, 57 Mass. App. Ct. 733, 736 n.5 (2003).
The sparks themselves may have presented a risk of fire or explosion of the gasoline in the car's tank, but in the absence of any testimony on this point, we do not rest our decision on that ground.
The defendant disagrees, arguing that the sparks under his car did not present a sufficiently urgent safety concern to justify a stop. Cf. Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998) (finding that the facts did justify a Terry stop, but did not justify a community-caretaking stop because the officer in Smigliano did not have "a reasonable belief that the defendant required immediate assistance") (emphasis supplied). Ibid. We think it is within the ambit of the community-caretaking function for Officer LeSage, who saw this safety-related condition that required attention and repair, to stop the vehicle and alert the driver to the situation. There was no way for the officer to know how long the muffler had been hitting bottom, or how well attached it remained to the car, and we decline to hold that such a stop is unlawful and that the fruits thereof must be suppressed unless the Commonwealth can show the risk of harm was imminent. Because the stop was lawful and the gun was seen in plain view, the fruits of that stop are admissible and, of course, this is true regardless of the subjective intent of the officer in stopping the vehicle. See Commonwealth v. Murdough, 428 Mass. 760, 762 (1999). Therefore, the denial of the motion to suppress is affirmed.
The defendant next argues that the trial judge erred in not instructing the jury on the defense of mistake, by which he means the judge should have instructed the jury that the defendant should be acquitted if he believed he was exempt from prosecution for carrying the gun because (1) he had a valid firearm identification card; (2) the gun was unloaded; (3) the gun was exposed to the public; (4) the gun slide was locked in a nonfiring safety position; (5) the ammunition was stored separately in his locked glove box; (6) he was a resident of New Hampshire and said that he planned to shoot the gun at an indoor shooting range in Massachusetts. The defendant argues that "a defendant's honest and reasonable belief that certain facts made him exempt from prosecution for carrying a firearm is a natural and necessary corollary to the affirmative defense of exemption[,]" a defense available to those with a valid license to carry, something the defendant did not have.
The defendant is mistaken. The statute under which the defendant was convicted provides that "whoever, except as provided or exempted by statute, knowingly has in his possession; or knowingly has under his control in a vehicle; a firearm . . . shall be punished . . . ." G. L. c. 269, § 10(a). The mens rea required for conviction simply is knowledge on the part of the defendant that he was carrying a firearm. See Commonwealth v. Jackson, 369 Mass. 904, 916 (1976). The statute provides for no defense that an individual "honestly and reasonably believed" incorrectly he was exempt from prosecution. The defendant was therefore not entitled to an instruction on such a defense.
Judgment affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 5, 2015.