Opinion
10-P-2217
12-07-2011
COMMONWEALTH v. FREDERICK A. JACKSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having been found guilty by a Superior Court jury of malicious destruction of property and of two counts of unarmed burglary, the defendant now appeals. He contends that the motion judge erred in denying his motion to suppress evidence after an evidentiary hearing. We affirm.
On appeal, the defendant challenges the seizure of the pack of cigarettes from his pocket. As found by the motion judge, in the early morning hours of August 24, 2008, police received a call about a possible break into a house at 18 Berlin Street, Quincy. At the time the cigarettes were removed from the defendant's pocket, police were aware that a white male, possibly wearing a white and red shirt, broke into 18 Berlin Street at approximately 2:00 A. M. It was also known that a Dell laptop computer, a pack of Parliament cigarettes, and other items were taken from the house. At 2:30-2:45 A. M., the defendant, a white male in a blue and white shirt, was the only person in the fenced-in parking lot at a condominium complex at 523 Hancock Street, within a few blocks of 18 Berlin Street. There had been a report by a person in that condominium complex that a car may have been broken into. Police saw a backpack forty feet away from the defendant in an area the defendant was seen walking away from. The backpack contained a laptop identifiable to the officers as the one taken from 18 Berlin Street as well as a USB drive and charger. Officers knew that a charger and USB drive had also been taken from 18 Berlin Street. The defendant, who gave several addresses when asked where he lived, denied ownership of the backpack. Although the defendant said he did not smoke, the defendant's pocket contained a bulge consistent with a pack of cigarettes, and police knew a pack of cigarettes had been taken from 18 Berlin Street.
Here, even considering the possible differences in shirt color, the defendant fit the general description of the suspect.
Given the defendant's proximity in place and time to the earlier break-in; the discovery of the stolen items in an abandoned backpack in an area from which the defendant was walking away; the defendant's conflicting and implausible statements and the observation of the bulge in the defendant's pocket that was consistent with a pack of cigarettes, there was ample evidence to support a finding of probable cause to arrest the defendant. See Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992) (probable cause is found where 'at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense'). See also Commonwealth v. Bostock, 450 Mass. 616, 624-625 (2008). Because there was probable cause to arrest, the search was justified as incident to arrest. See Commonwealth v. Clermy, 421 Mass. 325, 328-331 (1995); Commonwealth v. Washington, 449 Mass. 476, 481 (2007). The motion to suppress was properly denied.
Judgments affirmed.
By the Court (Green, Katzmann & Hanlon, JJ.)