Opinion
16-P-170
07-12-2017
COMMONWEALTH v. Lavaughnte LOWE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Superior Court, the defendant, Lavaughnte Lowe, was convicted of two counts of illegal possession of a firearm in violation of G. L. c. 269, § 10(a ), and one count of unlawful possession of a loaded firearm in violation of G. L. c. 269, § 10(n ). The defendant appeals from the judgments and from the orders denying his motions to suppress the firearms and for required findings of not guilty. We affirm.
Background. The following facts are undisputed. On March 17, 2014, in response to an 8:00 P.M. report from a named informant of a suspicious vehicle and potential drug activity, two officers of the Springfield police department approached a parked vehicle in which the defendant was one of five occupants. The defendant sat in the middle of the back seat with Terrance Pickett to his left behind the driver's seat, and Tyvone Williams to his right behind the passenger's seat. The officers parked about ten yards from the vehicle, facing it, and they aimed the cruiser's spotlight in the direction of the vehicle. The officers saw the defendant and Pickett duck down by Pickett's seat, obscuring their hands.
The officers instructed the occupants to put their hands up. The defendant and Pickett did not comply. The other occupants did. The officers drew their weapons and repeated the instruction, and again Pickett and the defendant did not comply. After the officers issued a third instruction, Pickett and the defendant complied.
The officers approached the vehicle. They instructed Pickett to exit and once he did, the officers observed a firearm on the car floor beneath the driver's seat near where Pickett's feet had been. The officers instructed the two other back-seat passengers, the defendant and Williams, to exit the vehicle. The officers looked into the car and observed a second firearm, also tucked under the driver's seat. When none of the three back-seat passengers could produce a license to carry, the officers arrested all three.
Discussion. 1. Motion to suppress. The defendant argues that at the time he was seized, the officers lacked the requisite reasonable suspicion, and thus the firearms discovered in the vehicle should have been suppressed. When considering a ruling on a motion to suppress, the reviewing court must accept the motion judge's subsidiary findings of fact, absent clear error. Commonwealth v. Carr, 458 Mass. 295, 298 (2010). We independently review the judge's ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The Commonwealth bears the burden of proving the search was lawful. Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016).
"[I]t is settled that a police officer may approach a person on the street or sitting in a parked motor vehicle and engage the person in conversation without justification." Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 51 n.3 (2014). A seizure occurs when, in light of all the surrounding circumstances, a reasonable person would not have believed he or she was free to leave. Commonwealth v. Cook, 419 Mass. 192, 199 (1994). See Commonwealth v. Laureano, 411 Mass. 708, 710 (1992) (the standard is objective; an individual's subjective belief is irrelevant). A seizure is justified, however, where a police officer has reasonable suspicion, based on specific, articulable facts and reasonable inferences, that a crime has been committed, is being committed, or is about to be committed. Commonwealth v. Willis, 415 Mass. 814, 817 (1993). See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). Further, a stop does not transform into an arrest, which would require probable cause, when police officers may take reasonable precautions proportional to the safety risks they face. Commonwealth v. Haskell, 438 Mass. 790, 794 (2003).
Accordingly, we must first consider when the seizure occurred. The motion judge did not make a specific finding on the occurrence of a seizure. The defendant argues he was seized at the point that the officers parked their car facing the vehicle in which he was sitting and illuminated his vehicle with their spotlight. The Commonwealth contends that once the officers ordered the occupants to raise their hands and drew their weapons, the occupants were seized.
This court has recognized that "use of artificial light, without more, does not effect a seizure." Commonwealth v. Briand, 71 Mass. App. Ct. 160, 163 (2008). To constitute a seizure, the use of artificial light must be in addition to the use of blue lights, flashers, sirens, the display of a weapon, use of threatening words or tone, or other commanding authority Id. at 162. The officers' mere use of the spotlight here did not constitute a seizure. Id. at 163. A seizure is likewise not established by the position of the officers' cruiser relative to the defendant's vehicle, about ten yards away where the defendant's vehicle could still leave. Cf. Commonwealth v. King, 389 Mass. 233, 241 (1983) (officer's repositioning of cruiser to block defendant's vehicle in place constitutes seizure). Accordingly, we agree that the defendant was seized no later than when the officers instructed the vehicle occupants to raise their hands and, when the defendant failed to comply with that command, drew their weapons, as no reasonable person would feel free to leave following such an order. Cook, 419 Mass. at 199.
Second, we must analyze if the seizure was justified by reasonable suspicion "that the defendant had committed, was committing, or was about to commit a crime." Willis, supra. We conclude that by the time officers ordered the occupants to raise their hands, they had reasonable suspicion that the defendant was engaged in illegal drug activity. To meet the reasonable suspicion standard, police action must be "based on specific, articulable facts and reasonable inferences therefrom" rather than on a "hunch." Commonwealth v. Wren, 391 Mass. 705, 707 (1984).
When the police conduct an investigatory stop based on an informant's tip, "our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of these factors. Because the standard is reasonable suspicion rather than probable cause, a less rigorous showing in each of these areas is permissible." Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). Factors suggesting a tip's reliability include the informant being named, providing an address, and identifying a defendant's vehicle. Commonwealth v. Edwards, 476 Mass. 341, 345-346 (2017). Circumstances of independent police corroboration that may provide support for the tip include the geographic proximity to the reported crime, bizarre conduct, and a defendant's match to a general description. Commonwealth v. Phillips, 452 Mass. 617, 626 (2008).
The officers here had responded within five minutes to a tip of drug activity from a named informant, who specifically identified a vehicle near a particular address and claimed to have observed individuals going to and from the car from the address indicated. Edwards, supra. Additionally, this was the second time the informant had called with the tip that evening, and while the police did not find the car reported after the first call, after the second they observed the defendant's vehicle near the address given. Ibid. Although the vehicle did not exactly match the informant's description, it was the only vehicle parked by the provided address and fit the general description provided and had multiple occupants, as the caller described. Phillips, supra. Furthermore, the seizure occurred in a high crime area, at night, where the officers had responded to a number of calls in the recent past involving drugs. Ibid. "Strange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect ... depend[ing] on the factual context." Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005). See Commonwealth v. Tompert, 27 Mass. App. Ct. 804, 805 (1989) (passengers' frantic movements and turning off the interior light at rest stop justified officer's suspicion); Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 555-556 (1996) (rear passenger bending forward justified officer's concern of concealed weapon).
The reported vehicle was described as a silver Saturn hatchback, but the vehicle involved here was a grey Hyundai sedan.
We conclude the officers took appropriate precautions and did not transform the stop into an arrest. During an investigatory stop, precautions taken must be reasonable and proportional to the apparent risks to officer safety. Haskell, 438 Mass. at 794 (officers, responding to a tip, justified in drawing weapons when engaging with defendant who acted suspiciously and reached down as if to grab an object). See Edwards, 476 Mass. at 348-349 ("the police were entitled to determine ‘whether the object was, in fact, a weapon which could be used against them. The [officers] were not required to gamble with their personal safety.’ " quoting from Commonwealth v. Robins, 407 Mass 147, 152 [1990] ). "The resolution of this question depends on the particular facts of the case." Commonwealth v. Williams, 422 Mass. 111, 118 (1996).
As in Haskell, supra, the officers here acted on a tip and observed the defendant duck downwards in a suspicious manner prior to drawing their weapons. The officers had also knowledge of the street of the reported activity and considered it a high crime area. The facts of this case suggest the officers took precautions proportionate to the safety risks. Williams, supra.
Finally the exit order was justified under Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999) (reasonable basis for a threat to officer safety justifies exit order). Based on the informant's tip, the time and location of the stop, and the defendant's and Pickett's furtive movements and failure to comply with the officers' first orders to show their hands, the officers were justified in ordering Pickett from the vehicle. Once Pickett had exited the vehicle, the officers discovered a firearm in plain view on the floor of the vehicle. The officers then properly ordered the defendant from the vehicle.
We conclude that the defendant's motion to suppress was properly denied.
2. Sufficiency of the evidence. The defendant contends the trial judge erred in denying his motion for required findings of not guilty because the evidence at trial was insufficient to satisfy the Commonwealth's burden of proving possession. We disagree.
When reviewing the denial of a motion for required finding of not guilty, we must consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
At trial, the Commonwealth offered alternative theories of actual and constructive possession. To prove constructive possession, the Commonwealth must show that the defendant had knowledge of the prohibited object coupled with the ability and intention to exercise dominion and control. See Commonwealth v. Sann Than, 442 Mass. 748, 751 (2004). "The Commonwealth may prove that the defendant had knowledge of the contraband by circumstantial evidence, if the evidence warrants a reasonable inference to that effect." Commonwealth v. Garcia, 409 Mass. 675, 686 (1991). See Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 593 (2007) (rational fact finder may find constructive possession where defendant behaved in odd and alarming manner and shoved feet underneath passenger seat where firearm was discovered).
The Commonwealth contends on appeal that there was sufficient evidence to prove actual possession. The judge instructed the jury that the Commonwealth could meet its burden by proving either actual or constructive possession: "[T]he Commonwealth must prove beyond a reasonable doubt [ ] that the defendant possessed a firearm. Now, the law recognizes two kinds of possession; there's actual possession and there is constructive possession." Because we conclude that the Commonwealth presented sufficient evidence to prove constructive possession of the firearms, we do not address whether there was sufficient evidence of actual possession.
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Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that the firearms were under the driver's seat, Pickett sat behind the driver, the defendant sat in the middle, and Williams was behind the passenger seat. Based on the officers' testimonies and photographs presented, the jury could have further found that after the officers turned the spotlight on, the defendant and Pickett ducked down to the floor of the vehicle toward the spot where the officers later discovered the firearms.
It follows that a rational jury could have found that the defendant constructively possessed the firearms, and we agree with the trial judge's reasoning. The jury could reasonably have inferred from the defendant's movements in the direction of the floor of the vehicle where the firearms were found, combined with his delay in complying with the officers' order to show his hands, that the defendant had knowledge of the firearms and the ability and intention to exercise control over them. Sann Than, supra. Because a jury could conclude the Commonwealth met its burden of showing the defendant constructively possessed the firearms, we find no reason to reverse the judge's ruling. Latimore, supra.
3. The motion to sever. In examining a ruling on a motion to sever trials, we review for abuse of discretion. See Commonwealth v. Cepulonis, 374 Mass. 487, 499 (1978). Abuse of discretion occurs when the judge "made a ‘clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citations omitted). When offenses are properly joined, "the defendant has the burden of showing that he nevertheless was prejudiced by the joinder, and that severance should have been granted...." Commonwealth v. Zemtsov, 443 Mass. 36, 45 (2004).
Severance requires that "the defense of a defendant and that of a codefendant are ‘antagonistic to the point of being mutually exclusive,’ or where ‘the prejudice resulting from a joint trial is so compelling that it prevents [the] defendant from obtaining a fair trial.’ " Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 118 (2003), quoting from Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 944 (1998). In contrast, joinder "expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials." Commonwealth v. Moran, 387 Mass. 644, 658 (1982).
We are unpersuaded that the judge abused his discretion in denying severance of the defendant's trial from that of Williams. The two cases involved the same set of facts, witnesses, and circumstances, and the Commonwealth did not introduce any evidence of statements made to the police by one defendant against the other. Stephens, supra at 945. From the evidence adduced at trial, a rational trier of fact could have found both of the defendants either guilty or not guilty, and the jury were not forced to choose between two mutually exclusive versions of events. Suarez, supra. Thus, we cannot say the judge abused his discretion. Cepulonis, supra.
Conclusion. We discern no error or abuse of discretion, and therefore affirm.
Judgments affirmed.