Opinion
No. 11–P–2135.
2013-10-22
COMMONWEALTH v. Walter WEST.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of carrying a loaded firearm without a license on school grounds, possession of ammunition, and trespassing. The defendant complains that the trial judge committed error by considering the police department's written inventory policy as evidence before he denied the defendant's motion to suppress. The defendant then argues that even if the judge properly considered the inventory policy, the policy is still invalid because it is not sufficiently tailored to limit police discretion. Finally, the defendant contends that the judge committed prejudicial error by allowing a police officer witness to describe the object found in the defendant's backpack as a firearm.
There is no merit to this claim. The defendant asserts that it was prejudicial error for the trial judge to allow Sergeant Kirk Harrison to refer to the handgun found in the backpack as a firearm. However, such testimony was not admitted in error; the fact that Sergeant Harrison simply referred to the object as a firearm did not relieve the Commonwealth of its burden to prove that the object recovered was a firearm under G.L. c. 140, § 121. Moreover, at trial, the Commonwealth presented the separate testimony of Detective Martin Lydon, a Boston police detective in the firearms analysis unit, who had tested the operability of the handgun. “An error is not prejudicial if it did not influence the jury, or had but very slight effect.” Commonwealth v. Cruz, 445 Mass. 589, 591 (2005) (citations omitted). We discern no prejudicial error.
In reviewing a judge's ruling on “a motion to suppress, we accept the judge's subsidiary finding of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The defendant claims the judge improperly considered the police department's written inventory procedure submitted by the Commonwealth in response to the judge's sua sponte request for additional briefing in denying the defendant's motion to suppress and improperly allowed the Commonwealth to rectify deficiencies in the evidence it presented at the motion hearing.
Alternatively, the defendant argues that even if the judge properly admitted the inventory policy in evidence, the policy is invalid because it does not properly limit police discretion to determine the scope of the search. We discern no error.
We need not address whether, in these circumstances, the judge retained discretion to receive and consider late-filed evidence. We note that the defendant neither objected to this late submission nor sought leave to further inquire or present evidence.
The defendant's arguments are unfounded because the motion judge explicitly found that “the Commonwealth introduced no evidence of a written inventory policy.” Although the Commonwealth attached a copy of the Boston police inventory policy to its supplemental memorandum, neither the existence nor contents of such a policy appears to have been a factor in the judge's decision. Therefore, given that the judge's decision did not rest on this policy, we need not consider its validity. Nonetheless, the motion judge denied the defendant's motion to suppress and properly concluded that, because the defendant was en route to the police station after he was arrested for trespassing in a school, the discovery of the handgun in a backpack in the defendant's possession was inevitable.
The doctrine of inevitable discovery provides that “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.” Nix v. Williams, 467 U.S. 431, 447 (1984). In adopting the inevitable discovery exception to the exclusionary rule, the Supreme Judicial Court in Commonwealth v. O'Connor, 406 Mass. 112 (1989), adopted a two-step analysis: “the nature of the ‘inevitability’ that must be shown and on the character of the police wrongdoing.” Id. at 117. See Commonwealth v. Perrot, 407 Mass. 539, 546–547 (1990); Smith, Criminal Practice & Procedure § 24.75 (3d ed. 2007 & Supp.2012).
The motion judge rejected the Commonwealth's original argument that the search of the defendant's backpack was a lawful search incident to arrest, due to the fact that when the backpack was searched, the defendant was then on his way to the Boston Police Department for booking. Had the backpack been searched when the defendant was first arrested, a search for weapons would have been justified as incident to lawful arrest. See G.L. c. 276, § 1. We are also of a similar view had an immediate patfrisk of the defendant, including his backpack, been conducted by Officer Harrison or Boston police officers upon their arrival. See n. 5.
First, the Commonwealth must “prove[ ] by a preponderance of the evidence that ‘discovery by lawful means was certain as a practical matter.’ “ Commonwealth v. Linton, 456 Mass. 534, 558 (2010), quoting from Commonwealth v. O'Connor, supra.
Sergeant Kirk Harrison, the Boston school police officer who arrested the defendant, testified that he had participated in the booking process over a hundred times and normal booking procedure includes an inventory of all of the arrestee's belongings. Consequently, “according to established police procedure ... [the defendant's] possessions would have been searched and the [weapon] would have been found.” Id at 117–118. Contrast Commonwealth v. Ferguson, 410 Mass. 611, 616 (1991). Moreover, Harrison testified that he strongly suspected that the backpack contained a weapon or contraband given the defendant's highly suspicious behavior.
We note that “[u]nder [art. 14 of the Massachusetts Declaration of Rights], Massachusetts courts enforce a more restrictive standard of inevitability than does the Fourth Amendment decisional law.” Commonwealth v. Lahey, 80 Mass.App.Ct. 606, 612–613 (2011) (citations omitted). For example, unlike that Federal application of the inevitable discovery rule, the Supreme Judicial Court added a second prong to the analysis, namely that the court should consider the “severity of the constitutional violation” including the “character of the police wrongdoing” Commonwealth v. O'Connor, supra at 117–118. See Commonwealth v. Perrot, supra at 547 (“The issue of bad faith is not of great relevance in the Federal application of the rule”).
Harrison's suspicions and the fact that such a suspect item was found in a school only further guaranteed the inevitability of the backpack's search. Therefore, we discern no error in the motion judge's conclusion that the discovery of the handgun was “inevitable in every practical sense.” Commonwealth v. O'Connor, supra at 118.
Sergeant Harrison testified that after receiving reports of suspected trespassers in the school, he saw Keith Ford, the Dean of Discipline, holding a backpack while the defendant tried to grab the backpack away from Ford. When the defendant failed to gain possession of the backpack, he attempted to escape. Sergeant Harrison stopped the defendant from escaping and handcuffed him. After his arrest the defendant was increasingly agitated, he yelled for someone to give the backpack to his sister and also repeatedly tried to gain possession of the backpack.
As to the second step in the O'Connor analysis, even if we were to assume the search was invalid, the violation was not “egregious.” Id. at 119. See also Commonwealth v. Beldotti, 409 Mass. 553, 559 (1991). In Commonwealth v. O'Connor, supra at 119, the Supreme Judicial Court found that a “warrantless seizure of a plastic bag [containing contraband], part of which was visible” to the officer, was not so severe a constitutional violation as to preclude the applicability of the inevitable discovery doctrine. Like the contraband found in O'Connor, the backpack in this case could have lawfully been searched “within minutes of its seizure pursuant to a statutorily authorized and constitutionally proper ... search procedure.” Id at 119. Therefore, suppression is not required because, if the search was unlawful, it was so by a mere matter of minutes.
Moreover, this is not a case where police “used the protective custody process as a device to obtain evidence of a crime.” See Id at 118. Instead, given the defendant's highly suspicious actions concerning the backpack and the fact that the defendant was already under arrest for trespassing, the police search of such a suspect item found in a school and mere minutes away from being transported to the police station was “entirely ... desirable, if not imperative, as action for public safety.” Commonwealth v. Lahey, 80 Mass.App.Ct. 606, 614 (2011). Contrast Commonwealth v. Gomes, 408 Mass. 43, 46–47 (1990). Thus, “[i]n the circumstances of this case, the exclusion of evidence ... would seem not to serve the deterrent purpose of the exclusionary rule.” Commonwealth v. Beldotti, supra.
In sum, because the motion judge found that the defendant was already under arrest and en route to the police station where his belongings, including the backpack, would inevitably be searched pursuant to police procedure, “the motion judge's subsidiary findings are free of clear error and [his] ultimate findings and conclusions of law satisfy the requirements of the concept of lawful inevitable discovery imposed by art. 14.” Commonwealth v. Lahey, supra.
Judgments affirmed.