Opinion
11-P-1589
12-06-2012
COMMONWEALTH v. DAVID ABRAHAMIAN.
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
Following indictment on various charges, the defendant filed a motion to suppress evidence. After a hearing, a Superior Court judge (motion judge) made findings of facts and conclusions of law, and denied the motion. The motion judge subsequently denied the defendant's motion for reconsideration. After a jury-waived trial before a different Superior Court judge, the defendant was convicted of possession of an infernal machine, carrying a firearm without a license, possession of a hypodermic needle, improper storage of a firearm, and possession of cocaine. The defendant now appeals.
The sole issue on appeal is whether the motion judge erred in denying the motion to suppress evidence, including a large amount of firearms and ammunition, and two pipe bombs, retrieved from a locked room in the defendant's residence. Largely for the reasons set forth by the motion judge, we affirm the denial of the motion to suppress. On appeal from an order denying a motion to suppress, we 'accept the motion judge's findings of fact absent clear error, acknowledging that the weight and credibility of testimony is for the judge hearing the motion, but we review independently the motion judge's ultimate findings and conclusions of law.' Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 61 (2008). We conclude that the testimony of the witnesses at the suppression hearing supports the judge's findings and his ultimate conclusion that the defendant voluntarily consented to the police officers' request to enter his home and the locked gun room.
Voluntariness of consent is determined by examining the totality of the circumstances. See Commonwealth v. Burgess, 434 Mass. 307, 310-311 (2001). Here, the defendant, while being transported from the District Court division in Quincy to that in Wrentham, told Detective Bausch that he would let the police into his house and help them remove the guns, or that he would 'have a friend let them in.' Subsequently, the defendant's friend called Sergeant Anderson at the defendant's request, as the defendant was supposed to meet Anderson at his house to surrender the guns. Thus, the defendant intended to allow the police to enter his house, and to surrender his guns.
After arriving at the house and while in the driveway, the police chief told the defendant that the police were there to take possession of the defendant's firearms because his license had been suspended. The defendant replied that he knew this and that it was not a problem. In determining whether the defendant voluntarily consented to the entry, the motion judge could consider the fact that, among other things, the police told the defendant their reason for requesting entry. See Commonwealth v. Sanna, 424 Mass. 92, 99 (1997). The defendant opened the door to his house using his key, and he, the police chief, and other officers all entered the house. They descended the stairs inside, and the defendant stated that there was a locked room and that he would need to get a key to let them in. He then retrieved the key. These acts by the defendant constituted consent on his part to the police officers' entry into his home. See Commonwealth v. Voisine, 414 Mass. 772, 783 (1993). The motion judge implicitly credited Detective Bausch's and Sergeant Anderson's account of the events. See Commonwealth v. Hill, 57 Mass. App. Ct. 240, 241 (2003). The defendant chose not to testify at the suppression hearing. It was within the motion judge's province to make credibility determinations based on the witnesses that he saw and heard at the suppression hearing. Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001). It was also in the motion judge's province not to credit the defendant's affidavit, which explained that when the defendant arrived home, he found police officers already inside his house. There is no creditable evidence to support this claim.
The defendant also asserted in his affidavit that one officer had mistakenly told him that he had a court order to seize the firearms. However, as the motion judge found, 'there is no evidence in this record that the officers believed that the court order authorized a search of the premises or, more significant, that more was conveyed to the defendant beyond that which the order actually stated.'
Where officers observed the various guns, ammunition, and pipe bombs while they were in the gun room with the defendant's consent, the search warrant they obtained the following day was valid. See Commonwealth v. Matos, 78 Mass. App. Ct. 156, 160 (2010).
Judgments affirmed.
By the Court (Cohen, Katzmann & Wolohojian, JJ.),