Opinion
14-P-227
03-17-2015
COMMONWEALTH v. MARCUS AGEE.
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
This is an interlocutory appeal by the Commonwealth from an order allowing the defendant's motion to suppress an iPad device seized from the defendant during a street encounter with a Boston police detective. For the reasons that follow, we agree with the motion judge that the detective lacked probable cause to believe the item was stolen and therefore lacked justification for its warrantless seizure.
Background. The essential facts are not in dispute. Based on the testimony of Boston police Detective Westhaver, the only witness to testify at the hearing on the motion to suppress, the judge found that the defendant, Marcus Agee, was initially observed by Detective Westhaver inside Fairmount Jewelers on Hyde Park Avenue. The defendant was not known to the detective. The defendant was talking with the store owner's son. A black iPad device was on the counter between them. The defendant said, "Can you do $175?" Detective Westhaver left the store without hearing any more of the conversation. When he returned to the store, he learned that the defendant had been trying to sell the iPad. A short time later, Detective Westhaver saw the defendant in the middle of the bridge on River Street. The defendant was showing the iPad to another person, but Detective Westhaver did not hear any of the conversation between them. Detective Westhaver then observed the defendant walk to 19 Valencia Road and enter the home. Detective Westhaver knew that Adam Francia, the head of a local gang involved in selling drugs, lived at that address. After returning to the jewelry store, Detective Westhaver saw the defendant standing outside the store and speaking with a man identified as Whitehouse. Detective Westhaver heard the defendant say, "I already tried to sell the iPad in there."
At this point, Detective Westhaver approached the defendant, identified himself as a police officer, and asked him where he had obtained the iPad. The defendant told Detective Westhaver that he bought it two days earlier on a street corner in Mattapan from a "white man with peach fuzz" named Jack. The defendant also stated that he had erased the memory on the iPad and had put "his own stuff" on it. The defendant readily supplied Detective Westhaver with his true name and date of birth and admitted that he had gone to Francia's home. Detective Westhaver called the police station and requested assistance. Other police officers arrived. Detective Westhaver, believing that the iPad was stolen, took it from the defendant and told him that he would hold it for four days, at which point the defendant could check back with Detective Westhaver.
Detective Westhaver had no knowledge from any other source that the iPad was stolen. He had not done any research on the sale price of a used iPad. Neither the iPad nor a photograph of it was introduced as an exhibit. There was no evidence about the model of the iPad that the defendant possessed or its condition.
Discussion. If the facts and circumstances known to Detective Westhaver, along with the reasonable inferences that could be drawn from the facts, indicated that the iPad was stolen property, he would have had the right to seize it without a warrant under the plain view doctrine. See Commonwealth v. Accaputo, 380 Mass. 435, 450 (1980) (application of plain view doctrine does not require proof of inadvertence in case of stolen property). However, we agree with the motion judge's decision that the seizure was unlawful because Detective Westhaver lacked probable cause to believe that the iPad was stolen.
The Commonwealth argues that the judge neglected to find additional facts that tip the scales in favor of probable cause. We disagree. Detective Westhaver's belief that the iPad in question was worth "hundreds and hundreds of dollars," adds nothing to the calculus of probable cause because there is no basis in the evidence to support it. The Commonwealth's argument is tantamount to a claim that we should take judicial notice that any iPad device has a value of more than fifty dollars. "Judicial notice . . . cannot be taken of material factual issues that can only be decided by the fact finder on competent evidence." Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229 (1995). See Nantucket v. Beinecke, 379 Mass. 345, 352 (1979) (personal knowledge alone is not sufficient foundation for judicial notice); Mass. G. Evid. § 201 (2014). The value of a consumer product described only in the most general terms (e.g., an iPad) is not a matter of common knowledge that may be judicially noticed without some additional information about its features and its condition. See Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 69 n.9 (1997).
Although the defendant's explanation of how he came into possession of the iPad and his efforts to sell it may have raised a suspicion that it was stolen, more is required to establish probable cause. See Commonwealth v. Bond, 375 Mass. 201, 210 (1978); Commonwealth v. Holloway, 81 Mass. App. Ct. 910, 911 (2012). The facts known to Detective Westhaver are not the type of peculiar facts and circumstances that warrant an inference that the item was stolen. Contrast Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 596-597 (1998).
The Commonwealth's reliance on Commonwealth v. Boris, 317 Mass. 309, 315-317 (1944); Commonwealth v. Kelley, 333 Mass. 191, 193-194 (1955); Commonwealth v. Ryan, 11 Mass. App. Ct. 906, 907 (1981); Commonwealth v. Santucci, 13 Mass. App. Ct. 933, 934 (1982); and Commonwealth v. Rossi, 15 Mass. App. Ct. 950, 951 (1983), is misplaced. Kelley, supra, and Rossi, supra, deal with the inference that may be drawn from the possession of recently stolen property, and include circumstantial proof of the defendant's guilty knowledge that is far greater than what is present in this case. Boris, supra, merely recognizes that proof of knowledge that goods are stolen may be established circumstantially, but it does not stand for the proposition that suspicion about whether goods are stolen establishes actual knowledge or even probable cause. Ryan, supra, is a case in which the defendant's incriminating statements were instrumental in proof of his knowledge that the goods were stolen. In Santucci, supra, there was evidence that the value of the property sold by the defendant was far below its market value and that he had previously sold recently-stolen property.
Conclusion. For these reasons, the order allowing the motion to suppress is affirmed.
So ordered.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 17, 2015.