Opinion
No. 14–P–1530.
11-30-2016
COMMONWEALTH v. David PHILLIPS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David Phillips, was convicted by a jury in the Superior Court of nine counts of possession of a large capacity feeding device in violation of G.L. c. 269, § 10(m), and one count of possession of ammunition in violation of G.L. c. 269, § 10(h). On appeal, the defendant argues that (1) the motion judge erroneously denied the defendant's motion to suppress all physical evidence found after a police-ordered tow and inventory search of the motor vehicle the defendant was driving; and (2) the trial judge erroneously precluded the defendant from raising the affirmative defense of exemption from criminal penalty under G.L. c. 140, § 131(m). We affirm.
1. Motion to suppress. a. Background. On March 3, 2011, at approximately 1:15 A.M., Worcester police Officer Nathan LaFleche observed the defendant driving a vehicle bearing a license plate without any State or country markings. LaFleche followed the vehicle and activated his emergency lights. The defendant stopped his vehicle on a west bound on-ramp to Interstate Highway 290, where there is no breakdown lane. Through the vehicle identification number, LaFleche determined that the license plate had been revoked and the vehicle was not registered in Massachusetts.
Because the vehicle was unregistered and uninsured as well as stopped in a no parking zone, LaFleche arranged for a tow. Given the unsafe location on the highway ramp, LaFleche did not conduct an inventory search at the scene. Instead, in accordance with department policy, LaFleche conducted an inventory search at the tow service center. During that search, LaFleche found unlocked boxes of military-style ammunition. He stopped the search and had the vehicle towed to the Worcester police department. LaFleche learned that the defendant did not have a firearms identification card. After obtaining a search warrant for the vehicle, LaFleche found nine large capacity magazines and ammunition of different calibers.
At the conclusion of the evidentiary hearing, the motion judge found that the officer had reasonable public safety concerns, and therefore the removal of the vehicle was proper. The Worcester motor vehicle inventory policy (inventory policy) was admitted as an exhibit at the hearing. It begins: "A detailed inventory shall be made whenever a vehicle is ordered towed, removed, or impounded as a result of any police action."
The defendant filed an affidavit in support of his motion to suppress but did not testify at the evidentiary hearing. The affidavit is not evidence and may not be considered for purposes of deciding the motion to suppress. Commonwealth v. Lawson, 79 Mass.App.Ct. 322, 326 n.4 (2011).
b. Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of h[er] ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Watson, 455 Mass. 246, 250 (2009).
Here, the defendant rightly concedes that the vehicle he was driving was unregistered and uninsured and that the police could not permit its operation on a public road or leave it unattended. The defendant argues that the inventory search of his vehicle violated his constitutional rights because Officer LaFleche did not permit the defendant to have the vehicle towed to a location of his choosing. We disagree.
The argument the defendant makes has been rejected by the Supreme Judicial Court in Commonwealth v. Daley, 423 Mass. 747, 749–751 (1996). See Commonwealth v. Campbell, 475 Mass. 611, 615 (2016) (citing Daley favorably). In Daley, supra, the Supreme Judicial Court upheld the legality of an inventory search where the defendant was not under arrest and the police agreed to his request to tow his vehicle, which was unregistered, uninsured, and bearing plates belonging to another vehicle, to his home rather than the city-contracted tow lot. The tow policy at issue in Daley provided that even if a vehicle is towed to an alternative location, an officer is mandated to conduct an inventory search. Id. at 751. Here, the inventory policy requires an inventory search "whenever a vehicle is ordered towed, removed, or impounded as a result of any police action." The destination of the tow is not relevant.
The defendant cites a separate portion of the inventory policy providing that an inventory search need not be performed where a vehicle is disabled and the owner and/or operator is present and the vehicle is towed at their request. That portion of the policy is not applicable here because the vehicle was not disabled and it was not towed at the operator's request; it was towed as a result of police action. The touchstone of the decision to tow or impound is reasonableness. Campbell, supra (discussing impoundment). Here, the defendant had in fact operated the vehicle unregistered and uninsured and stopped at night on a highway entrance ramp in an area without a breakdown lane. It was reasonable for the police to tow the vehicle and conduct an inventory search.
2. Affirmative defense under G.L. c. 140, § 131(m). The second issue on appeal is whether it was error for the trial judge to preclude the defendant from raising the affirmative defense of exemption from criminal penalty under G.L. c. 140, § 131(m).
a. Background. The relevant facts are undisputed: the defendant was issued a Class A large capacity license to carry firearms in June of 2005 that was to expire on June 1, 2011. This license was revoked in 2010 for the reason that the defendant failed to give notice of his change of address. The notice of revocation to the defendant advised him that he was deemed an unsuitable person to hold a license because he failed to notify the licensing authority of his change of address. The notice also advised the defendant that he must surrender the "firearms, large capacity feeding devices, rifles, shotguns and ammunition " in his possession or owned by him and that failure to comply is a criminal offense. The defendant challenged the revocation through the designated appeal process and the revocation was affirmed. The defendant took no further action to renew or reinstate his license.
At the time of the offense, none of the disqualifications of G.L. c. 140, § 131(d)(i-vii), would have barred the defendant from being licensed. No application for renewal of a license was made and denied after the revocation. By agreement, the judge instructed the jury that the ammunition offered into evidence was, in fact, ammunition, and the nine large capacity feeding devices were, in fact, large capacity feeding devices.
The defendant filed a motion to dismiss the charges on the grounds of the § 131(m ) defense and due process. The motion judge denied the motion, finding that by the clear language of G.L. c. 140, § 131(m ), the exemption required possession of a firearm, rifle, or shotgun and thus did not apply to the defendant's possession of only ammunition or a large capacity feeding device.
Based on these findings, the trial judge granted the Commonwealth's motion in limine to exclude the exemption defense and denied the defendant's motions for required findings on this point. The jury returned guilty verdicts on all nine counts charging possession of a large capacity feeding device and on one count of possession of ammunition.
b. Discussion. "We review questions of statutory interpretation de novo." Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006). "A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Sullivan v. Brookline, 435 Mass. 353, 360 (2001). "A court may not add words to a statute that the Legislature did not put there." Commonwealth v. Clerk–Magistrate of the W. Roxbury Div. of the Dist. Ct., 439 Mass. 352, 355 (2003). Where "the language of a statute is clear and unambiguous, it is conclusive as to the intent of the Legislature." Id. at 355–356.
General Laws c. 140, § 131(m ), as in effect on the date in question, provided a statutory defense to the crime of "possession of a firearm, rifle or shotgun" by certain license holders under certain conditions. G.L. c. 140, § 131(m ) (2010). See Commonwealth v. Farley, 64 Mass.App.Ct. 854, 860–861 (2005) (noting that § 131 [m] provides affirmative defense). The then-operative text of § 131(m ) read, in pertinent part:
General Laws c. 140, § 131(m), has since been amended. St.2014, c. 284, § 57.
"Notwithstanding the provisions of section 10 of chapter 269, any person in possession of a firearm, rifle or shotgun whose license issued under this section is invalid for the sole reason that it has expired, meaning after 90 days beyond the stated expiration date on the license, but who shall not be disqualified from renewal upon application therefor under this section, shall be subject to a civil fine of not less than $500 nor more than $5,000 and the provisions of section 10 of chapter 269 shall not apply; provided, however, that the exemption from the provisions of said section 10 of said chapter 269 provided herein shall not apply if: (i) such license has been revoked or suspended, unless such revocation or suspension was caused by failure to give notice of a change of address as required under this section; (ii) revocation or suspension of such license is pending, unless such revocation or suspension was caused by failure to give notice of a change of address as required under this section; or (iii) an application for renewal of such license has been denied."
G.L. c. 140, § 131(m ) (2010).
The defendant contends that the § 131(m) exemption applies not only to possession of a firearm, rifle, or shotgun, but also to all items entitled to be held by a firearms license holder, including ammunition and large capacity feeding devices. The defendant points to § 131(a) for support. Section 131(a) provides that a Class A firearms license entitles its holder to possess "firearms, including large capacity firearms, and feeding devices and ammunition therefor" and "rifles and shotguns, including large capacity weapons, and feeding devices and ammunition therefor." G.L. c. 140, § 131(a) (2010). The defendant urges that the words "firearm, rifle or shotgun" in § 131(m) should be interpreted to include ammunition and feeding devices. The defendant's argument fails for several reasons.
First, the presence of this ammunition-inclusive language in G.L. c. 140, § 131(a), is not persuasive; the Legislature could have similarly included ammunition and feeding devices in G.L. c. 140, § 131(m), and did not. "[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Commonwealth v. Galvin, 388 Mass. 326, 330 (1983) (quotation omitted).
Second, the Legislature has provided a definitions section which states "the following words shall, unless the context clearly requires otherwise, have the following meanings." G.L. c. 140, § 121 (2010). This section provides explicit definitions of the words "[a]mmunition," "[f]irearm," "[l]arge capacity feeding device," "[r]ifle," "[s]hotgun," and "[w]eapon," which apply to G.L. c. 140, § 131(m ), and which do not include ammunition or large capacity feeding devices; these words are separately defined. We find nothing in the context of G.L. c. 140, § 131(m ), that "clearly requires" that a different meaning be given to the words "firearm, rifle or shotgun." The Legislature's intent was unequivocal.
The pertinent definition provisions provide:
"As used in sections 122 to 131P, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:—
" 'Ammunition', cartridges or cartridge cases, primers (igniter), bullets or propellant powder designed for use in any firearm, rifle or shotgun. The term 'ammunition' shall also mean tear gas cartridges, chemical mace or any other device or instrument which contains or emits a liquid, gas, powder or any other substance designed to incapacitate.
"...
" 'Firearm', a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured ...
"...
" 'Large capacity feeding device', (i) a fixed or detachable magazine, box, drum, feed strip or similar device capable of accepting, or that can be readily converted to accept, more than ten rounds of ammunition or more than five shotgun shells; or (ii) a large capacity ammunition feeding device as defined in the federal Public Safety and Recreational Firearms Use Protection Act ...
"...
" 'Rifle', a weapon having a rifled bore with a barrel length equal to or greater than 16 inches and capable of discharging a shot or bullet for each pull of the trigger.
"...
" 'Shotgun', a weapon having a smooth bore with a barrel length equal to or greater than 18 inches with an overall length equal to or greater than 26 inches, and capable of discharging a shot or bullet for each pull of the trigger.
"...
" 'Weapon', any rifle, shotgun, or firearm.' "
G.L. c. 140, § 121 (2010).
The defendant relies on Commonwealth v. Baker, 368 Mass. 58, 68 (1975), and DiFiore v. American Airlines, Inc., 454 Mass. 486, 490 (2009), to argue that we should look to associated words and phrases in the statutory context and to the statutory scheme as a whole. We find nothing in these cases that compels us to read words that are statutorily defined to include other words that are separately statutorily defined.
The defendant also claims that it is "illogical" for the Legislature to include large capacity feeding devices and ammunition in § 131(a ) and not in § 131(m ). This argument is not persuasive because § 131(m ) applies to Class A and Class B license holders, but Class B license holders are precluded from possessing large capacity feeding devices. This court must enforce the express statutory language.
Finally, the defendant argues that the legislative scheme does not make sense because feeding devices and ammunition are useless without a firearm. This argument fails to acknowledge that possession of ammunition or a large capacity feeding device alone is separately criminalized. G.L. c. 269, §§ 10(h ) (ammunition), 10(m ) (large capacity feeding device).
We therefore conclude that the statutory exemption in G.L. c. 140, § 131(m ), applies only to possession of firearms, rifles, and shotguns, and not to ammunition or large capacity feeding devices. Because the G.L. c. 140, § 131(m ), exemption does not apply in the circumstances here, we find that the trial judge committed no error in preventing the defendant from raising this defense at trial.
Judgments affirmed.