Opinion
18-P-1091
12-05-2019
COMMONWEALTH v. Benjamin B. SAYWAHN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of possession of a firearm without a license in violation of G. L. c. 269, § 10 (a ). On appeal, the defendant argues that the motion judge and the trial judge respectively erred in (1) denying his motion to suppress a firearm because it was seized as a result of a threshold inquiry that exceeded the scope of a traffic stop, and (2) denying his motion for a required finding of not guilty because there was insufficient evidence that he constructively possessed the firearm. We affirm.
1. Motion to suppress. a. Facts. A Worcester police officer's attention was drawn to the motor vehicle in which the defendant was riding because the car had a windshield smashed in several places. The officer ran the car's license plate number through the Criminal Justice Information System (CJIS) database and learned that the car was not inspected. The officer signaled for the driver of the car to pull over, and he did. As the officer approached from behind the car, he noticed that the defendant, who was seated in the front passenger seat, looked back at him twice, reached to the left side of his waistband, leaned forward, and then quickly shut the glove box door. When the officer reached the driver's side of the car, he told the defendant to sit still.
The facts are taken from the motion judge's written findings, which are supported by the evidentiary record at the hearing on the motion to suppress.
The officer asked the driver for his license and registration. The driver provided his license and retrieved the registration from the driver's side door pocket. Noticing that the defendant did not have a seatbelt on, the officer asked him to provide identification. The defendant replied that he had none with him but provided his Social Security number. The officer then returned to his cruiser to check on both individuals. A check of the CJIS database revealed that the defendant had a prior arrest for a firearms violation. A check of the local "Police Server" database revealed that the driver was a gang member and the victim of a recent shooting. The officer then called for back-up assistance. After that assistance arrived, the officer asked the driver and the defendant to step out of the car. They were both pat frisked and then seated away from the car. The officer then opened the unlocked glove box, saw a handgun, and seized it.
From his earlier check of the CJIS and Police Server databases, the officer was aware that neither the driver nor the defendant were licensed to carry a firearm.
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b. Discussion. The motion judge determined that, what began as a routine motor vehicle traffic stop, developed into a situation where the police had a reasonable concern for officer safety and that the gun was therefore properly seized during a patfrisk for weapons arising out of that concern. See Commonwealth v. Torres, 433 Mass. 669, 675 (2001) ("routine traffic stop[ ] evolved into a more full-fledged Terry-type stop" justifying exit order and patfrisk for weapons). The defendant contends that the judge erred in so concluding because the police concern for safety only arose out of a threshold inquiry, which exceeded the proper scope of the traffic stop. See Commonwealth v. Feyenord, 445 Mass. 72, 78 n.5 (2005) (after production of license and registration during uneventful traffic stop, police may not expand inquiry or extend detention).
As the defendant acknowledges, however, the police were entitled to request the operator's driver's license and registration for the car. See Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996) (request for driver's license and registration appropriate for stop based on civil motor vehicle infraction). Here, the officer had not had a chance to make any inquiry of the operator before the defendant made certain movements that gave the officer concern for his safety. The defendant's actions of looking back at the officer twice, reaching to one side, leaning forward, and then quickly shutting the glove box were furtive movements giving rise to reasonable concern for officer safety. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (gestures suggestive of occupant retrieving or concealing object raise legitimate safety concerns). See also Commonwealth v. Goewey, 452 Mass. 399, 406-407 (2008) (defendant's act of repeatedly looking back at officers added to officer's legitimate concern for safety); Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 905 (2013) (operator's act of quickly opening and shutting glove box added to officer's legitimate safety concern).
Rather than making an immediate exit order, the officer proceeded within the bounds of his civil motor vehicle inquiry. His observation that the defendant did not have a seatbelt on entitled the officer to ask the defendant for identification. See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 57 (2013) (police may request identification from passenger upon seatbelt infraction). Since the defendant provided no identification and instead only transmitted oral information, the officer was permitted to verify that information. While checking the information provided to him by both individuals, the officer learned of the defendant's prior arrest for a firearms offense and the driver's gang affiliation. See Bartlett, 41 Mass. App. Ct. at 471 (while engaging in traffic stop, police officer not required to "ignore what he sees, smells or hears"). This information reasonably heightened the officer's concern for safety. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841-842 (2010) (gang membership and prior arrest for firearms offense properly considered when assessing legitimate safety concern). The officer's decision to issue an exit order was therefore justified by a reasonable concern for officer safety. See Stampley, 437 Mass. at 329.
The defendant argues nevertheless that the officer's check through police databases for criminal background information impermissibly exceeded the scope of the traffic stop. Yet, this was not a situation where the police were exploiting a civil motor vehicle infraction to investigate suspected criminal activity. Compare Bartlett, 41 Mass. App. Ct. at 472. Rather, the officer here was attempting to assess the safety situation as he prepared to return to the car to issue citations. See Stampley, 437 Mass. at 329 (concern for safety was ongoing as officer needed to complete steps to issue citation). He was entitled to utilize all resources available to him to expeditiously confirm or dispel his concern. Cf. Commonwealth v. Wright, 85 Mass. App. Ct. 380, 384 (2014). In searching the police databases, the police acted proportionately to the safety concern presented by the defendant's furtive gestures. See Feyenord, 445 Mass. at 77 (in evaluating whether police exceeded permissible scope of stop, "issue is one of proportion"). Because the police did not exceed the scope of the stop, and the exit order and patfrisk were justified by reasonable concern for officer safety, the motion to suppress was properly denied.
2. Motion for required finding. The defendant contends that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth failed to present sufficient evidence at trial that he was in constructive possession of the firearm found in the glove box of a car owned and driven by someone else.
In order to prove constructive possession of the firearm, the Commonwealth was required "to prove that the defendant had knowledge of the weapon, coupled with the ability and intention to exercise dominion and control over it." Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 935 (1998). Here, the Commonwealth presented evidence that the defendant, while seated in the passenger seat of a car that had been pulled over by the police, looked back at the approaching officer and then reached toward the left side of his waistband. As the officer approached the rear window of the car, the defendant shut the glove box. When the glove box was opened by the officer minutes later, the officer found a firearm in plain view. Thus, the evidence allowed for the reasonable inference that the defendant had removed the gun from his waistband and placed it in the glove box just before the officer arrived at the driver's side window. See Commonwealth v. Linton, 456 Mass. 534, 544 (2010) (inferences need only be reasonable and possible and not necessary or inescapable).
Contrary to the defendant's argument on appeal, the jury would not have had "to speculate that the defendant knew the gun was concealed in the] car ... merely from his presence in that car," but rather could have inferred that the defendant saw it while closing the glove box. Commonwealth v. Almeida, 381 Mass. 420, 423 (1980). Contrast id. at 422-423 (no evidence that defendant had opened console of borrowed car that contained gun); Commonwealth v. Snow, 76 Mass. App. Ct. 116, 119-122 (2010) (no evidence that defendant had discovered gun hidden between driver's seat and center console of borrowed car). Here, the jury would not have had to speculate that the defendant had the ability and intention to control the gun, but rather could have inferred those elements from the defendant's proximity to the gun, which was directly in front of him within the glove compartment of the car, and his actual assertion of control over the gun by placing it in the glove compartment. See Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 594 (2007) (defendant shoving his feet under seat where gun was found allowed inference of ability and intent to control firearm).
In the light most favorable to the Commonwealth, the evidence was sufficient to allow a rational fact finder to conclude beyond a reasonable doubt that the defendant had knowledge of the firearm and the ability and intention to exercise control over it. See Commonwealth v. Degro, 432 Mass. 319, 325 (2000), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The motion for a required finding of not guilty was properly denied.
Judgment affirmed.