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Commonwealth v. Ubilez

Appeals Court of Massachusetts, Middlesex

January 7, 2016

Commonwealth
v.
Michael Ubilez

Argued October 7, 2015.

Complaint received and sworn to in the Woburn Division of the District Court Department on January 8, 2010.

A pretrial motion to suppress evidence was heard by Paul M. Yee, J., and the case was tried before Timothy H. Gailey, J.

J. Gregory Batten for the defendant.

David Bastian, Assistant District Attorney, for the Commonwealth.

Present: Katzmann, Rubin, & Wolohojian, JJ.

OPINION

Page 815

Wolohojian, J.

At issue is the search of a vehicle driven by the defendant, which was reported to contain a stolen cellular telephone (cell phone). The defendant makes two arguments on appeal with respect to the search. First, he contends that the police did not have probable cause to believe he had committed a crime at the moment he was arrested and therefore there was no valid search incident to that arrest. The two crimes at issue are operating a motor vehicle with a suspended registration and receiving stolen property with a value exceeding $250. Second, he argues that the inevitable discovery exception does not apply.

Because we conclude that the inevitable discovery exception applies, we need not consider whether the search was also justified as incident to the defendant's arrest. However, because there is a split of opinion among trial court decisions and the issue has not been addressed by the appellate courts, we address whether the misdemeanor of operating a motor vehicle with a suspended registration is an arrestable offense, and the circumstances in which it is so. We conclude that there is no statutory authority to arrest an individual for operating a motor vehicle with a revoked[1] registration but that, under circumstances not present here, an arrest may be made under the established common law rule pertaining to warrantless arrests for misdemeanors. As to the defendant's second argument, we conclude that, even accepting that an excessive show of force was employed by the police in the circumstances presented, the inevitable discovery exception applies.

In addition, we reject the defendant's argument that the evidence was insufficient to prove possession of stolen property. Accordingly, we affirm.

Background.

The defendant was charged in District Court with two counts of receiving stolen property having a value greater than $250, G. L. c. 266, § 60; and one count each of possession of a burglarious instrument, G. L. c. 266, § 49; receiving a stolen credit card, G. L. c. 266, § 37B( b ); improper use of a credit card, G. L. c. 266, § 37B( f ); forgery of a document, G. L. c. 267, § 1; uttering a false writing, G. L. c. 267, § 5; and operating a motor vehicle with a suspended registration, G. L. c. 90, § 23.[2] With the

Page 816

exception of the motor vehicle violation, the tangible evidence of the crimes was obtained through a warrantless search of a van driven by the defendant.

After an evidentiary hearing consisting of one witness (the arresting officer) and one exhibit (the Burlington police department's inventory policy),[3] the motion judge denied the defendant's pretrial motion to suppress, and found the following facts which ...


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