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Commonwealth v. Santos

Appeals Court of Massachusetts, Suffolk

August 26, 2019

COMMONWEALTH
v.
LUIS SANTOS.

          Heard: September 6, 2018.

         Indictments found and returned in the Superior Court Department on March 27, 2014.

         A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and the cases were tried before Raffi N. Yessayan, J.

          Daniel N. Marx for the defendant.

          Ian MacLean, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth.

          Present: Vuono, Agnes, & Henry, JJ.

          AGNES, J.

         The defendant, Luis Santos, appeals from his convictions, after a trial by jury, of possession of a sawed-off shotgun in violation of G. L. c. 269, § 10 (c0, and possession of a loaded firearm without a license in violation of G. L. c. 269, § 10 (n), [1] The charges arose out of the stop of the defendant as he alighted from a vehicle and the subsequent seizure of firearms from inside the vehicle. The defendant raises two issues. First, he argues that the motion judge, who heard his pretrial motion to suppress evidence, erred in ruling that the police had reasonable suspicion to conduct a threshold inquiry. Second, he argues that the Commonwealth's trial evidence was not sufficient to prove beyond a reasonable doubt that he had constructive possession of the sawed-off shotgun found in the back seat of the vehicle, and that he knew the shotgun was loaded. We affirm.

         Background.

         The motion judge conducted an evidentiary hearing on the defendant's motion to suppress.[2] The motion judge credited the testimony of Boston Police Officer Jarrod Gero, the only witness.[3]

         Around 9:45 A.M. on January 10, 2014, Officer Gero was in plainclothes, in an unmarked police vehicle. He heard an all points police radio broadcast (all points broadcast) for a "robbery involving a shotgun."[4] The all points broadcast informed him that the suspects fled from the scene in a white Toyota Corolla station wagon. The dispatcher gave "Blue Hill Ave. and Dudley Street" as the location of the crime, but did not broadcast information about the direction in which the vehicle was headed.

         When he first heard the all points broadcast, Officer Gero was in the Grove Hall neighborhood of the Dorchester section of Boston, about one and one-half miles from the location of the reported armed robbery. He was familiar with the area, having made numerous arrests there over the years. Within several minutes, Officer Gero spotted a white Toyota Corolla station wagon pass his vehicle, heading in the opposite direction, away from Blue Hill Avenue. He had observed white Toyota Corolla vehicles in that area in the past, but never a station wagon. He saw two male occupants in the vehicle, a driver and a front seat passenger. Suspecting that this could be the getaway car, he turned his vehicle around and informed dispatch that he was following a white Toyota Corolla station wagon. Officer Gero followed the vehicle for three to five minutes, over "Geneva[, ] . . . Bowdoin[, ] . . . Greenbrier, . . . Dakota, . . . Washington[, ] . . . and School Street[s]. After turning onto School Street, Officer Gero observed the vehicle turn into the driveway of a multifamily house and drive toward the rear of the home.

         After notifying police dispatch of his location and his intention to pursue the vehicle on foot, Officer Gero got out of his vehicle and followed the white Toyota Corolla station wagon down the driveway. He saw it park, and as he approached, the driver's side door opened. As the operator, later identified as the defendant, stepped out, Officer Gero, who had drawn his weapon, instructed the defendant to show his hands and not to move. Officer Gero could see into the vehicle, and he observed the front seat passenger trying to stuff a silver handgun between the seat and the door. Officer Gero took control of the defendant, positioning the defendant between the passenger and him. At this point, other officers arrived. Officer Gero informed the arriving officers of the handgun, and then put the defendant on the ground and handcuffed him. At some point, Officer Gero realized that there was a third male, in the rear seat of the vehicle. Other officers removed the front and rear seat passengers from the vehicle and arrested them. The handgun was recovered under the front passenger seat. Officer Gero also observed the barrel of a shotgun in the rear seat, underneath some clothing.

         The motion judge ruled that the stop and detention of the defendant was a valid threshold inquiry based on the all points broadcast of an armed robbery heard by Officer Gero and his subsequent observations, and that given the nature of the suspected crime, it was a reasonable safety precaution to handcuff the defendant as he got out of the vehicle. He also rejected the defendant's argument that Officer Gero's entry into the driveway where the white Toyota Corolla station wagon stopped was unlawful.

         Discussion.

         1. Denial of motion to suppress.

         a. Standa ...


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