December 6, 2018.
N.E.3d 1053] COMPLAINTS received and sworn to in the Lawrence
Division of the District Court Department on March 17, 2014,
and December 2, 2015. A pretrial motion to suppress evidence
was heard by Michael A. Uhlarik, J.; a motion for
reconsideration was considered by him; and the case was tried
before Holly V. Broadbent, J.
A. Dame, Springfield, for the defendant.
P. Sullivan, Assistant District Attorney, for the
Green, C.J., Vuono, Meade, Sullivan, & Shin, JJ.
a jury trial in District Court, the defendant was convicted
of unlawful possession of a firearm and unlawful possession
of a loaded firearm. The charges stemmed from the discovery
of a loaded revolver in a vehicle in which the defendant was
a passenger. On appeal, he claims that (1) the motion judge
erred in denying his motion to suppress the firearm, (2) the
evidence was insufficient to prove that he knew the firearm
was loaded, (3) certain comments made by the prosecutor in
his closing argument were error that created a substantial
risk of a miscarriage of justice, and (4) his conviction of
possession of a loaded firearm should be reversed because the
judge did not instruct the jury that the Commonwealth is
required to prove beyond a reasonable doubt that the
defendant knew the firearm
was loaded, and the evidence was insufficient to prove that
the defendant knew the firearm was loaded. We affirm.
jury could have found the following facts. On March 16, 2014,
at approximately 11:15 P.M., State Police Trooper Daniel
Schumaker was on patrol on Route 495 in Lawrence when he
stopped a vehicle for not displaying a valid inspection
sticker. The defendant was a passenger in the front seat. His
mother, who owned the car, was driving. Another adult, two
young children, and a teenager were seated in the back seat.
approached the car from the passenger side and saw that the
defendant [132 N.E.3d 1054] was not wearing a seat belt.
Schumaker asked the defendant for identification so that he
could issue a citation to him. The defendant reached into the
left pocket of his cargo pants and retrieved a black object
from his pants. Based on his training and experience,
Schumaker believed the item was "[p]ossibly a
weapon." The object fell between the seat and the center
console, out of Schumaker’s view. The defendant then produced
a wallet and handed his identification to Schumaker.
Schumaker believed that the object he saw was a weapon, but
he did nothing at that point because there were children in
the back seat and he wanted to avoid escalating the
situation. Instead, Schumaker returned to his cruiser and
conducted a records check. The check revealed that the
defendant had several "active" warrants. Schumaker
called for assistance and remained in his cruiser until
backup arrived. About fifteen minutes later, when additional
officers were on the scene, Schumaker returned to the car,
ordered the defendant out, pat frisked him, and placed him
under arrest. The defendant cooperated. After the defendant
was handcuffed and seated in the cruiser, Schumaker returned
to the car and searched the area where the defendant had been
sitting. He found under the passenger seat a .38 caliber
snub-nosed revolver loaded with four rounds of ammunition.
The revolver and the ammunition were introduced as exhibits
defendant did not testify. Through argument,
cross-examination, and testimony provided by his mother, the
defendant maintained that he had no knowledge that the gun
was in the car, which his mother had purchased, preowned,
seven days earlier. He vigorously challenged Schumaker’s
credibility, asserting that, had Schumaker seen the defendant
remove a weapon from his
pocket, Schumaker would not have left the defendant in the
car while waiting for assistance to arrive. The defendant’s
mother also attempted to undermine Schumaker’s version of
events. She testified that another officer, not Schumaker,
found the gun and had done so after searching the car three
or four times. Lastly, defense counsel emphasized that the
defendant’s behavior was inconsistent with guilt because he
did not appear nervous and acted, in Schumaker’s words, like
a "perfect gentleman."
Motion to suppress.
defendant filed a motion to suppress the firearm alleging
that the search of the automobile was unconstitutional.
Following an evidentiary hearing, at which Schumaker was the
sole witness, the motion judge denied the motion in a
handwritten endorsement. Based on Schumaker’s
testimony, which the judge explicitly credited,
[132 N.E.3d 1055] the judge found as follows: (1) Schumaker
made a valid motor vehicle stop based on the vehicle’s
noncompliance with "inspection laws"; (2) the
defendant was not wearing a seat belt and, therefore,
Schumaker was entitled to ask for his identification; (3)
"[w]hile getting his [identification], the [defendant]
removed what appeared to be a gun from his pants pocket [and]
placed it between the console [and the] seat"; (4)
Schumaker lawfully arrested the defendant on active warrants;
and (5) "[a]fter [the defendant] was arrested [and]
placed in [the] cruiser, the [trooper] searched the area
around the passenger seat [and] found [and] seized a
gun." On the basis of these facts the motion judge
concluded that the search of the car was justified on two
grounds: first, as a valid search incident to an arrest, and
second, as a protective search for the trooper’s safety.
"In reviewing a ruling on a motion to suppress, we
accept the [motion] judge’s subsidiary findings of fact
absent clear error ‘but
conduct an independent review of [the] ultimate findings and
conclusions of law’ " (citation omitted).
Commonwealth v. Cawthron, 479 Mass. 612, 616, 97
N.E.3d 671 (2018). "We review independently the
application of constitutional principles to the facts
found" (citation omitted). Commonwealth v.
Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016).
motion to suppress was properly denied. First, as the
defendant acknowledges, the stop of the automobile was legal.
See Commonwealth v. Buckley, 478 Mass. 861, 865-866,
90 N.E.3d 767 (2018) (where police observe traffic violation,
they are warranted in stopping vehicle). Next, the trooper’s
request for identification for the purpose of issuing a
citation was proper, see Commonwealth v. Elysee, 77
Mass.App.Ct. 833, 843-844, 934 N.E.2d 837 (2010), and the
defendant was lawfully arrested on active warrants, see
Commonwealth v. Clermy, 421 Mass. 325, 326-327, 656
N.E.2d 1253 (1995). The only remaining issue is whether
Schumaker acted reasonably in looking under the front
passenger seat to determine whether the object he saw was a
firearm. We think he did.
Terry type of search may extend into the interior of an
automobile so long as it is limited in scope to a protective
end." Commonwealth v. Almeida, 373 Mass. 266,
272, 366 N.E.2d 756 (1977). Here, while standing outside the
vehicle, Schumaker saw the defendant remove an object from
his pocket and then place it between the seat and the center
console. The motion judge explicitly credited the trooper’s
testimony that the object appeared to be a gun. These
circumstances warranted further investigation. The
investigation that then occurred, the search of the area
under the front passenger seat, was confined to what was
minimally necessary to learn whether the object was, in fact,
a firearm or another weapon. Schumaker was not required to
"gamble with [his] personal safety."
Commonwealth v. Robbins, 407 Mass. 147, 152, 552
N.E.2d 77 (1990). We conclude that Schumaker’s actions were
reasonable and necessary for his protection and, therefore,
the search was lawful.
contrary to the defendant’s argument, it matters not that the
defendant was handcuffed and seated in the cruiser at the
time of the search. Two adults and three children were in the
car. Thus, the threat to the trooper’s safety and the safety
of the occupants had not ceased. Robbins, 407 Mass.
at 152, 552 N.E.2d 77. Indeed, to ...