Commonwealth v. Ubilez

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14-P-1108 Appeals Court
COMMONWEALTH vs. MICHAEL UBILEZ.
No. 14-P-1108.
Middlesex. October 7, 2015. - January 7, 2016.
Present: Katzmann, Rubin, & Wolohojian, JJ.
Constitutional Law, Search and seizure, Probable cause. Search
and Seizure, Motor vehicle, Probable cause, Search incident
to lawful arrest, Inevitable discovery. Probable Cause.
Motor Vehicle, Registration, Operation. Receiving Stolen
Goods.
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.
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
2
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 revoked1 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
1
The defendant was charged with operating a motor vehicle
with a suspended registration. The motion judge found that the
registration had been revoked. We use the two terms
interchangeably -- nothing turns on the distinction.
3
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 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
2
After a jury trial, the defendant was found guilty of two
counts of receiving stolen property with a value greater than
$250, and one count of receiving a stolen credit card. He was
acquitted of possession of a burglarious instrument and improper
use of a credit card. The forgery and uttering charges were
dismissed with the defendant's consent, and the motor vehicle
violation was disposed of by nolle prosequi. He was sentenced
to one year in the house of correction on each count on which he
was found guilty, all sentences to run concurrently.
4
department's inventory policy),3 the motion judge denied the
defendant's pretrial motion to suppress, and found the following
facts which we adopt wholesale, there being no claim or showing
of clear error.
"Officer Peter Abaskharoun has been with the
Burlington Police Department for six years with an
additional two years as a New Hampshire state trooper. On
the evening of January 7, 2010 at 8:45, he was dispatched
to Wendy's at 120 Mall Road for a call that a victim of a
theft who had reported that a motor vehicle with two
suspects had just pulled out of Wendy's restaurant. The
victim's cellular telephone had been stolen. The victim
had used her Global Positioning System (GPS) tracker to
locate her cellphone from Woburn to Burlington and obtained
the license plate to the car, to which the GPS locator had
led the victim.
"Officer Abaskharoun ran the license plate and learned
that the registration to the Chrysler Town and Country van
had been revoked. Detective Redfern had spoken to the
victim relating to the identity of the motor vehicle.
Detective Redfern advised the officer to 'use caution.'
Detective Redfern with other officers were down the street
with the victim.
"When the officer was on Mall Road, the vehicle with
the queried license plate passed the officer. The officer
activated his cruiser lights and stopped the vehicle on
South Bedford Street. Officer Abaskharoun called for other
units. He conducted a 'felony stop' of the car with his
gun directed at the van. He used the public address (PA)
system to order the driver to shut off the engine, throw
the car keys out of the window and exit the van.
3
Neither party included the inventory policy in the record
on appeal. As the proponent of the evidence (as well as the
party bearing the burden of establishing the validity of the
warrantless search), it was the Commonwealth's obligation to
include the document in the appellate record. That said, we
have ourselves obtained a copy of the inventory policy from the
trial court.
5
"Defendant Ubilez was the driver. The defendant
complied and walked backwards with his hands in the air to
the officer. Officer Abaskharoun ordered the defendant to
his knees and handcuffed him. The officer pat-frisked the
defendant, and no weapons were found. Officer Abaskharoun
read Miranda rights to the defendant who refused to answer
him.
"As he looked into the vehicle, the officer saw two
purses in plain view. Neither the defendant nor the
passenger was a woman. The officer obtained a description
of the purse from the victim: a red Coach purse. The
purse seen in the rear seat matched the description
provided by the victim.
"Upon search [of] the motor vehicle, the police found
a tan purse with a female identification behind the
driver's seat. Other items found were laptops, GPS units
and cellphone[s]. The Wendy's bag of food was still warm
to the touch. There were tools to punch out a car window
pane including a screw driver. The defendant was arrested.
"There were too many items to inventory. The motor
vehicle was towed and left in the sally port of the
Burlington Police Department. An inventory search was
conducted pursuant to the Burlington Police Department
Motor Vehicle Inventories . . . . The reporting party, Ms.
Reynolds, identified her red Coach purse. The
identification in the other purse was that of a Diane
Stafford."
Discussion. 1. Inevitable discovery. The defendant
concedes that, given the contemporaneous report by the victim
that her stolen cell phone was in the van driven by the
defendant, and the officer's knowledge that the van's
registration had been revoked, there was sufficient ground to
stop the van. He argues, however, that discovery of the items
in the van was not inevitable under the two-step analysis
6
announced in Commonwealth v. O'Connor, 406 Mass. 112 (1989). We
disagree.
In the first step of the O'Connor analysis, "the
Commonwealth has the burden of proving the facts bearing on
inevitability by a preponderance of the evidence and, once the
relevant facts have been proved, that discovery by lawful means
was 'certain as a practical matter.'" Commonwealth v. Perrot,
407 Mass. 539, 547 (1990), quoting from Commonwealth v.
O'Connor, 406 Mass. at 117. Inevitability is determined by the
"circumstances existing at the time of the unlawful seizure."4
Commonwealth v. Perrot, 407 Mass. at 548, quoting from
Commonwealth v. O'Connor, 406 Mass. at 117 n.4.
Here, Officer Abaskharoun knew, before stopping the van,
that its registration had been revoked. Under G. L. c. 90, § 9,
an unregistered vehicle cannot be operated, nor can it be
allowed to remain on any way.5 Because the van was unregistered,
4
The defendant contends that he was unlawfully seized when
the officer, with his gun drawn and pointing towards the van,
ordered him to exit. The Commonwealth agreed at oral argument
that the defendant was under arrest at that moment, but
disagrees that the arrest was unlawful. The disagreement is of
no significance here because discovery was inevitable as a
practical matter when the officer stopped the van.
5
"No person shall operate, push, draw or tow any motor
vehicle or trailer, and the owner or custodian of such a vehicle
shall not permit the same to be operated, pushed, drawn or towed
upon or to remain upon any way . . . , unless such vehicle is
registered in accordance with this chapter." G. L. c. 90, § 9,
as amended by St. 1977, c. 705.
7
"the officers could not permit the continued unlawful operation
of th[e] vehicle on the public roadways, nor could they leave
the vehicle unattended on the shoulder of a busy main road."
Commonwealth v. Daley, 423 Mass. 747, 750 (1996) (impoundment
required for unregistered vehicle). As a practical matter,
therefore, it was inevitable that the van would be impounded
once it had been stopped. Moreover, the defendant does not
challenge the fact that impounded vehicles are required to be
inventoried under the Burlington police department's written
inventory policy. Nor does he argue that the conduct or scope
of the search violated the written policy. See Commonwealth v.
Silva, 61 Mass. App. Ct. 28, 32 (2004). The first step of
O'Connor's two-step test is accordingly satisfied.
In the second step, we are to consider the severity of the
alleged constitutional violation. Commonwealth v. Perrot, 407
Mass. at 547. In this regard, "[b]ad faith of the police, shown
by such activities as conducting an unlawful search in order to
accelerate discovery of the evidence, will be relevant in
assessing the severity of any constitutional violation."
Commonwealth v. O'Connor, 406 Mass. at 118. Here, unlike the
circumstances in Perrot and O'Connor, we are not faced with a
situation where the police conduct was designed to obtain
evidence or to circumvent the warrant requirement. Nor is there
any claim or showing of bad faith on the part of the officer.
8
However, relying on United States v. Rullo, 748 F. Supp. 36
(D. Mass. 1990), the defendant contends that the second step of
the O'Connor analysis is not satisfied because the officer used
excessive force. In Rullo, officers, believing that the
defendant had fired a gun at them and that the gun was still in
his possession, beat him while repeatedly asking about the
location of the gun. As a result, the defendant told the
officers where the gun could be found. Ibid. The judge found
that the defendant's statements were coerced, and that they led
directly to the discovery of physical evidence leading directly
to his conviction. Id. at 43. Although the judge determined
that, given the gun's proximity to the location of the shooting,
the weapon would inevitably have been found, he concluded that
the inevitable discovery exception did not apply for two
reasons. Id. at 44. First, he determined that the gun's
discovery was not independent of the police misconduct because
the search was conducted by the same officers who beat the
defendant. Ibid. Second, he determined that application of the
inevitable discovery doctrine in the circumstances presented
"would encourage law enforcement officers to believe that they
can avoid the burden of a prolonged area search by physically
abusing a suspect, without significant risk of forfeiting the
admissibility of any physical evidence." Ibid.
9
At the outset, we note that Rullo deals with the United
States Court of Appeals for the First Circuit's three-prong
articulation of the inevitable discovery exception set out in
United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986),
cert. denied, 487 U.S. 1233 (1988), rather than the two-step
analysis of O'Connor. In addition, Rullo's analysis has not
been adopted or cited approvingly elsewhere. See United States
v. Ford, 22 F.3d 374, 380 (1st Cir.), cert. denied, 513 U.S. 900
(1994); United States v. Alexander, 540 F.3d 494, 503 (6th Cir.
2008), cert. denied, 556 U.S. 1173 (2009). That said, the
decision in Rullo turned on an inquiry similar to the second
step of the O'Connor analysis; namely, whether the police
conduct was taken in bad faith, or designed to obtain evidence
while avoiding the warrant requirement. As noted above, the
facts here do not fall within these parameters, even accepting,
for purposes of discussion, that the force employed was
excessive in the circumstances presented.6
6
The defendant was stopped based on a report that he was
driving a van containing a stolen cell phone, and information
that the vehicle's registration had been revoked. In other
words, the police were faced with a minor property crime and a
nonhazardous motor vehicle violation. The defendant complied
with all of the officer's instructions, including to stop the
van, to drop his keys out of the van's window, to leave the van,
to walk backwards towards the officer, and to kneel while being
handcuffed. Although the motion judge credited the officer's
testimony that he had been told by another officer to "use
caution," that testimony was unadorned and unexplained. The
motion judge stated that he did not interpret the phrase to mean
10
Thus, even accepting the defendant's contention that the
arresting officer employed excessive force, we conclude that the
second step of O'Connor is satisfied and that, accordingly, the
inevitable discovery exception applies.
2. Search incident to arrest for operating motor vehicle
with revoked registration. Given our conclusions above, there
is no need for us to reach the defendant's argument that the
search was not incident to a lawful arrest, either for receiving
stolen property or for operating a motor vehicle with a revoked
registration. That said, because the issue has not previously
been considered at the appellate level in Massachusetts and
trial court decisions are inconsistent as to whether it is an
arrestable offense, we address the defendant's argument with
respect to a charge of operating a motor vehicle with a revoked
registration in violation of G. L. c. 90, § 23. The same
considerations do not apply with respect to a charge of
receiving stolen property and, therefore, we do not consider the
defendant's argument with respect to that charge.
"Among the exceptions to the warrant requirement is a
search incident to a lawful arrest." Arizona v. Gant, 556 U.S.
that the defendant was armed and dangerous. The motion judge
also stated that there was no other evidence to suggest that the
defendant was armed and dangerous. "An approach with drawn guns
is generally thought excessive in the absence of any suggestion
that the defendant is armed or other circumstances suggesting
the possibility of violence." Commonwealth v. Fitzgibbons, 23
Mass. App. Ct. 301, 308 (1986).
11
332, 338 (2009), citing Weeks v. United States, 232 U.S. 383,
392 (1914). Operating a motor vehicle with a revoked or
suspended registration, in violation of G. L. c. 90, § 23, is a
misdemeanor7 for which there is no statutory authority to arrest.
See G. L. c. 90, § 21 (offense not listed among arrestable motor
vehicle offenses). In the absence of statutory authority, a
police officer may make a warrantless arrest for a misdemeanor
only where it "(1) involves a breach of the peace, (2) is
committed in the presence or view of the officer . . . and (3)
is still continuing at the time of the arrest or only
interrupted, so that the offence and the arrest form parts of
one transaction." Commonwealth v. Conway, 2 Mass. App. Ct. 547,
550 (1974), quoting from Commonwealth v. Gorman, 288 Mass. 294,
297 (1934). On the facts found here, the defendant's operation
of the vehicle without a valid registration did not constitute a
breach of the peace. "To find a breach of the peace . . . an
act must at least threaten to have some disturbing effect on the
public." Commonwealth v. Baez, 42 Mass. App. Ct. 565, 570
(1997). There was no evidence that the defendant's operation of
the vehicle was erratic or negligent, or that it in any other
way had a disturbing effect on the public. Compare Commonwealth
7
The crime is punishable "for a first offence by a fine of
not less than five hundred nor more than one thousand dollars or
by imprisonment for not more than ten days, or both." G. L.
c. 90, § 23, as amended by St. 1990, c. 256, § 2. See G. L.
c. 274, § 1.
12
v. Jewett, 471 Mass. 624, 630 (2015) (leading police on vehicle
chase through residential neighborhood is breach of peace).
There are two additional reasons why this was not a
permissible search incident to an arrest. "'The purpose, long
established, of a search incident to an arrest is to prevent an
individual from destroying or concealing evidence of the crime
for which the police have probable cause to arrest, or to
prevent an individual from acquiring a weapon to resist arrest
or to facilitate an escape.' Commonwealth v. Santiago, 410
Mass. 737, 743 (1991). Thus, police may search an automobile
incident to the arrest of its driver only where the arrestee 'is
within reaching distance of the vehicle or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.'
Arizona v. Gant, supra at 346." Commonwealth v. Perkins, 465
Mass. 600, 605 (2013). Here, the defendant was handcuffed while
kneeling after he had walked away from the van and towards
Officer Abaskharoun. At that point, the officer "could not
reasonably have believed that he might access weapons inside the
automobile." Ibid.
Moreover, the officer could not have reasonably believed
that evidence of the offense might be found in the van. The
situation presented here is almost identical to that in Perkins,
465 Mass. at 605, where the court held that the arresting
officer did not have reason to believe that evidence of the
13
crime of operating a motor vehicle without a valid license would
be found in the automobile the defendant was driving. In that
case, the defendant's operation of the vehicle combined with the
officer's knowledge that the defendant did not have a license
was insufficient to establish a reasonable belief that evidence
of the offense would be found in the vehicle. Ibid. The facts
here are on all fours.
Thus, the search was not incident to a lawful arrest for
operating a motor vehicle with a revoked registration. In the
circumstances presented, it was not an arrestable offense, the
defendant was not within reach of the vehicle, and there was no
reason to believe that evidence of the offense would be found in
the van.
3. Sufficiency of the evidence. Viewed in the light most
favorable to the Commonwealth, the evidence and the reasonable
inferences to be drawn from it were sufficient to prove beyond a
reasonable doubt the elements of receiving stolen property with
a value greater than $250.8 Commonwealth v. Latimore, 378 Mass.
671, 676-677 (1979). On January 7, 2010, Diane Stafford and
Betsy Reynolds both discovered that their cars had been broken
8
"In order to be guilty of the crime of receiving stolen
goods, '(1) one must buy, receive or aid in the concealment of
property which has been stolen or embezzled, (2) knowing it to
have been stolen.'" Commonwealth v. Yourawski, 384 Mass. 386,
387 (1981), quoting from Commonwealth v. Donahue, 369 Mass. 943,
949, cert. denied, 429 U.S. 833 (1976).
14
into while parked. In both cases, the car window had been
smashed, and the women's purses had been stolen, together with
other personal items that had been left in the cars.
Reynolds owned two cell phones; one was inside a red purse
that had been stolen, the other was with her. Using a tracking
function on the stolen cell phone, Reynolds was led to a 7-
Eleven store in Woburn. There, she wrote down the license plate
information of every car in the parking lot. She then tracked
the stolen cell phone to a Wendy's restaurant in Burlington,
where she observed a van similar to one she had observed at the
7-Eleven store and with a license plate number she had
previously recorded. Reynolds observed the defendant leave the
van and discard a "white trash bag" into a trash bin. The bag
was later discovered to contain a wallet, receipts, and other
personal items belonging to Reynolds and Stafford. The
defendant then returned to the van and drove away. Reynolds
reported the situation to the police, who stopped the van while
she continued to track it. Reynolds's and Stafford's purses
were in open view on the back seat of the van. The inventory of
the van search conducted after the defendant's arrest uncovered
multiple cell phones, a laptop computer, a center punch (an item
commonly used to break into cars), various tools, and multiple
credit cards in Stafford's name. Contrary to the defendant's
argument, it was certainly within the jury's province to
15
determine beyond a reasonable doubt, on these facts, that the
defendant possessed stolen property.
Judgments affirmed.