Commonwealth v. Chown

Kantrowitz, J.

As a police officer reasonably believed that the defendant was a resident of Massachusetts and needed a Massachusetts driver’s license to drive here, probable cause to arrest for a violation of operating a motor vehicle without a license existed. See G. L. c. 90, §§ 10, 21. The stop being valid, drugs, money, and other evidence were appropriately seized. As such, we reverse the allowance of the defendant’s motion to suppress.

Facts. We take our brief recitation of the facts from findings made by the motion judge and supplement those with additional undisputed testimony from the suppression hearing. See Commonwealth v. DePeiza, 449 Mass. 367, 368 (2007).

The defendant worked as a bartender at the Naked Oyster restaurant in Hyannis. On the evening of January 20, 2006, he drove his pickup truck from the parking lot of the restaurant and was observed exceeding the speed limit by Sergeant Kevin Tynan of the Barnstable police department.

When Sergeant Tynan pulled the truck over, he noticed that it had license plates from New Brunswick, Canada, and that its rear window had been smashed, with weather stripping hanging out. The sergeant, a frequent patron of the restaurant, immediately recognized the driver,¹ whom he also knew from various interactions over the past several years.²

The defendant presented Sergeant Tynan with a New Brunswick driver’s license, with an expiration date of July 8, 2007, but could not produce the truck’s registration. Tynan had personal prior knowledge that the defendant previously had a Massachusetts driver’s license. When asked why he did not have a Massachusetts driver’s license, the defendant replied that he was planning to go to the Registry of Motor Vehicles (Registry) the following morning to obtain one.

Tynan returned to his cruiser to run a Registry record check, which revealed a lengthy history of in-State motor vehicle violations, dating back to 1989, with various suspensions and rein-statements.³ The validity of the Canadian registration, however, could not be discerned because the officer only had access to Registry information from the United States.

After Tynan gathered all of this information, the defendant was arrested for operating without a driver’s license. The officer informed him that he was also being charged with not having his registration in possession and speeding.⁴

The defendant’s vehicle needed to be secured because of its location in a public lot with a missing rear window. Tynan conducted an inventory search of the vehicle as per the police department’s inventory policy. During the search, he noticed a strong odor of marijuana emanating from the back seat. There he discovered a backpack containing drugs.⁵ He also saw a “dump sticker” for the Barnstable transfer station affixed to the window of the defendant’s truck.

At the motion hearing, the prosecutor correctly identified the issue — the residency of the defendant — and offered evidence to that effect. Sergeant Tynan testified that he based the arrest on his belief that the defendant was a resident of Massachusetts and that since he did not have a Massachusetts license, he was in violation of G. L. c. 90, § 10. The motion judge concluded that based on the information available at the time, Tynan lacked probable cause to believe that the defendant was a Massachusetts resident. He further held that since the defendant was in possession of a valid Canadian driver’s license, he was not in violation of G. L. c. 90, § 10, which allows a nonresident to drive in the State under a valid foreign license. As the defendant had a valid registration, the judge found that there was no violation of G. L. c. 90, § 3,⁶ which, the judge stated, quoting from § 3, “limits the operation of a motor vehicle owned by a non-resident and registered in a different state or country to no ‘more than thirty days in the aggregate in any one year, or in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance ....’” The judge concluded that “[tjhe statute’s language requiring the thirty day period to occur ‘in any one year’ means that the Defendant could not possibly have been in the Commonwealth for thirty days during the year of his arrest because the date was January 20, 2006.”⁷

The Commonwealth argues on appeal that the motion judge erred in granting the motion to suppress, because Tynan reasonably believed that the defendant was a Massachusetts resident driving without a license and Tynan, thus, had probable cause to arrest him without a warrant.

Standard of review. In reviewing a motion to suppress evidence, we adopt the motion judge’s subsidiary findings of fact absent clear error. Commonwealth v. Ocasio, 434 Mass. 1, 4 (2001). Although we give substantial deference to the judge’s ultimate findings and conclusions of law, the reviewing court must independently review the correctness of the judge’s application of constitutional principles to the facts as found. Commonwealth v. Eckert, 431 Mass. 591, 593 (2000).

Discussion. We start with the observation that wading through the various provisions of c. 90 is akin to driving a car without windshield wipers on a dirt road on the side of a mountain at night during a blizzard.⁸ With that observation, we press on.

Of concern here are G. L. c. 90, § 3 (vehicles of nonresidents), § 8 (licenses to operate), and § 10 (operation of motor vehicles). Section 10 requires all persons operating motor vehicles in Massachusetts to be licensed, and failure to produce a valid license during a traffic stop can provide probable cause for an arrest. See Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995), citing G. L. c. 90, §§ 10 & 21.

For our purposes, § 10, like § 8, distinguishes between residents and nonresidents.⁹ Very simply, residents need a Massachusetts license to drive¹⁰; nonresidents do not so long as they possess a valid out-of-State license.¹¹ Needless to say, new residents must become licensed in Massachusetts.¹²

While the nonresident exception in § 10 merely permits nonresidents to drive in the State without a Massachusetts license, § 3 permits them to operate their out-of-State registered vehicles in Massachusetts, subject to insurance requirements.¹³ In essence, § 3 reheves nonresidents who work, attend school, or own property in Massachusetts from having to register their cars in-State, so long as they do not become residents. It does not, however, trump the requirement in § 10 that an individual who becomes a legal resident of Massachusetts must obtain an in-State license. See Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 443 (1931) (“[Section 3] cannot... be construed to mean that one who has been a nonresident but who has ceased to be a nonresident because he has removed his residence from another State or country to this Commonwealth is entitled to the immunity extended to a nonresident”).

Section 8 covers the application and examination requirements for obtaining a Massachusetts license. There is no exception for new residents that allows them to drive under their out-of-State licenses. In fact, G. L. c. 90, § 8, as amended through St. 2002, c. 313, § 2, provides in pertinent part: “If for any reason the registrar or his agents are unable to examine an applicant for a license promptly, the applicant [so long as s/he is duly licensed elsewhere] may be issued a receipt . . . [which] shall be carried in lieu of the license” for a period of up to sixty days.

The effect of the trial court’s reading of § 3 is that, at least for purposes of a police officer’s request to a driver, the production of a facially valid out-of-State license and registration is conclusive on the issue of residency. This stretches the nonresident exception under § 3 to the point where it overwhelms the requirements for residents under §§ 8 and 10. There is no question that § 3 allows a nonresident to acquire “a regular place of abode or business or employment in the commonwealth” and remain a nonresident; the question is whether the police can make a reasonable determination in the field that an individual has crossed the line from nonresident to resident.

Language from Commonwealth v. Caceres, 413 Mass. 749, 753 (1992), is instructive, if not controlling. “The decision not to permit Calderon [the passenger] to drive the vehicle away was based on the trooper’s reasonable belief that Calderon was not authorized to operate the vehicle in Massachusetts. The uncontroverted evidence warranted an objectively reasonable belief that Calderon had been in the continental United States for three years and that Calderon should, but did not, have a license to operate other than the Puerto Rico license.”

Like the trooper in Caceres, the police officer here possessed a reasonable basis to conclude that the defendant resided in Massachusetts, requiring a local license. Indeed, it appears almost inescapable that the defendant was a resident. From the perspective of Sergeant Tynan, the defendant had lived and worked for years in Massachusetts, possessed a local driving record dating back to 1989, had at one point a Massachusetts license, drove a truck with a sticker on it for the local dump, and said he was planning on going the following day to the Registry to obtain a license.¹⁴

Under these circumstances, the officer was warranted in believing the defendant was a resident, requiring a local license. Not having one, he was subject to arrest. Since the sergeant had probable cause to arrest the defendant, the evidence seized is admissible.

Order allowing motion to suppress reversed.

1 Sergeant Tynan testified to having seen the defendant four or five times at the restaurant. The defendant testified that he worked part time at the Naked Oyster, beginning sometime after the restaurant opened in 2000 or 2001, and then for a period of approximately three years up to the time of the arrest in 2006. He also testified that he did not have any other job during this period.

2 On November 23, 2002, for reasons unclear from the record, Tynan had gathered information from the defendant, including his address of 585 Old Falmouth Road, Marstons Mills, and occupation as a bartender at the Naked Oyster. On June 8, 2003, again for reasons unclear from the record, Tynan booked the defendant, who again provided 585 Old Falmouth Road, Marstons Mills, as his address. In 2005, Tynan went to that same address in response to a home invasion call made by the defendant and his then girlfriend, who was living there at the time.

3 The Commonwealth, in its brief, notes other information ascertained from the hearing, to wit: (1) in 1999, the Registry listed the defendant’s home address as 55 W. Great Western Road, South Yarmouth; (2) in 2002-2003, his listed address was 585 Old Falmouth Road, Marstons Mills; and (3) as of May, 2007, his listed address was 189 Cammett Way, Marstons Mills. The defendant did not dispute that he owned two houses in Marstons Mills, at 585 Old Falmouth Road and 189 Cammett Way. He also admitted to frequently staying at his mother’s house at 92 Diane Avenue, South Yarmouth, the address he used on his social security card.

4 There is no question that the initial stop of the defendant was permissible. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995). So too, there is no question of the authority to arrest for operating without a license. See G. L. c. 90, § 21, as amended by St. 1987, c. 83, § 2 (“Any officer . . . may arrest without a warrant. . . any person who . . . violates the provisions of the first paragraph of [G. L. c. 90, § 10]”).

5 Of note, the search uncovered marijuana, cocaine, two scales, baggies, an outdated Massachusetts license, personal papers listing two separate Massachusetts addresses, and $6,355 in cash.

6 As amended through St. 2003, c. 46, §§ 88-95.

7 The judge concluded that the defendant could not be in violation of § 3 because the period runs “in the aggregate within a calendar year” and the arrest was made fewer than thirty days into January of 2006. This strained reading of the statute is irrelevant to the officer’s conclusion that the defendant had been living in Massachusetts for an extended period of years and was, in fact, a resident.

8 We are, thus, heartened with the Legislature’s attempt to clarify the laws regarding operating under the influence. See House Bill No. 4291 (filed October 21, 2009).

9 Under G. L. c. 90, § 1, a nonresident is “any person whose legal residence is not within the commonwealth.” G. L. c. 90, § 1, definition of “Nonresident,” appearing in St. 1953, c. 463, § 1. “The expression ‘legal residence’ has been used in the sense of domicil.” Rummel v. Peters, 314 Mass. 504, 514 (1943). General Laws c. 90, § 3V2, sets out various factors that require a person to be deemed a resident of Massachusetts.

10 “No . . . person shall . . . operate [a motor vehicle] unless licensed by the registrar.” G. L. c. 90, § 10, as appearing in St. 1985, c. 146.

11 “Subject to the provisions of [§ 3], a nonresident who holds a license under the laws of the state or country in which he resides may operate any motor vehicle of a type which he is licensed to operate . . . .” G. L. c. 90, § 10.

12 Section 10 is silent as to the number of days within which a new resident must obtain a license. Other statutes within G. L. c. 90 indicate time is of significance. See, e.g., G. L. c. 90, § 8 (“receipt” temporarily issued in lieu of license valid for sixty days); § 26A(a) (thirty days to notify Registry of name or address change).

13 Such vehicles may be operated for no more than “thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance [that is equivalent to the amount or limits required under G. L. c. 90, § 34A, for Massachusetts residents]” (emphasis supplied). G. L. c. 90, § 3.

14 At the hearing, even more evidence was produced. See note 3, supra.