COMMONWEALTH v. SAMUEL DENTON (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-187
22-P-188
COMMONWEALTH
vs.
SAMUEL DENTON (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from orders of the Boston
Municipal Court dismissing two criminal complaints against the
defendants, Samuel Denton and Emerson Brandao, for unlawfully
carrying a firearm without a license, in violation of G. L.
c. 269, § 10 (a), and unlawfully possessing ammunition without a
firearms identification card, in violation of G. L. c. 269,
§ 10 (h) (1). Concluding that the Commonwealth established
probable cause to support both charges, we reverse.
1. Background. The relevant portions of the police
reports attached to the complaint application allege the
following.
1 Commonwealth vs. Emerson A. Brandao.
At about 10:22 P.M. on January 19, 2021, Boston police
responded to a report of a person with a gun at an intersection
in Dorchester. The dispatcher informed the officers that the
suspect was wearing a white "hoodie" and drove away in a white
Range Rover sport utility vehicle (SUV). Dispatch then notified
officers of multiple shot spotter activations at two addresses
near the same intersection.
Police next received a radio report that a white SUV was
seen driving the wrong way down a nearby one-way street at a
high rate of speed. An officer in a marked cruiser caught up
with the SUV nearby and attempted to stop it by activating the
cruiser's lights and sirens, but the SUV did not pull over and
continued at an excessive speed. By the time the SUV turned and
drove toward Roxbury, more marked cruisers had joined the high-
speed chase with their lights and sirens activated. The police
followed the SUV as it continued to speed through multiple stop
signs and traffic lights and down more one-way streets in the
wrong direction, at one point hitting a parked vehicle.
The SUV finally stopped when it was surrounded by police in
Roxbury. Officers approached with guns drawn and ordered the
defendants out of the SUV. Brandao was removed from the front
passenger seat and Denton from the rear passenger seat; both
were placed under arrest at about 11:07 P.M. The front
passenger-side window of the SUV was completely rolled down, and
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the rear passenger-side window was rolled down about halfway.
Officers then saw and recovered a firearm "a few feet away from
the passenger side door," "in between two parked vehicles." The
firearm contained one chambered live round of ammunition and ten
live rounds in its fifteen-round magazine. A CJIS (criminal
justice information system) check of the defendants revealed
that neither had a license to carry a firearm. Along the route
the SUV had taken, near where the shot spotters were activated,
police recovered two .40 caliber bullets, two .40 caliber shell
casings, and one nine-millimeter shell casing.
The Commonwealth obtained criminal complaints against each
of the defendants, alleging violations of G. L. c. 269,
§§ 10 (a) and 10 (h) (1). The defendants successfully moved to
dismiss their respective complaints for lack of probable cause.
In a written decision, the motion judge found that the complaint
applications contained insufficient indicia that the firearm was
thrown from the SUV. Inferentially, he also found no probable
cause to believe that the defendants had any knowledge of the
firearm or ammunition. The Commonwealth then filed these
appeals, which we paired.
2. Discussion. A complaint application "must allege facts
sufficient to establish probable cause as to each element of the
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offense charged."2 Commonwealth v. Ilya I., 470 Mass. 625, 627
(2015). What is required is a showing that police "entertained
rationally 'more than a suspicion of criminal involvement,
something definite and substantial, but not a prima facie case
of the commission of a crime, let alone a case beyond a
reasonable doubt'" (citation omitted). Id. at 628. See
Commonwealth v. Clinton, 491 Mass. 756, 775 n.22, 778 n.23, 779
n.24 (2023) (recognizing that Commonwealth's burden at probable
cause stage is lower than at trial). "In dealing with probable
cause . . . we deal with probabilities. These are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act." Commonwealth v. Humberto H., 466 Mass. 562,
566 (2013), quoting Brinegar v. United States, 338 U.S. 160, 175
(1949). We review issues of probable cause de novo, looking
only to the four corners of the complaint application and
viewing the allegations in the light most favorable to the
Commonwealth. See Ilya I., supra at 626 n.1, 627.
2 While these appeals were pending, the Supreme Judicial Court
decided that failure to comply with applicable licensure
requirements is an essential element of crimes under § 10 (a)
and § 10 (h) (1). See Commonwealth v. Guardado, 491 Mass. 666,
690-692 (2023). As this issue understandably was not addressed
in the trial court, and as the parties have not briefed it on
appeal, our conclusion that the complaint applications here
established probable cause is without prejudice to any further
proceedings in the trial court regarding the licensure issue.
4
A complaint alleging a violation of § 10 (a) or
§ 10 (h) (1) must demonstrate probable cause to believe that the
defendant knowingly possessed a firearm or ammunition,
respectively. See Commonwealth v. Johnson, 461 Mass. 44, 52-53
(2011); Commonwealth v. White, 452 Mass. 133, 136 (2008). Where
a defendant is not in actual possession of the contraband at the
time of arrest, the Commonwealth may rely on circumstantial
evidence and reasonable inferences to show constructive
possession. See Commonwealth v. Sespedes, 442 Mass. 95, 99
(2004). Constructive possession requires "knowledge coupled
with the ability and intention to exercise dominion and
control." Id., quoting Commonwealth v. Brzezinski, 405 Mass.
401, 409 (1989). "The defendant's mere presence in the area
where contraband is found is insufficient to show the requisite
knowledge, power, or intention to exercise control over the
[contraband], but presence, supplemented by other incriminating
evidence[,] will serve to tip the scale in favor of sufficiency"
(quotations and citation omitted). Commonwealth v. Schmieder,
58 Mass. App. Ct. 300, 303 (2003). Finally, "[p]ossession need
not be exclusive. It may be joint and constructive."
Commonwealth v. Beverly, 389 Mass. 866, 870 (1983).
Based on the police reports attached to the complaint
application, we conclude that there was probable cause to
believe that the loaded firearm discovered outside the SUV was
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jointly and constructively possessed by the defendants in the
SUV before their arrests.3
First, the Commonwealth met its burden to show probable
cause that the firearm containing ammunition was discarded from
the SUV. The SUV in which the defendants were discovered
matched the description of the vehicle in which a person with a
gun had driven less than one hour earlier when the chase began,
shot spotters were activated along the vehicle's route, and
shell casings and bullets were found on the street along the
route taken by the SUV. And, once police gained sight of the
SUV -- mere minutes after and blocks away from the initial
sighting of the person with a gun -- the SUV initiated a high-
speed police chase, during which police did not lose sight of it
before it was stopped. Finally, the firearm was discovered only
a few feet from the SUV's passenger-side doors, which both had
open windows, in a location permitting an inference that someone
in the trapped SUV tried to hide it from view. These facts
provide probable cause to believe that the SUV was the same one
in which a person was known to be carrying a firearm less than
one hour earlier and that the driver, at least, was exhibiting
3 Probable cause for the ammunition charge could also have been
predicated on the ammunition found strewn along the route taken
by the SUV. But, where we determine that there was, in any
event, probable cause for that charge based on the ammunition in
the firearm, we need not further analyze that alternative
scenario.
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consciousness of guilt consistent with the presence of an
illegal loaded firearm in the vehicle.4
The absence of certain indicia suggesting that the firearm
was thrown from a moving vehicle, such as were present in
Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012),5 does
not undermine our determination that, in this case, there was
probable cause to believe the firearm originated from the
stopped SUV. Our inquiry is not limited to the evidence
considered in Jefferson; instead, those factors "must be
considered with other evidence that reasonably permitted the
inference that the defendants had thrown some type of contraband
from the vehicle." Id. at 826. Here the police report
permitted a reasonable inference that the firearm was
deliberately disposed of from a stationary vehicle in a
surreptitious manner, rather than thrown haphazardly out the
4 The driver of the SUV, who is not a party to this appeal, was
wearing a white hoodie when he, too, was arrested at the scene,
lending further support to the Commonwealth's allegation that
the firearm originated from the SUV.
5 In Jefferson, 461 Mass. at 826-827, there was sufficient
evidence to convict the defendants of possessing a firearm found
on the ground along the route their vehicle took during a chase
ending in their arrest. The evidence included the position of
the firearm in plain view on the sidewalk, suggesting that it
had not been there long; the broken pieces of the firearm,
suggesting that it had been thrown from the moving vehicle and
landed with force; and its location, which was consistent with
having been thrown from the open passenger-side window during
the time when police lost sight of the vehicle.
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window of a moving vehicle as in Jefferson. Thus, that the
firearm here was not noted to be damaged, as it was in
Jefferson, supra at 824, and was found between two parked cars,
rather than in the middle of a paved walkway as in Jefferson,
supra, does not negate probable cause here.
Similarly, that the police report here does not indicate
that police lost sight of the vehicle, as they briefly did in
Jefferson, 461 Mass. at 823-824, does not negate the inference
here that the firearm was discarded from the SUV once it
stopped. We do not read the police report, despite its
reference to the SUV having "finally stopped due to being
surrounded by . . . marked cruisers," to mean that police could
see the stopped SUV from every angle. The report states that
the firearm was found "a few feet away from the passenger side
door," "in between two parked vehicles." That the passenger
side of the SUV was only a few feet away from two parked
vehicles permits a reasonable inference that police, while still
in their cruisers, were not able to see the passenger side of
the SUV because it was stopped close to the two other vehicles
and that the defendants discarded the firearm at that time.
Second, although "[i]t is not enough to place the defendant
and the weapon in the same car" (citation omitted), Commonwealth
v. Albano, 373 Mass. 132, 134 (1977), the Commonwealth has also
shown probable cause to believe that either or both of the
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defendants had the requisite knowledge, power, and intention to
control the firearm and the ammunition inside. The fact that
the defendants were discovered in the SUV not long after shots
were fired from it, and at the conclusion of a high-speed chase
during which they could not have entered the SUV, permits
inferences that the defendants were in the SUV from the start,
that they witnessed the person in the white hoodie enter the SUV
with the gun and then fire it, and thus that they knew there was
a loaded firearm in the SUV. Cf. Commonwealth v. Romero, 464
Mass. 648, 653 (2013) (sufficient evidence of driver's knowledge
of firearm where front seat passenger was openly handling it in
driver's plain view).
As for the power and intent to exercise control, the fact
that the firearm with the ammunition was found just outside the
passenger side of the SUV permits an inference that it was
placed there by the defendants, who were seated in the front and
rear passenger seats. "[A]ttempts to conceal or dispose of
contraband . . . permit an inference of unlawful possession."
Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995).
See Jefferson, 461 Mass. at 826-827 (sufficient evidence of
driver's and passenger's intent to control where driver
initiated chase with intent to dispose of firearm and passenger
threw it out car window); Commonwealth v. Cotto, 69 Mass. App.
Ct. 589, 594 (2007) (sufficient evidence of possession where
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"the gun was found directly under the front passenger seat where
the defendant had been seen shoving his feet"). Compare Romero,
464 Mass. at 658 (no intent to control where "defendant made no
attempt to evade [police] or . . . to dispose of the weapon).
Orders dismissing complaints
reversed.
By the Court (Neyman, Sacks &
Hodgens, JJ.6),
Clerk
Entered: July 19, 2023.
6 The panelists are listed in order of seniority.
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