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14-P-761 (Mass. App. Ct. May. 15, 2015)




NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).


The defendant appeals from his convictions of trafficking in heroin, G. L. c. 94C, § 32E(c)(1), assault and battery on a public employee, G. L. c. 265, § 13D, and operating a motor vehicle to endanger, G. L. c. 90, § 24(2)(a). He raises two issues on appeal. First, he argues that the police detective lacked reasonable suspicion to stop his motor vehicle and the scope of the subsequent search exceeded constitutional bounds and, therefore, the defendant's motion to suppress should have been allowed. Second, he argues that there was insufficient evidence of possession. Both arguments bear only on the trafficking conviction.

"When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error," but "make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). "To the extent the motion judge made credibility determinations relevant to his subsidiary findings of fact, we adhere to the normal standard of review." Commonwealth v. Clarke, 461 Mass. 336, 341 (2012). "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses." Commonwealth v. Moon, 380 Mass. 751, 756 (1980).

After an evidentiary hearing, the judge found in pertinent part that Detective Forestell of the Melrose police department observed the defendant driving a car, "with his head down, using his thumbs to work the keyboard of a phone or other handheld device at chest level." After permitting the defendant to pull in front of him, the detective further observed that the defendant's rear license plate was "behind a slightly tinted plastic cover, resulting in the plate being 'slightly obscured.' The detective could read the plate number through the cover, but has seen the same type at night and knows that they block the reflective quality of the license plate surface." The detective pulled the defendant over by activating his blue lights, and explained that he had pulled him over for texting while driving and for operating with an obscured number plate. In response to the detective's request, the defendant provided his license and the registration for the car, which was in the name of another. The detective questioned who that person was, and the defendant said it was his girl friend. The detective then asked where she lived, and the defendant responded that she lived near the intersection of two particular streets. The detective, though, "knew that these streets do not connect and are not even very close to one another, and he told the defendant this." Confronted, the defendant grew anxious, broke eye contact, and began to breathe heavily. He removed one hand from the steering wheel and placed it out of sight between his thighs. He did not comply with the detective's request that he return both hands to the steering wheel. Concerned, the detective radioed for backup. The defendant began to roll up his window, then reached out and slapped the radio out of the detective's hand. He then drove off at high speed down a busy road, taking a right onto a dead-end road. The detective followed and found the defendant's car stopped on the lawn of a house located near the end of that street. Tire tracks led from the street to the car, which had jumped the curb. The defendant had fled on foot.

General Laws c. 90, § 6, inserted by St. 1968, c. 293, provides that license plates "shall not be obscured in any manner by the installation of any device." The related regulation specifies that "no reflectorized number plate issued by the Registrar of Motor Vehicles and mounted on any motor vehicle or trailer shall be covered with any glass, plastic or similar material if such material reduces the legibility or substantially diminishes the reflective qualities of such plate." 540 Code Mass. Regs. § 2.23(1) (2008). Here, the judge found that the defendant's license plate cover slightly obscured the license plate numbers and that the detective knew that this particular type of cover blocks the reflective qualities of the license plate at night. As a result, there was no legal error in the judge's conclusion that the detective had reasonable suspicion to stop the defendant's car.

"Every motor vehicle or trailer registered under this chapter when operated in or on any way in this commonwealth shall have its register number displayed conspicuously thereon by the number plates furnished by the registrar . . . . The said number plates shall be kept clean with the numbers legible and shall not be obscured in any manner by the installation of any device obscuring said numbers . . . ." G. L. c. 90, § 6, as amended through St. 1968, c. 293.

Relying on Commonwealth v. Bernard, 84 Mass. App. Ct. 771 (2014), which had not been decided at the time of the motion to suppress, the defendant argues that his motion to suppress should have been allowed. In Bernard, a State trooper routinely stopped vehicles with license plate covers of any kind, not because the license plate at issue in that case appeared to him to be obscured in any manner. Id. at 773 & n.2. Here, by contrast, the judge found that the detective stopped the car because the cover obscured (slightly) the license plate and interfered with the reflective qualities of the license plate. This finding was amply supported by the detective's testimony in which he stated that the cover was tinted, made the plate darker than normal, and made it more difficult to read the plate numbers. He also stated that he knew that this particular type of cover "blocks" the reflective qualities of the plate at night. Moreover (also in contrast to Bernard), the detective's testimony reflects that he understood that the law prohibits covers that obstruct license plates -- not all plate covers per se. See id. 776 ("The statute does not by its terms prohibit the use of all license plate covers, nor does it mention tinted covers. Instead, consistent with its overall focus on visibility and legibility, the statute prohibits the 'installation of any device obscuring [the registration] numbers'").

Deciding as we do, we need not (and do not) reach the defendant's argument that, as a matter of law, at the moment he was observed to be texting, he was not on "the public way intended for travel." G. L. c. 90, § 13B, inserted by St. 2010, c. 155, § 9.

The defendant next argues that, even if the stop was initially valid, its scope was impermissibly exceeded once the defendant turned over a valid license and registration. We disagree. Although the defendant did, indeed, provide his license and the registration for the car he was driving, the detective was entitled to make reasonable follow-up inquiry into the fact that the registration was not in the defendant's name. See Commonwealth v. Pacheco, 51 Mass. App. Ct. 736, 740 (2001). The detective did nothing more than inquire into the defendant's relationship with the owner of the car he was driving and her address. The defendant's reactions to being informed that the address he gave did not exist (from his anxiety, placing his hands between his thighs, knocking the radio from the detective, and culminating in his flight) transformed what until then had been an ordinary traffic stop into a situation where "a reasonably prudent man in the [detective]'s position would [have been] warranted in the belief that the safety of the police or that of other persons was in danger." Commonwealth v. Cruz, 459 Mass. 459, 466 (2011), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). Accordingly, the stop did not exceed permissible bounds.

Finally, we are not persuaded that the evidence, viewed under the standard of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was insufficient to permit a rational jury to find beyond a reasonable doubt that the defendant possessed the red "M & M" candy canister containing fifty-one individually-wrapped baggies of heroin. The canister was located along the defendant's path of flight, near where his car was found stopped on the lawn of a house at the end of a dead-end street. See Commonwealth v. Jefferson, 461 Mass. 821, 824 (2012) ("Although the police had not seen anything being thrown from the vehicle, the location of the firearm was consistent with its having been thrown from the open front passenger's side window when the police lost sight of the vehicle as it turned left onto Melville Avenue"). The windows of the car had been rolled down, even though the defendant had rolled up the window during his encounter with the detective. From this, a jury could conclude that the defendant lowered the window during his flight in order to throw the drugs out the window. Although the homeowner who found the canister could not say that the canister had not been on his lawn earlier that day, the canister was clean, suggesting that it had recently been deposited on the lawn. In addition, the defendant had $568 in cash on him, as well as a cellular telephone -- both indicia of drug distribution. The evidence viewed as a whole, coupled with the extremely strong evidence of consciousness of guilt, was sufficient to permit the jury to conclude, beyond a reasonable doubt, that the defendant had possession of the drugs. Commonwealth v. Romero, 464 Mass. 648, 653 (2013), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). "Proof of possession of [contraband] may be established by circumstantial evidence, and the inferences that can be drawn therefrom." Commonwealth v. Romero, supra, quoting from Commonwealth v. Brzezinski, supra.

Judgments affirmed.

By the Court (Trainor, Wolohojian & Carhart, JJ.),

The panelists are listed in order of seniority.

Clerk Entered: May 15, 2015.