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
24-P-908
COMMONWEALTH
vs.
EDWARD L. DAVIS, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of carrying a
firearm without a license, pursuant to G. L. c. 269, § 10 (a).
On appeal, the defendant argues that (1) a judge (motion judge)
should have granted his motion to suppress evidence recovered
during an inventory search of a vehicle, and (2) a different
judge (trial judge) abused her discretion by admitting evidence
of a Criminal Justice Information Services (CJIS) query, which
yielded no record of anyone with the defendant's name and date
of birth who had a firearms license. We affirm.
Discussion. 1. Motion to suppress. We summarize the
facts as found by the motion judge, supplemented with "evidence
from the record that is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's
testimony" (quotation omitted). Commonwealth v. Garner, 490
Mass. 90, 94 (2022). On June 30, 2021, around 2:35 A.M., a
Massachusetts State police trooper saw a Honda Pilot driving
with a broken front headlight on Route 12 in Leominster. The
trooper ran the car's registration, which came back to a Saturn
vehicle, not a Honda. The trooper then stopped the Pilot. The
defendant was sitting in the passenger seat without a seatbelt.
He did not have any identification, but provided his name, date
of birth, and social security number. When the driver explained
that he had recently bought the Pilot and had not yet obtained
registration, the trooper told him that he had to impound the
Pilot. After both the defendant and the driver exited the
Pilot, the trooper conducted an inventory search.
During the inventory search, the trooper observed a bag on
the floor in front of the passenger seat. The trooper asked the
defendant if the bag belonged to him, and the defendant answered
affirmatively. When the trooper asked the defendant what was
inside the bag, the defendant said, "you can open it." The
trooper opened the bag, saw a firearm, and arrested the
defendant. Further observation of the firearm revealed that it
contained a loaded magazine.
"In reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent clear
2 error" (quotation omitted). Commonwealth v. Daveiga, 489 Mass.
342, 346 (2022). "We review independently the application of
constitutional principles to the facts found" (quotation
omitted). Id. The defendant neither challenges the propriety
of the stop nor the impoundment of the vehicle. Rather, the
defendant contends that a lawful inventory search became an
unlawful investigative search when the trooper asked the
defendant about the bag's contents, instead of simply giving the
bag to the defendant.
"Inventory searches are intended to be noninvestigatory and
are for the purpose of safeguarding the defendant's property,
protecting the police against later claims of theft or lost
property, and keeping weapons and contraband from the prison
population." Commonwealth v. Barillas, 484 Mass. 250, 256
(2020). "[A]n inventory search must hew closely to written
police procedures and may not conceal an investigatory motive"
(quotation omitted). Commonwealth v. Rosario-Santiago, 96 Mass.
App. Ct. 166, 175 (2019). "[I]n considering whether the
government has met [its] burden of proof [as to the legality of
the search], the written inventory policy is the best evidence"
(quotation omitted). Id. at 176.
The defendant does not challenge the legality of the
inventory policy itself. He relies on Commonwealth v. Abdallah,
475 Mass. 47, 51 (2016), and Commonwealth v. Nicoleau, 90 Mass.
3 App. Ct. 518, 522 (2016), to support his argument that the
trooper was not authorized to conduct an inventory of the
defendant's bag because there was a "reasonable alternative" to
doing so. However, the trooper in this case operated under a
different inventory policy than did the police in those cases.
Here, the written inventory policy required the State trooper to
inventory the "interior of the vehicle." In doing so, the
inventory policy states, "[a]ll closed but unlocked containers
shall be opened, and each article inventoried individually."
The bag was not locked, thus the inventory policy required the
trooper to open it and inventory its contents.
The inventory search did not become unlawfully
investigatory simply because the trooper asked the defendant
what was inside the bag. See Commonwealth v. Lyles, 453 Mass.
811, 815 (2009) (police do not effect a seizure merely by asking
questions). The defendant was not in custody at the time and
thus was free to leave without responding to the trooper.
However, the defendant immediately gave the trooper permission
to search the bag. We therefore agree with the motion judge
that, in addition to being a lawful inventory search, the
trooper's search of the bag was proper based on the defendant's
free and voluntary consent. See Commonwealth v. Ortiz, 478
Mass. 820, 823 (2018).
4 2. CJIS query evidence. To prove that the defendant
carried a firearm without a license, the Commonwealth bears the
burden of proving beyond a reasonable doubt that the defendant
lacked a firearms license at the time of the offense. See
Commonwealth v. Guardado, 491 Mass. 666, 690, S.C., 493 Mass. 1
(2023), cert. denied, 144 S. Ct. 2683 (2024). At trial, a CJIS
employee, Mario Monzon, testified that he conducted a query of a
CJIS database of firearm licenses by entering the defendant's
first name, last name, and date of birth. The response to the
query was, "No Records Found." A printout of the query was also
admitted into evidence.
The defendant asserts that both the testimony and the
printout were inadmissible hearsay that violated the defendant's
confrontation clause rights because the witness was not
responsible for inputting or maintaining the records, which
consisted of statements from licensing authorities, not CJIS.1
"We do not disturb a judge's decision to admit [or exclude]
evidence absent an abuse of discretion or other legal error"
(quotation omitted). Commonwealth v. Souza, 492 Mass. 615, 626
1 The Supreme Judicial Court is currently considering the issue of the admissibility of a CJIS employee's testimony that a CJIS query returned no firearms licensing information for a defendant. Commonwealth vs. Smith, No. SJC-13670 (argued March 3, 2025).
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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
24-P-908
COMMONWEALTH
vs.
EDWARD L. DAVIS, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of carrying a
firearm without a license, pursuant to G. L. c. 269, § 10 (a).
On appeal, the defendant argues that (1) a judge (motion judge)
should have granted his motion to suppress evidence recovered
during an inventory search of a vehicle, and (2) a different
judge (trial judge) abused her discretion by admitting evidence
of a Criminal Justice Information Services (CJIS) query, which
yielded no record of anyone with the defendant's name and date
of birth who had a firearms license. We affirm.
Discussion. 1. Motion to suppress. We summarize the
facts as found by the motion judge, supplemented with "evidence
from the record that is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's
testimony" (quotation omitted). Commonwealth v. Garner, 490
Mass. 90, 94 (2022). On June 30, 2021, around 2:35 A.M., a
Massachusetts State police trooper saw a Honda Pilot driving
with a broken front headlight on Route 12 in Leominster. The
trooper ran the car's registration, which came back to a Saturn
vehicle, not a Honda. The trooper then stopped the Pilot. The
defendant was sitting in the passenger seat without a seatbelt.
He did not have any identification, but provided his name, date
of birth, and social security number. When the driver explained
that he had recently bought the Pilot and had not yet obtained
registration, the trooper told him that he had to impound the
Pilot. After both the defendant and the driver exited the
Pilot, the trooper conducted an inventory search.
During the inventory search, the trooper observed a bag on
the floor in front of the passenger seat. The trooper asked the
defendant if the bag belonged to him, and the defendant answered
affirmatively. When the trooper asked the defendant what was
inside the bag, the defendant said, "you can open it." The
trooper opened the bag, saw a firearm, and arrested the
defendant. Further observation of the firearm revealed that it
contained a loaded magazine.
"In reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent clear
2 error" (quotation omitted). Commonwealth v. Daveiga, 489 Mass.
342, 346 (2022). "We review independently the application of
constitutional principles to the facts found" (quotation
omitted). Id. The defendant neither challenges the propriety
of the stop nor the impoundment of the vehicle. Rather, the
defendant contends that a lawful inventory search became an
unlawful investigative search when the trooper asked the
defendant about the bag's contents, instead of simply giving the
bag to the defendant.
"Inventory searches are intended to be noninvestigatory and
are for the purpose of safeguarding the defendant's property,
protecting the police against later claims of theft or lost
property, and keeping weapons and contraband from the prison
population." Commonwealth v. Barillas, 484 Mass. 250, 256
(2020). "[A]n inventory search must hew closely to written
police procedures and may not conceal an investigatory motive"
(quotation omitted). Commonwealth v. Rosario-Santiago, 96 Mass.
App. Ct. 166, 175 (2019). "[I]n considering whether the
government has met [its] burden of proof [as to the legality of
the search], the written inventory policy is the best evidence"
(quotation omitted). Id. at 176.
The defendant does not challenge the legality of the
inventory policy itself. He relies on Commonwealth v. Abdallah,
475 Mass. 47, 51 (2016), and Commonwealth v. Nicoleau, 90 Mass.
3 App. Ct. 518, 522 (2016), to support his argument that the
trooper was not authorized to conduct an inventory of the
defendant's bag because there was a "reasonable alternative" to
doing so. However, the trooper in this case operated under a
different inventory policy than did the police in those cases.
Here, the written inventory policy required the State trooper to
inventory the "interior of the vehicle." In doing so, the
inventory policy states, "[a]ll closed but unlocked containers
shall be opened, and each article inventoried individually."
The bag was not locked, thus the inventory policy required the
trooper to open it and inventory its contents.
The inventory search did not become unlawfully
investigatory simply because the trooper asked the defendant
what was inside the bag. See Commonwealth v. Lyles, 453 Mass.
811, 815 (2009) (police do not effect a seizure merely by asking
questions). The defendant was not in custody at the time and
thus was free to leave without responding to the trooper.
However, the defendant immediately gave the trooper permission
to search the bag. We therefore agree with the motion judge
that, in addition to being a lawful inventory search, the
trooper's search of the bag was proper based on the defendant's
free and voluntary consent. See Commonwealth v. Ortiz, 478
Mass. 820, 823 (2018).
4 2. CJIS query evidence. To prove that the defendant
carried a firearm without a license, the Commonwealth bears the
burden of proving beyond a reasonable doubt that the defendant
lacked a firearms license at the time of the offense. See
Commonwealth v. Guardado, 491 Mass. 666, 690, S.C., 493 Mass. 1
(2023), cert. denied, 144 S. Ct. 2683 (2024). At trial, a CJIS
employee, Mario Monzon, testified that he conducted a query of a
CJIS database of firearm licenses by entering the defendant's
first name, last name, and date of birth. The response to the
query was, "No Records Found." A printout of the query was also
admitted into evidence.
The defendant asserts that both the testimony and the
printout were inadmissible hearsay that violated the defendant's
confrontation clause rights because the witness was not
responsible for inputting or maintaining the records, which
consisted of statements from licensing authorities, not CJIS.1
"We do not disturb a judge's decision to admit [or exclude]
evidence absent an abuse of discretion or other legal error"
(quotation omitted). Commonwealth v. Souza, 492 Mass. 615, 626
1 The Supreme Judicial Court is currently considering the issue of the admissibility of a CJIS employee's testimony that a CJIS query returned no firearms licensing information for a defendant. Commonwealth vs. Smith, No. SJC-13670 (argued March 3, 2025). Neither party to this appeal has requested a stay pending the resolution of that case.
5 (2023). "Testimony . . . that a diligent search failed to
disclose a public record or statement is admissible in evidence
if the testimony . . . is offered to prove that . . . the record
or statement does not exist." Mass. G. Evid. § 803(10)(A)
(2025).
Here, Monzon testified to the process of applying for a
firearms license, how the licensing authority inputs and
maintains issued licenses into the Massachusetts Instant Record
Check System, and how that data can be accessed through a CJIS
query. Although Monzon himself did not create or input the
records, he established his familiarity with the system and the
process he used to diligently conduct a CJIS query for a record
of a firearms license issued to someone with the defendant's
name and date of birth. Neither the testimony nor the query
printout was admitted in error because Monzon's testimony laid
the requisite foundation regarding how records of firearms
licenses are created, maintained, and accessed via CJIS. See
Guardado, 491 Mass. at 698 (Lowy, J., concurring). Contrast
6 Commonwealth v. Encarnacion, 105 Mass. App. Ct. 46, 51 n.6
(2024) (absence of record inadmissible where no such foundation
laid).
Judgment affirmed.
By the Court (Desmond, Sacks & Brennan, JJ.2),
Clerk
Entered: June 17, 2025.
2 The panelists are listed in order of seniority.