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
25-P-420
COMMONWEALTH
vs.
IZAIAH CARAVAJAL-MORALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a Boston Municipal Court judge
(trial judge) found the defendant guilty of possession of
ammunition without a firearm identification (FID) card in
violation of G. L. c. 269, § 10 (h) (1). 1 The defendant's motion
to suppress was denied by a different judge (motion judge) prior
to trial. On appeal, the defendant challenges the denial of his
motion to suppress and the sufficiency of the evidence to
support his conviction. We affirm.
1The defendant was also charged with possession of a large capacity firearm in violation of G. L. c. 269, § 10 (m), which charge was dismissed by agreement of the Commonwealth prior to trial. Background. We summarize the facts found by the motion
judge and the trial judge, supplemented by undisputed evidence
from the record, because the evidence at the suppression hearing
and the trial was largely the same. Commonwealth v. Tremblay,
480 Mass. 645, 654-655 (2018). On February 28, 2023, police
received a call from Dan Linskey, a security consultant for Seed
Cannabis Dispensary, a marijuana dispensary. Linskey reported
that a dispensary employee had brought a firearm to work and
that "the manager on site had confiscated the weapon and it was
being held in a locked room at the dispensary."
When police arrived at the dispensary, the manager, Kristen
Picard, met them outside. She explained that earlier in the
day, an employee told her that the defendant had been living in
the employee's home, and that the defendant had told the
employee sometime in the past two weeks that he was in
possession of a firearm. The employee urged him to leave it at
her home or store it in his vehicle, but he refused to follow
her advice. The employee believed that the defendant had
brought the firearm to the workplace and that it was stored in
his employee locker. Picard told police that it was against
company policy to bring a firearm to the business. Picard "had
searched the locker area and recovered a firearm in a backpack
that she believed belonged to the defendant." Once she found
the firearm, she "alerted her superiors," who notified the
2 owners of the business. The owners then instructed Linskey to
call 911.
Four Boston police officers responded to the dispensary.
One officer accompanied Picard to the employee locker room area.
The officer and Picard went to a "back storage area" next to the
employee locker area, where Picard gave a backpack to the
officer and explained that "it contained a firearm in two
pieces." She told the officer that the backpack was hanging on
a wall in the employee locker area and that she had first
searched the lockers in an effort to find the firearm. The
officer "took possession of the backpack, opened it and observed
a firearm."
Three other officers entered the front door of the
dispensary and found the defendant standing behind a display
case. The three officers approached the defendant and advised
him of his Miranda rights. He told them that he did not possess
a firearm license and denied bringing any illegal items to work.
The police escorted the defendant to the employee locker room
area where they showed him the open backpack, and "he admitted
ownership of the backpack and the firearm." The police then
arrested him for "unlawful[ly] carrying a loaded firearm and
ammunition."
Discussion. 1. Motion to suppress. The defendant
contends that the motion judge erred in denying the motion to
3 suppress as the warrantless search of the defendant's backpack
was not justified by an exception to the warrant requirement.
We disagree. "In reviewing a ruling on a motion to suppress
evidence, we accept the judge's subsidiary findings of fact
absent clear error . . . . We review independently the
application of constitutional principles to the facts found"
(citation omitted). Commonwealth v. Cordero, 477 Mass. 237, 241
(2017).
"Both art. 14 of the Massachusetts Declaration of Rights
and the Fourth Amendment to the United States Constitution apply
only to State action. Evidence discovered and seized by private
parties is admissible without regard to the methods used, unless
State officials have instigated or participated in the search."
(citations and footnote omitted). Commonwealth v. Gumkowski,
487 Mass. 314, 321 (2021). Here, the motion judge found, and
the defendant does not dispute, that "the police did not
instigate or conduct an independent search of the lockers or
backpack"; rather, Picard "confiscated the backpack, discovered
the firearm and placed it in a secure area." Because Picard
looked in the backpack and found the gun prior to the police
arriving and opening the bag, the motion judge properly found
that the police "were not involved in the initial search and
recovery of the firearm" and concluded that the manager "did not
act as an agent or arm of the police." See United States v.
4 Jacobsen, 466 U.S. 109, 119 (1984) (where private party
previously opened package, found contraband, and notified law
enforcement, government agent's subsequent viewing of what
"private party had freely made available for his inspection did
not violate the Fourth Amendment"). Accordingly, we conclude
that the motion judge did not err in denying the motion to
suppress.
2. Sufficiency of evidence. We find unavailing the
defendant's argument that the evidence was insufficient to
convict him of possession of ammunition without an FID card
because Officer Ryan Tilley could not remember the arrest and
did not identify the defendant at trial. When reviewing a
challenge to the sufficiency of the evidence, we consider
whether, after viewing the evidence in the light most favorable
to the Commonwealth, any rational trier of fact could find that
each of the essential elements of the crime has been proved
beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass.
671, 677-678 (1979).
To secure a conviction for unlicensed possession of
ammunition, the Commonwealth must have proved that the
defendant: (1) possessed; (2) ammunition designed for use in
any firearm; (3) without complying with the FID card
requirements of G. L. c. 140, § 129B, as amended by St. 2018, c.
123, §§ 9, 10. See Commonwealth v. McCollum, 79 Mass. App. Ct.
5 239, 245 (2011).
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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
25-P-420
COMMONWEALTH
vs.
IZAIAH CARAVAJAL-MORALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a Boston Municipal Court judge
(trial judge) found the defendant guilty of possession of
ammunition without a firearm identification (FID) card in
violation of G. L. c. 269, § 10 (h) (1). 1 The defendant's motion
to suppress was denied by a different judge (motion judge) prior
to trial. On appeal, the defendant challenges the denial of his
motion to suppress and the sufficiency of the evidence to
support his conviction. We affirm.
1The defendant was also charged with possession of a large capacity firearm in violation of G. L. c. 269, § 10 (m), which charge was dismissed by agreement of the Commonwealth prior to trial. Background. We summarize the facts found by the motion
judge and the trial judge, supplemented by undisputed evidence
from the record, because the evidence at the suppression hearing
and the trial was largely the same. Commonwealth v. Tremblay,
480 Mass. 645, 654-655 (2018). On February 28, 2023, police
received a call from Dan Linskey, a security consultant for Seed
Cannabis Dispensary, a marijuana dispensary. Linskey reported
that a dispensary employee had brought a firearm to work and
that "the manager on site had confiscated the weapon and it was
being held in a locked room at the dispensary."
When police arrived at the dispensary, the manager, Kristen
Picard, met them outside. She explained that earlier in the
day, an employee told her that the defendant had been living in
the employee's home, and that the defendant had told the
employee sometime in the past two weeks that he was in
possession of a firearm. The employee urged him to leave it at
her home or store it in his vehicle, but he refused to follow
her advice. The employee believed that the defendant had
brought the firearm to the workplace and that it was stored in
his employee locker. Picard told police that it was against
company policy to bring a firearm to the business. Picard "had
searched the locker area and recovered a firearm in a backpack
that she believed belonged to the defendant." Once she found
the firearm, she "alerted her superiors," who notified the
2 owners of the business. The owners then instructed Linskey to
call 911.
Four Boston police officers responded to the dispensary.
One officer accompanied Picard to the employee locker room area.
The officer and Picard went to a "back storage area" next to the
employee locker area, where Picard gave a backpack to the
officer and explained that "it contained a firearm in two
pieces." She told the officer that the backpack was hanging on
a wall in the employee locker area and that she had first
searched the lockers in an effort to find the firearm. The
officer "took possession of the backpack, opened it and observed
a firearm."
Three other officers entered the front door of the
dispensary and found the defendant standing behind a display
case. The three officers approached the defendant and advised
him of his Miranda rights. He told them that he did not possess
a firearm license and denied bringing any illegal items to work.
The police escorted the defendant to the employee locker room
area where they showed him the open backpack, and "he admitted
ownership of the backpack and the firearm." The police then
arrested him for "unlawful[ly] carrying a loaded firearm and
ammunition."
Discussion. 1. Motion to suppress. The defendant
contends that the motion judge erred in denying the motion to
3 suppress as the warrantless search of the defendant's backpack
was not justified by an exception to the warrant requirement.
We disagree. "In reviewing a ruling on a motion to suppress
evidence, we accept the judge's subsidiary findings of fact
absent clear error . . . . We review independently the
application of constitutional principles to the facts found"
(citation omitted). Commonwealth v. Cordero, 477 Mass. 237, 241
(2017).
"Both art. 14 of the Massachusetts Declaration of Rights
and the Fourth Amendment to the United States Constitution apply
only to State action. Evidence discovered and seized by private
parties is admissible without regard to the methods used, unless
State officials have instigated or participated in the search."
(citations and footnote omitted). Commonwealth v. Gumkowski,
487 Mass. 314, 321 (2021). Here, the motion judge found, and
the defendant does not dispute, that "the police did not
instigate or conduct an independent search of the lockers or
backpack"; rather, Picard "confiscated the backpack, discovered
the firearm and placed it in a secure area." Because Picard
looked in the backpack and found the gun prior to the police
arriving and opening the bag, the motion judge properly found
that the police "were not involved in the initial search and
recovery of the firearm" and concluded that the manager "did not
act as an agent or arm of the police." See United States v.
4 Jacobsen, 466 U.S. 109, 119 (1984) (where private party
previously opened package, found contraband, and notified law
enforcement, government agent's subsequent viewing of what
"private party had freely made available for his inspection did
not violate the Fourth Amendment"). Accordingly, we conclude
that the motion judge did not err in denying the motion to
suppress.
2. Sufficiency of evidence. We find unavailing the
defendant's argument that the evidence was insufficient to
convict him of possession of ammunition without an FID card
because Officer Ryan Tilley could not remember the arrest and
did not identify the defendant at trial. When reviewing a
challenge to the sufficiency of the evidence, we consider
whether, after viewing the evidence in the light most favorable
to the Commonwealth, any rational trier of fact could find that
each of the essential elements of the crime has been proved
beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass.
671, 677-678 (1979).
To secure a conviction for unlicensed possession of
ammunition, the Commonwealth must have proved that the
defendant: (1) possessed; (2) ammunition designed for use in
any firearm; (3) without complying with the FID card
requirements of G. L. c. 140, § 129B, as amended by St. 2018, c.
123, §§ 9, 10. See Commonwealth v. McCollum, 79 Mass. App. Ct.
5 239, 245 (2011). Where the defendant did not have actual
possession of the ammunition, the Commonwealth may prove
constructive possession. See id. at 246 ("Constructive
possession requires that the defendant know of the presence of
the contraband and have the ability and intention to exercise
dominion and control over it").
Although Officer Tilley could not remember the defendant's
name, had difficulty recalling the arrest, and did not identify
him at trial, Officer Renee Cooper identified the defendant at
trial as the person working at the dispensary who admitted that
the backpack and firearm belonged to him. The trial judge also
heard evidence that Picard found the backpack in the employee
break room that is only accessible to employees. The evidence
was sufficient to permit the judge to find that the defendant
knew that the ammunition was inside the backpack, which he had
admitted belonged to him. See McCollum, 79 Mass. App. Ct. at
246 (sufficient evidence that defendant constructively possessed
ammunition where his statement that weapon was in closet
established that he knew location of firearm and ammunition and
had ability to exercise control over them).
At trial, a Boston police detective identified a magazine
that was taken from the backpack and testified that there were
bullets inside the magazine. A firearms analysis expert
testified at trial that she examined the bullets and magazine
6 and identified them as ammunition, explaining that they had
three out of the four indicators of ammunition. See
Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997),
quoting G. L. c. 140, § 121 (physical appearance, manner of
packaging, and police testimony permitted jury to infer that
ammunition was "designed for use in [a] firearm").
A Department of Criminal Justice Information Services
employee testified that an LTC (license to carry) is required to
possess, own, or carry any firearm within the Commonwealth. A
bureau manager for the Department of Criminal Justice
Information Services also testified that he searched the State
database and found no records showing that the defendant had an
LTC or FID card. 2
Accordingly, we conclude that viewing the evidence in the
light most favorable to the Commonwealth, the evidence was
sufficient to permit the judge to find the defendant guilty of
unlicensed possession of ammunition.
Judgment affirmed.
By the Court (Desmond, Tan & Wood, JJ. 3),
2 An FID card allows a person to own or possess a rifle or shotgun but does not allow them to carry a firearm outside of the house. 3 The panelists are listed in order of seniority.
7 Clerk
Entered: July 6, 2026.