Commonwealth v. Mubdi

923 N.E.2d 1004, 456 Mass. 385, 2010 Mass. LEXIS 121
CourtMassachusetts Supreme Judicial Court
DecidedMarch 29, 2010
StatusPublished
Cited by56 cases

This text of 923 N.E.2d 1004 (Commonwealth v. Mubdi) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Mubdi, 923 N.E.2d 1004, 456 Mass. 385, 2010 Mass. LEXIS 121 (Mass. 2010).

Opinion

Gants, J.

The defendant was charged in the Dorchester Division of the Boston Municipal Court Department with possession of marijuana, in violation of G. L. c. 94C, § 34; possession of marijuana with the intent to distribute, in violation of G. L. c. 94C, § 32C (a); and possession of marijuana with the intent to distribute within 1,000 feet of a school or public park, in violation of G. L. c. 94C, § 32J.1 The defendant filed a motion to suppress evidence, including the marijuana he is charged with possessing, seized by Boston police officers on May 16, 2007, from a parked vehicle during an investigatory stop. After an evidentiary hearing, a judge denied the motion to suppress, finding that the police had reasonable suspicion to make the investigatory stop and that the protective sweep of the vehicle in which the defendant had been seated was reasonable to protect the safety of the police officers and appropriately limited in scope. A single justice of this court granted the defendant leave to file an interlocutory appeal in the Appeals Court from the denial of the motion. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).

The Appeals Court issued an unpublished memorandum and order pursuant to its rule 1:28, affirming the denial of the defendant’s motion to suppress, but on grounds different from the motion judge. Commonwealth v. Mubdi, 74 Mass. App. Ct. 1110 (2009). The Appeals Court concluded that the information that prompted the investigatory stop fell short of reasonable suspicion, but held that the defendant’s motion to suppress should still have been denied because, in the affidavit he filed under Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004), he failed to assert that he had an expectation of privacy in the vehicle in which the police located the challenged evidence and, at the evidentiary hearing, he failed to establish his reasonable expectation of privacy in the vehicle. We granted the defendant’s application for further appellate review. We now reverse the denial of the motion to suppress.

[387]*387Facts. We summarize the facts concerning the stop of the defendant and the seizure of the marijuana as found by the motion judge, supplemented where necessary with uncontroverted evidence drawn from the record of the suppression hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000).

On May 16, 2007, two uniformed Boston police officers, Wilson Quiles and David O’Connor, were patrolling the area of Lyndhurst and Washington Streets in the Dorchester section of Boston in a marked cruiser as part of a rapid response unit. Both officers were familiar with the comer of Lyndhurst and Washington Streets, knowing it to be a high crime area, and had responded to calls there for violent crime and drag and firearm-related offenses in the past. At approximately 5:15 p.m., they received a radio dispatch that relayed the contents of an anonymous call to the 911 emergency telephone line. The tape recording of the police dispatch was played at the hearing on the motion to suppress, and the parties have stipulated to the accuracy of a transcription, which reads:

“Stay on lookout for FIO [field interrogation observation] purposes at this time, stay on lookout for Blue Dodge Charger, Georgia registration AHT4351, should be occupied by two black males. They were observed 15 minutes ago on Lyndhurst St., next [to] the Post Office. Observed money and an object being passed, believed to be a firearm.”

The dispatcher also informed the officers that gun shots had been fired the night before on Lyndhurst Street.

Officers Quiles and O’Connor were driving on Washington Street at the time of the radio bulletin, and observed a blue Dodge Charger automobile, with a Georgia registration plate matching the plate number given by the dispatch, parked on Lyndhurst Street. Officer O’Connor observed an individual leaning into the passenger side of the Dodge Charger and speaking to the vehicle’s two occupants. Officer Quiles, who was driving, turned the police cmiser around and drove the wrong way up Lyndhurst Street. As he did this, the individual who had been standing outside the Dodge Charger began walking away from the vehicle toward Washington Street in the direction of the oncoming cmiser. The two officers left the cmiser and approached the three men. Officer Quiles had his gun drawn.

[388]*388As Officer Quiles held his gun on the individuals in the vehicle, Officer O’Connor pat frisked and handcuffed the individual on the sidewalk who had been speaking to the occupants of the vehicle. No weapons or drugs were found. Officer Quiles then removed the defendant, who had been in the driver’s seat, and the passenger from the vehicle. They, too, were handcuffed and frisked for weapons, and no weapons or drugs were found. After the three men were placed in the back seat of police cruisers,2 Officer O’Connor began to search the inside of the vehicle for a firearm. He did not find a firearm, but in the center console between the two front seats he located two bags containing a leafy, green substance that he believed to be marijuana.3

Discussion. “In reviewing the denial of a motion to suppress, we accept the judge’s findings of fact absent clear error.” Commonwealth v. Damian D., 434 Mass. 725, 726 (2001). We find no clear error as to any fact relevant to this decision. We then “conduct an independent review of [the judge’s] ultimate findings and conclusions of law.” Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Our duty is to determine “the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

1. Reasonable expectation of privacy and the adequacy of the affidavit filed under rule 13 (a) (2). We consider first the grounds for denying the motion to suppress relied on by the Appeals Court — that the defendant failed, in the affidavit he filed under rule 13 (a) (2), to assert that he had an expectation of privacy in the vehicle searched, and failed to establish at the evidentiary hearing his reasonable expectation of privacy in the vehicle.

Rule 13 (a) (2) codifies the standard requirements for a defendant’s pretrial motion, including a motion to suppress evidence alleged to be the product of an unreasonable search or seizure. The motion papers must contain: (1) a pretrial motion stating “the grounds on which it is based” and including “in separately [389]*389numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity”; and (2) an affidavit giving in detail “all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion.” Mass. R. Crim. P. 13 (a) (2).4

Where a defendant has filed a motion to suppress alleging an unconstitutional search or seizure, the detail required in the motion and accompanying affidavit under rule 13 (a) (2) must be sufficient to accomplish two practical purposes. First, it must be sufficient to enable a judge to determine whether to conduct an evidentiary hearing. See Costa v. Commonwealth, 440 Mass. 1003, 1004 (2003), quoting Commonwealth v. Santosuosso, 23 Mass. App. Ct.

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Bluebook (online)
923 N.E.2d 1004, 456 Mass. 385, 2010 Mass. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mubdi-mass-2010.