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22-P-869 Appeals Court
COMMONWEALTH vs. CHARLES WILLIAMS.
No. 22-P-869.
Suffolk. December 5, 2023. – August 1, 2024.
Present: Green, C.J., Neyman, & Englander, JJ.
Homicide. Evidence, Firearm, Videotape. Firearms. Search and Seizure, Search incident to lawful arrest. Constitutional Law, Search and seizure, Equal protection of laws. Practice, Criminal, Motion to suppress, Jury and jurors, Challenge to jurors.
Indictments found and returned in the Superior Court Department on November 8, 2017.
A pretrial motion to suppress evidence was heard by Christine M. Roach, J., and the cases were tried before Janet L. Sanders, J.
Richard P. Heartquist for the defendant. Erin Knight, Assistant District Attorney, for the Commonwealth.
ENGLANDER, J. The defendant appeals from his conviction by
a jury of murder in the second degree.1 His principal argument
1 The defendant was also convicted of various firearm offenses and appeals from those convictions as well. 2
is that a key piece of evidence -- a firearm used during the
commission of the murder -- should have been suppressed pursuant
to the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights. The police
found the firearm in question on the day they arrested the
defendant, over three months after the murder, in a backpack
that the defendant had been carrying immediately before he was
arrested. The defendant argues that because the backpack was
not on his person at the time of his arrest, and was not seized
or searched until after he had been handcuffed and removed from
the scene, the seizure and search cannot be justified as a
search incident to arrest, or on any other basis that would
provide an exception to the warrant requirement. For the
reasons that follow, we conclude that both the seizure and
search of the backpack and the seizure of the firearm were
lawful under Federal and Massachusetts law. We discern no merit
in the other arguments that the defendant raises, and
accordingly affirm the judgments.
Background. On the evening of July 15, 2017, Dennis Parham
was shot and killed at the Lenox Housing Development in the city
of Boston. The shooting was caught by surveillance cameras, and
there was at least one eyewitness, who was looking out the
window of a nearby home. Among other things, the surveillance
video showed a shooter pulling a gun from his person, firing 3
several shots, and returning it to his waistband. In what might
be described as a stroke of luck for the investigation, the
eyewitness performed independent research on the Internet and,
several days after the shooting, identified the defendant to the
Boston police as one of what he believed were two shooters whom
he had seen on the night of the murder.
More than three months later, on November 5, 2017, Boston
police officers went to arrest the defendant after he was
located at a home (believed to belong to the defendant's
girlfriend) in the Brighton section of Boston. The police
identified the defendant's car in front of the residence and
began surveillance. The police did not obtain any warrants in
connection with the planned arrest. Sometime that morning, the
police observed the defendant's car start up, remotely, on the
street in front of the defendant's girlfriend's house. The car
was legally parked. Shortly thereafter, the defendant left the
house and walked toward the car. He had a backpack on his
person. The police allowed him to enter the car, at which point
the defendant placed the backpack on the passenger seat. The
police then approached the car from all directions. One officer
approached the driver's side, and asked the defendant to step
out. Another, Officer Patrick Murphy, opened the passenger side
door, reached in, and turned off the car engine. The defendant
complied with the officers' order (leaving the backpack in the 4
car), and was taken to the rear of the car and handcuffed.
Shortly thereafter the defendant was placed in a police
transport and taken to the police station. Before leaving, the
defendant asked the police to leave his car with his girlfriend,
who was observing from an adjacent sidewalk.
Officer Murphy called his superior, Sergeant Detective
Michael Devane, who was at the police station, to ask him what
should be done with the defendant's car. Devane said that he
did not want the car impounded. The defendant had been driving
a different car on the day of the murder in July, as seen on the
surveillance videos. That car had been rented from Zipcar,
Inc.; it was not the same car that the police encountered
outside the defendant's girlfriend's home in November.
Murphy decided to give the car keys to the girlfriend.
Before he did so, however, Murphy learned from another officer
that the defendant had been wearing the backpack, now in the
car, when the defendant had exited the girlfriend's home.
Murphy called Devane a second time, this time asking
specifically about the backpack that the defendant had been
wearing. Devane told Murphy to bring the backpack to the
station. Before Murphy brought the backpack to the station, 5
however, he opened the backpack and moved around some items
inside. He observed the handle of a black handgun.2
After the handgun was brought to the station it was
examined by police experts. Ballistics from the gun matched
several .40 caliber casings recovered from the murder scene and
one of the defendant's fingerprints was found on the gun's
magazine.
The defendant filed a motion to suppress the gun, along
with several other motions to suppress. The essence of the
defendant's argument was that the backpack could not be seized
or searched without a warrant, and that the search could not be
justified as a search incident to arrest because the backpack
was not seized or searched until after the defendant had been
removed from the scene.
The judge held an evidentiary hearing, and denied the
motion as to the backpack and firearm. The judge first
concluded that the search of the backpack could not be justified
as a search incident to arrest. The judge also concluded,
however, that the seizure of the backpack was "reasonable,"
inasmuch as the backpack had been on the defendant's person
immediately prior to his arrest, and was then in the car that
2 The judge's findings from the suppression hearing indicate that this search occurred approximately seven minutes after the defendant had been arrested, and four minutes after the defendant had been removed from the scene. 6
was going to be turned over to the girlfriend. And although the
judge found that Murphy's immediate search of the backpack was
not justified, the judge nevertheless held that the gun should
not be suppressed, because the lawfully seized backpack would
inevitably have been inventoried once it was secured at the
station.
The defendant was tried for murder over fourteen days in
August and September of 2021. On September 16, 2021, the jury
convicted the defendant of murder in the second degree and four
additional charges relating to carrying a loaded firearm without
a license. This appeal followed.
Discussion. 1. The motion to suppress the gun. The
principal issue before us is whether the firearm located in the
backpack must be suppressed under the Fourth Amendment to the
United States Constitution or art. 14 of the Massachusetts
Declaration of Rights. The search of the backpack was conducted
without a warrant, and accordingly, the search must be justified
under an exception to the warrant requirement. See Commonwealth
v. Ortiz, 487 Mass. 602, 606 (2021), quoting Commonwealth v.
Arias, 481 Mass. 604, 610 (2019). Here the judge ruled -- and
the Commonwealth continues to press on appeal -- that the
firearm would have been "inevitably discovered" pursuant to a
lawful inventory of the defendant's "possessions," which the
Commonwealth contends would have occurred when the backpack was 7
brought to the police station. Alternatively, the Commonwealth
argues that the search of the backpack was a lawful search
incident to arrest, citing in particular Commonwealth v.
Figueroa, 468 Mass. 204, 215-216 (2014).
We begin our analysis with "the basic rule that 'searches
conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth
Amendment -- subject only to a few specifically established and
well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332,
338 (2009), quoting Katz v. United States, 389 U.S. 347, 357
(1967). One of those well-delineated exceptions, however, is
the doctrine of search incident to arrest. In Gant, the United
States Supreme Court revisited the permissible scope of a search
incident to arrest where, as here, the defendant was seized and
arrested immediately after having been in an automobile. Gant,
supra at 338-344. The Supreme Court clarified that in such
circumstances a search of the car (and items in the car) could
be justified on either of two grounds: (1) as reasonably
necessary for officer safety, the passenger compartment could be
searched if the arrestee was "unsecured and within reaching
distance of the passenger compartment at the time of the
search," and (2) when it is "reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle"
(citation omitted). Id. at 343. 8
In this case, the warrantless search of the backpack
incident to the defendant's arrest was lawful under the second
of the above rationales -- it was a lawful search for evidence
relevant to the crime.3 Gant says that such a search is lawful
if it was "reasonable to believe" that relevant evidence "might
be found." Gant, 556 U.S. at 335. This court has equated the
"reasonable to believe" standard with "probable cause," and
suggested that Gant's second rationale is merely an application
of the well-recognized automobile exception to the warrant
requirement. See Commonwealth v. Starkweather, 79 Mass. App.
Ct. 791, 796-797 (2011).4 Under the automobile exception, where
3 It bears noting that had the police chosen to arrest the defendant as he walked to the car, the backpack search would have been a lawful search incident to arrest, as the backpack was then on his person. See Commonwealth v. Phifer, 463 Mass. 790, 795-796 (2012), citing Commonwealth v. Madera, 402 Mass. 156, 159-161 (1988).
4 There is considerable uncertainty in the case law as to whether Gant's "reasonable to believe" standard equates to probable cause, to reasonable suspicion, or to some other standard that also is less stringent than probable cause. See United States v. Edwards, 769 F.3d 509, 514 (7th Cir. 2014) ("[t]he Court in Gant did not elaborate on the precise relationship between the 'reasonable to believe' standard and probable cause, but the Court's choice of phrasing suggests that the former may be a less demanding standard"); United States v. Polanco, 634 F.3d 39, 42-43 (1st Cir. 2011) ("the auto exception requires probable cause. But the Gant evidentiary justification only requires a 'reasonable basis.' These distinctions make a difference" [citations omitted]); United States vs. Whitlock, U.S. Dist. Ct., No. 2:20-cr-00017 (D. Vt. Apr. 16, 2021) (collecting cases). We need not decide whether Gant establishes a less stringent standard than probable cause because as set forth below, the facts in this case establish probable cause. 9
an investigator has probable cause to believe that evidence
relevant to a crime is located in an automobile in a public
area, the investigator may search those areas of the automobile
to which probable cause extends without first obtaining a
warrant. See Commonwealth v. Davis, 481 Mass. 210, 220 (2019).
The rationale for this exception, also well-established, is
primarily exigency -- automobiles are mobile, and the
investigator may not have time to get a warrant before the
evidence has been moved. See Commonwealth v. Eggleston, 453
Mass. 554, 554 (2009), quoting Commonwealth v. Motta, 424 Mass.
117, 124 (1997). For this reason, the ability to search the
vehicle based on probable cause (and without a warrant)
"continues even after the arrestee is taken away from the
vehicle and is secured." Starkweather, supra at 797.5 Moreover,
5 The Commonwealth also relies on the officer safety rationale, arguing that the backpack was within the defendant's "lunge area" at the time he was arrested, citing Figueroa, 468 Mass. at 215-216. Gant appears to hold, however, that the scope of a lawful search incident to arrest based on officer safety concerns is judged as of the time of the search. See Gant, 556 U.S. at 343 (rationale for search incident to arrest exception permits "police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" [emphasis added]). Here, the search did not occur until the defendant had been removed from the area, so as of the time of the search the backpack was not within the defendant's reach.
As to the Commonwealth's inevitable discovery argument, the difficulty is a factual one -- the defendant was brought to the police station without the backpack; it was left behind in the 10
the lawful scope of the search "extends to all containers, open
or closed, found within." Commonwealth v. Bostock, 450 Mass.
616, 624 (2008), quoting Commonwealth v. Cast, 407 Mass. 891,
908 (1990).
Here the police investigators had probable cause to believe
the backpack the defendant had been carrying on his person might
contain evidence relevant to the Parham murder. Probable cause,
of course, "is 'not a high bar,'" Commonwealth v. Guastucci, 486
Mass. 22, 26 (2020), quoting District of Columbia v. Wesby, 583
U.S. 48, 57 (2018); it does not require a showing that evidence
more likely than not was in the backpack. Probable cause is
less than a preponderance; it is a "reasonable likelihood" that
evidence will be discovered. Commonwealth v. Murphy, 95 Mass.
App. Ct. 504, 509 (2019). And here the information known to the
investigators established such a reasonable likelihood.
To begin, it is not disputed that the police had probable
cause to arrest the defendant for Parham's murder. There was an
eyewitness who identified the defendant as the shooter, based on
a fairly detailed description that was reasonably consistent
with a surveillance video. As to the location of relevant
evidence of the crime, that same surveillance video showed that
car. It may be, as the judge ruled, that it was nevertheless reasonable for the police to seize the backpack from the car, so as to reunite it with the defendant as one of his possessions, but for the reasons stated herein, we need not decide. 11
the defendant had a gun on his person, and returned it to his
person after the shooting. The firearms used in the murder had
not been found as of the defendant's arrest.6 And, no firearm
was found when the defendant was searched at the time of arrest
-- it was no longer on his person.
The above facts plainly would have established probable
cause to search a backpack the defendant was carrying if, for
example, the defendant had been arrested the night of the
shooting. If the murder weapon was not found on the defendant's
immediate person at that time, there was of course probable
cause to search a container he was carrying (as well as his car,
his home, and any other place he might reasonably have left the
gun). See Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 718-
719 (2012). The issue here, however, is whether the
investigators' information was too stale to establish probable
cause for a search when the investigators finally caught up with
the defendant three and one-half months later.
We hold that in the circumstances here, probable cause also
existed to search the backpack the defendant was carrying at the
time of his arrest. In evaluating staleness, a key question
courts address is whether the item sought is "durable," such
that the defendant is still likely to have the item at the time
6 Ballistics evidence identified shells from two different firearms at the murder scene. 12
of the search. The Supreme Judicial Court addressed the
staleness inquiry most recently in Guastucci, 486 Mass. at 23,
in which the court held that where the police had information
that child pornography was located on a computer at a particular
home, that information was not too stale to establish probable
cause to search computers in the home seven months later.
In Guastucci, the court discussed the components of the
"highly fact-intensive" staleness inquiry in depth, beginning
its discussion with general staleness principles that apply in
all cases evaluating probable cause. Guastucci, 486 Mass. at
26-27.7 The question is whether the passage of time has caused
information to lose its significance for determining the
likelihood that evidence will be found, and the issue of "how
long is too long" defies the creation of a bright-line rule. In
Guastucci, the court identified two principal factors that
should be considered -- (1) "the nature of the criminal
activity," and (2) "the nature of the item to be seized." Id.
at 27. In discussing the nature of the criminal activity, the
court was mostly concerned with whether the activity was
ongoing, such that "time is of less significance" (citation
omitted). Id. As to the nature of the item being sought, the
7 While the Guastucci court recognized that the child pornography context was somewhat unique, the court's discussion of general principles is nevertheless highly instructive for the issue before us. 13
court distinguished between items that are "perishable, readily
disposable, or transferrable" -- such as illegal drugs -- and
items that are "durable, of enduring use to [their] holder, and
not inherently incriminating." Id. at 28. The latter type of
item "might reasonably be found in the same location several
weeks later." Id. Importantly, the court cited a case
involving firearms as an example of the latter, more durable
items. Id., citing Commonwealth v. Beliard, 443 Mass. 79, 84-85
(2004) (six week old information concerning firearm was not
stale).
Applying the framework and analysis of Guastucci we are
satisfied, although the case is a close one, that at the time of
the defendant's arrest probable cause existed to search those
areas where the defendant might reasonably have secured the gun
he used the night of the murder -- including the backpack he was
carrying on his person. As to the "nature of the item,"
firearms are durable and of enduring value to their holder.
They are not frequently or easily transferred or discarded. Cf.
United States v. Neal, 528 F.3d 1069, 1074 (8th Cir. 2008)
("Information that someone is suspected of possessing firearms
illegally is not stale, even several months later, because
individuals who possess firearms tend to keep them for long
periods of time"). Notably, here there was no evidence the
defendant had reason to believe the police were looking for him 14
in connection with the Parham murder, and thus no urgent reason
to dispose of the firearm used on the night of the killing. Cf.
Beliard, 443 Mass. at 85 (evidence of weapons' location not
stale where no evidence defendant knew weapons had been
identified to police). The investigation had unfolded over
time, aided by the serendipitous research of an eyewitness not
known to the defendant.
Moreover, the police were aware that the defendant had been
arrested carrying a firearm at least twice before, in 1998 and
2005. While those arrests were dated, they are not irrelevant
to the probable cause calculus; that the defendant was known to
carry a firearm adds weight to the inference that the defendant
might be carrying the weapon used in the crime when he was
located three months after the murder. Put differently, these
facts go to the first factor identified in Guastucci -- whether
the defendant's criminal activity was ongoing, rather than a
single occurrence.8
8 The above facts collectively distinguish this case from Commonwealth v. Hart, 95 Mass. App. Ct. 165, 169 (2019), in which we held, on the bare facts there presented, that "a single observation of a firearm in a residence sixty days prior to the application for a search warrant does not establish probable cause that firearms, ammunition, and related materials would be found at that residence." This case does not involve a single observation of a firearm sitting in a residence -- it involves observation of the firearm in use, and returned to the defendant's person. Indeed, in Hart, we emphasized that "[t]here was no assertion that the gun was used to commit a recent armed offense or was linked to any ongoing course of 15
In short, the touchstone of the Fourth Amendment is
reasonableness; here there was a "reasonable likelihood" that
the defendant still had the gun he had used, and that the
defendant would keep that gun on his person or somewhere it was
readily available. There was probable cause to search those
areas when the defendant was arrested on November 5, 2017; a
warrant would have been required to search the defendant's home,
but no warrant was required to search the backpack located in
the car in which he was apprehended.
Finally, our conclusion that there was probable cause to
search the defendant's backpack is also consistent with cases
from other jurisdictions. See United States v. Ponzo, 853 F.3d
558, 573 (1st Cir. 2017), cert. denied, 583 U.S. 1115 (2018),
quoting United States v. Singer, 943 F.2d 758, 763 (7th Cir.
1991) (four month old information regarding defendant's
possession of gun not stale, as "firearms . . . are durable
goods useful to their owners for long periods of time"); State
v. Marcotte, 123 N.H. 245, 248-249 (1983) (purchase of firearm
four months previously sufficient probable cause to obtain
warrant to search defendant's home). The motion to suppress the
firearm was properly denied.
conduct." Id. at 168. Notably, the Supreme Judicial Court in Guastucci also distinguished Hart, as based on "a context- specific inquiry dependent on all the circumstances set forth in the affidavit." Guastucci, 486 Mass. at 28 n.3. 16
2. The Commonwealth's peremptory challenges. Next, the
defendant argues that the Commonwealth's peremptory challenges
violated the equal protection clause of the United States
Constitution. The defendant focuses on four challenges in
particular -- to jurors nos. 13, 46, 47, and 135. Although each
of these potential jurors were persons of color, the defendant
does not claim that the Commonwealth's challenges were
inappropriately based on race. Rather, he complains that the
Commonwealth justified its challenges to three of these four
jurors based on the young age and inexperience of the potential
juror. The defendant argues that peremptory challenges
exercised on the basis of youth can effectively be used to
exclude all Black jurors, thereby depriving young Black
defendants of a "jury of [their] peers."9
9 During empanelment, the Commonwealth exercised peremptory challenges to jurors nos. 13, 46, 47, and 135. The defendant objected to each challenge based on the Batson-Soares standard for juror selection. See Batson v. Kentucky, 476 U.S. 79 (1986); Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020). Juror no. 13 was Hispanic, juror no. 46 was Black, juror no. 47 was Filipino, and juror no. 135 was described as a female "minority." The Commonwealth justified its challenges to jurors nos. 13, 46, and 135 on the basis of age and inexperience. The Commonwealth's challenge to juror no. 47 was based on concerns about her impartiality.
As the defendant argues that the Commonwealth's justifications of peremptory challenges based on age deprived him of a jury of his peers, and the Commonwealth did not justify its challenge to juror no. 47 on the basis of age, the defendant's argument is inapplicable to juror no. 47. 17
The defendant's argument is foreclosed by established case
law. His argument amounts to an assertion that, because
peremptory challenges based on the age of the potential juror
may result in the exclusion of members of minority groups, those
peremptory challenges are unconstitutional. However, it is
well-established, both in this Commonwealth and under Federal
law, that "age is not a discrete grouping defined in the
Constitution, and therefore a peremptory challenge may
permissibly be based on age." Commonwealth v. Oberle, 476 Mass.
539, 545 (2017). See Commonwealth v. Grier, 490 Mass. 455, 462-
463 (2022); Commonwealth v. Fernandes, 487 Mass. 770, 775-776
(2021), cert. denied, 142 S. Ct. 831 (2022); Commonwealth v.
Lopes, 478 Mass. 593, 597 (2018); United States v. Cresta, 825
F.2d 538, 545 (1st Cir. 1987), cert. denied, 486 U.S. 1042
(1988) ("young adults" not "cognizable group" under equal
protection clause). Furthermore, there is no evidence in the
record to suggest that the Commonwealth engaged in a pattern of
discrimination against protected groups in its exercise of
peremptory challenges. Indeed, as of the second day of jury
selection, six Black jurors had already been seated. We discern
no impropriety in the Commonwealth's justification of its
peremptory challenges based on the young age of jurors nos. 13,
46, and 135. 18
3. Use of surveillance footage during eyewitness
testimony. Finally, the defendant argues that the judge
committed prejudicial error by allowing the Commonwealth to show
video surveillance footage to the eyewitness during his
testimony, because (allegedly) the process amounted to leading
the witness and causing him to alter and to improve upon his
testimony. Upon review of the record, we find that there is no
basis on which to conclude that prejudicial error occurred.
A trial judge "has broad discretion in making evidentiary
rulings" (citation omitted). Commonwealth v. Martinez, 476
Mass. 186, 190 (2017). "We review a judge's evidentiary rulings
for an abuse of discretion." Commonwealth v. Welch, 487 Mass.
425, 440 (2021), quoting Commonwealth v. Andre, 484 Mass. 403,
414 (2020). When an objection is preserved at trial, as here,
we review for prejudicial error. See Commonwealth v. Reyes, 483
Mass. 65, 78 (2019), citing Commonwealth v. Vargas, 475 Mass.
338, 348 (2016). An error is prejudicial if it raises a
"reasonable possibility that the error might have contributed to
the jury's verdict." Commonwealth v. Alphas, 430 Mass. 8, 23
(1999) (Greaney, J., concurring).
Here, the prosecution played several brief clips of
surveillance videos of the scene during direct examination of
the eyewitness. The video playback was paused on several
occasions. The witness provided testimony during intervals 19
between video clips. During the first interval, after a clip of
one video recording had played for roughly thirty seconds, the
witness provided certain details regarding his movements before
the shooting, and recounted hearing gunshots and seeing people
running outside his window. He referred to a map of the area
and identified and located his lines of sight. He described one
of the individuals he observed at the scene (the victim) as
wearing a baseball cap and red sneakers. The prosecution then
played approximately thirty additional seconds of video footage,
after which the witness described one of the shooters as a tall
and "husky" Black man, who was wearing a black baseball hat,
white T-shirt, and shorts.
While the witness provided further details of his
observations after the prosecution played the additional thirty
seconds of video footage, we are not persuaded that the
examination constituted impermissible leading. The witness's
testimony, as a whole, sufficiently demonstrated that he had
personal knowledge of the events to which he testified, as he
observed them from his window. The defendant would have us
conclude that the witness's testimony provided during the
intervals between video clips was led by the video footage that
he had been shown, but on the record before us, which includes
the relevant video clips, we are not persuaded that the witness
was impermissibly led by the clips rather than testifying from 20
his own memory. Furthermore, any variances from the witness's
prior testimony or his prior statements could of course be
explored through cross-examination. See Commonwealth v. Pina,
481 Mass. 413, 429 (2019), citing Mass. G. Evid. § 701 (2018)
("[a] lay witness is permitted to identify an individual
depicted in a video or photograph if that testimony would assist
the jurors in making their own independent identification").
Judgments affirmed.