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18-P-331                                               Appeals Court

                 COMMONWEALTH    vs.   JASON SPRING.


                             No. 18-P-331.

       Worcester.      March 8, 2019. - December 5, 2019.

            Present:   Hanlon, Agnes, & Sullivan, JJ.


Firearms. Evidence, Firearm, Result of illegal search, Result
     of illegal interrogation. Search and Seizure, Fruits of
     illegal search, Plain view. Practice, Criminal, Motion to
     suppress.



     Complaints received and sworn to in the East Brookfield
Division of the District Court Department on January 4 and
February 23, 2016.

     A motion to suppress was heard by Maura K. McCarthy, J.;
and the case was tried before Mark A. Goldstein, J.


     Darla J. Mondou for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.   After a jury trial in the District Court, the

defendant, Jason Spring, was convicted of carrying a firearm

without a license and possession of ammunition without a firearm

identification card (FID).    He appeals, arguing that his motion
                                                                    2


to suppress should have been allowed and, for that reason, he is

entitled to a new trial.   We agree that the motion should have

been allowed, and his admission that he did not have a license

to carry the firearm or an FID card suppressed, but we conclude

that the error was harmless beyond a reasonable doubt.     We

therefore affirm.

    Background.     We supplement the judge's findings on the

motion to suppress with uncontested facts from the testimony at

the hearing.   On January 1, 2016, Rutland Police Sergeant

Nicholas A. Monaco noticed a black Jeep parked in a private dirt

parking lot at approximately 2:10 A.M.    Monaco observed a T-

shirt hanging in the driver's side window, and that the car's

windows were fogged.   The defendant was asleep in the car; when

awakened, he identified himself as "Jason Spring from Holden,"

but when the officer asked for his driver's license, the

defendant responded that he did not have his wallet.     Monaco

asked who was the owner of the car, and the defendant responded

that "the car might have belonged to a guy he worked with."

Monaco told the defendant to get out of the car, handcuffed him,

and placed him in the rear of Monaco's police cruiser.     Monaco

then conducted a Registry of Motor Vehicles inquiry and

discovered that the defendant's driver's license had been

revoked and the car was unregistered.    Monaco also learned the
                                                                    3


defendant had an outstanding default warrant from the District

Court.

    As a result of this information, Monaco decided that the

defendant's car would be towed.   Another officer arrived, and

the officers conducted an inventory search of the car pursuant

to police department policy.   The inventory search produced a

large capacity rifle (a Bushmaster semiautomatic), three

magazines, ammunition, a single Prednisone pill, and a glass

pipe with marijuana residue.

    Monaco testified that the case containing the rifle, the

magazines, and the ammunition was not in plain view but covered

by clothes.   When he found it, he returned to his cruiser and

searched the relevant computer database for any record that the

defendant possessed a license to carry a firearm or an FID; he

discovered that the defendant had neither.

    Afterwards, Monaco asked the defendant if he had either a

license to carry the firearm or an FID.   The defendant responded

that he did not.   Monaco acknowledged that, when he asked the

question, he had not advised the defendant of his Miranda

warnings.   Monaco then transported the defendant to the Rutland

Police Department where he was booked and read his Miranda

rights for the first time.

    As noted, prior to trial, the defendant moved to suppress

"the stop, search, seizure and questioning as a result of an
                                                                   4


unauthorized and illegal stop and search of a vehicle."    After

the hearing, the judge issued written findings of fact and

rulings of law and denied the defendant's motion.   Thereafter,

the defendant was tried before six-person jury, with a different

judge presiding, and he was convicted of carrying a firearm

without a license and possession of ammunition without an FID

card.   The defendant appeals, seeking a new trial and claiming

that the motion judge erred in denying his motion to suppress

his "statements made in response to interrogation while

handcuffed and secured in a locked cruiser without being

provided Miranda warnings."

    Discussion.    "In reviewing a ruling on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of [her]

ultimate findings and conclusions of law.'"   Commonwealth v.

Cawthron, 479 Mass. 612, 616 (2018), quoting Commonwealth v.

Scott, 440 Mass. 642, 646 (2004).   The defendant's motion to

suppress argued only that he was subject to an illegal stop and

search and that, as a result, the evidence seized "as well as

any statements made by him prior to Miranda" should be

suppressed.   At the end of the hearing, the defendant argued

again that the arrest and search were improper, although he did

note that no Miranda warnings were given until he was at the

police station.   Likely for that reason, the motion judge made
                                                                  5


findings of fact and rulings of law about the search and the

arrest but did not make any specific findings or rulings

regarding the defendant's statements.

    The issue for us, then, is whether, on these facts, the

defendant was subjected to custodial interrogation improperly,

without being provided with Miranda warnings.   "To determine

whether a defendant was subjected to custodial interrogation,

'the court considers several factors:   (1) the place of the

interrogation; (2) whether the officers have conveyed to the

person being questioned any belief or opinion that that person

is a suspect; (3) the nature of the interrogation, including

whether the interview was aggressive or, instead, informal and

influenced in its contours by the person being interviewed; and

[previously] (4) whether, at the time the incriminating

statement was made, the person was free to end the interview by

leaving the locus of the interrogation or by asking the

interrogator to leave, as evidenced by whether the interview

terminated with an arrest.'"   Cawthron, 479 Mass. at 617-618,

quoting Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).

    This fourth factor was recently revised by the Supreme

Judicial Court in Commonwealth v. Matta, 483 Mass. 357, 363

(2019), where the court concluded,

    "In short, because, in most situations, a reasonable person
    would not believe that he or she was free to leave during a
    police encounter, using that standard does not produce the
                                                                    6


    information necessary to determine whether a seizure has
    occurred. Rather, the inquiry must be whether, in the
    circumstances, a reasonable person would believe that an
    officer would compel him or her to stay.

    "Although this is a different question from what we
    heretofore have asked, the analysis takes the same
    circumstances into consideration. Whether an encounter
    between a law enforcement official and a member of the
    public constitutes a noncoercive inquiry or a
    constitutional seizure depends upon the facts of the
    particular case."

As a result, it is still the case that, "[r]arely is any single

factor conclusive."   Cawthron, 479 Mass. at 618, quoting

Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).

    As to location, "we consider the circumstances from the

point of view of the defendant" (quotation and citation

omitted).   Cawthron, 479 Mass. at 618.   Here, the defendant was

questioned while he was handcuffed in the back of a police

cruiser, shortly after 2 A.M., on private property.    The

circumstances of the inquiry clearly favor the defendant's

argument here.

    Next, in Cawthron, the court stated that, "[i]f the

detectives had conveyed to the defendants that they were

suspects, that might support a determination that the defendants

were in custody before they made the incriminating statements."

Cawthron, 479 Mass. at 619.   Here, the defendant was detained

because he could not produce identification or prove ownership

of the car.   While he was handcuffed and seated in the back of
                                                                    7


Monaco's cruiser, Monaco questioned him about whether he had the

necessary documentation for the gun and ammunition seized from

the back of the car.   In fact, the question was independent from

the reason the defendant had been detained initially.    Compare

id.; Commonwealth v. Shine, 398 Mass. 641, 648-649 (1986)

(notwithstanding interrogating officer's uncommunicated intent

to arrest defendant, where officer asked only "natural

preliminary questions designed to determine the defendant's

identity and what he knew about the crime," court concluded

defendant was not subject to custodial interrogation).

       However, Monaco's question was not a "vague and unformed

suspicion of some illicit activity."     Cawthron, 479 Mass. at

619.   While possessing a firearm or ammunition is not

necessarily illegal, here, Monaco had already learned that the

defendant lacked proper documents for both the gun and the

ammunition, making the line of questioning clearly relevant to

specific illicit activity.    Id.   In addition, the defendant,

already handcuffed and in the back of Monaco's cruiser, was

aware that he did not possess proper documents.     We therefore

conclude that a person in the defendant's position would

reasonably conclude that Monaco's questions conveyed his

suspicion that the defendant had committed a crime.
                                                                       8


     On the issue of the tone of the exchange, the motion judge

found only that the defendant was "cooperative."   The record is

otherwise silent on this third prong.

     Finally, the critical question is "whether, in the

circumstances, a reasonable person would believe that an officer

would compel him or her to stay."    Matta, 483 Mass. at 363.    In

Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999), this

court held that, while the experience of being handcuffed and

placed in a police cruiser did not necessarily convert a Terry

stop1 based on reasonable suspicion into an arrest, there, "the

combined indicia of handcuffs and restraint in the back of a

police cruiser attain[ed] the level of custody associated with

formal arrest. . . .    Miranda warnings therefore should have

preceded any interrogation."

     So too here, the defendant was asked whether he had an FID

card or license to carry while handcuffed in the rear of a

police cruiser.    Afterwards, he was in fact arrested.   In that

circumstance, the defendant reasonably would have believed that

the officer would compel him to stay, if he chose to leave.      See

Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 35 (2012)

("whether the defendant [is] free to leave is based on a

reasonable person standard, and not on the subjective state of




     1   See Terry v. Ohio, 392 U.S. 1 (1968).
                                                                      9


mind of the officers").    As a result, we conclude that, before

posing the question, Monaco should have informed the defendant

of his Miranda rights; because he did not, the statement should

have been suppressed.

       The issue then becomes whether the erroneous admission of

the defendant's statement that he did not have an FID card or a

license to carry was "harmless beyond a reasonable doubt."

Commonwealth v. Tyree, 455 Mass. 676, 700 (2010), quoting

Chapman v. California, 386 U.S. 18, 24 (1967).    After careful

review, we are satisfied that "[a]lthough the statement[] . . .

should have been suppressed, [its] admission in evidence was

harmless beyond a reasonable doubt.   See Chapman[, supra].      To

determine whether erroneously admitted evidence was harmless, we

consider factors such as 'the importance of the evidence in the

prosecution's case; the relationship between the evidence and

the premise of the defense; who introduced the issue at trial;

the frequency of the reference; whether the erroneously admitted

evidence was merely cumulative of properly admitted evidence;

the availability or effect of curative instructions; and the

weight or quantum of evidence of guilt.'"    Commonwealth v.

Neves, 474 Mass. 355, 365-366 (2016), quoting Tyree, supra at

701.

       Here, at the time that the defendant admitted to Monaco

that he did not have a license to carry or an FID card, the
                                                                   10


officer already had discovered the gun and the ammunition that

formed the basis for the convictions.   After careful review, we

conclude that this independent discovery, prior to the

defendant's confession, renders the inadmissible admission

evidence harmless beyond a reasonable doubt.   See Commonwealth

v. Greenwood, 78 Mass. App. Ct. 611, 623 (2011), quoting

Commonwealth v. Dagraca, 447 Mass. 546, 555 (2006) (court's task

is to determine whether properly admitted evidence was

sufficiently "powerful as to neutralize the erroneously

admitted" evidence).   Monaco testified at trial, without

objection, that before questioning the defendant on the issue,

Monaco had learned, by searching the firearms database for the

defendant's name, that the defendant did not possess the

requisite license or FID card.   Most importantly, it was the

defendant's burden at trial to produce evidence that he had the

proper license and FID card, and he failed to do so.     See

Commonwealth v. Weaver, 474 Mass. 787, 815 (2016) ("lack of

license is not an element of unlicensed possession, but rather

an affirmative defense").   In fact, the defendant testified at

trial that he had neither a license to carry nor an FID card.2




     2 The defendant does not argue that he would not have
testified at trial but for the erroneous denial of his motion to
suppress.
                                                                    11


       Given the defendant's inability to produce the proper

license and FID card, his testimony at trial that he did not

have them, and Monaco's independent source for the information,

we are satisfied that the defendant's admission to Monaco was

cumulative of the properly admitted evidence and thus harmless

beyond a reasonable doubt.    See Greenwood, 78 Mass. App. Ct. at

623.

                                     Judgments affirmed.
