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SJC-12574

             COMMONWEALTH   vs.   MAURICE R. PRIDGETT.



      Suffolk.      November 8, 2018. - February 12, 2019.

  Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
                                JJ.


Receiving Stolen Goods. Motor Vehicle, Receiving stolen motor
     vehicle. Practice, Criminal, Motion to suppress. Probable
     Cause.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on September 9, 2016.

     A pretrial motion to suppress evidence was heard by Thomas
S. Kaplanes, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Lowy, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate
review.


     Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
     William M. Driscoll for the defendant.


    BUDD, J.   The defendant, Maurice R. Pridgett, was arrested
                                                                    2


while sitting alone in the passenger seat of a motor vehicle

that had been reported stolen.   He was charged with receiving a

stolen motor vehicle, subsequent offense, in violation of G. L.

c. 266, § 28 (a), and receiving stolen property over $250, in

violation of G. L. c. 266, § 60, in connection with items found

in the motor vehicle.   He filed a motion to suppress his

postarrest statements, contending that the police lacked

probable cause to arrest.

     A judge in the Boston Municipal Court Department allowed

the defendant's motion following an evidentiary hearing, and the

Commonwealth filed an interlocutory appeal.    The Appeals Court

affirmed in an unpublished memorandum and order pursuant to its

rule 1:28.   Commonwealth v. Pridgett, 93 Mass. App. Ct. 1105

(2018).   We granted the Commonwealth's application for further

appellate review, and we conclude, as did the Appeals Court,

that there was insufficient evidence to establish probable cause

that the defendant knew the vehicle was stolen, a requisite

element of the crime of receiving a stolen motor vehicle.     G. L.

c. 266, § 28 (a).1   We therefore affirm the order of the motion




     1 General Laws c. 266, § 28 (a),   states in pertinent part:
"Whoever . . . receives, possesses, .   . . or obtains control of
a motor vehicle . . . , knowing . . .   the same to have been
stolen, . . . shall be punished . . .   ."
                                                                     3


judge allowing the defendant's motion to suppress.2

     1.    Background.   The following facts are derived from the

testimony of the police officer who made the observations of the

defendant prior to his arrest; the testimony of the officer, who

was the sole witness at the suppression hearing, was fully

credited by the motion judge.

     While working undercover, the officer observed the

defendant, who was leaning on a motor vehicle, talking on a

cellular telephone (cell phone) and looking around.     Upon

investigating the vehicle's license plate, the officer learned

that the vehicle had been reported stolen.     The officer further

observed the defendant open the vehicle's front passenger's side

door to toss something into the vehicle.     The defendant then

shut the door and resumed leaning on the vehicle.     After a

period of time, the officer observed the defendant open the

front passenger's side door and sit in the front passenger's

seat.     At that point the officer radioed to uniformed police




     2 The motion judge allowed the motion because he found that
"the officers seized and arrested the [d]efendant prior to [one
officer's] administration of the Miranda rights." We have never
held that Miranda warnings must be administered prior to the
seizure or arrest of a suspect. However, we may affirm the
allowance of the motion on any lawful ground provided in the
record. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102
(1997) ("An appellate court is free to affirm a ruling on
grounds different from those relied on by the motion judge if
the correct or preferred basis for affirmance is supported by
the record and the findings").
                                                                       4


officers, directing them to "move in."       The uniformed officers

removed the defendant from the vehicle and handcuffed him.

       After he was read Miranda warnings, the defendant made

incriminating statements including that he knew the motor

vehicle was stolen, and that items recovered from the motor

vehicle during an inventory search3 may have been stolen.      The

defendant filed a motion to suppress his postarrest statements

on the basis that the officers lacked probable cause to arrest

him.       The motion was allowed.

       2.    Discussion.   In reviewing a decision on a motion to

suppress, we accept the judge's findings of fact absent clear

error and "make an independent determination of the correctness

of the judge's application of constitutional principles to the

facts as found."       Commonwealth v. Tremblay, 460 Mass. 199, 205

(2011).      Probable cause to arrest exists when, "at the moment of

arrest, the facts and circumstances within the knowledge of the

police are enough to warrant a prudent person in believing that

the individual arrested has committed or was committing an

offense."      Commonwealth v. Storey, 378 Mass. 312, 321 (1979),

cert. denied, 446 U.S. 955 (1980).      Here, at the moment of the

defendant's arrest, police must have had probable cause to

believe that (1) the motor vehicle was stolen, (2) the defendant



       Officers recovered a cell phone and a computer "tablet"
       3

device from the motor vehicle.
                                                                   5


possessed the motor vehicle, and (3) the defendant knew or had

reason to know the vehicle was stolen.   G. L. c. 268, § 28 (a).

See Commonwealth v. Ramos, 470 Mass. 740, 750 (2015).

     The Commonwealth contends that there was sufficient

evidence prior to the defendant's arrest that provided the

police with a reasonable belief that all three elements of the

crime were satisfied.4   For his part, the defendant concedes that

the officer had probable cause to believe the vehicle was

stolen, but he disputes that police had probable cause to

believe that he was in possession of the vehicle or that he knew

it was stolen.   We conclude that, at the time of the arrest,


     4 The Commonwealth argues for the first time that the
defendant was not under arrest at the time he was handcuffed,
and therefore all that was required was reasonable suspicion to
stop the defendant. Because this argument was not raised at the
hearing on the motion to suppress, it is waived on appeal.
Commonwealth v. Silva, 440 Mass. 772, 781-782 (2004). We note,
however, that whether the seizure of a defendant constitutes an
investigatory stop or an arrest depends on the existence of one
or more factors.

     For example, the handcuffing of a suspect may not transform
a seizure into an arrest where there is a possibility of flight
or suspicion of a violent crime, or if the safety of the
officers is at risk. See Commonwealth v. Phillips, 452 Mass.
617, 627 (2008) (handcuffing defendant and placing him in police
car did not constitute arrest "because of the violent nature of
the reported crimes, [defendant's] attempt to flee, and the
possible danger to the safety of the officers as well as the
potential occupants of the house"); Commonwealth v. Williams,
422 Mass. 111, 118-119 (1996) (seizure of defendant did not
constitute arrest because defendant "posed a substantial flight
risk" and "a significant safety risk" to officers and public).
Here, there were no factors present that would suggest that the
seizure was not an arrest.
                                                                      6


although the officer had probable cause to believe that the

defendant was in possession of a stolen vehicle, the

observations he made did not rise to the level of probable cause

to believe that the defendant knew that the vehicle was stolen.

    a.     Possession.   Where there is evidence that an individual

exercised "dominion and control" over a motor vehicle, probable

cause exists to believe that that individual possessed the

vehicle.    See Commonwealth v. Darnell D., 445 Mass. 670, 672-673

(2005).    See also Commonwealth v. Paniaqua, 413 Mass. 796, 801

(1992), citing Commonwealth v. Brzezinski, 405 Mass. 401, 409

(1989) ("possession is the intentional exercise of control over

an item").   Dominion and control may be shown by circumstantial

evidence.    Ramos, 470 Mass. at 750.

    Here, the defendant argues that evidence of his presence in

the vicinity of the stolen vehicle and sitting in the

passenger's seat is not enough to warrant a reasonable belief

that he possessed the vehicle.    We agree that mere presence in

the passenger's seat of a motor vehicle would not be sufficient

to indicate possession.    See Darnell D., 445 Mass. at 673,

citing Commonwealth v. Campbell, 60 Mass. App. Ct. 215, 217

(2003).    However, the defendant's presence near the vehicle was

not the only observation that the officer made.    The officer

also observed the defendant leaning on the vehicle, opening and

closing the vehicle's door, tossing something inside the
                                                                    7


vehicle, and sitting in the vehicle's passenger's seat.

Importantly, no one else was in the vicinity of the vehicle

while the officer made these observations of the defendant.

     These actions suggested that, for all intents and purposes,

the defendant had exclusive access to the inside of the vehicle,

utilized that access, and had at least some degree of control

over the vehicle.      Taken together, the officer's observations

were sufficient to establish probable cause to reasonably

believe the defendant had dominion and control over the vehicle,

that is, that he possessed it.5

     b.   Knowledge.    To arrest the defendant for receiving a

stolen motor vehicle, the police also needed probable cause to

believe the defendant knew that the vehicle was stolen.     See

Commonwealth v. Dellamano, 393 Mass. 132, 137-139 (1984)

(possession of stolen vehicle alone is not sufficient to

establish that defendant had knowledge that vehicle was stolen).




     5 The defense points to observations that the officer did
not make of the defendant, including operation of the vehicle,
sitting in the driver's seat, or attempting to conceal the fact
that the automobile was stolen. See Commonwealth v. Namey, 67
Mass. App. Ct. 94, 100 (2006); Commonwealth v. Hunt, 50 Mass.
App. Ct. 565, 569-570 (2000). Although such observations would
have added to the probable cause calculus, they are not
necessary to determine that the defendant exercised dominion and
control over the vehicle. See, e.g., Commonwealth v. One 1986
Volkswagen GTI Auto., 417 Mass. 369, 371, 375 (1994) (defendant
exercised dominion and control over vehicle that was regularly
parked where defendant resided and had stereo system that
defendant altered for his benefit).
                                                                    8


    The Commonwealth argues that circumstantial evidence and

"reasonable inferences" established the defendant's knowledge

that the vehicle was stolen.   See id. at 136 ("A person's

knowledge . . . is a matter of fact . . . which may not be

susceptible of proof by direct evidence").    We are not

convinced.

    The Commonwealth notes that when one is in possession of

recently stolen property, knowledge of its status as stolen may

be inferred.    See Commonwealth v. Burns, 388 Mass. 178, 183

(1983); Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 600-

602 (1988).    Here, however, there was no evidence presented at

the hearing that the officer knew when the vehicle had been

stolen.

    The Commonwealth acknowledges that the record does not

reflect the timing of the theft, but nevertheless urges us to

conclude that the officer could have inferred that the vehicle

was recently stolen based on the fact that the original license

plates were still attached.    The Commonwealth reasons that this

inference is permissible because a thief presumably would want

to hide the vehicle's stolen status as soon as possible, and

thus the lawful owner's license plates would likely be removed

or replaced soon after the theft.    However, the Commonwealth

provides no case law -- and we can find none -- that supports

this proposition.    Further, there was no testimony at the
                                                                       9


hearing that even hinted at such a correlation.    The

Commonwealth points to no other evidence that the officer had

probable cause to believe that the suspect knew that the motor

vehicle had been stolen.

    Although the police did not have sufficient evidence to

support probable cause as to the knowledge element of receiving

stolen property, the circumstances did provide a basis for

reasonable suspicion to believe that a crime was being

committed.   However, reasonable suspicion justifies only a

Terry-type investigative stop, not an arrest.     See Commonwealth

v. Willis, 415 Mass. 814, 817 (1993) (reasonable suspicion

exists where there are "specific articulable facts . . . that

the defendant had committed or was committing a crime");

Commonwealth v. Wren, 391 Mass. 705, 707 (1984).    Given the

information that the motor vehicle was stolen, the officers

could have performed an investigative stop.     They could have

asked the defendant for the vehicle registration and inquired

about his relationship to the vehicle and his knowledge of its

ownership.   If, after such inquiry, the police still had

probable cause to believe that the vehicle was stolen, they

could have seized and impounded the vehicle without a warrant.

See Commonwealth v. Hason, 387 Mass. 169, 172-176 (1982).       And,

if the information the defendant provided in response to their

questioning indicated his knowledge that the vehicle was stolen,
                                                                    10


they might then have had probable cause to arrest him.     On the

record before us, however, the arrest was premature.

    3.   Conclusion.   Because there was no probable cause to

believe that the defendant knew that the motor vehicle was

stolen, the defendant's arrest was unlawful and his postarrest

statements were properly suppressed as the fruit of that

unlawful arrest.   The motion to suppress was properly allowed.

                                    So ordered.
