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14-P-1108                                               Appeals Court

                 COMMONWEALTH   vs.   MICHAEL UBILEZ.


                            No. 14-P-1108.

       Middlesex.       October 7, 2015. - January 7, 2016.

            Present:   Katzmann, Rubin, & Wolohojian, JJ.


Constitutional Law, Search and seizure, Probable cause. Search
     and Seizure, Motor vehicle, Probable cause, Search incident
     to lawful arrest, Inevitable discovery. Probable Cause.
     Motor Vehicle, Registration, Operation. Receiving Stolen
     Goods.



     Complaint received and sworn to in the Woburn Division of
the District Court Department on January 8, 2010.

     A pretrial motion to suppress evidence was heard by Paul M.
Yee, J., and the case was tried before Timothy H. Gailey, J.


     J. Gregory Batten for the defendant.
     David Bastian, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.     At issue is the search of a vehicle driven

by the defendant, which was reported to contain a stolen

cellular telephone (cell phone).      The defendant makes two

arguments on appeal with respect to the search.     First, he
                                                                   2


contends that the police did not have probable cause to believe

he had committed a crime at the moment he was arrested and

therefore there was no valid search incident to that arrest.

The two crimes at issue are operating a motor vehicle with a

suspended registration and receiving stolen property with a

value exceeding $250.   Second, he argues that the inevitable

discovery exception does not apply.

     Because we conclude that the inevitable discovery exception

applies, we need not consider whether the search was also

justified as incident to the defendant's arrest.   However,

because there is a split of opinion among trial court decisions

and the issue has not been addressed by the appellate courts, we

address whether the misdemeanor of operating a motor vehicle

with a suspended registration is an arrestable offense, and the

circumstances in which it is so.   We conclude that there is no

statutory authority to arrest an individual for operating a

motor vehicle with a revoked1 registration but that, under

circumstances not present here, an arrest may be made under the

established common law rule pertaining to warrantless arrests

for misdemeanors.   As to the defendant's second argument, we

conclude that, even accepting that an excessive show of force


     1
       The defendant was charged with operating a motor vehicle
with a suspended registration. The motion judge found that the
registration had been revoked. We use the two terms
interchangeably -- nothing turns on the distinction.
                                                                   3


was employed by the police in the circumstances presented, the

inevitable discovery exception applies.

     In addition, we reject the defendant's argument that the

evidence was insufficient to prove possession of stolen

property.    Accordingly, we affirm.

     Background.    The defendant was charged in District Court

with two counts of receiving stolen property having a value

greater than $250, G. L. c. 266, § 60; and one count each of

possession of a burglarious instrument, G. L. c. 266, § 49;

receiving a stolen credit card, G. L. c. 266, § 37B(b); improper

use of a credit card, G. L. c. 266, § 37B(f); forgery of a

document, G. L. c. 267, § 1; uttering a false writing, G. L.

c. 267, § 5; and operating a motor vehicle with a suspended

registration, G. L. c. 90, § 23.2      With the exception of the

motor vehicle violation, the tangible evidence of the crimes was

obtained through a warrantless search of a van driven by the

defendant.

     After an evidentiary hearing consisting of one witness (the

arresting officer) and one exhibit (the Burlington police

     2
       After a jury trial, the defendant was found guilty of two
counts of receiving stolen property with a value greater than
$250, and one count of receiving a stolen credit card. He was
acquitted of possession of a burglarious instrument and improper
use of a credit card. The forgery and uttering charges were
dismissed with the defendant's consent, and the motor vehicle
violation was disposed of by nolle prosequi. He was sentenced
to one year in the house of correction on each count on which he
was found guilty, all sentences to run concurrently.
                                                                   4


department's inventory policy),3 the motion judge denied the

defendant's pretrial motion to suppress, and found the following

facts which we adopt wholesale, there being no claim or showing

of clear error.

          "Officer Peter Abaskharoun has been with the
     Burlington Police Department for six years with an
     additional two years as a New Hampshire state trooper. On
     the evening of January 7, 2010 at 8:45, he was dispatched
     to Wendy's at 120 Mall Road for a call that a victim of a
     theft who had reported that a motor vehicle with two
     suspects had just pulled out of Wendy's restaurant. The
     victim's cellular telephone had been stolen. The victim
     had used her Global Positioning System (GPS) tracker to
     locate her cellphone from Woburn to Burlington and obtained
     the license plate to the car, to which the GPS locator had
     led the victim.

          "Officer Abaskharoun ran the license plate and learned
     that the registration to the Chrysler Town and Country van
     had been revoked. Detective Redfern had spoken to the
     victim relating to the identity of the motor vehicle.
     Detective Redfern advised the officer to 'use caution.'
     Detective Redfern with other officers were down the street
     with the victim.

          "When the officer was on Mall Road, the vehicle with
     the queried license plate passed the officer. The officer
     activated his cruiser lights and stopped the vehicle on
     South Bedford Street. Officer Abaskharoun called for other
     units. He conducted a 'felony stop' of the car with his
     gun directed at the van. He used the public address (PA)
     system to order the driver to shut off the engine, throw
     the car keys out of the window and exit the van.



     3
       Neither party included the inventory policy in the record
on appeal. As the proponent of the evidence (as well as the
party bearing the burden of establishing the validity of the
warrantless search), it was the Commonwealth's obligation to
include the document in the appellate record. That said, we
have ourselves obtained a copy of the inventory policy from the
trial court.
                                                                  5


         "Defendant Ubilez was the driver. The defendant
    complied and walked backwards with his hands in the air to
    the officer. Officer Abaskharoun ordered the defendant to
    his knees and handcuffed him. The officer pat-frisked the
    defendant, and no weapons were found. Officer Abaskharoun
    read Miranda rights to the defendant who refused to answer
    him.

         "As he looked into the vehicle, the officer saw two
    purses in plain view. Neither the defendant nor the
    passenger was a woman. The officer obtained a description
    of the purse from the victim: a red Coach purse. The
    purse seen in the rear seat matched the description
    provided by the victim.

         "Upon search [of] the motor vehicle, the police found
    a tan purse with a female identification behind the
    driver's seat. Other items found were laptops, GPS units
    and cellphone[s]. The Wendy's bag of food was still warm
    to the touch. There were tools to punch out a car window
    pane including a screw driver. The defendant was arrested.

         "There were too many items to inventory. The motor
    vehicle was towed and left in the sally port of the
    Burlington Police Department. An inventory search was
    conducted pursuant to the Burlington Police Department
    Motor Vehicle Inventories . . . . The reporting party, Ms.
    Reynolds, identified her red Coach purse. The
    identification in the other purse was that of a Diane
    Stafford."

    Discussion.    1.   Inevitable discovery.   The defendant

concedes that, given the contemporaneous report by the victim

that her stolen cell phone was in the van driven by the

defendant, and the officer's knowledge that the van's

registration had been revoked, there was sufficient ground to

stop the van.   He argues, however, that discovery of the items

in the van was not inevitable under the two-step analysis
                                                                      6


announced in Commonwealth v. O'Connor, 406 Mass. 112 (1989).     We

disagree.

     In the first step of the O'Connor analysis, "the

Commonwealth has the burden of proving the facts bearing on

inevitability by a preponderance of the evidence and, once the

relevant facts have been proved, that discovery by lawful means

was 'certain as a practical matter.'"   Commonwealth v. Perrot,

407 Mass. 539, 547 (1990), quoting from Commonwealth v.

O'Connor, 406 Mass. at 117.   Inevitability is determined by the

"circumstances existing at the time of the unlawful seizure."4

Commonwealth v. Perrot, 407 Mass. at 548, quoting from

Commonwealth v. O'Connor, 406 Mass. at 117 n.4.

     Here, Officer Abaskharoun knew, before stopping the van,

that its registration had been revoked.   Under G. L. c. 90, § 9,

an unregistered vehicle cannot be operated, nor can it be

allowed to remain on any way.5   Because the van was unregistered,


     4
       The defendant contends that he was unlawfully seized when
the officer, with his gun drawn and pointing towards the van,
ordered him to exit. The Commonwealth agreed at oral argument
that the defendant was under arrest at that moment, but
disagrees that the arrest was unlawful. The disagreement is of
no significance here because discovery was inevitable as a
practical matter when the officer stopped the van.
     5
       "No person shall operate, push, draw or tow any motor
vehicle or trailer, and the owner or custodian of such a vehicle
shall not permit the same to be operated, pushed, drawn or towed
upon or to remain upon any way . . . , unless such vehicle is
registered in accordance with this chapter." G. L. c. 90, § 9,
as amended by St. 1977, c. 705.
                                                                    7


"the officers could not permit the continued unlawful operation

of th[e] vehicle on the public roadways, nor could they leave

the vehicle unattended on the shoulder of a busy main road."

Commonwealth v. Daley, 423 Mass. 747, 750 (1996) (impoundment

required for unregistered vehicle).   As a practical matter,

therefore, it was inevitable that the van would be impounded

once it had been stopped.   Moreover, the defendant does not

challenge the fact that impounded vehicles are required to be

inventoried under the Burlington police department's written

inventory policy.   Nor does he argue that the conduct or scope

of the search violated the written policy.    See Commonwealth v.

Silva, 61 Mass. App. Ct. 28, 32 (2004).   The first step of

O'Connor's two-step test is accordingly satisfied.

    In the second step, we are to consider the severity of the

alleged constitutional violation.   Commonwealth v. Perrot, 407

Mass. at 547.   In this regard, "[b]ad faith of the police, shown

by such activities as conducting an unlawful search in order to

accelerate discovery of the evidence, will be relevant in

assessing the severity of any constitutional violation."

Commonwealth v. O'Connor, 406 Mass. at 118.   Here, unlike the

circumstances in Perrot and O'Connor, we are not faced with a

situation where the police conduct was designed to obtain

evidence or to circumvent the warrant requirement.   Nor is there

any claim or showing of bad faith on the part of the officer.
                                                                       8


    However, relying on United States v. Rullo, 748 F. Supp. 36

(D. Mass. 1990), the defendant contends that the second step of

the O'Connor analysis is not satisfied because the officer used

excessive force.     In Rullo, officers, believing that the

defendant had fired a gun at them and that the gun was still in

his possession, beat him while repeatedly asking about the

location of the gun.     As a result, the defendant told the

officers where the gun could be found.       Ibid.   The judge found

that the defendant's statements were coerced, and that they led

directly to the discovery of physical evidence leading directly

to his conviction.      Id. at 43.   Although the judge determined

that, given the gun's proximity to the location of the shooting,

the weapon would inevitably have been found, he concluded that

the inevitable discovery exception did not apply for two

reasons.   Id. at 44.     First, he determined that the gun's

discovery was not independent of the police misconduct because

the search was conducted by the same officers who beat the

defendant.   Ibid.   Second, he determined that application of the

inevitable discovery doctrine in the circumstances presented

"would encourage law enforcement officers to believe that they

can avoid the burden of a prolonged area search by physically

abusing a suspect, without significant risk of forfeiting the

admissibility of any physical evidence."       Ibid.
                                                                    9


     At the outset, we note that Rullo deals with the United

States Court of Appeals for the First Circuit's three-prong

articulation of the inevitable discovery exception set out in

United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986),

cert. denied, 487 U.S. 1233 (1988), rather than the two-step

analysis of O'Connor.   In addition, Rullo's analysis has not

been adopted or cited approvingly elsewhere.    See United States

v. Ford, 22 F.3d 374, 380 (1st Cir.), cert. denied, 513 U.S. 900

(1994); United States v. Alexander, 540 F.3d 494, 503 (6th Cir.

2008), cert. denied, 556 U.S. 1173 (2009).     That said, the

decision in Rullo turned on an inquiry similar to the second

step of the O'Connor analysis; namely, whether the police

conduct was taken in bad faith, or designed to obtain evidence

while avoiding the warrant requirement.   As noted above, the

facts here do not fall within these parameters, even accepting,

for purposes of discussion, that the force employed was

excessive in the circumstances presented.6


     6
       The defendant was stopped based on a report that he was
driving a van containing a stolen cell phone, and information
that the vehicle's registration had been revoked. In other
words, the police were faced with a minor property crime and a
nonhazardous motor vehicle violation. The defendant complied
with all of the officer's instructions, including to stop the
van, to drop his keys out of the van's window, to leave the van,
to walk backwards towards the officer, and to kneel while being
handcuffed. Although the motion judge credited the officer's
testimony that he had been told by another officer to "use
caution," that testimony was unadorned and unexplained. The
motion judge stated that he did not interpret the phrase to mean
                                                                   10


    Thus, even accepting the defendant's contention that the

arresting officer employed excessive force, we conclude that the

second step of O'Connor is satisfied and that, accordingly, the

inevitable discovery exception applies.

    2.   Search incident to arrest for operating motor vehicle

with revoked registration.   Given our conclusions above, there

is no need for us to reach the defendant's argument that the

search was not incident to a lawful arrest, either for receiving

stolen property or for operating a motor vehicle with a revoked

registration.   That said, because the issue has not previously

been considered at the appellate level in Massachusetts and

trial court decisions are inconsistent as to whether it is an

arrestable offense, we address the defendant's argument with

respect to a charge of operating a motor vehicle with a revoked

registration in violation of G. L. c. 90, § 23.     The same

considerations do not apply with respect to a charge of

receiving stolen property and, therefore, we do not consider the

defendant's argument with respect to that charge.

    "Among the exceptions to the warrant requirement is a

search incident to a lawful arrest."   Arizona v. Gant, 556 U.S.


that the defendant was armed and dangerous. The motion judge
also stated that there was no other evidence to suggest that the
defendant was armed and dangerous. "An approach with drawn guns
is generally thought excessive in the absence of any suggestion
that the defendant is armed or other circumstances suggesting
the possibility of violence." Commonwealth v. Fitzgibbons, 23
Mass. App. Ct. 301, 308 (1986).
                                                                    11


332, 338 (2009), citing Weeks v. United States, 232 U.S. 383,

392 (1914).    Operating a motor vehicle with a revoked or

suspended registration, in violation of G. L. c. 90, § 23, is a

misdemeanor7 for which there is no statutory authority to arrest.

See G. L. c. 90, § 21 (offense not listed among arrestable motor

vehicle offenses).    In the absence of statutory authority, a

police officer may make a warrantless arrest for a misdemeanor

only where it "(1) involves a breach of the peace, (2) is

committed in the presence or view of the officer . . . and (3)

is still continuing at the time of the arrest or only

interrupted, so that the offence and the arrest form parts of

one transaction."    Commonwealth v. Conway, 2 Mass. App. Ct. 547,

550 (1974), quoting from Commonwealth v. Gorman, 288 Mass. 294,

297 (1934).    On the facts found here, the defendant's operation

of the vehicle without a valid registration did not constitute a

breach of the peace.    "To find a breach of the peace . . . an

act must at least threaten to have some disturbing effect on the

public."    Commonwealth v. Baez, 42 Mass. App. Ct. 565, 570

(1997).    There was no evidence that the defendant's operation of

the vehicle was erratic or negligent, or that it in any other

way had a disturbing effect on the public.    Compare Commonwealth

     7
       The crime is punishable "for a first offence by a fine of
not less than five hundred nor more than one thousand dollars or
by imprisonment for not more than ten days, or both." G. L.
c. 90, § 23, as amended by St. 1990, c. 256, § 2. See G. L.
c. 274, § 1.
                                                                    12


v. Jewett, 471 Mass. 624, 630 (2015) (leading police on vehicle

chase through residential neighborhood is breach of peace).

    There are two additional reasons why this was not a

permissible search incident to an arrest.     "'The purpose, long

established, of a search incident to an arrest is to prevent an

individual from destroying or concealing evidence of the crime

for which the police have probable cause to arrest, or to

prevent an individual from acquiring a weapon to resist arrest

or to facilitate an escape.'     Commonwealth v. Santiago, 410

Mass. 737, 743 (1991).    Thus, police may search an automobile

incident to the arrest of its driver only where the arrestee 'is

within reaching distance of the vehicle or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.'

Arizona v. Gant, supra at 346."     Commonwealth v. Perkins, 465

Mass. 600, 605 (2013).    Here, the defendant was handcuffed while

kneeling after he had walked away from the van and towards

Officer Abaskharoun.     At that point, the officer "could not

reasonably have believed that he might access weapons inside the

automobile."   Ibid.

    Moreover, the officer could not have reasonably believed

that evidence of the offense might be found in the van.     The

situation presented here is almost identical to that in Perkins,

465 Mass. at 605, where the court held that the arresting

officer did not have reason to believe that evidence of the
                                                                      13


crime of operating a motor vehicle without a valid license would

be found in the automobile the defendant was driving.     In that

case, the defendant's operation of the vehicle combined with the

officer's knowledge that the defendant did not have a license

was insufficient to establish a reasonable belief that evidence

of the offense would be found in the vehicle.     Ibid.   The facts

here are on all fours.

     Thus, the search was not incident to a lawful arrest for

operating a motor vehicle with a revoked registration.     In the

circumstances presented, it was not an arrestable offense, the

defendant was not within reach of the vehicle, and there was no

reason to believe that evidence of the offense would be found in

the van.

     3.    Sufficiency of the evidence.   Viewed in the light most

favorable to the Commonwealth, the evidence and the reasonable

inferences to be drawn from it were sufficient to prove beyond a

reasonable doubt the elements of receiving stolen property with

a value greater than $250.8    Commonwealth v. Latimore, 378 Mass.

671, 676-677 (1979).     On January 7, 2010, Diane Stafford and

Betsy Reynolds both discovered that their cars had been broken


     8
       "In order to be guilty of the crime of receiving stolen
goods, '(1) one must buy, receive or aid in the concealment of
property which has been stolen or embezzled, (2) knowing it to
have been stolen.'" Commonwealth v. Yourawski, 384 Mass. 386,
387 (1981), quoting from Commonwealth v. Donahue, 369 Mass. 943,
949, cert. denied, 429 U.S. 833 (1976).
                                                                     14


into while parked.     In both cases, the car window had been

smashed, and the women's purses had been stolen, together with

other personal items that had been left in the cars.

    Reynolds owned two cell phones; one was inside a red purse

that had been stolen, the other was with her.     Using a tracking

function on the stolen cell phone, Reynolds was led to a 7-

Eleven store in Woburn.    There, she wrote down the license plate

information of every car in the parking lot.    She then tracked

the stolen cell phone to a Wendy's restaurant in Burlington,

where she observed a van similar to one she had observed at the

7-Eleven store and with a license plate number she had

previously recorded.    Reynolds observed the defendant leave the

van and discard a "white trash bag" into a trash bin.    The bag

was later discovered to contain a wallet, receipts, and other

personal items belonging to Reynolds and Stafford.     The

defendant then returned to the van and drove away.     Reynolds

reported the situation to the police, who stopped the van while

she continued to track it.    Reynolds's and Stafford's purses

were in open view on the back seat of the van.     The inventory of

the van search conducted after the defendant's arrest uncovered

multiple cell phones, a laptop computer, a center punch (an item

commonly used to break into cars), various tools, and multiple

credit cards in Stafford's name.    Contrary to the defendant's

argument, it was certainly within the jury's province to
                                                                15


determine beyond a reasonable doubt, on these facts, that the

defendant possessed stolen property.

                                   Judgments affirmed.
