COMMONWEALTH v. SAMUEL DENTON (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-187
22-P-188

COMMONWEALTH

vs.

SAMUEL DENTON (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from orders of the Boston

Municipal Court dismissing two criminal complaints against the

defendants, Samuel Denton and Emerson Brandao, for unlawfully

carrying a firearm without a license, in violation of G. L.

c. 269, § 10 (a), and unlawfully possessing ammunition without a

firearms identification card, in violation of G. L. c. 269,

§ 10 (h) (1). Concluding that the Commonwealth established

probable cause to support both charges, we reverse.

1. Background. The relevant portions of the police

reports attached to the complaint application allege the

following.

1 Commonwealth vs. Emerson A. Brandao.
At about 10:22 P.M. on January 19, 2021, Boston police

responded to a report of a person with a gun at an intersection

in Dorchester. The dispatcher informed the officers that the

suspect was wearing a white "hoodie" and drove away in a white

Range Rover sport utility vehicle (SUV). Dispatch then notified

officers of multiple shot spotter activations at two addresses

near the same intersection.

Police next received a radio report that a white SUV was

seen driving the wrong way down a nearby one-way street at a

high rate of speed. An officer in a marked cruiser caught up

with the SUV nearby and attempted to stop it by activating the

cruiser's lights and sirens, but the SUV did not pull over and

continued at an excessive speed. By the time the SUV turned and

drove toward Roxbury, more marked cruisers had joined the high-

speed chase with their lights and sirens activated. The police

followed the SUV as it continued to speed through multiple stop

signs and traffic lights and down more one-way streets in the

wrong direction, at one point hitting a parked vehicle.

The SUV finally stopped when it was surrounded by police in

Roxbury. Officers approached with guns drawn and ordered the

defendants out of the SUV. Brandao was removed from the front

passenger seat and Denton from the rear passenger seat; both

were placed under arrest at about 11:07 P.M. The front

passenger-side window of the SUV was completely rolled down, and

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the rear passenger-side window was rolled down about halfway.

Officers then saw and recovered a firearm "a few feet away from

the passenger side door," "in between two parked vehicles." The

firearm contained one chambered live round of ammunition and ten

live rounds in its fifteen-round magazine. A CJIS (criminal

justice information system) check of the defendants revealed

that neither had a license to carry a firearm. Along the route

the SUV had taken, near where the shot spotters were activated,

police recovered two .40 caliber bullets, two .40 caliber shell

casings, and one nine-millimeter shell casing.

The Commonwealth obtained criminal complaints against each

of the defendants, alleging violations of G. L. c. 269,

§§ 10 (a) and 10 (h) (1). The defendants successfully moved to

dismiss their respective complaints for lack of probable cause.

In a written decision, the motion judge found that the complaint

applications contained insufficient indicia that the firearm was

thrown from the SUV. Inferentially, he also found no probable

cause to believe that the defendants had any knowledge of the

firearm or ammunition. The Commonwealth then filed these

appeals, which we paired.

2. Discussion. A complaint application "must allege facts

sufficient to establish probable cause as to each element of the

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offense charged."2 Commonwealth v. Ilya I., 470 Mass. 625, 627

(2015). What is required is a showing that police "entertained

rationally 'more than a suspicion of criminal involvement,

something definite and substantial, but not a prima facie case

of the commission of a crime, let alone a case beyond a

reasonable doubt'" (citation omitted). Id. at 628. See

Commonwealth v. Clinton, 491 Mass. 756, 775 n.22, 778 n.23, 779

n.24 (2023) (recognizing that Commonwealth's burden at probable

cause stage is lower than at trial). "In dealing with probable

cause . . . we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act." Commonwealth v. Humberto H., 466 Mass. 562,

566 (2013), quoting Brinegar v. United States, 338 U.S. 160, 175

(1949). We review issues of probable cause de novo, looking

only to the four corners of the complaint application and

viewing the allegations in the light most favorable to the

Commonwealth. See Ilya I., supra at 626 n.1, 627.

2 While these appeals were pending, the Supreme Judicial Court
decided that failure to comply with applicable licensure
requirements is an essential element of crimes under § 10 (a)
and § 10 (h) (1). See Commonwealth v. Guardado, 491 Mass. 666,
690-692 (2023). As this issue understandably was not addressed
in the trial court, and as the parties have not briefed it on
appeal, our conclusion that the complaint applications here
established probable cause is without prejudice to any further
proceedings in the trial court regarding the licensure issue.

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A complaint alleging a violation of § 10 (a) or

§ 10 (h) (1) must demonstrate probable cause to believe that the

defendant knowingly possessed a firearm or ammunition,

respectively. See Commonwealth v. Johnson, 461 Mass. 44, 52-53

(2011); Commonwealth v. White, 452 Mass. 133, 136 (2008). Where

a defendant is not in actual possession of the contraband at the

time of arrest, the Commonwealth may rely on circumstantial

evidence and reasonable inferences to show constructive

possession. See Commonwealth v. Sespedes, 442 Mass. 95, 99

(2004). Constructive possession requires "knowledge coupled

with the ability and intention to exercise dominion and

control." Id., quoting Commonwealth v. Brzezinski, 405 Mass.

401, 409 (1989). "The defendant's mere presence in the area

where contraband is found is insufficient to show the requisite

knowledge, power, or intention to exercise control over the

[contraband], but presence, supplemented by other incriminating

evidence[,] will serve to tip the scale in favor of sufficiency"

(quotations and citation omitted). Commonwealth v. Schmieder,

58 Mass. App. Ct. 300, 303 (2003). Finally, "[p]ossession need

not be exclusive. It may be joint and constructive."

Commonwealth v. Beverly, 389 Mass. 866, 870 (1983).

Based on the police reports attached to the complaint

application, we conclude that there was probable cause to

believe that the loaded firearm discovered outside the SUV was

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jointly and constructively possessed by the defendants in the

SUV before their arrests.3

First, the Commonwealth met its burden to show probable

cause that the firearm containing ammunition was discarded from

the SUV. The SUV in which the defendants were discovered

matched the description of the vehicle in which a person with a

gun had driven less than one hour earlier when the chase began,

shot spotters were activated along the vehicle's route, and

shell casings and bullets were found on the street along the

route taken by the SUV. And, once police gained sight of the

SUV -- mere minutes after and blocks away from the initial

sighting of the person with a gun -- the SUV initiated a high-

speed police chase, during which police did not lose sight of it

before it was stopped. Finally, the firearm was discovered only

a few feet from the SUV's passenger-side doors, which both had

open windows, in a location permitting an inference that someone

in the trapped SUV tried to hide it from view. These facts

provide probable cause to believe that the SUV was the same one

in which a person was known to be carrying a firearm less than

one hour earlier and that the driver, at least, was exhibiting

3 Probable cause for the ammunition charge could also have been
predicated on the ammunition found strewn along the route taken
by the SUV. But, where we determine that there was, in any
event, probable cause for that charge based on the ammunition in
the firearm, we need not further analyze that alternative
scenario.

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consciousness of guilt consistent with the presence of an

illegal loaded firearm in the vehicle.4

The absence of certain indicia suggesting that the firearm

was thrown from a moving vehicle, such as were present in

Commonwealth v. Jefferson, 461 Mass. 821, 826-827 (2012),5 does

not undermine our determination that, in this case, there was

probable cause to believe the firearm originated from the

stopped SUV. Our inquiry is not limited to the evidence

considered in Jefferson; instead, those factors "must be

considered with other evidence that reasonably permitted the

inference that the defendants had thrown some type of contraband

from the vehicle." Id. at 826. Here the police report

permitted a reasonable inference that the firearm was

deliberately disposed of from a stationary vehicle in a

surreptitious manner, rather than thrown haphazardly out the

4 The driver of the SUV, who is not a party to this appeal, was
wearing a white hoodie when he, too, was arrested at the scene,
lending further support to the Commonwealth's allegation that
the firearm originated from the SUV.

5 In Jefferson, 461 Mass. at 826-827, there was sufficient
evidence to convict the defendants of possessing a firearm found
on the ground along the route their vehicle took during a chase
ending in their arrest. The evidence included the position of
the firearm in plain view on the sidewalk, suggesting that it
had not been there long; the broken pieces of the firearm,
suggesting that it had been thrown from the moving vehicle and
landed with force; and its location, which was consistent with
having been thrown from the open passenger-side window during
the time when police lost sight of the vehicle.

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window of a moving vehicle as in Jefferson. Thus, that the

firearm here was not noted to be damaged, as it was in

Jefferson, supra at 824, and was found between two parked cars,

rather than in the middle of a paved walkway as in Jefferson,

supra, does not negate probable cause here.

Similarly, that the police report here does not indicate

that police lost sight of the vehicle, as they briefly did in

Jefferson, 461 Mass. at 823-824, does not negate the inference

here that the firearm was discarded from the SUV once it

stopped. We do not read the police report, despite its

reference to the SUV having "finally stopped due to being

surrounded by . . . marked cruisers," to mean that police could

see the stopped SUV from every angle. The report states that

the firearm was found "a few feet away from the passenger side

door," "in between two parked vehicles." That the passenger

side of the SUV was only a few feet away from two parked

vehicles permits a reasonable inference that police, while still

in their cruisers, were not able to see the passenger side of

the SUV because it was stopped close to the two other vehicles

and that the defendants discarded the firearm at that time.

Second, although "[i]t is not enough to place the defendant

and the weapon in the same car" (citation omitted), Commonwealth

v. Albano, 373 Mass. 132, 134 (1977), the Commonwealth has also

shown probable cause to believe that either or both of the

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defendants had the requisite knowledge, power, and intention to

control the firearm and the ammunition inside. The fact that

the defendants were discovered in the SUV not long after shots

were fired from it, and at the conclusion of a high-speed chase

during which they could not have entered the SUV, permits

inferences that the defendants were in the SUV from the start,

that they witnessed the person in the white hoodie enter the SUV

with the gun and then fire it, and thus that they knew there was

a loaded firearm in the SUV. Cf. Commonwealth v. Romero, 464

Mass. 648, 653 (2013) (sufficient evidence of driver's knowledge

of firearm where front seat passenger was openly handling it in

driver's plain view).

As for the power and intent to exercise control, the fact

that the firearm with the ammunition was found just outside the

passenger side of the SUV permits an inference that it was

placed there by the defendants, who were seated in the front and

rear passenger seats. "[A]ttempts to conceal or dispose of

contraband . . . permit an inference of unlawful possession."

Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995).

See Jefferson, 461 Mass. at 826-827 (sufficient evidence of

driver's and passenger's intent to control where driver

initiated chase with intent to dispose of firearm and passenger

threw it out car window); Commonwealth v. Cotto, 69 Mass. App.

Ct. 589, 594 (2007) (sufficient evidence of possession where

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"the gun was found directly under the front passenger seat where

the defendant had been seen shoving his feet"). Compare Romero,

464 Mass. at 658 (no intent to control where "defendant made no

attempt to evade [police] or . . . to dispose of the weapon).

Orders dismissing complaints
reversed.

By the Court (Neyman, Sacks &
Hodgens, JJ.6),

Clerk

Entered: July 19, 2023.

6 The panelists are listed in order of seniority.

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