COMMONWEALTH vs. MAURICE R. PRIDGETT.

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

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affirmed in an unpublished memorandum and order pursuant to its rule 1:28.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). [Note 1] We therefore affirm the order of the motion judge allowing the defendant's motion to suppress. [Note 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 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

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an inventory search [Note 3] 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 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. [Note 4] For his part, the defendant concedes that the officer had

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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, 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 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. [Note 5]

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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).

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 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

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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, 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.