461 Mass. 44, 958 N.E.2d 25 (2011)
On December 3, 2006, at approximately 5:30 P.M., Boston police officers Patrick Rose and Charles Kelly observed a Cadillac Escalade SUV run a red light at the intersection of East Cottage Street and Dorchester Avenue in Dorchester.1
The officers activated their blue lights and pursued the vehicle, which continued for several turns before parking legally on Auckland Street about twenty seconds later. The operator exited the SUV and began walking away.2 Officer Rose positioned his vehicle to block the operator and, along with Officer Kelly, approached and identified themselves. The operator reeked of alcohol, slurred his words, appeared unsteady, and provided a false name and date of birth before his wallet revealed his true identity as Chevall Johnson with a suspended license.3 Officers also observed a half-empty bottle of cognac on the dashboard of the SUV.4
Officer Rose arrested the defendant for operating with a suspended license. After the defendant threw his keys and stated the officers could search the vehicle, Officer Stephen Doran opened the driver's side door and observed a revolver in the map pocket.5 The defendant then fled but was apprehended after a short chase, and officers recovered the loaded Smith and Wesson revolver, the cognac bottle, and some marijuana from the SUV.6
On February 20, 2007, the defendant was indicted on charges including unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a loaded firearm, resisting arrest, assault and battery on a police officer, operating a motor vehicle with a suspended license, and being an armed career criminal.7 Following denial of his motion to suppress after an evidentiary hearing, a jury trial in January 2008 resulted in convictions on several counts, with acquittal on the assault charge, and a subsequent bench trial convicted him as an armed career criminal.8
The defendant appealed, and the Supreme Judicial Court transferred the case on its own motion after the appeal had been entered in the Appeals Court.9
Whether the Superior Court judge properly denied the defendant's pretrial motion to suppress the firearm, ammunition, and marijuana seized from his vehicle?10
Under the automobile exception to the warrant requirement, the search of a motor vehicle is reasonable and permissible where probable cause exists to support the search.11 The issue of paramount importance is whether the police, prior to the commencement of a warrantless search, had probable cause to believe that they would find the instrumentality of a crime or evidence pertaining to a crime in the vehicle.12 Once lawfully in the vehicle, officers may seize items in plain view if their incriminating character is immediately apparent.13
Yes. Applying the rule to the established facts, the officers saw the SUV run a red light, which provided a lawful basis for the stop.14 The defendant reeked of alcohol, slurred his words, was unsteady on his feet, and a half-empty bottle of cognac was in plain view on the dashboard, giving Officer Rose probable cause to believe the defendant had been operating under the influence and that evidence of that crime could be found in the vehicle. After the defendant consented by throwing his keys, Officer Doran lawfully entered the SUV and saw the revolver in plain view in the open map pocket, allowing its seizure under the plain view doctrine.15
The Superior Court judge properly denied the motion to suppress because the search was justified by probable cause under the automobile exception and the gun was seized in plain view.16
Whether the defendant's convictions of unlawful possession of ammunition and unlawful possession of a loaded firearm were duplicative?17
Convictions are duplicative if one crime is a lesser included offense of the other under the elements test, meaning all elements of one are encompassed by the other without any additional evidence of separate possession.18
Yes. There was no evidence that the defendant possessed any ammunition apart from that found loaded in the firearm, so all required elements of unlawful possession of ammunition were encompassed by the elements of unlawful possession of a loaded firearm, making the former a lesser included offense of the latter.19
The convictions are duplicative and the ammunition conviction must be vacated to avoid violating double jeopardy by punishing the defendant twice for the same ammunition.20
Whether an issue concerning the burden of proof under the firearms licensing statute that was raised for the first time after transfer to this court should be considered?21
Under Mass. R. A. P. 11 (g) (1), if the case is transferred after briefs are filed in the Appeals Court, no further briefs may be filed except for a reply brief, and new issues not raised in the Appeals Court brief cannot be considered on appeal.22
No. The defendant raised the burden of proof issue for the first time in a new brief after transfer, and although the motion to file a new brief was allowed, it was limited to addressing the effect of McDonald on issues already raised in the Appeals Court brief.23
The issue should not be considered by the court because it was not properly preserved in the original briefing.24
Whether the Commonwealth's statutory firearms licensing scheme facially violates the Second Amendment to the United States Constitution?25
The Second Amendment, as incorporated against the states, guarantees an individual right to keep and bear arms but does not prohibit longstanding licensing schemes or prohibitions on possession by felons, and such schemes do not render the statute unconstitutional on its face.26
No. The requirement of licensing before one may possess a firearm does not by itself render the licensing statute unconstitutional on its face, as the Supreme Court has approved regulatory measures including licensing conditions, and the defendant never applied for a license to carry or an FID card.
The statutory firearms licensing scheme does not facially violate the Second Amendment.27