Commonwealth v. Rosario (and a companion case) (Lawyers Weekly No. 11-156-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-752 Appeals Court 15-P-753 COMMONWEALTH vs. CARLOS ROSARIO (and a companion case[1]). Nos. 15-P-752 & 15-P-753. Essex. May 17, 2016. – October 26, 2016. Present: Cypher, Blake, & Henry, JJ. Controlled Substances. Practice, Criminal, Identification of defendant in courtroom, Required finding, Disclosure of evidence. Constitutional Law, Identification. Due Process of Law, Identification. Evidence, Identification, Chain of custody, Disclosure of evidence, Cross-examination. “School Zone” Statute. Complaints received and sworn to in the Lawrence Division of the District Court Department on May 16, 2014. The cases were tried before Mark A. Sullivan, J. Daniel K. Sherwood for Carlos Rosario. Stephen E. Meltzer for Lylibeth Rosario. Quentin Weld, Assistant District Attorney, for the Commonwealth. CYPHER, J. In this consolidated appeal, the defendants, Carlos Rosario and Lylibeth Rosario, appeal from their convictions for distribution of heroin in violation of G. L. c. 94C, § 32(a), and a drug violation near a school or park in violation of G. L. c. 94C, § 32J. In addition, Carlos[2] was charged with possession of heroin in violation of G. L. c. 94C, § 34. The defendants filed a motion in limine to exclude any in-court identification of the defendants, which was denied. They argue that the trial judge committed error by admitting the confidential informant’s in-court identification in the absence of any pretrial identification procedure. They also argue that the chain of custody was inadequate to connect the drug evidence presented at trial to this case and, therefore, the evidence was insufficient to prove the drug charges beyond a reasonable doubt. Lylibeth also argues that she was not given pretrial notice of a map offered by the Commonwealth and admitted in evidence that supported the school zone charge. We affirm both defendants’ convictions. Background. On May 15, 2014, the Lawrence police department’s drug enforcement unit (unit) was conducting supervised controlled buys with the assistance of a paid confidential informant named William Demers. Detective Carmen Purpora searched Demers and the female who accompanied him for money and contraband before each controlled buy and then gave Demers marked currency to complete the drug transactions. Detective Purpora and Demers agreed that Demers would take off his hat and place it by his side to signal that a drug transaction had taken place. That morning, Demers and the unit […]
Beninati, et al. v. Borghi, et al. (and a companion case) (Lawyers Weekly No. 11-155-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-953 Appeals Court ELIZABETH BENINATI & another[1] vs. STEVEN BORGHI & others[2] (and a consolidated case[3]). No. 15-P-953. Suffolk. May 16, 2016. – October 24, 2016. Present: Agnes, Massing, & Kinder, JJ. Contract, Construction of contract, Modification. Consumer Protection Act, Availability of remedy. Practice, Civil, Attorney’s fees. Damages, Attorney’s fees. Civil actions commenced in the Superior Court Department on May 24, 2012, and May 14, 2013. After consolidation, the case was heard by Janet L. Sanders, J.; a motion for attorney’s fees and costs was heard by her; and entry of final judgment was ordered by her. John W. Moran (Michael T. Grant with him) for Elizabeth Beninati. Charles R. Bennett, Jr., for Steven Borghi. Max D. Stern for Harold Dixon & others. Michael S. Marino, for Joseph Masotta & others, was present but did not argue. MASSING, J. The plaintiffs, Elizabeth Beninati and Joseph Masotta, together with defendants Steven Borghi and Linda Borghi, owned and operated a chain of fitness clubs licensing the “Work Out World” (WOW) trade name (collectively, WOW New England).[4] While actively involved in the management of WOW New England, Steven, working with an outside partner, defendant Harold Dixon, and using WOW New England’s inside information and resources, formed Blast Fitness Group, LLC (Blast), and opened a chain of similar clubs in the same geographic area, some using the WOW name, others using the name “Blast Fitness.” (We refer to the defendant clubs that Dixon and Steven controlled as the Blast clubs or, together with Blast, as the Blast defendants). After a jury-waived trial on two consolidated complaints,[5] a Superior Court judge found the Borghis and Dixon liable to Elizabeth, Masotta, and the other WOW New England owners for breach of fiduciary duty on the plaintiffs’ derivative claims and awarded approximately $ 4 million in damages. The judge held as a matter of law, however, that Dixon and the Blast defendants could not be liable for unfair competition under G. L. c. 93A because their misconduct involved only aiding and abetting Steven in the breach of his fiduciary duties. The judge also upheld corporate votes of the WOW New England companies removing the Borghis from management, and awarded attorney’s fees to Elizabeth under G. L. c. 156C, § 57, but not Masotta. On Elizabeth and Masotta’s appeal from the judge’s […]
Thompson, et al. v. Civil Service Commission, et al. (and a companion case) (Lawyers Weekly No. 11-144-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-330 Appeals Court PRESTON THOMPSON & others[1] vs. CIVIL SERVICE COMMISSION & another[2] (and a companion case[3]). No. 15-P-330. Suffolk. May 10, 2016. – October 7, 2016. Present: Cypher, Blake, & Henry, JJ. Civil Service, Police, Termination of employment, Testing, Reinstatement of personnel, Decision of Civil Service Commission. Labor, Police, Collective bargaining, Discharge. Municipal Corporations, Police, Collective bargaining. Police, Discharge, Collective bargaining. Public Employment, Police, Collective bargaining, Termination, Reinstatement of personnel. Administrative Law, Substantial evidence. Damages, Back pay. Civil actions commenced in the Superior Court Department on April 3, 2013. After consolidation, the case was heard by Judith Fabricant, J., on motions for judgment on the pleadings. Alan H. Shapiro (John M. Becker with him) for Preston Thompson & others. Helen G. Litsas for Boston Police Department. Amy Spector, Assistant Attorney General, for Civil Service Commission. BLAKE, J. Between 2001 and 2006, ten officers of the Boston police department (department) submitted hair samples to the department that tested positive for cocaine. In response, the department terminated their employment. The ten officers appealed the terminations to the Civil Service Commission (commission). After extensive hearings, the commission issued a decision upholding the terminations of Preston Thompson, Rudy Guity, Oscar Bridgeman, and William Bridgeforth (hereinafter, four officers), and overturning the terminations of Richard Beckers, Ronnie Jones, Jacqueline McGowan, Shawn Harris, Walter Washington, and George Downing (hereinafter, six reinstated officers or six officers), who were ordered to be reinstated with back pay and benefits to the date the commission hearings commenced. The department and each of the ten officers filed a complaint for judicial review.[4] A judge of the Superior Court affirmed the commission’s decision, modifying only the back pay and benefits awards for the six reinstated officers to the date of each of their respective terminations. The four officers appeal, claiming that the department lacked just cause for their terminations. The department cross-appeals, claiming that there was substantial evidence to warrant the termination of the six reinstated officers.[5] We affirm. Background. 1. Legal framework. A tenured civil service employee who is aggrieved by a disciplinary decision of an appointing authority may appeal to the commission. See G. L. c. 31, § 41. After finding facts anew, the commission then must determine, by a preponderance of the evidence, whether the appointing authority met […]
Commonwealth v. Leonard (and a companion case) (Lawyers Weekly No. 11-120-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1464 Appeals Court COMMONWEALTH vs. JULIE LEONARD (and a companion case[1]). No. 14-P-1464. Essex. February 11, 2016. – September 9, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Assault and Battery by Means of a Dangerous Weapon. Dangerous Weapon. Reckless Endangerment of a Child. Practice, Criminal, Complaint, Dismissal. Probable Cause. Complaints received and sworn to in the Gloucester Division of the District Court Department on January 14 and 17, 2013. Motions to dismiss were heard by Joseph W. Jennings, III, J. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. Matthew Wright Hemond for the defendants. AGNES, J. This is the Commonwealth’s appeal from the dismissal of one count of assault and battery by means of a dangerous weapon against defendant Julie Leonard, and one count each of child endangerment against defendants Julie Leonard and Mark Leonard.[2] We conclude that the complaints established probable cause for the elements of the crimes charged. Accordingly, we vacate the judgments of dismissal and order that the complaints be reinstated. Background. a. Police report. We recite the facts contained in the police report written by Detective Jeremiah Nicastro of the Gloucester police department in support of his application for the criminal complaints. On the evening of November 30, 2012, a group of youths (ages sixteen and seventeen) were invited to a party at the home of the defendants, Mark and Julie Leonard, the parents of one of the teens. The teens were supplied with alcohol by the twenty-three year old boyfriend of the defendants’ daughter, and were drinking vodka, beer, and tequila when Mark arrived home at 9:30 P.M. Mark joined his daughter and her friends in consuming beer. Julie arrived home around 11:00 P.M. and also joined them, consuming red wine. Mark smoked marijuana with his daughter and her boyfriend, and the drinking continued until around 2:00 A.M. One of the daughter’s friends, Susan,[3] aged sixteen, became “extremely ill and began to throw up” during the early morning hours, and stayed at the defendants’ home overnight. Susan asked Julie, who is a nurse, to take her to the hospital, but Julie explained that “if she [went] to the hospital they [would] give her an IV and put a tube down her throat.” Susan was also concerned that she would get […]
Tusino v. Zoning Board of Appeals of Douglas, et al. (and a companion case) (Lawyers Weekly No. 11-107-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1400 Appeals Court 14-P-1193 LOUIS C. TUSINO vs. ZONING BOARD OF APPEALS OF DOUGLAS & another[1] (and a companion case[2]). Nos. 15-P-1400 & 14-P-1193. Worcester. June 3, 2016. – August 25, 2016. Present: Vuono, Wolohojian, & Blake, JJ. Jurisdiction, Zoning. District Court, Jurisdiction, Appellate Division. Zoning, Appeal. Appeals Court, Jurisdiction. Practice, Civil, Zoning appeal, Appellate Division: appeal, Action in nature of mandamus, Moot case. Mandamus. Moot Question. Civil action commenced in the Uxbridge Division of the District Court Department on December 8, 2014. The case was heard by David B. Locke, J., on a motion for summary judgment. Civil action commenced in the Land Court Department on August 21, 2009. The case was heard by Robert B. Foster, J., on a motion for summary judgment. Gerald E. Shugrue for Louis C. Tusino. Henry J. Lane for Joseph Bylinski. Michael J. Kennefick for building commissioner of the town of Douglas, & another. WOLOHOJIAN, J. These two cases arise out of the construction of a house on a nonconforming lot in Douglas. The dispositive issue on appeal is whether we have jurisdiction over a direct appeal from a decision of the Uxbridge District Court in a zoning appeal under G. L. c. 40A, § 17. Concluding that we do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas, 2015-P-1400 (zoning appeal). Because our disposition of this case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-1193 (mandamus appeal), we dismiss it as well. On July 8, 2008, Tusino obtained a building permit to build a house on a lot he owns in Douglas. Construction began in February, 2009, and Bylinski, who owns the adjacent property, immediately thereafter asked the building commissioner to revoke the permit. The commissioner denied that request, and Bylinski appealed to the zoning board (board). The appeal was constructively allowed, and the building permit was revoked. On appeal, the Superior Court affirmed the revocation of the permit. Tusino did not further appeal, and the Superior Court’s decision became final. Tusino thereafter applied to the board for a variance. This too was denied. He appealed the denial to the Land Court, which entered summary judgment against him. On February 21, 2014, in a memorandum and order issued pursuant to our rule 1:28, we affirmed the […]
ENGIE Gas & LNG LLC v. Department of Public Utilities (and another case) (Lawyers Weekly No. 10-128-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12051 SJC-12052 ENGIE GAS & LNG LLC[1] vs. DEPARTMENT OF PUBLIC UTILITIES (and another case[2]). Suffolk. May 5, 2016. – August 17, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[3] Department of Public Utilities. Practice, Civil, Review of order of Department of Public Utilities. Electric Company. Public Utilities, Electric company, Judicial review. Gas. Administrative Law, Judicial review, Rulemaking, Agency’s authority, Rate regulation. Statute, Construction. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on October 26 and November 2, 2015. The cases were reported by Cordy, J. Thaddeus A. Heuer (Adam P. Kahn & Jesse Harlan Alderman with him) for ENGIE Gas & LNG LLC. David K. Ismay for Conservation Law Foundation. Seth Schofield, Assistant Attorney General, for the Attorney General. Thomas H. Hayman, Special Assistant Attorney General (Francis R. Powell, Special Assistant Attorney General, with him) for the Department of Public Utilities. Cheryl M. Kimball & Matthew A. Sanders, for NSTAR Electric Company & others, amici curae, submitted a brief. CORDY, J. These consolidated appeals are before us on a single justice’s reservation and report of challenges made to an order of the Department of Public Utilities (department). Those challenges raise the question of the department’s authority to review and approve ratepayer-backed, long-term contracts entered into by electric distribution companies for additional natural gas pipeline capacity in the Commonwealth pursuant to G. L. c. 164, § 94A, which requires gas and electric companies to receive departmental approval for any contract for the purchase of gas or electricity lasting longer than one year. The plaintiffs, ENGIE Gas & LNG LLC and Conservation Law Foundation, contend that the order amounted to improper rulemaking in violation of the Administrative Procedure Act, G. L. c. 30A. They also argue that the department’s determination that it has authority pursuant to G. L. c. 164, § 94A, to approve such contracts constitutes an error of law because it contravenes G. L. c. 164, § 94A, as amended through St. 1997, c. 164 (restructuring act).[4] We disagree that the order of the department is an improperly promulgated rule or regulation. We nevertheless reach the statutory question presented by the plaintiffs, and conclude that the order is invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring […]
Commonwealth v. Locke (and a companion case) (Lawyers Weekly No. 11-063-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-552 Appeals Court 15-P-553 COMMONWEALTH vs. ANDREW K. LOCKE (and a companion case[1]). Nos. 15-P-552 & 15-P-553. Worcester. February 4, 2016. – June 7, 2016. Present: Cypher, Wolohojian, & Neyman, JJ. Controlled Substances. Practice, Criminal, Motion to suppress. Search and Seizure, Motor vehicle, Threshold police inquiry. Constitutional Law, Search and seizure, Investigatory stop. Threshold Police Inquiry. Complaints received and sworn to in the Dudley Division of the District Court Department on December 19, 2011. Pretrial motions to suppress evidence were heard by Gerald A. Lemire, J., and motions for reconsideration were considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. Barry A. Bachrach for Andrew K. Locke. Sean J. Gallagher for Tanik S. Kerr. CYPHER, J. Complaints issued in the District Court charging the defendants, Andrew K. Locke and Tanik S. Kerr, with trafficking in fifty pounds or more of marijuana, G. L. c. 94C, § 32E(a), and conspiracy to traffic in marijuana, G. L. c. 94C, § 40.[2] The Commonwealth appeals from the allowance of the defendants’ motions to suppress evidence and from the denials of its motions for reconsideration, arguing that the judge committed legal error when he concluded that “the odor of marijuana does not constitute reasonable suspicion of criminal activity or probable cause to believe that more than one ounce of marijuana” was present in the defendants’ vehicle. We are constrained to affirm the orders of suppression. See Commonwealth v. Cruz, 459 Mass. 459, 472 (2011) (Cruz); Commonwealth v. Overmyer, 469 Mass. 16, 17 (2014) (Overmyer); Commonwealth v. Craan, 469 Mass. 24 (2014) (Craan). We summarize the facts found by the judge after an evidentiary hearing, at which State police Troopers Scott Driscoll and Christopher Coscia both testified, supplemented by uncontested facts in the record. Craan, supra at 26. On December 17, 2011, Trooper Driscoll saw a white minivan make an erratic lane change on Route 84 in Sturbridge, nearly causing a collision. Trooper Driscoll continued to watch the minivan and clocked it in excess of the posted speed limits as it approached the tollbooths on Route […]
Wilson’s Case (Lawyers Weekly No. 11-053-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-112 Appeals Court DANIEL WILSON’S CASE. No. 15-P-112. Suffolk. March 22, 2016. – May 16, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Workers’ Compensation Act, Injuries to which act applies, Decision of Industrial Accident Reviewing Board, Findings by administrative judge, Expert opinion. Appeal from a decision of the Industrial Accident Reviewing Board. Sean M. Beagan for the employee. John J. Canniff, III, for the insurer. CYPHER, J. Daniel Wilson appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents (DIA), which reversed a decision of the administrative judge in favor of Wilson, and dismissed his claim. We reverse the dismissal of the claim and reinstate the decision of the administrative judge in favor of Wilson. Wilson worked as a heavy equipment mechanic for Southworth Milton in 2006 when he was injured while repairing a hydraulic pump in a truck. Wilson was on his stomach, lying across the transmission of the truck with both arms fully extended in front of him. While using a pry bar in an attempt to skirt the weight on the back of the ninety-pound pump, he felt a stabbing pain in his neck, upper back, and both shoulders. Approximately nine days later Wilson was treated with a cortisone shot. Wilson testified that at that time his left shoulder felt tender, although his right shoulder was much worse. In September, 2007, surgery was performed on Wilson’s right shoulder. Wilson returned to work five and one-half weeks after his surgery and, as advised by his surgeon, Dr. Peter Noordsij, relied more on his left arm to compensate for lack of use of his right arm. Wilson’s left shoulder pain increased. Wilson filed a claim for worker’s compensation. Sentry Insurance Company (Sentry) settled the claim in 2008 with an approved lump sum payment of $ 2,500 to Wilson and an award of $ 5,000 for attorney’s fees to Wilson’s attorney.[1] See G. L. c. 152, §§ 19, 23. The 2008 settlement agreement specified that it covered injuries to Wilson’s right shoulder, neck, and upper back. Wilson continued to suffer bilateral shoulder pain after the lump sum award but was unable to obtain medical benefits. In 2011, Wilson filed a claim for payment of medical benefits for treatment of his left shoulder, as well as his right shoulder, from […]
Chiaraluce v. Zoning Board of Wareham (and a consolidated case) (Lawyers Weekly No. 11-040-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-328 Appeals Court JOSEPH H. CHIARALUCE, trustee,[1] vs. ZONING BOARD OF APPEALS OF WAREHAM (and a consolidated case[2]). No. 15-P-328. Suffolk. January 7, 2016. – April 8, 2016. Present: Hanlon, Sullivan, & Maldonado, JJ. Zoning, Nonconforming use or structure, By-law. Civil actions commenced in the Land Court Department on July 21 and July 25, 2011. The cases were heard by Gordon H. Piper, J. Richard M. Serkey for Joseph H. Chiaraluce. Mark J. Lanza for Denise R. DePedro. SULLIVAN, J. Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus). A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law. We affirm. Background. We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 523 (2008), and “do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet. It has no street frontage and is accessible from the street over a twelve-foot-wide right of way. Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $ 16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet. In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage. Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus. Wareham’s zoning board of appeals (ZBA or board) granted a “blanket” special permit for reconstruction of residences damaged by Hurricane Bob. Although the Olsens obtained such a permit in March of 1992 […]
Categories: News Tags: 1104016, Board, case, Chiaraluce, consolidated, Lawyers, Wareham, Weekly, Zoning
Commonwealth v. Oliveira (and a companion case) (Lawyers Weekly No. 10-042-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11972 SJC-11973 COMMONWEALTH vs. JEMAUL R. OLIVEIRA (and a companion case[1]). Bristol. January 8, 2016. – March 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Inventory, Impoundment of vehicle. Complaints received and sworn to in the New Bedford Division of the District Court Department on March 19, 2013. Pretrial motions to suppress evidence were heard by Kathryn E. Hand, J. An application for leave to prosecute an interlocutory appeal was allowed by Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for Jemaul R. Oliveira. Christopher DeMayo for Mitchell T. Violet. GANTS, C.J. The interlocutory appeal in these companion cases requires us to examine whether it was reasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting. We conclude that where the driver had offered the police an alternative to impoundment that was lawful and practical under the circumstances, it was unreasonable and thus unconstitutional to impound the vehicle and conduct an inventory search. We therefore affirm the motion judge’s allowance of the defendants’ motions to suppress the fruits of the inventory search. Background. The defendants, Mitchell T. Violet and Jemaul R. Oliveira, were charged with shoplifting by concealing merchandise, in violation of G. L. c. 266, § 30A, and unlawfully carrying a firearm, in violation of G. L. c. 269, § 10 (a).[2] Both moved to suppress the firearm located during the inventory search of the vehicle that they used to travel to the department store. We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). At about 4:30 P.M. on March 18, 2013, Dartmouth police Officers Robert St. Denis and […]