Commonwealth v. Guardado

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revision and are superseded by the advance sheets and bound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-13315

COMMONWEALTH vs. CARLOS GUARDADO.

Middlesex. December 5, 2022. - April 13, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.

Firearms. Search and Seizure, Motor vehicle, Probable cause.

Constitutional Law, Search and seizure, Probable cause,

Right to bear arms, Burden of proof, Retroactivity of

judicial holding. Due Process of Law, Elements of criminal

offense, Burden of proof. Probable Cause. Motor Vehicle,

Firearms. License. Practice, Criminal, Motion to

suppress, Instructions to jury, Presumptions and burden of

proof, Retroactivity of judicial holding. Retroactivity of

Judicial Holding.

Indictments found and returned in the Superior Court

Department on June 26, 2019.

A pretrial motion to suppress evidence was heard by C.

William Barrett, J., and the cases were tried before Paul D.

Wilson, J.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Elaine Fronhofer for the defendant.

Jamie Michael Charles, Assistant District Attorney, for the

Commonwealth.

2

Patrick Levin, Committee for Public Counsel Services, &

Chauncey B. Wood, for Committee for Public Counsel Services &

another, amici curiae, submitted a brief.

GAZIANO, J. In 2019, Boston police officers searched the

defendant's vehicle without a warrant after having received a

tip from a confidential informant, and discovered in the glove

compartment a loaded firearm and a large capacity magazine. At

the time of the search, the vehicle was parked in the parking

lot of the business at which the defendant was employed.

Following a jury trial, the defendant was convicted of

unlawfully carrying a firearm, unlawfully carrying a loaded

firearm, unlawfully carrying ammunition, and unlawfully carrying

a large capacity feeding device. The statute under which the

defendant was convicted, G. L. c 269, § 10, contains two

exemptions that are relevant here. First, it exempts anyone

who, while in possession of a firearm, is present in or on his

or her place of business. Second, the statute exempts someone

who has been issued a firearms license. At the defendant's

trial, the judge did not instruct the jury on either of these

exemptions.

In this appeal, the defendant argues that there was no

probable cause to search the glove compartment of his vehicle

and that the judge erred in not instructing the jury on the two

statutory exemptions. We conclude that there was probable cause

3

to search the glove compartment, because the search was in

response to a tip that was provided by an informant who had

demonstrated reliability and who had personal knowledge of the

firearm. We also conclude that there was no error in the

judge's decision not to instruct on the place of business

exemption, because the evidence was insufficient to establish

that the parking lot where the vehicle was found was under the

exclusive control of the business where the defendant worked.

We agree, however, that the judge erred in not instructing

the jury on the licensure exemption. In the wake of the United

States Supreme Court's decision in New York State Rifle & Pistol

Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022), in which the Court

held that the Second Amendment to the United States Constitution

protects an individual's right to carry a firearm in public, our

existing precedent that licensure is an affirmative defense, and

not an element of the offense the Commonwealth is required to

prove, must be revisited. See Commonwealth v. Gouse, 461 Mass.

787, 807 (2012). Because possession of a firearm in public is

constitutionally protected conduct, in order to convict a

defendant of unlawful possession of a firearm, due process

requires the Commonwealth prove beyond a reasonable doubt that a

defendant did not have a valid firearms license. Accordingly,

the defendant's convictions of unlawful possession of a firearm,

unlawful possession of a loaded firearm, and unlawful possession

4

of ammunition cannot stand. Because there is no constitutional

right to possess a large capacity magazine, we affirm the

defendant's conviction of unlawful possession of a large

capacity feeding device. See Commonwealth v. Cassidy, 479 Mass.

527, 540, cert. denied, 139 S. Ct. 276 (2018), quoting District

of Columbia v. Heller, 554 U.S. 570, 625 (2008) (right to bear

arms "does not protect those weapons not typically possessed by

law-abiding citizens for lawful purposes").1

1. Background. a. Motion to suppress. We recite the

facts from the motion judge's findings, supplemented by other

evidence in the record that supports the judge's conclusion and

that was either explicitly or implicitly credited by the judge.

See Commonwealth v. Jones-Pannell, 472 Mass. 429, 437-438

(2015).

On January 25, 2019, Lieutenant Mathew Pieroway of the

Boston police department received information from a

confidential informant, known as "Z," that an individual with

the defendant's name was in possession of an unlicensed gun. At

that point in time, Z was a "card-carrying" informant, which

meant that Z had assisted Boston police in an investigation

within the previous six months. In the prior year, information

1 We acknowledge the amicus brief submitted by the Committee

for Public Counsel Services and the Massachusetts Association of

Criminal Defense Lawyers in support of the defendant.

5

provided by Z in one instance had resulted in the seizure of

narcotics and an arrest for a drug-related offense, and in a

separate matter, Z had provided information that led to the

recovery of a firearm that was stored near a playground.

Z informed Pieroway that the individual was in possession

of a silver firearm and that the firearm was being stored in a

black backpack in his vehicle. Pieroway was aware, from prior

conversations with Z, that the individual operated a green Honda

Accord with a Maine registration plate. Pieroway also knew the

plate number. Z told Pieroway that the individual would be

driving in the area of Watertown, in such a vehicle, later that

day. Z also reported that the individual worked at a particular

auto parts store, hereinafter referred to as "the Store."

While driving toward Watertown, Pieroway contacted other

members of his unit, as well as Watertown police Detective Mark

Lewis, whom Pieroway knew from prior investigations and

prosecutions. Pieroway informed these officers that he had

received information from a reliable informant that the

defendant had a gun in his possession and that he would be in

the Watertown area shortly.

Within an hour of speaking to the informant, Pieroway

located the defendant a short distance from a mall in Watertown.

Pieroway watched the defendant pull into the parking lot of the

Store, get out of the green Honda with the Maine license plate,

6

and enter the Store, where he appeared to be an employee. Other

officers, including Lewis, arrived soon thereafter and set up

surveillance around the car and the Store. While en route to

Watertown, Lewis had had a license check conducted through

Criminal Justice Information Services, which had revealed that

the defendant did not have a license to carry a firearm, as well

as a Criminal Offender Record Information check, which had

indicated that the defendant had a prior firearm "incident" on

his record.2

At roughly 6:45 P.M., Pieroway observed the defendant leave

the Store and walk towards his vehicle. As the defendant was

beginning to get into the vehicle, officers approached him,

identified themselves, and asked him to move away from it. They

also gave the defendant the Miranda warnings. Lewis searched

the vehicle while the defendant stood with an officer to the

rear of it. Lewis was unable to locate either a gun or a black

backpack in the vehicle. The glove compartment, which was the

only part of the interior that was not searched at that time,

was locked. Lewis then conducted a patfrisk of the defendant

and found nothing other than the keys to the vehicle. Lewis

used the keys to open the glove compartment. Inside was a

2 By the time of the hearing on the defendant's motion to

suppress, Lewis could not recall anything about the nature of

the incident or whether it had resulted in a conviction.

7

silver Smith & Wesson nine millimeter firearm that was loaded

with a fifteen-round magazine containing two rounds of

ammunition. Also inside was another fifteen-round magazine that

was loaded with ten rounds of ammunition.

When the defendant left the Store, Detective Sergeant John

Claflin, one of the officers who had been surveilling the scene,

was told to go into the Store to find out whether the defendant

had left any personal belongings, in particular a black

backpack, behind. After entering the Store and having been

directed to an employee storage area, Claflin saw a black

backpack that was identified by a Store employee as belonging to

the defendant. Claflin picked up the backpack and could feel

what he believed, on the basis of his experience and training,

to be a gun storage box. Claflin opened the backpack and found

an empty gun storage box. Claflin left the Store and saw the

green Honda being searched; at that point, the defendant had not

yet been pat frisked.3

Once the gun and magazine were found, the defendant was

placed under arrest. Shortly thereafter, he said, "You got me

3 John Claflin testified at the hearing that he did not

think that the gun in the glove compartment had been found when

he left the Store. The defendant contests this statement and

argues that it was not established at the hearing on his motion

to suppress whether the backpack was searched prior to the

discovery of the firearm. This question of timing is not

pertinent to our analysis.

8

for the gun. It's a [nine millimeter] and there shouldn't be

one in the chamber." At the police station, the defendant again

was given the Miranda warnings. He agreed to talk to police and

told them that he had purchased the firearm for $650 from

someone in Quincy and that he had been in possession of the gun

for "awhile."

In June 2019, a grand jury issued indictments charging the

defendant with one count of illegal possession of a firearm,

G. L. c. 269, § 10 (a); two counts of illegal possession of a

large capacity feeding device, G. L. c. 269, § 10 (m); one count

of illegal possession of ammunition, G. L. c. 269, § 10 (h); and

one count of illegal possession of a loaded firearm, G. L.

c. 269, § 10 (n).4

In December 2019, the defendant filed a motion to suppress

any evidence seized as a result of the search and seizure of his

vehicle and person, on the grounds that he did not consent to a

search of his person or of his automobile and the searches and

seizure were in violation of his rights under the Fourth and

Fourteenth Amendments to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights.

4 Illegal possession of a loaded firearm, under G. L.

c. 269, § 10 (n), is not an independent charge but, rather,

"constitute[s] further punishment of a defendant who also [has]

been convicted under G. L. c. 269, § 10 (a)." See Commonwealth

v. Tate, 490 Mass. 501, 520 (2022).

9

At an evidentiary hearing on the motion to suppress,

testimony was presented concerning the basis of Z's knowledge of

the firearm. The prosecutor asked Pieroway whether "Z had

actually seen [the] silver firearm that he or she described to

you?" Pieroway responded that "Z had." Defense counsel

objected and asked, "Was the officer there when Z saw the

firearm? Did Z say he saw the firearm?." The motion judge, who

was not the trial judge, commented, "That's fair," and asked

whether Pieroway had learned that Z had seen the firearm

"through a conversation." The prosecutor then asked Pieroway,

"And how were you made aware that Z had seen the firearm?"

Pieroway answered, "I had asked Z is the firearm real." The

prosecutor inquired, "And what was Z's response?" Pieroway

said, "Yes." The judge ultimately denied the defendant's motion

to suppress.

b. Trial. A jury trial took place before a different

Superior Court judge in June of 2021. At trial, witnesses were

questioned repeatedly regarding the nature of the parking lot in

which the defendant's vehicle had been parked. On cross-

examination of Lewis, defense counsel asked whether Lewis had

seen the defendant assisting a customer in the parking lot.

Lewis responded that other investigators had observed the

defendant doing so. At another point, defense counsel asked

Lewis to confirm that the green Honda was not parked in the

10

parking lot of a nearby business across the street from the

Store. Lewis responded, "Well, it's not across the street, it's

connected to that parking lot. . . . There's no street

that . . . intersect[s] . . . . It's one park -- it's a parking

complex." Counsel then asked whether the vehicle was parked at

"the [Store] parking spot." Lewis responded, "Yes." Similarly,

during cross-examination of Pieroway, counsel asked whether the

defendant had pulled into "a [Store] parking spot." Pieroway

responded that that was correct. Boston police Officer Jason

Nunez, another officer who had been at the scene, testified that

the defendant's vehicle was parked in "the parking lot of the

[Store]." When the prosecutor asked Nunez whether it was a

large parking lot, Nunez responded, "I'm not sure the exact

amount of spaces but it's definitely -- [twenty] plus vehicles

maybe."

After the Commonwealth rested, the defendant moved for a

required finding of not guilty on each of the charges. On the

first charge, illegal possession of a firearm, the defendant

argued that the statute under which he had been charged

contained an exemption for possession while "being present in or

on his residence or place of business," G. L. c. 269,

§ 10 (a) (1), and that the Commonwealth had proved only that he

had possessed a firearm while "working at his place of business

and on the property (i.e.[,] parking lot) of his place of

11

business."5 The prosecutor responded that the defendant did not

have the firearm on his person while he was working, but,

rather, it was in his vehicle, which "was not in the [Store]

area, [nor was it] in [a Store] employee-only spot. . . .

[S]everal witnesses testified it was a fairly large parking lot

for lots of businesses." The judge noted that he found the

prosecutor's argument "persuasive," and denied the defendant's

motion.

In his closing argument, defense counsel said, "In terms of

the first indictment, one of the things that [the prosecutor

has] to prove is that [the firearm possession] was outside

somebody's home or place of business." During a sidebar

following closing arguments, the prosecutor argued that defense

counsel had misstated the law. The judge agreed, stating, "I

made a ruling on the [motion for a required finding of not

guilty] that I don't think one can reasonably interpret the law

to cover this factual situation, because the law about being on

or in your business was not meant to apply under these facts."

The prosecutor, however, did not object to the closing argument.

After further discussion at sidebar, defense counsel told

the judge that he had just re-read the model jury instructions

on possession of a firearm without a license outside an

5 The defendant's arguments with respect to the remaining

charges are not relevant to any issue on appeal.

12

individual's home or business and that the instruction provided

states that "if there is evidence that [the possession occurred

in] the defendant's residence or place of business," then the

judge should instruct the jury that an additional element of the

crime is that "the [d]efendant possessed the firearm outside of

his place of business." Counsel said that he "did offer

evidence that [the firearm possession] was [at the defendant's]

place of business." Accordingly, counsel argued that an

instruction should be given to the jury. The judge denied the

request on the ground that it was untimely, because the jury

were about to enter the court room to hear the final charge.

The judge also noted that the statute did "not cover the factual

situation before this jury, because the Legislature, in putting

those words into the statute, did not intend to cover this

situation of a . . . firearm in a locked glove box of a car

parked in a parking lot, not in the business itself." Defense

counsel responded, "I just want to make clear that I did offer

evidence through cross-examination that this was strictly [a

Store] parking lot, and I think it was thoroughly covered that

[the vehicle was in the defendant's] possession . . . . It was

in the glove box, for which the keys were found . . . [in] his

possession. That's his place of business. I want to make that

clear." The judge stated, "Fair enough. Noted." In his final

charge, the judge instructed:

13

"Indictment Number 1 charges [the defendant] with knowingly

possessing a firearm unlawfully. In order to prove the

Defendant guilty of this offense the Commonwealth must

prove the following three things beyond a reasonable doubt.

First, that the Defendant possessed a firearm or that he

had a firearm under his control in a vehicle. Second, that

what the Defendant possessed or had under his control in a

vehicle met the legal definition of a firearm. And third,

that the Defendant knew he possessed a firearm or had a

firearm under his control in a vehicle."

Soon after the jury began deliberations, they submitted a

note asking:

"In their closing arguments, the Defense lawyer mentioned

that firearm possession, Indictment Number 1, must meet the

criteria of being 'outside a home or business.' This is

not indicated in your written instructions to us. Can you

please clarify if we need to consider this in our

deliberations."

Following a discussion, the attorneys and the judge came to an

agreement on how the judge would respond to the question. The

judge had the jury return to the court room and explained,

"Yes, the statute has an exemption in it . . . for having a

weapon at home or at work. However, earlier in this case,

outside of your hearing, as a matter of law, I ruled that

that exemption does not apply in this case. It's not

available to [the defendant]. And therefore that's why I

didn't include anything about it in the instructions."

The jury found the defendant not guilty of one count of illegal

possession of a large capacity feeding device and guilty of all

other counts. The defendant filed a timely notice of appeal,

and we transferred the case to this court on our own motion.

2. Discussion. The defendant argues that police did not

have probable cause to search the glove compartment of his

14

vehicle and, thus, the motion judge erred in denying his motion

to suppress evidence seized as a result of the warrantless

search of his vehicle and person. The defendant also argues

that the trial judge erred in not instructing the jury on the

place of business exemption. In addition, the defendant

maintains that the trial judge erred by not instructing the jury

that the Commonwealth was required to prove beyond a reasonable

doubt that the defendant did not have a firearms license when

the firearm and magazine were discovered.

a. Motion to suppress. "In reviewing the denial of a

motion to suppress, we accept the judge's findings of fact

absent clear error" (citation omitted). Commonwealth v. Mubdi,

456 Mass. 385, 388 (2010). In particular, we accord deference

to "findings drawn partly or wholly from testimonial evidence."

Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018). "We then

conduct an independent review of [the judge's] ultimate findings

and conclusions of law" (quotation and citation omitted).

Mubdi, supra.

A warrantless search is presumed to be unreasonable under

the Fourth Amendment and art. 14 of the Massachusetts

Declaration of Rights. Commonwealth v. Ortiz, 487 Mass. 602,

606 (2021). This presumption, however, may be surmounted "if

the circumstances of the search fall within an established

exception to the warrant requirement" (citation omitted). Id.

15

"One of those exceptions, commonly known as 'the automobile

exception,' applies to situations where the police have probable

cause to believe that a motor vehicle parked in a public place

and apparently capable of being moved contains contraband or

evidence of a crime" (citation omitted). Commonwealth v. Dame,

473 Mass. 524, 536, cert. denied, 580 U.S. 857 (2016). This

exception exists because "the inherent mobility of automobiles

creates an exigency that they, and the contraband there is

probable cause to believe they contain, can quickly be moved

away while a warrant is being sought." Ortiz, supra, quoting

Commonwealth v. Motta, 424 Mass. 117, 123 (1997).

To establish that a search falls within the automobile

exception, "[t]he Commonwealth bears the burden of proving the

existence of . . . probable cause to believe that the automobile

contained contraband" (quotation and citation omitted).

Commonwealth v. Garden, 451 Mass. 43, 47 (2008). To meet this

burden, the Commonwealth must establish that "the information

possessed by police, at the time of the proposed warrantless

search, provide[d] a substantial basis for the belief that there

[was] a timely nexus or connection between criminal activity, a

particular person or place to be searched, and particular

evidence to be seized" (citation omitted). Dame, 473 Mass.

at 536-537. Probable cause does not require an absence of

uncertainty; rather, we ask whether a "reasonable and prudent"

16

person could have acted on such a belief. See Commonwealth v.

Agogo, 481 Mass. 633, 637 (2019), quoting Commonwealth v. Cast,

407 Mass. 891, 895-896 (1990).

i. Aguilar-Spinelli test. The defendant contends that the

motion judge erred in allowing the confidential informant's tip

to be used to establish probable cause. An informant's tip may

be used to establish probable cause only if the Commonwealth

satisfies the Aguilar-Spinelli test. Commonwealth v. Tapia, 463

Mass. 721, 729 (2012). See Spinelli v. United States, 393 U.S.

410, 415 (1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964).

This test requires the Commonwealth to "demonstrate some of the

underlying circumstances from which (a) the informant gleaned

his information (the 'basis of knowledge' test), and (b) the law

enforcement officials could have concluded the informant was

credible or reliable (the 'veracity' test)" (citation omitted).

Tapia, supra. "Both prongs must be separately considered and

satisfied" (quotation and citation omitted). Id. According to

the defendant, the Commonwealth failed to satisfy either prong

of the Aguilar-Spinelli test. The Commonwealth maintains that

both prongs were satisfied.

The Commonwealth can satisfy the basis of knowledge prong

by showing that "the information provided [by an informant]

springs from [the] informant's firsthand observations or

knowledge." Commonwealth v. Arias, 481 Mass. 604, 618 (2019).

17

Here, the motion judge found that Z had told Pieroway that he

had seen the firearm in the black backpack, and that that was

the basis for his knowledge of the location of the firearm.

This finding would be sufficient to satisfy the basis of

knowledge prong, as it establishes that "the informant was

reporting his own observation of the gun[] in question." See

Commonwealth v. Alfonso A., 438 Mass. 372, 374 (2003). The

defendant argues, however, that the judge's finding was clearly

erroneous.

According to the defendant, a reasonable fact finder could

not have found, on the basis of Pieroway's testimony, that Z had

had firsthand knowledge of the firearm in the backpack. This is

so, the defendant maintains, because Pieroway's later statement

that Z told him the firearm was "real" supplanted Pieroway's

earlier statement that Z had said he had seen the firearm. The

defendant argues, therefore, that the Commonwealth did not

demonstrate how "the informant gleaned [the] information" that

he reported to Pieroway. See Tapia, 463 Mass. at 729.

"A judge's finding is clearly erroneous only where there is

no evidence to support it or where the reviewing court is left

with the definite and firm conviction that a mistake has been

committed" (quotation and citation omitted). Commonwealth v.

Colon, 449 Mass. 207, 215, cert. denied, 552 U.S. 1079 (2007).

In reviewing the judge's findings, we recognize that "[t]he

18

determination of the weight and credibility of the testimony is

the function and responsibility of the [motion] judge who saw

the witnesses, and not this court" (citation omitted).

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008). Accordingly, a motion judge is "not required

to discard testimony that appears to contain internal

inconsistences, but may credit parts of a witness's testimony

and disregard other potentially contradictory portions." United

States v. González-Vélez, 587 F.3d 494, 504 (1st Cir. 2009),

quoting United States v. Lara, 181 F.3d 183, 204 (1st Cir.),

cert. denied, 528 U.S. 979 (1999). "The burden is on the

appellant to show that a finding is clearly erroneous." Pointer

v. Castellani, 455 Mass. 537, 539 (2009).

We conclude that the motion judge's findings here were not

clearly erroneous. Pieroway testified that after he was asked

to clarify how he knew that Z had seen the firearm, Z had said

the firearm was "real." In this context, it was reasonable for

the judge to infer that Z knew the firearm to be real because he

had seen the firearm. See Commonwealth v. Carr, 458 Mass.

295, 303 (2010) ("Where there are two permissible views of the

evidence, the factfinder's choice between them cannot be clearly

erroneous" [citation omitted]). There was no clear error in the

judge's decision to draw such an inference. See Colon, 449

Mass. at 224 (no clear error where factual findings "were

19

supported by the evidence admitted or based on logical

inferences drawn therefrom").

The defendant also argues that, even if there were a basis

of knowledge for the informant's tip, that basis was negated

once police failed to find a backpack in the defendant's

vehicle, at which point the informant's tip was proved

inaccurate by the absence of a backpack. See Mubdi, 456 Mass.

at 397. This argument misses the mark. The Commonwealth can

establish a basis of knowledge under the Aguilar-Spinelli test

through two independent means. First, an informant's basis of

knowledge can be inferred if there was sufficient "independent

police corroboration of the details of the informant's tip."

Commonwealth v. Bakoian, 412 Mass. 295, 298 (1992). Second, the

informant's basis of knowledge can be established where it is

"apparent that the informant was reporting his own observation."

Alfonso A., 438 Mass. at 374. Here, we rely on the motion

judge's finding that the informant personally had observed the

firearm in the defendant's backpack. The basis of knowledge

test therefore survives the police failure to corroborate

certain details in the informant's tip. See Tapia, 463 Mass.

at 729 ("First-hand receipt of information through personal

observation satisfies the basis of knowledge prong . . ."

[citation omitted]).

20

The defendant also contends that the Commonwealth failed to

satisfy the veracity prong of the Aguilar-Spinelli test. "To

satisfy the veracity test, the Commonwealth needs to show either

that the [informant] had a demonstrated history of

reliability, . . . or the existence of circumstances assuring

trustworthiness on the particular occasion of the information's

being furnished" (quotation and citation omitted). Commonwealth

v. Pinto, 476 Mass. 361, 365 (2017). A history of reliability

can be demonstrated by a showing that "the informant provided

accurate information in the past as to seizures, pending cases,

convictions, or other such information which would indicate

reliability." Commonwealth v. Warren, 418 Mass. 86, 89 (1994).

We conclude that the Commonwealth satisfied the veracity

prong. Z's reliability was established by a previous instance

in which Z supplied "information [that] led to the confiscation

of illegal narcotics." See Commonwealth v. Mendes, 463 Mass.

353, 365 (2012). The defendant argues that one such occasion is

insufficient to satisfy the veracity test.6 To support this

6 The motion judge found that the information Z provided to

Boston police had resulted in two separate arrests. The

defendant argues that this was clear error because, in his

testimony, Pieroway referred to only one arrest that was made on

the basis of information provided by Z. We agree. Accordingly,

we base our analysis on Pieroway's testimony in which he stated

that Z's information led to a drug-related arrest, along with

the seizure of narcotics and, separately, the recovery of a

firearm near a playground. The defendant further contends that

21

proposition, he points to Commonwealth v. Melendez, 407 Mass.

53, 59 (1990), in which we stated that "[t]he fact that the

informant gave information on one occasion in the past which led

to the arrest of two individuals is insufficient to satisfy the

veracity test." In Melendez, however, the issue was not that

the informant had only provided information on one occasion.

Rather, the veracity test failed in that case because the fact

of the arrests, without more, did not establish the accuracy of

the information that had caused police to make those arrests.

See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991) ("a

clerk-magistrate [is] not entitled to infer from . . . a

statement [that a prior tip led to arrests] that [the] prior tip

had proved to be accurate"). Here, Z supplied information that

led not only to an arrest for a drug-related offense, but also

to the seizure of narcotics. The seizure was sufficient proof

that Z had "provided information in the past which has proved to

be accurate." See id. at 45.

ii. Probable cause to search the glove compartment. The

defendant argues that, even if Z's tip satisfied the Aguilar-

Spinelli test, it did not establish probable cause to search the

the discovery of the firearm near the playground did not bolster

Z's reliability, because no testimony was given as to whether

the firearm was an instrument of unlawful activity. Because we

conclude that veracity is established here on the basis of the

seizure of narcotics, we do not address this argument.

22

glove compartment of his vehicle. According to the defendant,

it would not have been reasonable for police to expect to find

his backpack in the glove compartment.

Where there is probable cause to search a vehicle, "the

permissible scope of the search [is] not limitless." Garden,

451 Mass. at 50. Rather, "a valid search is limited to 'any

area, place, or container reasonably capable of containing the

object of the search.'" Id. at 51, quoting Commonwealth v.

Signorine, 404 Mass. 400, 405 (1989). Hence, in determining

whether the warrantless search of a vehicle was lawful, we ask

whether the search was restricted to the "part[s] of the vehicle

where there [was] probable cause to believe the object may be

found." See Commonwealth v. Davis, 481 Mass. 210, 220 (2019).

We begin by considering whether Lewis had probable cause to

conduct his initial search of the vehicle. Lewis was made

aware, on the basis of a tip from a reliable informant with

firsthand knowledge, that the defendant was in possession of a

firearm that day. See Cast, 407 Mass. at 897, 900-901.

Contrast Commonwealth v. Hart, 95 Mass. App. Ct. 165, 167-168

(2019) (no timely nexus between informant's observation of

firearm and location to be searched because firearm was observed

two months before search warrant application). The informant

had asserted that the firearm would be in the defendant's

vehicle and had identified the make, model, and registration

23

plate of the vehicle. See Cast, supra at 901-902, quoting

United States v. Ross, 456 U.S. 798, 813 (1982) ("the police

must have probable cause to believe a particular automobile

contains contraband, not just probable cause regarding a

specific container whose relationship to an automobile is

'purely coincidental'"). Moreover, based on the license check

he conducted prior to encountering the defendant, Lewis had

reason to believe that the defendant did not have a license to

carry a firearm. Contrast Commonwealth v. Alvarado, 423 Mass.

266, 269 (1996), quoting Commonwealth v. Toole, 389 Mass. 159,

163-164 (1983) ("mere possession of a handgun [is] not

sufficient to give rise to a reasonable suspicion that the

defendant was illegally carrying that gun"). Lewis therefore

had sufficient basis to "warrant a prudent [person] in believing

that the defendant had committed, or was committing, an offense"

and that evidence of that offense would be found in the

identified vehicle (citation omitted). See Commonwealth v.

Hernandez, 473 Mass. 379, 383 (2015).

Once Lewis failed to find the firearm during his initial

search of the vehicle, there existed probable cause to search

the glove compartment, where a firearm readily could be

concealed. "[I]f probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of

24

the search." See Commonwealth v. Moses, 408 Mass. 136, 145

(1990), quoting Ross, 456 U.S. at 825. Up to an hour had

elapsed between the time that Z informed police of the existence

of the firearm and when they located the defendant driving in

Watertown. The defendant therefore had had ample time to move

any firearm in his possession to the glove compartment of his

vehicle. See Cast, 407 Mass. at 902 (probable cause existed to

search entire vehicle because, after watching defendant place

contraband in trunk of vehicle, agents "lost the defendant from

their sight . . . for some six hours before he reappeared in

view[,] . . . at any point during which [contraband] could have

been placed elsewhere in the car"). Moreover, the defendant had

parked his vehicle in a public lot outside his workplace. Under

such circumstances, it would have been reasonable to suspect

that the defendant might have secured an unlawfully possessed

firearm in a locked glove compartment in order to avoid its

detection by passersby. Contrast Garden, 451 Mass. at 51 ("The

search of the [defendant's] trunk . . . exceeded the permissible

scope of the search because [the officer] could not reasonably

have believed that the source of the smell of burnt marijuana

would be found in the trunk").

The defendant maintains that, when officers are apprised

that a precise location within a vehicle contains contraband,

they must limit their search of the vehicle to that location.

25

Because the informant's tip specified a particular location --

the defendant's backpack -- in which the firearm would be found,

the defendant contends that the scope of a lawful search was

limited to areas in which the backpack reasonably could be

stored and that it would not have been reasonable to suspect

that the backpack would be stored in the glove compartment.

This argument, however, misconstrues our jurisprudence. Where

an informant's tip specifies a particular location within a

vehicle in which contraband may be stored, that does not

necessarily preclude the possibility that there is probable

cause to search for the contraband in another part of the

vehicle. See Commonwealth v. Wunder, 407 Mass. 909, 913 (1990).

Here, Lewis reasonably could have believed that the object

of his search -- the silver firearm described by Z -- was

located in the glove compartment. See Cast, 407 Mass. at 896,

quoting Commonwealth v. Alessio, 377 Mass. 76, 82 (1979) ("in

determining whether probable cause exists . . . , '[r]easonable

inferences and common knowledge are appropriate

considerations'"). As discussed, there was probable cause to

believe that the firearm was in the defendant's vehicle. See

Bostock, 450 Mass. 616, 624 (2008), quoting Cast, supra at 908

("As a general matter, . . . the 'lawful warrantless search of a

motor vehicle . . . extends to all containers, open or closed,

found within"). The defendant had had ample opportunity to

26

transfer the firearm to the glove compartment, and reason to do

so given the public location of the vehicle. See Garden, 451

Mass. at 50 (officer had probable cause to search glove

compartment of vehicle because "any contraband hidden on the

passengers' person[s] easily could have been transferred to a

location in the passenger compartment when they were ordered to

get out"). Accordingly, we conclude that Lewis had probable

cause to search the glove compartment of the defendant's

vehicle.

iii. Patfrisk. The defendant argues that, even if there

was probable cause to search the glove compartment, the firearm

and magazine should have been excluded at trial because their

discovery resulted from an unconstitutional patfrisk of his

person. We conclude that Lewis's search of the defendant's

person was a lawful patfrisk and that, thus, the exclusionary

rule did not prohibit the introduction of the firearm and

magazine. See Commonwealth v. Long, 476 Mass. 526, 535-536

(2017).

A patfrisk is a "'carefully limited search of the outer

clothing of [a] person[] . . . to discover weapons' for safety

purposes." Commonwealth v. Torres-Pagan, 484 Mass. 34, 36

(2020), quoting Terry v. Ohio, 392 U.S. 1, 30 (1968). "The only

legitimate reason for an officer to subject a suspect to a

patfrisk is to determine whether he or she has concealed weapons

27

on his or her person." Torres-Pagan, supra at 39. For this

reason, a "patfrisk is permissible only where an officer has a

'reasonable suspicion,' based on specific articulable facts,

'that the suspect is [both] armed and dangerous.'" Commonwealth

v. Garner, 490 Mass. 90, 92 (2022), quoting Torres-Pagan, supra

at 36.

The motion judge found that Lewis conducted a patfrisk of

the defendant because he was "in fear for his safety due to the

potential presence of a gun." The defendant points out that

there was no testimony suggesting that Lewis feared for his

safety when he conducted the patfrisk. If an officer has

reasonable suspicion that a person is carrying an illegal

firearm, however, that is a sufficient basis upon which to

conclude that the person is armed and dangerous so as to justify

a patfrisk. See Commonwealth v. DePeiza, 449 Mass. 367, 371

(2007).

The defendant also argues that there was no basis to

believe that he was carrying an unlicensed firearm on his

person, because Z's tip indicated only that a firearm would be

found in his vehicle. See DePeiza, 449 Mass. at 374.

Reasonable suspicion, however, may be grounded in "reasonable

inferences" drawn from "specific, articulable facts" (citation

omitted). Id. at 371. As discussed, Lewis had probable cause

to believe that the defendant was in unlawful possession of a

28

firearm. Just as Lewis reasonably could have inferred, upon

failing to find the firearm elsewhere in the vehicle, that it

was in the glove compartment, he also reasonably could have

inferred that the firearm instead was located on the defendant's

person. See Gouse, 461 Mass. at 793 ("When the firearm [that

the police had been warned the defendant likely carried] was not

found on the defendant's person, police appropriately concluded

that it was likely located in the automobile").

Moreover, Lewis was justified in removing the set of keys

from the defendant's person and using them to unlock the glove

compartment. In order to "dispel reasonable suspicions that the

stopped suspect may be armed with a weapon," an officer may

retrieve from the suspect any "hard object" that could be a

"potential weapon." See Commonwealth v. Pagan, 440 Mass. 62,

68-69 (2003). We previously have held that it is "self-evident"

that keys constitute a hard object that may be seized as a

potential weapon. See Commonwealth v. Blevines, 438 Mass. 604,

608 (2003). Lewis therefore was justified in retrieving the

defendant's keys as a means of disarming him. See Commonwealth

v. Wilson, 441 Mass. 390, 396 (2004). In addition, because

there was probable cause to believe that the firearm was in the

glove compartment, Lewis also was justified in using the keys,

once retrieved, to gain access to the interior of the glove

compartment. Contrast Blevines, supra at 609-610 (police were

29

not permitted to use keys seized from defendant during patfrisk

to unlock his vehicle because there "was no evidence that the

police had any basis for suspecting that any contraband . . .

would be found in the automobile").

b. Instruction on place of business exemption. The

defendant contends that the trial judge should have instructed

the jury that, to convict the defendant, the Commonwealth had to

prove that he was not in or on his place of business when the

firearm and magazine were discovered. This is because, the

defendant argues, whether he was in or on his place of business

at the time the firearm was seized was a question for the jury.

"Trial judges have considerable discretion in framing jury

instructions . . ." (quotation and citation omitted). See

Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). "Instructions

that convey the proper legal standard, particularly when

tracking model jury instructions, are deemed correct." Green,

petitioner, 475 Mass. 624, 629 (2016).

General Laws c. 269, § 10 (a), "makes it an offense to

'knowingly' possess a firearm outside of one's residence or

place of business without also having a license to carry a

firearm." Commonwealth v. Powell, 459 Mass. 572, 588 (2011),

cert. denied, 565 U.S. 1262 (2012). We have held that this

language exempts an individual from the requirement of obtaining

a firearms license if the location of the individual's firearm

30

is restricted to his or her residence or place of business. See

Commonwealth v. Harris, 481 Mass. 767, 780 (2019). "We treat

the existence of a statutory exemption as equivalent to an

affirmative defense." Commonwealth v. Kelly, 484 Mass. 53, 67

(2020).

While the Commonwealth carries the burden of proving each

element of a charged crime, it "has no burden of disproving an

affirmative defense unless and until there is evidence

supporting such defense." Commonwealth v. Cabral, 443 Mass.

171, 179 (2005). If a defendant raises a defense that is

"supported by sufficient evidence," however, the defendant is

"entitled to have a jury instruction" on that defense. Id.

Where a judge does not instruct the jury on an affirmative

defense, the judge errs "if the evidence, viewed in the light

most favorable to the defendant, provided support for the

affirmative defense." Kelly, 484 Mass. at 67.

The defendant does not ask us to upend our established

precedent that the place of business exemption is an affirmative

defense, and we discern no compelling reason to do so. Here,

therefore, the judge erred in not instructing on the place of

business exemption only if sufficient evidence was introduced

that the defendant was in or on his place of business when the

firearm was discovered. See Commonwealth v. Dunphy, 377 Mass.

453, 459-460 (1979) (if no evidence is provided that defendant

31

was "within the limits of his property or residence at the time

of the alleged offense . . . , it should be presumed that none

existed").7

To determine whether sufficient evidence was introduced

that the defendant was in or on his place of business, we first

must delineate the extent of the "place of business" exemption,

which we have not yet been required to address. We start by

examining the related exemption for place of residence, which we

previously have addressed. See Commonwealth v. Anderson, 445

Mass. 195, 214 (2005). We have understood the residence

exemption in accordance with the Legislature's intent to balance

an individual's interest in self-defense and the public's

interest in crime deterrence and public safety. See

Commonwealth v. Seay, 376 Mass. 735, 741-743 (1978). With these

differing interests in mind, we have reasoned that "[t]he

interest of an apartment dweller in defending him[- or

her]self . . . is clearly attenuated when he [or she] passes his

[or her] doorway to enter a common area offering easy retreat."

7 The model jury instructions on possession of a firearm

without a license outside an individual's home or business state

that, "[i]f there is evidence that [the firearm possession] was

in the defendant's residence or place of business," the judge

should instruct that one element of illegal possession of a

firearm is that "the defendant possessed the firearm outside of

his (her) residence or place of business." See Instruction

7.600 of the Criminal Model Jury Instructions for Use in the

District Court (rev. Jan. 2013).

32

Id. at 742-743. Accordingly, "[w]e have defined the term

'residence' to include" only those areas "over which the

[individual] retains exclusive control." Commonwealth v. Coren,

437 Mass. 723, 734 (2002). The residence exemption, therefore,

does not apply where a defendant possesses or controls a firearm

in the "[p]ublic streets, sidewalks, [or] common areas [of an

apartment building] to which occupants of multiple dwellings

have access." Id. Moreover, if a defendant's firearm is stored

within his or her vehicle, the residence exemption applies only

if the vehicle is located within or on the defendant's

residence. See Harris, 481 Mass. at 780.

This reasoning "applies with equal force to the exemption

for a person's place of business." See Commonwealth v. Belding,

42 Mass. App. Ct. 435, 438 (1997). An individual has an

interest in protecting his or her place of business, but that

interest is attenuated when the individual enters an area that

is not within the exclusive control of that business. See id.

See also Prince George's County v. Blue, 206 Md. App. 608, 621

(2012), aff'd, 434 Md. 681 (2013) ("The display of a weapon by a

security guard indoors could halt violence by unarmed patrons

inside the establishment. However, drawing a handgun to chase a

malefactor across a parking lot, where he or she may have a

weapon hidden in a car, invites possible battlefield-type

carnage"). Accordingly, given the Legislature's intent to

33

"protect the public from the potential danger incident to the

unlawful possession of [firearms]," a firearm located within a

parking lot falls within the place of business exemption only if

the parking lot is within the exclusive control of the business.

See Commonwealth v. Lindsey, 396 Mass. 840, 842-843 (1986). See

also Sherrod v. State, 484 So. 2d 1279, 1281 (Fla. Dist. Ct.

App. 1986) (residence exception to firearm statute was

inapplicable to individual who carried concealed weapon in "the

parking lot of a multiple unit apartment dwelling"); Blue, supra

at 623 (place of business exemption is limited to "the interior

of the business establishment"); Bryant v. State, 508 S.W.2d

103, 104 (Tex. Crim. App. 1974) (residence exception in firearm

statute was inapplicable to resident "with a pistol in his hand

in a parking lot shared by other occupants of the apartment

complex").

Applying the exclusive control standard here, we conclude

that the defendant did not introduce sufficient evidence at

trial to support an affirmative defense that the firearm was in

or on his place of business. See Anderson, 445 Mass. at 214.

Although officers testified that the vehicle was located in the

parking lot of the Store, none of this testimony supports a

determination that this parking lot was under the Store's

34

exclusive control.8 See Bryant, 508 S.W.2d at 104 (parking lot

was not within defendant's premises because "parking spaces were

not assigned to tenants and a tenant used whatever space was

available"). To the contrary, testimony was introduced that

suggested the parking lot was not within the exclusive control

of the defendant's employer. During cross-examination of Lewis,

he indicated that the parking lot in front of the Store was part

of a larger parking complex. No evidence was presented to

indicate that the Store's section of the parking complex was

cordoned off, marked with signage, or under the Store's control

in any sense. See Sherrod, 484 So. 2d at 1281 (quoting Florida

Attorney General's advisory opinion stating that exception did

not apply to "a large parking lot which serves an entire

shopping area").

The defendant also argues that, because Pieroway testified

that he had observed the defendant carrying out his job duties

while in the parking lot, the parking lot was his "place of

business." "Our primary duty in interpreting a statute is to

effectuate the intent of the Legislature in enacting it"

(quotation and citation omitted). Commonwealth v. Curran, 478

Mass. 630, 633 (2018). "Where the plain language [of a statute]

8 Given this, we need not reach the defendant's argument

that the "residence or place of business" exemption also extends

to G. L. c. 269, § 10 (m) and (n).

35

is unclear or ambiguous, we strive to discern the legislative

intent in enacting [it] 'from all its parts and from the subject

matter to which it relates, and must interpret the statute so as

to render the legislation effective, consonant with sound reason

and common sense.'" Commonwealth v. Newberry, 483 Mass. 186,

192 (2019), quoting Seideman v. Newton, 452 Mass. 472, 477

(2008). Here, the Legislature cannot have intended that one's

"place of business" be anywhere that one conducts business

activities. The residence or place of business exemption

restricts an individual's unlicensed possession of a firearm to

areas where the firearm poses a lesser degree of risk to the

public. See Seay, 376 Mass. at 742. "[T]he rule for which

[the] defendant contends," however, "would permit one to wander

[armed with a firearm] about [public areas] inhabited by

hundreds of persons simply because" one is engaged in a business

activity (citation omitted). See id. Moreover, G. L. c. 269,

§ 10 (a) (4), and G. L. c. 140, § 129C (l), (o), provide that

certain individuals are exempt from firearms licensure

requirements if they possess a firearm in the course of

particular business activities. The defendant's reading of the

statutory language would render this provision entirely

superfluous, as it would exempt any individuals who are engaged

in business activities, contrary to our long-standing canon of

statutory construction that a statute "must be construed so that

36

effect is given to all its provisions, so that no part will be

inoperative or superfluous" (quotation and citation omitted).

Commonwealth v. Keefner, 461 Mass. 507, 511 (2012).

Because no evidence was introduced at trial to support a

determination that the firearm was located in or on the

defendant's place of business, the defendant was not entitled to

an instruction on the place of business exemption.9

c. Instruction on exemption for possession of license.

The defendant also argues that his convictions should be

reversed because the jury were not instructed that, to find him

guilty of unlawful possession of a firearm, the Commonwealth had

to prove that he did not have a firearms license. Although he

did not seek such an instruction at trial, the defendant now

contends that the absence of one violated his rights to due

process and his rights under the Second Amendment.

"We do not normally consider on appeal issues that were not

fairly raised below . . . ." Commonwealth v. Hilton, 443 Mass.

597, 618 n.12 (2005), S.C., 450 Mass. 173 (2007). This rule,

however, "is not without qualification. We have excused the

failure to raise a constitutional issue at trial . . . when the

constitutional theory on which the defendant has relied was not

9 Because we conclude that there was no error, we need not

reach the Commonwealth's argument that the place of business

exemption is applicable only where the individual is the owner

or proprietor of the business.

37

sufficiently developed at the time of trial . . . to afford the

defendant a genuine opportunity to raise his claim."

Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). This

is known as the "clairvoyance exception." See Commonwealth v.

Connolly, 454 Mass. 808, 830 (2009). Here, the defendant's

argument depends upon the United States Supreme Court's holding

in Bruen, 142 S. Ct. at 2122, in which the Court established the

right to possess a firearm outside the home. The defendant's

trial took place in 2021, prior to the release of this decision.

The defendant, therefore, did not have an adequate opportunity

at the time of his trial to raise the present issue. See

Commonwealth v. Johnson, 461 Mass. 44, 54 n.13 (2011). We

therefore "conclude that the defendant is entitled" to our

review of this issue. See Commonwealth v. Hinckley, 422 Mass.

261, 266-267 (1996).

For each of the crimes of which the defendant was

convicted -- illegal possession of a firearm, illegal possession

of a large capacity feeding device, illegal possession of

ammunition, and illegal possession of a loaded firearm -- the

defendant would not have been in violation of the law if he had

obtained a proper license to engage in the proscribed activity.

See Cassidy, 479 Mass. at 532 (G. L. c. 269, § 10 [m]); Johnson,

461 Mass. at 58 (G. L. c. 269, § 10 [a], [h], [n]). Under the

current statutory regime, however, "licensure is an affirmative

38

defense, not an element of the crime." Commonwealth v. Allen,

474 Mass. 162, 174 (2016), quoting Commonwealth v. Norris, 462

Mass. 131, 145 (2012). General Laws c. 278, § 7, provides that

"[a] defendant in a criminal prosecution, relying for his [or

her] justification upon a license . . . shall prove the same;

and, until so proved, the presumption shall be that [the

defendant] is not authorized." Accordingly, this court has held

that, to convict a defendant under G. L. c. 269, § 10, "the

Commonwealth does not need to present evidence to show that the

defendant did not have a license or firearm identification

card." Colon, 449 Mass. at 226. Rather, as is the case for the

place of business exemption, "the burden [has been] on the

defendant to come forward with . . . evidence" that he or she

has a license to possess a firearm (quotation and citation

omitted). Id. Once the defendant does so, the burden then

shifts to the Commonwealth "to persuade the trier of facts

beyond a reasonable doubt that the [license] does not exist."

Commonwealth v. Humphries, 465 Mass. 762, 769 (2013), quoting

Gouse, 461 Mass. at 802.

As discussed, States may place "on defendants the burden of

proving affirmative defenses." Gouse, 461 Mass. at 804, quoting

Gilmore v. Taylor, 508 U.S. 333, 341 (1993). The due process

clause of the Fourteenth Amendment, however, "requires the

Commonwealth to prove every essential element of the offense

39

beyond a reasonable doubt." Commonwealth v. Brown, 477 Mass.

805, 815 (2017), cert. denied, 139 S. Ct. 54 (2018), quoting In

re Winship, 397 U.S. 358, 364 (1970). "Instructions to the jury

that would lead them to believe otherwise are constitutional

error." Commonwealth v. Cruz, 456 Mass. 741, 752 (2010).

Hence, while an affirmative defense may "excuse[] conduct that

would otherwise be punishable," it may not "controvert any of

the elements of the offense itself." Smith v. United States,

568 U.S. 106, 110 (2013), quoting Dixon v. United States, 548

U.S. 1, 6 (2006). Otherwise put, "an affirmative defense may

not, in operation, negate an element of the crime which the

government is required to prove." United States v. Johnson, 968

F.2d 208, 213 (2d Cir.), cert. denied, 506 U.S. 964 (1992).

Thus, to address the defendant's argument, we must

determine whether, since the United States Supreme Court's

decision in Bruen, 142 S. Ct. at 2122, the failure to obtain a

valid firearms license is now an essential element of unlawful

possession of a firearm. If so, the defendant's rights to due

process were violated when the judge placed upon him the onus of

presenting evidence of licensure, and we must reverse his

convictions. See Walton v. Arizona, 497 U.S. 639, 650 (1990)

(State cannot allocate burden of proof in way that "lessen[s]

the State's burden to prove every element of the offense

charged"); Commonwealth v. Mills, 436 Mass. 387, 398 (2002) ("A

40

criminal conviction cannot be affirmed on appeal where the jury

were not instructed on the elements of the theory of the

crime").

In answering this question, we cannot simply look to the

plain statutory language. If, through amending statutory

language, the Legislature were able to determine which elements

of a crime the Commonwealth would be required to prove, it

"could undermine [due process] without effecting any substantive

change in its law." See Mullaney v. Wilbur, 421 U.S. 684, 698

(1975). Rather, we must engage in "an analysis that looks to

the 'operation and effect of the law as applied and enforced by

the [Commonwealth],' . . . and to the interests of both the

[Commonwealth] and the defendant as affected by the allocation

of the burden of proof." Id. at 699, quoting St. Louis S.W. Ry.

v. Arkansas, 235 U.S. 350, 362 (1914).

For instance, in Commonwealth v. Munoz, 384 Mass. 503, 503

(1981), the defendant was convicted of operating an uninsured

motor vehicle. The judge had instructed the jury that "the

defendant has the responsibility and the obligation of showing

that, as a matter of fact, [the vehicle he was operating] was

insured." Id. at 505. The Commonwealth argued that this

instruction was correct, "because G. L. c. 278, § 7, which

places the burden on the defendant to produce evidence of

license or authority," implied that the defendant bore the

41

"burden of producing some evidence of automobile insurance."

Id. at 506. We concluded that G. L. c. 278, § 7, did not apply

to the crime of operating an uninsured vehicle, as "noninsurance

is an element, in fact, the central element of [such] a

prosecution." Id. at 507. Accordingly, because "insurance is

an element of the crime charged, not a mere license or

authority[,] . . . the issue of insurance cannot be viewed as an

affirmative defense and, [therefore], it cannot be removed from

jury consideration." Id. at 507. Thus, obtaining a conviction

required the Commonwealth to prove beyond a reasonable doubt

that the vehicle was uninsured. Id. at 508. See Cabral, 443

Mass. at 179 ("Because the absence of lawful authority or

justification is an element of each of the crimes charged, the

Commonwealth must prove beyond a reasonable doubt that each

defendant acted without lawful authority or justification").

In Gouse, 461 Mass. at 801-802, we held that licensure is

not an essential element of unlawful possession of a firearm.

We reasoned, rather, that under G. L. c. 269, § 10 (a), and

G. L. c. 278, § 7, the "holding of a valid license brings the

defendant within an exception to the general prohibition against

carrying a firearm." Id. at 802, quoting Commonwealth v. Jones,

372 Mass. 403, 406 (1977). That decision followed two United

States Supreme Court decisions in which the Court ruled on the

extent of the protections provided by the Second Amendment. In

42

Heller, 554 U.S. at 635, the Court held that the Second

Amendment protects the right to possess an operable firearm in

the home. Then, in McDonald v. Chicago, 561 U.S. 742, 750

(2010), the Court held that the "Second Amendment Right is fully

applicable to the States." The defendant in Gouse, supra at

801, argued that "the allocation of burdens under [G. L. c. 278,

§ 7,] contravenes the [United States Supreme Court's] holdings

[in] McDonald and Heller by permitting a presumption of

criminality from constitutionally protected conduct -- the

possession of a firearm." We concluded that Heller and McDonald

established only a "right 'to possess a handgun in the home for

the purpose[] of self-defense.'" Gouse, supra at 801, quoting

McDonald, supra at 791. The prohibition against possessing a

firearm outside the home therefore "[did] not implicate this

right." Gouse, supra at 802. Therefore, requiring that a

defendant who was charged with unlawful possession outside the

home "produce some evidence of a license at trial -- and

recognizing a consequent presumption of unauthorized possession

where [the defendant] fails to do so -- [did] not infringe on

constitutionally protected conduct." Id.

Since our decision in Gouse, 461 Mass. at 807-808, the

United States Supreme Court has determined that the Second

Amendment right to possess a firearm applies outside the home.

See Bruen, 142 S. Ct. at 2134. In Bruen, supra at 2122, 2134,

43

the Court concluded that the Second Amendment's protection of

"the individual right to possess and carry weapons in case of

confrontation" requires that one have a "right to carry handguns

publicly" (citation omitted). The Court reasoned that "the

Second Amendment guarantees an 'individual right to possess and

carry weapons in case of confrontation,' and confrontation can

surely take place outside the home." Id. at 2135, quoting

Heller, 554 U.S. at 592.

In the wake of Bruen, this court's reasoning in Gouse, 461

Mass. at 802, is no longer valid. It is now incontrovertible

that a general prohibition against carrying a firearm outside

the home is unconstitutional. See Bruen, 142 S. Ct. at 2134.

Because possession of a firearm outside the home is

constitutionally protected conduct, it cannot, absent some

extenuating factor, such as failure to comply with licensing

requirements, be punished by the Commonwealth. See id. at 2122-

2123. Accordingly, the absence of a license is necessary to

render a defendant's possession of a firearm "punishable." See

Smith, 568 U.S. at 110, quoting Dixon, 548 U.S. at 6.

(affirmative defense does not negate element of crime where it

"excuse[s] conduct that would otherwise be punishable"). It

follows, then, that failure to obtain a license is a "fact

necessary to constitute" the crime of unlawful possession of a

44

firearm. See Smith, supra, quoting In re Winship, 397 U.S.

at 364.

We therefore conclude that the absence of a license is an

essential element of the offense of unlawful possession of a

firearm pursuant to G. L. c. 269, § 10 (a). General Laws

c. 278, § 7, which provides that licensure is an affirmative

defense, is no longer applicable to G. L. c. 269, § 10 (a). See

Munoz, 384 Mass. at 506, quoting Jones, 372 Mass. at 405 (G. L.

c. 278, § 7, applies only "to situations where '[a]s [a] matter

of statutory construction, the prohibition is general, the

license is exceptional'"). Rather, to convict a defendant of

unlawful possession of a firearm, the Commonwealth must prove

"as an element of the crime charged" that the defendant in fact

failed to comply with the licensure requirements for possessing

a firearm. See Munoz, supra at 507.

The District of Columbia Court of Appeals employed similar

reasoning in Herrington v. United States, 6 A.3d 1237, 1239-1240

(D.C. 2010), a case that was cited with approval in Gouse, 461

Mass. at 802. In that case, the defendant's conviction of

unlawful possession of ammunition "was based solely on evidence

that he possessed handgun ammunition in his home." Herrington,

supra at 1239. Under the relevant statute, the defendant had

the burden of establishing that he had complied with "valid

registration and licensing requirements." Id. at 1241-1242.

45

The court determined that the statute was unconstitutional under

the due process clause and the Second Amendment, because

"[w]here the Constitution -- in this case, the Second

Amendment -- imposes substantive limits on what conduct may be

defined as a crime, a [L]egislature may not circumvent those

limits by enacting a statute that presumes criminality from

constitutionally-protected conduct and puts the burden of

persuasion on the accused to prove facts necessary to establish

innocence." Id. at 1244.

Here, as stated, the jury convicted the defendant of

unlawful possession of a firearm without being instructed that,

to do so, they must have determined that the defendant did not

have a firearms license. See Neder v. United States, 527 U.S.

1, 10 (1999) ("improperly omitting an element from the

jury . . . precludes the jury from making a finding on the

actual element of the offense" [emphasis in original]). As a

result, the defendant was convicted of a crime solely on the

ground that he had engaged in the constitutionally protected

conduct of possessing a firearm in public. This violated the

defendant's rights to due process and rights under the Second

Amendment. See Montana v. Egelhoff, 518 U.S. 37, 54 (1996),

citing In re Winship, 397 U.S. at 364.

The Commonwealth argues that the defendant's due process

rights were not violated because the Second Amendment does not

46

prevent the States from imposing licensing requirements on the

possession of firearms. See Bruen, 142 S. Ct. at 2157 (Alito,

J., concurring) ("Our holding decides nothing about who may

lawfully possess a firearm or the requirements that must be met

to buy a gun"). The Second Amendment certainly does not

"imperil every law regulating firearms." See Powell, 459 Mass.

at 586, quoting McDonald, 561 U.S. at 786. The issue we

confront here, however, is the burden of proof that must

accompany such laws. The Commonwealth may impose licensing

requirements upon the possession of firearms, but in enforcing

those requirements, it must prove beyond a reasonable doubt that

a defendant failed to comply with them. See Herrington, 6 A.3d

at 1245.

The Commonwealth also points to our language in

Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011), where we

said that "[n]othing in the McDonald and Heller decisions has

altered or abrogated the state of the law concerning the

statutory presumption set forth in G. L. c. 278, § 7." The

Commonwealth asserts that, if McDonald and Heller did not alter

the state of the law concerning the burden of proof regarding

proper licensure, then Bruen does not either. In Loadholt,

supra at 726-727, however, we stated that we would "not address

the defendant's claims that . . . G. L. c. 278, § 7, creates an

unconstitutional presumption," because "[t]he defendant did not

47

raise these arguments at trial or in his original brief on

direct appeal" (footnote omitted). See Commonwealth v. Mathews,

450 Mass. 858, 871 (2008) (discounting dicta as precedent).

In addition, we cannot abandon the requirement that the

Commonwealth prove each essential element of a crime simply

because obtaining a conviction would be "a heavy burden for the

prosecution to satisfy." See Mullaney, 421 U.S. at 701. In

Gouse, 461 Mass. at 806, we noted that it would be a "daunting

task" for the Commonwealth to prove beyond a reasonable doubt

that a defendant had no such license. We reasoned that, "[o]n

the other hand, placing the onus on the defendant to produce

some evidence at trial that he was licensed to carry a firearm

would involve the very simple task of produc[ing] that slip of

paper indicating [such authorization]" (quotations and citations

omitted). Id. As we indicated, however, this reasoning is not

applicable where the Second Amendment requires that licensure is

an essential element of the crime. See id. at 801-802. The

Commonwealth's burden of proving the essential element of a

crime "cannot be altered because of any difficulty the

Commonwealth may have in proving [the element] as compared to

the relative ease with which the defendant could prove [its

negative]." See Munoz, 384 Mass. at 509-510.

The defendant argues that licensure is also an essential

element of the crime of unlawful possession of ammunition under

48

G. L. c. 269, § 10 (h). We agree. In Heller, 554 U.S. at 630,

the United States Supreme Court concluded that a requirement

that firearms kept in the home "be rendered and kept inoperable

at all times" violated the Second Amendment, because the

requirement made it "impossible for citizens to use [their

firearms] for the core lawful purpose of self-defense." A

general prohibition on ammunition similarly would render it

impossible for citizens to use their firearms for purposes of

self-defense; in the absence of ammunition, a firearm is

effectively inoperable. See United States v. Miller, 307 U.S.

174, 179-180 (1939) (citing Seventeenth Century commentary on

gun use in America that "[t]he possession of arms also implied

the possession of ammunition"). See, e.g., Association of N.J.

Rifle & Pistol Clubs v. Attorney Gen. N.J., 910 F.3d 106, 116

(3d Cir. 2018), quoting Jackson v. City & County of San

Francisco, 746 F.3d 953, 967 (9th Cir. 2014), cert. denied, 576

U.S. 1013 (2015) ("Regulations that eliminate 'a person's

ability to obtain or use ammunition could thereby make it

impossible to use firearms for their core purpose'"); Jackson,

supra, quoting Ezell v. Chicago, 651 F.3d 684, 704 (7th Cir.

2011) ("'the right to possess firearms for protection implies a

corresponding right' to obtain the bullets necessary to use

them"); Herrington 6 A.3d at 1243 ("from the Court's reasoning

[in Heller], it logically follows that the right to keep and

49

bear arms extends to the possession of handgun ammunition").

Because a general prohibition on ammunition would violate the

Second Amendment, the reasoning that we have applied to G. L.

c. 269, § 10 (a), must apply as well to G. L. c. 269, § 10 (h).

Accordingly, we conclude that the defendant's rights under the

Second Amendment and his rights to due process were violated

when he was convicted of unlawfully possessing ammunition

although the jury were not instructed that licensure is an

essential element of the crime.

Nonetheless, we decline the defendant's suggestion that we

extend this holding to the crime of unlawful possession of a

large capacity feeding device. See G. L. c. 269, § 10 (m). We

previously have held that G. L. c. 140, § 131M, a statute that

proscribes possession of large capacity feeding devices, "is not

prohibited by the Second Amendment, because the right [to bear

arms] 'does not protect those weapons not typically possessed by

law-abiding citizens for lawful purposes.'" Cassidy, 479 Mass.

at 540, quoting Heller, 554 U.S. at 625. See Worman v. Healey,

922 F.3d 26, 30, 40 (1st Cir. 2019), cert. denied, 141 S. Ct.

109 (2020) ("Massachusetts law proscribing the sale, transfer,

and possession of certain semiautomatic assault weapons and

large-capacity magazines" does not violate Second Amendment).

Accordingly, we conclude that the defendant was not entitled to

50

an instruction that licensure is an essential element of

unlawful possession of a large capacity feeding device.

Finally, we conclude that our holding here should not be

applied retroactively to convictions that became final prior to

the United States Supreme Court's decision in Bruen, 142 S. Ct.

at 2122. "The retroactivity of a constitutional rule of

criminal procedure turns on whether the rule is 'new' or 'old.'"

See Commonwealth v. Perry, 489 Mass. 436, 463 (2022), quoting

Commonwealth v. Ashford, 486 Mass. 450, 457 (2020). A case

"announces a new rule if the result was not dictated by

precedent existing at the time the defendant's conviction became

final" (emphasis in original). Commonwealth v. Bray, 407 Mass.

296, 301 (1990), quoting Teague v. Lane, 489 U.S. 288, 301

(1989). The rule we announce today is dictated by the Court's

decision in Bruen. Accordingly, our holding applies

prospectively and to those cases that were active or pending on

direct review as of the date of the issuance of that decision.

See Perry, supra at 464.

3. Conclusion. The defendant's convictions on the

indictments charging unlawful possession of a firearm, unlawful

possession of ammunition, and unlawful possession of a loaded

firearm are vacated and set aside, and the matter is remanded to

the Superior Court for entry of judgments of not guilty on those

indictments. The defendant's conviction on the indictment

51

charging unlawful possession of a large capacity feeding device

is affirmed.

So ordered.

LOWY, J. (concurring, with whom Georges, J., joins). I

agree with the court's reasoning and its conclusion that, in

light of the United States Supreme Court's decision in New York

State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), a

defendant's lack of a valid firearms license must be treated as

an essential element of the offense of unlawful possession of a

firearm pursuant to G. L. c. 269, § 10 (a), which the

Commonwealth must prove beyond a reasonable doubt as part of its

case-in-chief.

I write separately to address certain evidentiary issues

concerning the admissibility of firearms licensing records that

will likely arise in pending and future cases as a result of

this ruling. I recognize that the issues I discuss here have

not been directly addressed in the record or the arguments in

this case; nor have the issues been vetted by the full court.

Accordingly, everything that I suggest will need to be tested

and refined in the crucible of future litigation or rulemaking.

Nevertheless, given the high volume of cases involving charges

for unlicensed possession of a firearm or ammunition that are

handled by our courts,1 I venture these suggestions to offer some

guidance.

1 According to data published by the Trial Court's

Department of Research and Planning, in fiscal year 2022, over

6,000 charges for carrying a firearm without a license, carrying

2

In general, as I explain in further detail infra, properly

authenticated firearms licensing records that have been made and

kept in the normal course of an agency's affairs should

ordinarily be admissible under the official records and business

records exceptions to the rule against hearsay. The admission

of these records should not ordinarily violate a defendant's

rights under confrontation clause2 of the Sixth Amendment to the

United States Constitution because such records were not "made

with the primary purpose of creating an out-of-court substitute

for trial testimony" (quotation and citation omitted).

Commonwealth v. Rand, 487 Mass. 811, 815 (2021). Indeed,

depending on how the records are kept, and the witness's level

of familiarity with the records, it may well be that the absence

of the defendant's name from such records would constitute prima

facie evidence of a lack of a license.

a loaded firearm without a license, and possession of a firearm

or ammunition without a firearm identification card, in

violation of G. L. c. 269, § 10, were filed in the District

Court and Boston Municipal Court, and over 2,400 such

indictments were returned in the Superior Court. See https:

//public.tableau.com/app/profile/drap4687/viz/MassachusettsTrial

CourtChargesDashboard/AllCharges [https://perma.cc/25AT-JY2V].

2 See Sixth Amendment to the United States Constitution ("In

all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him . . .");

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (Sixth

Amendment applies to States via Fourteenth Amendment of United

States Constitution). See also art. 12 of the Massachusetts

Declaration of Rights ("every subject shall have a right . . .

to meet the witnesses against him face to face").

3

Agency certificates or affidavits stating that there is no

record of a firearms license issued to a defendant, unlike

agency lists, are more problematic. Although such certificates

of the nonexistence of an official record are admissible under

an exception to the rule against hearsay, their admission at

trial without a testifying witness from the agency responsible

for keeping such records, and who is familiar with how the

records are kept, made, and stored, will likely be deemed a

violation of a defendant's rights under the confrontation

clause.

1. Records of firearms licensing. "In Massachusetts,

local police departments are responsible for the issuance of

firearms licenses to individuals who reside or have a place of

business within the jurisdiction." Commonwealth v. Adams, 482

Mass. 514, 531 (2019).3 Local police departments are required to

3 "Most licenses are issued by municipal police departments.

The State Police issues Gun Club Licenses and is also

responsible for Licenses to Carry for active and retired

troopers. The Firearms Records Bureau issues non-resident

licenses and resident alien permits." Executive Office of

Public Safety and Security, Data About Firearms Licensing and

Transactions, https://www.mass.gov/info-details/data-about-

firearms-licensing-and-transactions [https://perma.cc/L7SE

-FFJK]. See G. L. c. 140, § 121 (defining "licensing authority"

as "the chief of police or the board or officer having control

of the police in a city or town, or persons authorized by

them"); G. L. c. 140, § 129B (1) ("Any person residing or having

a place of business within the jurisdiction of the licensing

authority . . . may submit to the licensing authority an

application for a firearm identification card, or renewal of the

4

make certain records regarding firearms licenses and to forward

copies of applications, issued licenses, and notices of

revocation and suspension to the Department of Criminal Justice

Information Services, where those records are collected by the

firearms records bureau.4

same . . ."); G. L. c. 140, § 131 (d) ("A person residing or

having a place of business within the jurisdiction of the

licensing authority . . . may submit to the licensing authority

or the colonel of state police an application for a license to

carry firearms, or renewal of the same").

4 See Commonwealth v. Gouse, 461 Mass. 787, 805 (2012)

(local police departments required to record all issued licenses

and notify Department of Criminal Justice Information Services);

G. L. c. 140, § 129B (4) ("Notices of revocation and suspension

shall be forwarded to the commissioner of the department of

criminal justice information services and the commissioner of

probation and shall be included in the criminal justice

information system"); G. L. c. 140, § 129B (13) ("Upon issuance

of a firearm identification card under this section, the

licensing authority shall forward a copy of such approved

application and card to the executive director of the criminal

history systems board . . ."); G. L. c. 140, § 131 (f) ("Notices

of revocation and suspension shall be forwarded to the

commissioner of the department of criminal justice information

services and the commissioner of probation and shall be included

in the criminal justice information system"); G. L. c. 140,

§ 131 (n) ("Upon issuance of a license to carry or possess

firearms under this section, the licensing authority shall

forward a copy of such approved application and license to the

commissioner of the department of criminal justice information

services . . ."); Municipal Records Retention Schedule (updated

Sept. 1, 2022), at 89, https://www.sec.state.ma.us/arc/arcpdf

/Municipal_Retention_Schedule_20220901.pdf [https://perma.cc

/C9TT-7N53] (providing for retention by municipalities of

firearm identification cards and license to carry applications

until superseded); Executive Office of Public Safety and

Security, Data about Firearms Licensing and Transactions,

https://www.mass.gov/info-details/data-about-firearms-licensing-

and-transactions#license-applications-&-active-licenses

5

2. Admissibility under exceptions to the rule against

hearsay. If properly authenticated, firearms licensing records

like those described supra would likely qualify for admission

under the "official records" exception to the rule against

hearsay. See G. L. c. 233, § 76; Mass. R. Crim. P. 40 (a), 378

Mass. 917 (1979); Mass. G. Evid. § 803(8)(A) (2022). The

Reporter's Notes to Mass. R. Crim. P. 40 (a) define "official

records" as "including records of any governmental entity, . . .

and more particularly as 'all documents prepared by public

officials pursuant to a duty imposed by law or required by the

nature of their offices'" (citation omitted).

Firearms licensing records may also be admissible under the

business records exception to the rule against hearsay, where

the records have been made in good faith in the regular course

of business before the beginning of the proceeding in which they

are offered and it was the regular course of the agency to make

such records at the time of the transaction or within a

reasonable time thereafter. See G. L. c. 233, § 78;

[https://perma.cc/MS43-M2XW] ("The Firearms Records Bureau is

the Commonwealth's repository for all firearms license and

transaction data. . . . Massachusetts's electronic license

check system . . . is updated by police departments, which

process license applications and update license statuses, and by

firearms dealers, who enter records of their transactions");

Firearms Records Bur. v. Simkin, 466 Mass. 168, 168 n.2 (2013)

(firearms records bureau is part of Department of Criminal

Justice Information Services).

6

Commonwealth v. Fulgiam, 477 Mass. 20, 39-42, cert. denied, 138

S. Ct. 330 (2017) (ten-print fingerprint cards made by police

were properly admissible under business records exception); id.

at 47 (Lowy, J., concurring); Mass. G. Evid. § 803(6)(A).

The exceptions to the rule against hearsay and the rules of

criminal procedure also permit the absence of a firearms license

in the defendant's name to be shown by an authenticated written

statement from the legal custodian of the firearms licensing

records, or a deputy, that after diligent search, no record

could be found of a valid firearms license issued in the name of

the defendant at the time of the offense. See Mass. R. Crim. P.

40 (b), 378 Mass. 917 (1979) (properly authenticated "written

statement that after diligent search no record or entry of a

specified tenor is found to exist in the records designated by

the statement . . . is admissible as evidence that the records

contain no such record or entry"); Mass. G. Evid. § 803(10)

("certification under [§] 902 . . . that a diligent search

failed to disclose a public record or statement is admissible in

evidence if the testimony or certification is offered to prove

that [A] the record or statement does not exist, or [B] a matter

did not occur or exist, if a public office regularly kept a

record or statement for a matter of that kind"); Mass. G. Evid.

§ 902(b) ("An official record kept within the Commonwealth, or

an entry therein, when admissible for any purpose, may be

7

evidenced . . . by a copy attested by the officer having legal

custody of the record, or by that officer's deputy").5

Finally, I note that under the exceptions to the rule

against hearsay, witness testimony may also suffice to show the

absence of an official record, such as the record of a firearms

license, as provided in Mass. G. Evid. § 803(10). Care should

be taken in relying on such testimony alone for at least two

reasons: (1) there must be an adequate foundation for the

witness's testimony explaining his or her sufficient familiarity

with how the record was created, maintained, and accessed; and

(2) insofar as the witness testifies as to the contents of

computer-stored records, those records may constitute hearsay.

See Commonwealth v. Royal, 89 Mass. App. Ct. 168, 169-173 (2016)

(State police trooper's testimony that he checked motor vehicle

5 Technically, a statement as to the nonexistence of an

agency record is not hearsay, because it does not involve an

out-of-court assertion:

"As a general rule, silence is not classified as hearsay.

Logically, therefore, the absence of an entry in a public

record should not be considered hearsay when offered for

that purpose, and should be admissible over a hearsay

objection as a basis to infer that the event did not occur

or the condition did not exist."

5 C.S. Fishman & A. Toomey McKenna, Jones on Evidence § 34:54

(7th ed. 2023). Nevertheless, to avoid any confusion, the

drafters of the Federal Rules of Evidence treated testimony or

certifications concerning the nonexistence of a public record as

an exception to the rule against hearsay, see id., and the

Massachusetts Guide to Evidence has taken the same approach.

8

registry database and defendant's license was listed as

suspended was inadmissible hearsay because such records were

computer-stored, but "the Commonwealth could have proved the

element of license suspension without implicating the rule

against hearsay if it had introduced a properly certified copy

of a registry driving history record showing that the

defendant's license had been suspended").

3. Admissibility under confrontation clause. The fact

that a firearms licensing record, or a certificate attesting to

the nonexistence of such a record, may be admissible under

exceptions to the rule against hearsay does not suffice to show

that the record or certificate of its nonexistence can also meet

the distinct requirements of the confrontation clause in a

criminal case. See Commonwealth v. Greineder, 464 Mass. 580,

585 n.4, cert. denied, 571 U.S. 865 (2013) ("There is an

important distinction between satisfying the mandates of common-

law evidentiary rules and satisfying the mandates of the

confrontation clauses of the Federal and State Constitutions.

In criminal cases, out-of-court statements are only admissible

if they satisfy both; failure to satisfy either the applicable

rules of evidence or the Federal and State Constitutions will

result in the exclusion of evidence").

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the

United States Supreme Court held that the petitioner's rights

9

under the confrontation clause were violated where sworn written

certificates from State laboratory analysts, describing the

substance seized from the petitioner as cocaine, were admitted

in lieu of live testimony at the petitioner's trial on charges

of cocaine distribution and trafficking. See id. at 308-311,

329. In reaching this conclusion, the Court reasoned:

"Business and public records are generally admissible

absent confrontation not because they qualify under an

exception to the hearsay rules, but because -- having been

created for the administration of an entity's affairs and

not for the purpose of establishing or proving some fact at

trial -- they are not testimonial. Whether or not they

qualify as business or official records, the analysts'

statements here -- prepared specifically for use at

petitioner's trial -- were testimony against petitioner,

and the analysts were subject to confrontation under the

Sixth Amendment."

Id. at 324. Thus, the critical question, for purposes of

determining whether admission of an agency record violates the

confrontation clause, is whether the record was created in the

normal course of the agency's affairs, or whether it is

"testimonial," that is, whether it was created for the purpose

of proving some fact at trial.

It is also noteworthy that the Melendez-Diaz Court cited a

line of cases where "the prosecution sought to admit in[]

evidence a clerk's certificate attesting to the fact that the

clerk had searched for a particular relevant record and failed

to find it." Id. at 323. In those cases, the Court indicated,

the clerk's statement was testimonial in effect because it

10

"would serve as substantive evidence against the defendant whose

guilt depended on the nonexistence of the record for which the

clerk searched," and consequently "the clerk was . . . subject

to confrontation." Id.6

In accord with Melendez-Diaz, this court has held that the

admission of documents at trial that were made contemporaneously

with the underlying event in the regular course of a business's

or an agency's affairs does not violate the confrontation clause

because such documents are not testimonial. See, e.g., Fulgiam,

477 Mass. at 43 (admission of ten-print fingerprint cards made

by State police did not violate confrontation clause);

Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011)

(admission of passenger manifest and ticket inquiry made by

airline did not violate confrontation clause).

But where a document is subsequently created by an agency

to establish a fact at trial, this court has held that it is

testimonial and its admission violates the confrontation clause,

even though the document is based on preexisting agency records.

For example, in Commonwealth v. Parenteau, 460 Mass. 1 (2011),

6 Later that year, the Supreme Court also vacated a decision

of the United States Court of Appeals for the Ninth Circuit,

which had held that a clerk's certificate as to the nonexistence

of a record was not testimonial, and remanded the case "for

further consideration in light of Melendez-Diaz." See United

States v. Norwood, 555 F.3d 1061, 1066 (9th Cir.), vacated and

remanded, 558 U.S. 983 (2009). See also United States v.

Norwood, 595 F.3d 1025, 1030 (9th Cir. 2010) (on remand).

11

where the defendant had been charged with driving after his

license had been revoked, this court held that the admission of

a certificate from the registry of motor vehicles created after

the defendant's arrest and attesting that a notice of license

revocation had been mailed to the defendant violated the

confrontation clause where it was presented at the defendant's

trial to prove that he had received notice of the revocation

without any other testimony from the registry. See id. at 2-3.

The court noted that the actual notice of the defendant's

license revocation constituted a business record that had been

made and kept in the ordinary course of the registry's affairs,

but it did not show that the notice actually had been mailed on

the date when it was created. See id. at 10. If the registry

had made a contemporaneous record of the mailing as part of the

administration of its regular business affairs, then it would

have been properly admissible at the defendant's trial. But the

registry certificate that was presented at trial was dated two

years later, three months before the trial. The court therefore

concluded that it had been created for the purpose of

establishing an essential fact at trial and did not constitute a

nontestimonial business record. See id.

Since Melendez-Diaz, this court has not had occasion to

consider whether admission of a certificate as to the

nonexistence of a record would violate the confrontation clause,

12

but a number of other courts have. Most pertinently for

purposes here, the Supreme Court of New Jersey has held that,

where a defendant was tried on various gun charges, his

confrontation right was violated by the admission of an

affidavit from a nontestifying witness attesting that a search

of the State's firearm registry database produced no evidence

that a handgun permit had been issued to the defendant. See

State v. Carrion, 249 N.J. 253, 263-264, 272-274 (2021). The

court observed that, although the underlying firearm license

database was not itself testimonial in character, the creation

of a document attesting to a search of that database for the

purpose of prosecuting the defendant was. Id. at 272. The

defendant's confrontation right was violated because, "[w]ith

only the affidavit, and with no opportunity to question the

officer knowledgeable about how the search of the database was

performed, [the defendant] could not explore whether the officer

used the correct date of birth, name, or other identifying

information such as a [S]ocial [S]ecurity number in order to

generate a correct search of the database, and what information

that search produced." Id. at 272. Other courts have similarly

held since Melendez-Diaz that the confrontation clause is

violated by the admission in a criminal trial of an affidavit

attesting to the nonexistence of a record without testimony from

13

a witness.7 This case law indicates that admission of an

affidavit stating that a diligent search of the firearms records

did not disclose any record in the name of a defendant would

likely violate the confrontation clause if presented without

testimony from a witness.

Instead, to meet the requirements of the confrontation

clause, the Commonwealth would likely have to present a witness

who actually undertook a search of the firearms licensing

records and determined that the defendant lacked a license. As

7 See, e.g., Government of Virgin Islands v. Gumbs, 426 Fed.

Appx. 90, 93–94 (3d Cir. 2011), cert. denied, 565 U.S. 1125

(2012) (lower court erred in admitting certificate as to

nonexistence of gun license without affording defendant

opportunity to confront person who prepared certificate); United

States v. Orozco-Acosta, 607 F.3d 1156, 1161 n.3 (9th Cir.

2010), cert. denied, 562 U.S. 1154 (2011) (overruling prior

decisions that had held that certificates of nonexistence of

records were not testimonial because those decisions were

inconsistent with Melendez-Diaz); United States v. Martinez-

Rios, 595 F.3d 581, 586-587 (5th Cir. 2010) (admission of

certificate of nonexistence of record, which indicated that

defendant had not received consent to reenter United States,

violated defendant's confrontation right where no testimony was

presented from analyst who conducted records search); Tabaka v.

District of Columbia, 976 A.2d 173, 175-176 (D.C. 2009)

(department of motor vehicles certificate that its records

revealed no evidence of operator's permit having been issued to

appellant was testimonial and therefore inadmissible over

objection without corresponding testimony by official who had

performed search); Washington v. State, 18 So. 3d 1221, 1223-

1224 (Fla. Dist. Ct. App. 2009) (certificate of contractor's

nonlicensure was testimonial, and its admission violated his

confrontation rights); State v. Jasper, 174 Wash. 2d 96, 113-116

(2012) ("A substantial majority of courts have held since

Melendez-Diaz that clerk certifications attesting to the

nonexistence of a public record are testimonial statements

subject to confrontation"; citing cases and following suit).

14

the court pointed out in Carrion, the confrontation clause was

violated in that case because the defendant was not given an

"opportunity to question the officer knowledgeable about how the

search of the database was performed." Carrion, 249 N.J. at

272. See Bullcoming v. New Mexico, 564 U.S. 647, 661-663 (2011)

(surrogate testimony by analyst who did not actually perform

blood alcohol test did not meet requirements of confrontation

clause); Commonwealth v. Sullivan, 478 Mass. 369, 376-377 (2017)

(evidence that deoxyribonucleic acid [DNA] profile extracted

from crime scene matched defendant's DNA in national database

was improperly admitted hearsay because those responsible for

conducting database testing did not testify and were not subject

to cross-examination).8

This is not to say, however, that the testifying witness

8

must necessarily be the same person who conducted the original

search of the firearms licensing records that led to the charge

against the defendant. See United States v. Soto, 720 F.3d 51,

59 n.5 (1st Cir.), cert. denied, 571 U.S. 930 (2013), citing

Bullcoming, 564 U.S. at 666, 674 ("In part IV of the Supreme

Court's Bullcoming opinion, joined only by Justice Scalia,

Justice Ginsburg observed that the [S]tate could have avoided a

Sixth Amendment violation when it realized that the original

scientist was unavailable to testify 'by asking [the testifying

analyst] to retest the sample, and then testify to the results

of his retest rather than to the results of a test he did not

conduct or observe.' . . . Justice Kennedy, with Chief Justice

Roberts, Justice Breyer, and Justice Alito, in dissent,

concluded that testimony from a knowledgeable lab representative

is sufficient under the Sixth Amendment. . . . Thus, it appears

that six justices would find no Sixth Amendment violation when a

second analyst retests evidence and testifies at trial about her

conclusions about her independent examination").

15

For example, testimony from a representative from the

firearms records bureau or a police officer, who is familiar

with the firearms licensing records and how they are kept, and

who undertook a search of those records and did not find a

license in the defendant's name, might well meet the

requirements of the confrontation clause. Whether such a

witness is qualified to testify about the search is a

preliminary question for the trial judge to decide. See Mass.

G. Evid. § 104(a).

On the other hand, the admission of properly authenticated

copies of preexisting firearms licensing records that were made

and kept in the ordinary course of business would not violate

the confrontation clause, because they are not testimonial.

Such records might be used, for example, to show that a

defendant's name did not appear in the record, that a

defendant's firearms license application was denied, or that the

license was suspended or revoked, or that it expired.

It is also conceivable, depending on how the records are

compiled, or may be compiled in the future in response to this

court's decision today, that a copy of an excerpted alphabetical

list of firearms licenses might reveal the absence of a license

held by a defendant. Moreover, depending on how such records

are complied, such a list may constitute prima facie evidence

that the defendant is not licensed to carry a firearm.

16

In a criminal case in the Commonwealth, "[p]rima facie

evidence means that proof of the first fact [(basic fact)]

permits, but does not require, the fact finder, in the absence

of competing evidence, to find that the second fact [(resultant

fact)] is true beyond a reasonable doubt." Mass. G. Evid.

§ 302. " Where there is contrary evidence, the first fact

continues to constitute some evidence of the fact to be proved,

remaining throughout the trial probative on issues to which it

is relevant." Id. Put another way, "[i]n criminal cases, when

evidence 'A' is prima facie evidence of fact 'B,' then, in the

absence of competing evidence, the fact finder is permitted but

not required to find 'B' beyond a reasonable doubt."

Commonwealth v. Maloney, 447 Mass. 577, 581 (2006). "The

designation of prima facie evidence in this context is

'structurally the same as' a 'permissive inference'" that

"satisfies the Commonwealth's burden of production as to one or

more elements of a crime." Commonwealth v. Littles, 477 Mass.

382, 386 (2017), quoting Commonwealth v. Pauley, 368 Mass. 286,

293-293 (1975). I recognize that most, if not all, prima facie

designations in the criminal context in the Commonwealth are a

creation of statute. See Mass. G. Evid. § 302(c) note.9 And of

9 "There are numerous statutes that designate certain

evidence as having prima facie effect. See, e.g., G. L. c. 22C,

§ 39 (certificate of chemical analysis of narcotics); G. L.

17

course, the Legislature is free to enact such a statute in the

context of firearm licenses, if it so chooses. As such, in the

context of charges relating to unlicensed firearms, it is

conceivable that, depending on how records are complied, an

excerpted alphabetical list of firearms licenses that did not

contain a defendant's name may well constitute prima facie

evidence that would "permit[] but not require[ a jury] to find

[the defendant to be unlicensed] beyond a reasonable doubt."

Maloney, supra.

4. Notice-and-demand procedure. In Melendez-Diaz, 557

U.S. at 326, the Supreme Court also noted that many States have

adopted "notice-and-demand statutes," which "require the

prosecution to provide notice to the defendant of its intent to

use an analyst's report as evidence at trial, after which the

defendant is given a period of time in which he may object to

the admission of the evidence absent the analyst's appearance

live at trial," or otherwise forfeit that right. The Court made

clear that these statutes do not violate the defendant's rights,

because "[t]he defendant always has the burden of raising his

Confrontation Clause objection," and "notice-and-demand statutes

c. 46, § 19 (birth, marriage, or death certificate); G. L.

c. 90, [§ 24 (4)] (court record of a prior conviction if

accompanied by other documentation); G. L. c. 185C, § 21 (report

of inspector in housing court); G. L. c. 233, § 79F (certificate

of public way); G. L. c. 269, § 11C (firearm with obliterated

serial number)." Mass. G. Evid. § 302(c) note.

18

simply govern the time within which he must do so" (emphases in

original). Id. at 327.

In 2013, rule 803(10) of the Federal Rules of Evidence was

amended to "incorporate[], with minor variations, a 'notice-and-

demand' procedure that was approved by the Melendez-Diaz Court."

2013 Advisory Committee Note to Fed. R. Evid. 803. The amended

rule provides that the rule against hearsay does not exclude a

certification that a diligent search failed to disclose a public

record or statement if, among other prerequisites, "in a

criminal case, a prosecutor who intends to offer a certification

provides written notice of that intent at least [fourteen] days

before trial, and the defendant does not object in writing

within [seven] days of receiving the notice -- unless the court

sets a different time for the notice or the objection." Fed. R.

Evid. 803(10)(B).

Similarly, in Carrion, the New Jersey Supreme Court adopted

a practice of requiring a defendant to inform the judge and the

prosecution of a demand to have the State produce an appropriate

witness to testify to a search of the State firearms permit

database. Failure to make such a demand waives the defendant's

confrontation right. See Carrion, 249 N.J. at 273-274. The

court said that this practice would address the State's "valid

administrative concern" that "[r]equiring in-person testimony by

the person who conducted a search of firearm registry records

19

that yielded no results under a defendant's name for a gun

permit -- in every firearm possession prosecution -- could be

burdensome and could lead to administrative inconvenience and

waste of resources." Id. at 273.

I suggest that courts handling prosecutions for possession

of a firearm without a license should consider adopting a

procedure similar to that in Fed. R. Evid. 803(10)(B) as a

discovery order and in the filing of pretrial conference

reports. This would provide an orderly and uniform procedure

for determining whether the Commonwealth may rely on a

certificate that there is no firearms license in the name of the

defendant, and give the prosecution sufficient time to secure a

testifying witness if the defendant objects.10 This procedure

might also serve to mitigate, to some extent, the burden on the

Commonwealth that would otherwise result if it were required to

produce a testifying witness in every trial involving a charge

of unlicensed possession of a firearm.

10Of course, it may well be that the Commonwealth,

nonetheless, calls witnesses who have reviewed the records, and

offers documents in which the defendant's name does not appear,

in recognition of its burden of persuasion. And it may well be

that defendants prefer admission of a certificate of the

nonexistence of a record to testimony from witnesses and

documentation better to advance their arguments as to reasonable

doubt.