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SJC-12259

COMMONWEALTH vs. MOSES EHIABHI.

Suffolk. May 4, 2017. - October 13, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, 

& Cypher, JJ.1

Controlled Substances. Assault and Battery on Certain Public 

Officers and Employees. Constitutional Law, Sentence, 

Separation of powers, Search and seizure. Practice, 

Criminal, Sentence, Motion to suppress, Instructions to 

jury. Search and Seizure, Motor vehicle, Impoundment of 

vehicle, Inventory.

Indictments found and returned in the Superior Court 

Department on January 13, 2014.

A pretrial motion to suppress evidence was heard by Mary K. 

Ames, J.; the cases were tried before Elizabeth M. Fahey, J., 

and the correctness of the sentence was reported by her to the 

Appeals Court.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Zachary Hillman, Assistant District Attorney, for the 

Commonwealth.

Sarah E. Dolven for the defendant.

 

1 Justice Hines participated in the deliberation on this 

case prior to her retirement.
2

Patrick Levin, Committee for Public Counsel Services, & 

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

another, amici curiae, submitted a brief.

CYPHER, J. This case examines a sentencing scheme that 

punishes the same conduct with different mandatory minimum 

sentences. See G. L. c. 94C, § 32A (b), (d). Both subsections 

punish possession with intent to distribute a class B substance, 

but § 32A (b) carries a mandatory minimum sentence of two years 

while § 32A (d) carries a mandatory minimum sentence of three 

and one-half years. In the law's current form, § 32A (a) 

punishes first-time distribution of any of forty class B 

substances, including phencyclidine (PCP), cocaine, and 

methamphetamine; § 32A (b) punishes subsequent distribution of a 

class B substance; § 32A (c) punishes first-time distribution of 

PCP, cocaine, or methamphetamine; and § 32A (d) punishes 

subsequent distribution of PCP, cocaine, or methamphetamine. 

G. L. c. 94C, § 32A.2 The defendant, Moses Ehiabhi, was charged 

 

2 In relevant part, G. L. c. 94C, § 32A, provides:

"(a) Any person who knowingly or intentionally 

manufactures, distributes, dispenses, or possesses with 

intent to manufacture, distribute or dispense a controlled 

substance in Class B of [§ 31] shall be punished by 

imprisonment in the [S]tate prison for not more than ten 

years, or in a jail or house of correction for not more 

than two and one-half years, or by a fine of not less than 

[$1,000] nor more than [$10,000], or both such fine and 

imprisonment.

"(b) Any person convicted of violating this section 
3

 

after one or more prior convictions of manufacturing, 

distributing, dispensing, or possessing with the intent to 

manufacture, distribute or dispense a controlled substance 

as defined by [§ 31] of this chapter under this or any 

other prior law of this jurisdiction or of any offense of 

any other jurisdiction, [F]ederal, [S]tate, or territorial, 

which is the same as or necessarily includes the elements 

of said offense shall be punished by a term of imprisonment 

in the [S]tate prison for not less than [two] nor more than 

ten years. No sentence imposed under the provisions of 

this section shall be for less than a mandatory minimum 

term of imprisonment of [two] years and a fine of not less 

than [$2,500] nor more than [$25,000] may be imposed but 

not in lieu of the mandatory minimum term of imprisonment, 

as established herein.

"(c) Any person who knowingly or intentionally 

manufactures, distributes, dispenses or possesses with 

intent to manufacture, distribute or dispense phencyclidine 

or a controlled substance defined in clause (4) of 

paragraph (a) or in clause (2) of paragraph (c) of class B 

of § 31 shall be punished by a term of imprisonment in the 

[S]tate prison for not less than two and one-half nor more 

than ten years or by imprisonment in a jail or house of 

correction for not less than one nor more than two and onehalf years. No sentence imposed under the provisions of 

this section shall be for less than a mandatory minimum 

term of imprisonment of one year and a fine of not less 

than [$1,000] nor more than [$10,000] may be imposed but 

not in lieu of the mandatory minimum one year term of 

imprisonment, as established herein.

"(d) Any person convicted of violating the provisions 

of subsection (c) after one or more prior convictions of 

manufacturing, distributing, dispensing or possessing with 

the intent to manufacture, distribute, or dispense a 

controlled substance, as defined in [§ 31] or of any 

offense of any other jurisdiction, either [F]ederal, 

[S]tate or territorial, which is the same as or necessarily 

includes, the elements of said offense, shall be punished 

by a term of imprisonment in the [S]tate prison for not 

less than [three and one-half] nor more than fifteen years 

and a fine of not less than [$2,500] nor more than 

[$25,000] may be imposed but not in lieu of the mandatory 

minimum term of imprisonment, as established herein."
4

and convicted of possession with intent to distribute cocaine, 

second offense, under § 32A (c) and (d), but the judge, over the 

objection of the Commonwealth, sentenced pursuant to § 32A (a) 

and (b).3

Pursuant to G. L. c. 231, § 111,4 and Mass. R. Crim. P. 34, 

as amended, 442 Mass. 1501 (2004),5 the trial judge reported the 

 

Section 31 defines cocaine as "[c]oca leaves and any salt, 

compound, derivative, or preparation of coca leaves, and any 

salt, compound, derivative, or preparation thereof which is 

chemically equivalent or identical with any of these substances, 

except that the substances shall not include decocainized coca 

leaves or extraction of coca leaves, which extractions do not 

contain cocaine or ecgonine." G. L. c. 94C, § 31 Class B (a)

(4).

3 The defendant faced three additional charges: resisting 

arrest, in violation of G. L. c. 268, § 32B; operating a motor 

vehicle while under the influence of a controlled substance, in 

violation of G. L. c. 90, § 24 (1) (a) (1); and assault and 

battery on a police officer, in violation of G. L. c. 265, 

§ 13D. The defendant prevailed in his motion for a required 

finding of not guilty as to the charge of resisting arrest; was 

acquitted of the operating while under the influence of 

marijuana charge; and was convicted of assault and battery on a 

police officer.

4 General Laws c. 231, § 111, provides in relevant part: "A 

justice of the [Superior Court] . . . , after verdict or after a 

finding of the facts by the court, may report the case for 

determination by the [A]ppeals [C]ourt."

5 In relevant part, Mass. R. Crim. P. 34, as amended, 442 

Mass. 1501 (2004), provides:

"If, prior to trial, or, with the consent of the 

defendant, after conviction of the defendant, a question of 

law arises which the trial judge determines is so important 

or doubtful as to require the decision of the Appeals 

Court, the judge may report the case so far as necessary to 

present the question of law arising therein."
5

correctness of her sentencing decision to the Appeals Court, and 

allowed the defendant's motion to stay the sentence pending his 

appeal. The Commonwealth appeals from both the sentence and the 

stay of sentence. The defendant also appeals, claiming error in 

the denials of his motion to suppress evidence and his motion 

for a required finding of not guilty on the assault and battery 

charge, and in the jury instruction on self-defense as to that 

charge. The Appeals Court consolidated the appeals, and we 

transferred the case to this court on our own motion. For the 

reasons detailed below, we affirm the convictions and remand to 

the Superior Court for resentencing.6

1. The reported question and the Commonwealth's appeal. 

After the Commonwealth moved for sentencing, the judge asked why 

the Commonwealth had proceeded under the section of the statute 

that provided a harsher minimum mandatory sentence where the 

elements of both sections were identical. The prosecutor 

explained that her office "typically" indicted cocaine charges 

under the enhanced section because cocaine is "considered a more 

dangerous substance than other items under [c]lass B, such as 

pills." The prosecutor also justified her pursuit of harsher 

penalties in this case by the fact that the defendant was on 

Federal supervised release for the same crime when he committed 

 

6 We acknowledge the amicus brief of the Committee for 

Public Counsel Services and the Massachusetts Association of 

Criminal Defense Lawyers.
6

the new offense.

The judge rejected both arguments, concluding that 

ambiguity existed in the conflicting mandatory minimum sentences 

of two years for a repeat distributor of cocaine under § 32A (b) 

and three and one-half years for a repeat distributor of cocaine 

under § 32A (d). The judge read this conflict to require 

application of the rule of lenity in favor of the less stringent 

sentence, citing Commonwealth v. Gagnon, 387 Mass. 567, 569, 

S.C., 387 Mass. 768 (1982), cert. denied, 464 U.S. 815 (1983); 

United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir.), cert 

denied, 500 U.S. 926 (1991).

The Commonwealth argues that the trial judge erred in 

sentencing the defendant pursuant to G. L. c. 94C, § 32A (b), 

where he had been charged and convicted pursuant to § 32A (d), 

and where the prosecutor retains the discretion to charge under 

either subsection. The defendant contends that the judge 

properly applied the rule of lenity where the statute is 

ambiguous in its provision of inconsistent penalties for the 

identical offense. We agree with the Commonwealth that the 

statute is unambiguous, and preserves the prosecutor's 

discretion to choose among its subsections.

a. Ambiguity. The levels of punishment upon conviction of 

possession with intent to distribute a controlled substance are 

determined with reference to which of the five classes of 
7

controlled substances the particular controlled substance 

belongs. G. L. c. 94C, § 31. "Such disparate sentences embody 

the legislative judgment differentiating certain classes of 

controlled substances as more detrimental to the mind or the 

body than others." Commonwealth v. Chavis, 415 Mass. 703, 709 

n.9 (1993).

Cocaine is listed as a class B controlled substance, with 

penalties provided at G. L. c. 94C, § 32A. Section 32A was 

inserted into the General Laws by St. 1980, c. 436, "as part of 

a major revision of the Controlled Substances Act." 

Commonwealth v. Neiman, 396 Mass. 754, 758 (1986). As 

originally enacted, § 32A had two paragraphs. Paragraph (a) 

provided a penalty of from one to ten years for first-time 

distribution of a class B substance, without requiring a 

mandatory minimum sentence, and paragraph (b) provided a 

mandatory minimum of three years for subsequent offenses, 

St. 1980, c. 436, § 4, later reduced to two years. St. 2012, 

c. 192, § 13.

In the years following the enactment of § 32A, the 

Legislature singled out three drugs for harsher punishment than 

other class B substances: PCP in 1981, St. 1981, c. 522 (adding 

paragraph [c] to impose one-year mandatory minimum sentence for 

distribution of PCP); cocaine in 1988, St. 1988, c. 125, § 1

(amending paragraph [c] to impose same penalty for distribution 
8

of cocaine); and methamphetamine in 1991, St. 1991, c. 391

(same, for distribution of methamphetamine). See Commonwealth

v. Bradley, 35 Mass. App. Ct. 525, 526 n.1 (1993) (discussing 

statutory history of § 32A). When the Legislature added cocaine 

to paragraph (c), it also inserted paragraph (d), which provided 

a five-year minimum sentence for subsequent offenders "convicted 

of violating the provisions of subsection (c)," St. 1988, c. 

125, §§ 1-2; that minimum was later reduced to three and onehalf years. St. 2012, c. 192, § 14. The language of paragraph 

(b) remained unaltered, and continues to apply to "[a]ny person 

convicted of violating this section." See Bradley, supra (§ 32A 

[b] was "[a] repeat offender provision that applied to all 

offenses outlined in the statute"). Cocaine, as well as PCP and 

methamphetamine, remain among the forty enumerated class B 

substances. G. L. c. 94C, § 31 Class B 2 (a) (4).

The statutory scheme, when read as a whole and in the 

context of its history, is not ambiguous, and therefore the rule 

of lenity is not applicable. "It is a fundamental tenet of due 

process that '[n]o one may be required at peril of life, liberty 

or property to speculate as to the meaning of penal statutes.'" 

Gagnon, 387 Mass. at 569, quoting United States v. Batchelder, 

442 U.S. 114, 123 (1979). "Under the rule of lenity, 'if we 

find that the statute is ambiguous or are unable to ascertain 

the intent of the Legislature, the defendant is entitled to the 
9

benefit of any rational doubt.' . . . 'This principle applies 

to sentencing as well as substantive provisions.'" (Citations 

omitted). Commonwealth v. Richardson, 469 Mass. 248, 254 

(2014).

We have previously rejected the argument that § 32A is 

unconstitutionally void for vagueness, reasoning that "[w]e 

simply see no significant ambiguity in the legislative intent 

expressed in § 32A (a) and § 32A (c)." Cedeno v. Commonwealth, 

404 Mass. 190, 194 (1989). We reaffirm the view that "[i]f 

there is a problem in a constitutional sense in the coexistence 

of § 32A (a) and § 32A (c), it does not lie in any uncertainty 

about what those sections mean." Id. at 196. For similar 

reasons, the United States Supreme Court upheld two firearm 

statutes that punished the same conduct with different 

sentences. Batchelder, 442 U.S. at 116, 123 ("The provisions in

issue . . . unambiguously specify the activity proscribed and 

the penalties available upon conviction. . . . That this 

particular conduct may violate both [t]itles [of the United 

States Code] does not detract from the notice afforded by each. 

Although the statutes create uncertainty as to which crime may 

be charged and therefore what penalties may be imposed, they do 

so to no greater extent than would a single statute authorizing 

various alternative punishments" [citation omitted]). Where the 

statute is unambiguous, the rule of lenity is inapposite. See 
10

Richardson, 469 Mass. at 254.

b. Prosecutorial discretion. Because we find the rule of 

lenity inoperative here, we proceed to the separation of powers 

challenge. Verrochi v. Commonwealth, 394 Mass. 633, 638 (1985) 

(construing statute to avoid constitutional difficulties). 

Article 30 of the Massachusetts Declaration of Rights forbids 

the legislative and executive branches from exercising powers 

entrusted to the judicial branch if that exercise "restrict[s] 

or abolish[es] a court's inherent powers." Commonwealth v. 

Cole, 468 Mass. 294, 301 (2014).7 Although "[a]n absolute 

division of the [executive, legislative, and judicial] functions 

is neither possible nor always desirable," Opinion of the 

Justices, 365 Mass. 639, 641 (1974), a statute impermissibly 

allocating a power held by only one branch to another violates 

art. 30. Cole, supra at 302.

Within these constitutional confines, prosecutors enjoy 

considerable discretion. See Commonwealth v. Rivas, 466 Mass. 

184, 188 n.4 (2013), quoting Commonwealth v. Johnson, 75 Mass. 

 

7 Article 30 of the Massachusetts Declaration of Rights 

provides:

"In the government of this commonwealth, the 

legislative department shall never exercise the executive 

and judicial powers, or either of them: the executive 

shall never exercise the legislative and judicial powers, 

or either of them: the judicial shall never exercise the 

legislative and executive powers, or either of them: to 

the end it may be a government of laws and not of men."
11

App. Ct. 903, 906 (2009) ("The Commonwealth retains the 

authority to make the determination in the first instance of the 

offense with which a person in the defendant's circumstance 

should be charged"). Indeed, a prosecutor has the discretion to 

charge a defendant under multiple enhancement statutes, 

retaining that discretion up to the sentencing stage, where, if 

the prosecutor chooses, he or she may file a nolle prosequi on 

all but one charge. Richardson, 469 Mass. at 254-255. See 

Bynum v. Commonwealth, 429 Mass. 705, 707 (1999) (§ 32A [d] is 

sentence enhancement provision rather than separate crime). 

Moreover, the decision to prosecute is "particularly ill-suited 

to judicial review." Commonwealth v. Latimore, 423 Mass. 129, 

136 (1996), quoting Wayte v. United States, 470 U.S. 598, 607 

(1985).

Accordingly, a prosecutor does not infringe on the court's 

sentencing power merely by selecting charges from among multiple 

applicable subsections. See Cedeno, 404 Mass. at 196-197 

("Prosecutors have wide ranges of discretion in deciding whether 

to bring criminal charges and in deciding what specific charges 

to bring"). See also Commonwealth v. Zwickert, 37 Mass. App. 

Ct. 364, 367 (1994) ("the grand jury, having before it evidence 

of the defendant's possession of cocaine with intent to 

distribute, might have framed the indictment as possession of a 

[c]lass B substance with intent to distribute, thus exposing the 
12

defendant only to the lesser penalty of § 32A [a]); but because 

the indictment identified the Class B substance as cocaine, it 

was a charge under § 32A [c]"). The Batchelder Court similarly 

rejected the concern that legislative overlap had endowed the 

prosecutor with "unfettered" discretion:

"[T]here is no appreciable difference between the 

discretion a prosecutor exercises when deciding whether to 

charge under one of two statutes with different elements 

and the discretion he exercises when choosing one of two 

statutes with identical elements. In the former situation, 

once he determines that the proof will support conviction 

under either statute, his decision is indistinguishable 

from the one he faces in the latter context."

Batchelder, 442 U.S. at 125. Compare Cole, 468 Mass. at 304 

(invalidating under art. 30 statute authorizing parole board to 

impose new mandatory sentences).

Section 32A thus does not represent an executive usurpation 

of judicial sentencing powers, but an appropriate exercise of 

prosecutorial discretion. That discretion, although broad, 

remains constitutionally constrained by the equal protection 

clause of the Fourteenth Amendment to the United States 

Constitution.

The equal protection clause prohibits selective enforcement 

"based upon an unjustifiable standard such as race, religion, or 

other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 

456 (1962). To prevail on a claim of selective prosecution, a 

defendant must demonstrate "that a broader class of persons than 
13

those prosecuted has violated the law, . . . that failure to 

prosecute was either consistent or deliberate, . . . and that 

the decision not to prosecute was based on impermissible 

classification such as race, religion, or sex" (citations 

omitted). Commonwealth v. Franklin, 376 Mass. 885, 894 (1978). 

Unless the defendant makes that prima facie showing, "we presume 

that criminal arrests and prosecutions are undertaken in good 

faith, without intent to discriminate." Commonwealth v. King, 

374 Mass. 5, 22 (1977). At oral argument, the defendant urged 

us to consider the issue of selective prosecution, but did not 

argue it in his brief or present us with a record that would 

allow us to evaluate such a claim.

The judge's decision not to sentence the defendant 

pursuant to the statutes under which he was properly charged and 

convicted -- § 32A (c) and (d) -- was error.

2. The defendant's appeal. a. Motion to suppress. After 

an evidentiary hearing, the motion judge found the following 

facts, which we supplement where necessary by uncontroverted 

testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 

(2007), S.C., 450 Mass. 818 (2008). At approximately 2 A.M. on

June 27, 2013, Boston police Officers Steven Dodd and Andrew 

Hunter were patrolling the Roxbury neighborhood of Boston.8 The 

 

8 Dodd was the Commonwealth's only witness at the hearing, 

and the motion judge credited his testimony in its entirety. 
14

officers were traveling in an unmarked cruiser on Norfolk 

Avenue. As they approached the Burrell Street intersection, 

Dodd observed a motor vehicle turn onto Norfolk Avenue, veer 

slightly into the opposite lane, and begin traveling in the 

opposite lane on a two-way street. Dodd activated his lights to 

initiate a traffic stop.

Although Norfolk Avenue is a two-way street, the vehicle 

pulled over to the street's left side. When Dodd approached, he 

observed the defendant's eyes to be red and glassy, and smelled 

the odor of burnt marijuana. In initial conversation with the 

defendant, who was driving, Dodd observed the defendant's speech 

to be slurred. A female passenger, not wearing a seat belt, 

also appeared impaired. Dodd further observed on the front 

center console a plastic soda bottle containing a rolled-up 

sandwich bag.

Upon request, the defendant produced a valid driver's 

license and an expired rental agreement for the motor vehicle.9 

When Dodd asked whether anyone had been smoking marijuana, the 

passenger responded that they had been smoking before leaving 

 

The defendant's only witness was his father. The judge made no 

credibility findings about the father.

9 The one-week rental agreement was dated June 4, 2013. 

Therefore, by the time of the traffic stop, the vehicle should 

have been returned at least two weeks earlier. The motion judge 

did not credit testimony to the effect that the defendant had 

extended the agreement by telephone, where he produced no 

documentation in support of the claim.
15

Burrell Street. The passenger produced a Massachusetts 

identification card but no driver's license, and was cited for 

failure to wear a seat belt.

In the course of this preliminary investigation, Dodd 

formed the opinion that the defendant was operating a motor 

vehicle while under the influence of marijuana, and that his 

driving was impaired as a result. Dodd concluded that he would 

not permit the defendant to resume operation of the vehicle, 

because he determined that to do so would create a danger to the 

public. Without having yet decided whether he would make an 

arrest, Dodd ordered the defendant out of the vehicle in order 

to further assess his intoxication level. No field sobriety 

tests were performed.

At this time, Dodd also decided to have the vehicle towed 

and impounded for safekeeping. He deemed the tow necessary 

because neither the defendant nor the passenger could safely 

operate the vehicle; the expired rental agreement created some 

question whether the defendant had lawful authority to operate 

the vehicle; and leaving the vehicle unattended in the stop's 

location could have left it vulnerable to larceny, given the 

known prevalence of break-ins in the area.

When the defendant stepped out of the vehicle, Dodd 

observed him to be approximately six feet, five inches tall and 

300 pounds. Dodd asked the defendant to step to the rear of the 
16

vehicle for a patfrisk, which yielded nothing. Dodd then 

informed the defendant that the officers would begin an 

inventory search of the vehicle.

By this time, Boston police Sergeant Paul Quinn had arrived 

on scene to assist. Dodd observed in the passenger's open purse 

a glass pipe, which he knew to be used in the smoking of 

marijuana. He also saw in the purse a box of sandwich bags of 

the kind used in street-level drug distribution. Inside the 

box, officers found a thumbtack, which they knew to be used to 

break off pieces of "crack" cocaine; they also observed a white 

residue on the tack's metal point.

As Dodd and Quinn performed the search, Hunter stood with 

the defendant. Through the silky material of the defendant's 

shirt, Hunter perceived several bumps protruding from the front 

shirt pocket. When Hunter asked the defendant what they were, 

the defendant shoved Hunter and ran from the scene. All three 

officers gave chase, shouting the command to stop.

Crossing Norfolk Avenue, the defendant approached a field. 

The officers observed him reach into his pocket and throw items 

on the ground before they were able to overtake him in the 

field. As they attempted to handcuff the defendant, he ignored 

orders to comply, pushed Hunter away, and kept one hand 

underneath his body. During this struggle, the defendant spat 

from his mouth a small, knotted plastic bag containing crack 
17

cocaine. Dodd struck the defendant's face while holding a 

flashlight, and the blow lacerated the defendant's nose and 

subdued him such that the officers were able to handcuff and 

arrest him.

Retracing their steps along the path of flight, officers 

later recovered keys to the defendant's vehicle and seventeen 

bags of crack cocaine. These small bags were distinctively 

knotted like the one the defendant had spat from his mouth, and 

consistent with the packaging officers knew to be used in 

street-level sales. A close-up photograph of the defendant at 

booking revealed glassy eyes and an intoxicated appearance 

consistent with Dodd's initial impression.

The motion judge denied the defendant's motion to suppress, 

concluding that the officers had reasonable suspicion for the 

traffic stop and probable cause to arrest the defendant for 

operating a motor vehicle while under the influence; the search 

of the vehicle was a lawful inventory search; it was properly 

conducted within the scope of the Boston police motor vehicle 

inventory search policy; and the bags of crack cocaine were 

properly seized as abandoned by the defendant.

The defendant challenges the denial of his motion to 

suppress, arguing that the evidence was obtained in violation of 

his rights under the Fourth Amendment to the United States 

Constitution and art. 14 of the Massachusetts Declaration of 
18

Rights. Specifically, he contends that the inventory search was 

pretextual and investigatory, and that any evidence subsequently 

seized is thus fruit of the poisonous tree.10,11 In reviewing a 

ruling on a motion to suppress, we accept the judge's findings 

of fact absent clear error, but review independently the judge's 

ultimate findings and conclusions of law. Commonwealth v.

Campbell, 475 Mass. 611, 615 (2016).

Although a well-established exception to the warrant 

requirement, an inventory search must hew closely to written 

police procedures and may not conceal an investigatory motive. 

See South Dakota v. Opperman, 428 U.S. 364, 376 (1976);

Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The 

lawfulness of an inventory search turns on the threshold 

propriety of the vehicle's impoundment, and the Commonwealth 

bears the burden of proving the constitutionality of both. See 

 

10 The defendant does not contest that police had reasonable 

suspicion for the initial traffic stop. "Erratic" driving that 

violates the civil motor vehicle code may give rise to a 

reasonable suspicion that a driver is impaired, permitting an 

investigatory stop. Commonwealth v. Daniel, 464 Mass. 746, 756 

(2013). The motion judge explicitly credited the entirety of 

Officer Dodd's testimony, which included observations of the 

defendant's vehicle traveling on the wrong side of Norfolk 

Avenue. It was 2 A.M., and police reasonably suspected driver 

impairment. Id.

11 The defendant also contends that the police lacked 

reasonable suspicion for the exit order and patfrisk. Because 

the patfrisk yielded no evidence, and because the determination 

to inventory the vehicle coincided with the exit order and 

preceded the patfrisk, we do not address this argument.
19

Commonwealth v. Eddington, 459 Mass. 102, 108 (2011); 

Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000).

We have recognized three separate interests protected by 

warrantless inventory searches: "the protection of the vehicle 

and its contents; the protection of the police and the tow 

company from false charges; and the protection of the public 

from the dangerous items which might be in the vehicle." 

Eddington, 459 Mass. at 108-109, quoting Commonwealth v. Garcia, 

409 Mass. 675, 682 (1991). Against this backdrop, "[t]he 

impoundment of a vehicle for noninvestigatory reasons is 

generally justified if supported by public safety concerns or by 

the danger of theft or vandalism to a vehicle left unattended." 

Eddington, supra at 108, quoting Commonwealth v. Brinson, 440 

Mass. 609, 612 (2003).

Boston police department rule 103, § 31, provides for 

disposition of a vehicle in one of four ways:

"1. leave it with a person having apparent authority to 

assume control of it; or

"2. park it legally, close the windows, lock it, if 

possible, and attempt to notify the registered owner; or

"3. leave it at the side of the road with windows closed 

and locked, if possible, if traffic is not obstructed and 

arrangements can be made for its removal without undue 

delay; or 

"4. have it towed for safekeeping."

The department's motor vehicle inventory search policy further 
20

provides: "A vehicle will be disposed of in the manner 

authorized in paragraph 4, when there is a danger to public 

safety; a danger to the vehicle being left unattended; a danger 

of theft or vandalism; or the possibility of false claims 

exists. Therefore, an [i]nventory [s]earch will be performed."

Because officers had determined that neither the defendant 

nor the passenger could safely operate the vehicle, the first 

option was unavailable. Similarly, neither the second nor the 

third option was viable given the circumstances. See Eddington, 

459 Mass. at 110 (impoundment and inventory search of vehicle 

parked on public street and vulnerable to larceny was 

reasonable, where defendant had been arrested and passenger was 

intoxicated). See also Ellerbe, 430 Mass. at 775-776 (same, 

where defendant arrested and passenger not in possession of 

driver's license). Contrast Commonwealth v. Oliveira, 474 Mass. 

10, 15-16 (2016) (impoundment unreasonable where vehicle could 

safely be left in parking lot for owner's retrieval).

We entrust credibility determinations to the motion judge, 

Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and 

discern no error in her finding that the inventory search was 

not pretextual. Because the impoundment and attendant inventory 

search were reasonable in scope and complied with written 

policy, no basis exists for the defendant's argument that the 
21

evidence later seized was fruit of the poisonous tree.12

b. Motion for required finding of not guilty on assault 

and battery charge. The evidence at trial was substantially the 

same as at the evidentiary hearing on the motion to suppress, 

augmented by the testimony of Officer Hunter and Sergeant Quinn, 

Boston police Officer Robert England, the defendant, and the 

defendant's father.

13 The defendant argues that his motion for a 

required finding of not guilty on the charge of assault and 

battery on a police officer should have been allowed. In 

reviewing the denial of a motion for a required finding of not 

guilty, we view the evidence in the light most favorable to the 

Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 

(1979). The defendant asks instead that we credit his testimony 

on self-defense. Because this view improperly casts the 

 

12 Where we conclude that the judge correctly denied the 

motion to suppress, we need not address the Commonwealth's 

challenge to the stay of the sentence, which was based on the 

sentencing judge's evaluation of the likelihood that the 

defendant would prevail on appeal regarding the motion to 

suppress. We note, however, that the judge erred in evaluating 

the likelihood of success of the appeal regarding the denial of 

the motion to suppress by relying on the evidence presented at 

trial, rather than the evidence presented at the motion to 

suppress hearing. See Commonwealth v. Grandison, 433 Mass. 135, 

137 (2001) (when reviewing motion to suppress after trial, judge 

is limited to considering testimony at hearing on motion to 

suppress).

13 England did not investigate the defendant's case, instead 

testifying as a drug expert that eighteen individually packaged 

bags of crack cocaine were unlikely to have been for personal 

use.
22

evidence in the light most favorable to the defendant, we 

decline to adopt it. Hrycenko v. Commonwealth, 459 Mass. 503, 

510-511 (2011). Viewed in the light most favorable to the 

Commonwealth, Officer Hunter's testimony that the defendant 

pushed him after he asked about the bumps in the defendant's 

shirt pocket was sufficient to support the conviction of assault 

and battery on a police officer. See Commonwealth v. Deane, 458 

Mass. 43, 52 (2010) (motion for required finding properly denied 

where sufficient evidence supported jury's rejection of 

defendant's version of events).

c. Self-defense instruction. Finally, the defendant 

argues that his conviction of assault and battery on a police 

officer must be reversed because the jury instructions on selfdefense impermissibly shifted the burden of proof to him. Where 

the defendant raised no objection below, we review for a 

substantial risk of a miscarriage of justice. Commonwealth v. 

King, 460 Mass. 80, 85 (2011).

Here, the judge instructed to the effect that, if the jury 

believed the defendant's testimony that police pushed him first, 

the Commonwealth bore the burden of proving the absence of selfdefense beyond a reasonable doubt.14 She did not define 

 

14 Specifically, the judge instructed as follows:

"Ladies and gentlemen, there's one additional point I 

want to make on the charge of assault and battery on a 
23

reasonable self-defense, and the parties agree that her 

instructions were thus incomplete.

"Where there is an erroneous jury instruction we review the 

entire charge to the jury to determine the interpretation a 

reasonable jury would place on the judge's words." King, 460 

Mass. at 85. The instruction here, although erroneously 

incomplete, did not prejudice the defendant by impermissibly 

shifting the Commonwealth's burden to him. Instead, the judge's 

prefatory language offered context for the instructions that 

proceeded twice to state the correct burden of proof. Contrast

Commonwealth v. Mejia, 407 Mass. 493, 494-496 (1990) 

(instruction that defendant had to show he had been assaulted as 

 

police officer. I've told you that the second element is 

that the defendant intended to touch and that the third 

element is that the touching was either likely to cause 

bodily harm to Officer Hunter or was done without his 

consent.

"You have heard some testimony that the touching by 

[the defendant] came after Officer Hunter pushed him. If 

you believe that testimony, you may consider whether or not 

[the defendant] acted in reasonable self-defense.

"So, if you find that the first pushing was done by 

Officer Hunter and that [the defendant's] response was 

reasonable self-defense, it is up to the Commonwealth to 

prove the absence of reasonable self-defense beyond a 

reasonable doubt.

"So, if you believe that Officer Hunter pushed first, 

and any response by the defense was reasonable, the 

Commonwealth is obligated to prove beyond a reasonable 

doubt the absence of reasonable self-defense on the part of 

[the defendant]."
24

"precondition to assert[ing] the defense of self-defense" was 

prejudicial error); Commonwealth v. Harrington, 379 Mass. 446, 

454-455 (1980) (instruction that "[s]elf-defense is available to 

a defendant only under [certain] circumstances" and is never 

"available" to aggressor was prejudicial error). Here, the jury 

would have considered reasonable self-defense only if they first 

believed the defendant's version of events ("If you believe that 

testimony, you may consider whether or not [the defendant] acted 

in reasonable self-defense"), which they were free to discredit. 

This instruction created no substantial risk of a miscarriage of 

justice.

3. Conclusion. For the foregoing reasons, the denials of 

the motion to suppress and motion for a required finding of not 

guilty are affirmed. The defendant's convictions are also 

affirmed, but we remand to the Superior Court for resentencing 

on the counts of possession of cocaine with intent to 

distribute, pursuant to G. L. c. 94C, § 32A (c) and (d).

So ordered.