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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Figueroa, 412
Supreme Judicial Court of Massachusetts,
Argued
Decided
Nona E. Walker, Committee for Public Counsel
Services,
Katherine E. McMahon, Asst. Dist. Atty., for the
Com.
Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY,
JJ.
LIACOS, Chief Justice.
The
defendant, David Figueroa, was convicted by a jury in the Superior Court of
trafficking in 38.5 [412
The
following facts are drawn from the findings of the motion judge and from the
undisputed evidence in the record. At
approximately 5 A.M. on August 1, 1989, Trooper Matthew R. Roy of the
Massachusetts State police was monitoring traffic by radar on Route 84 near
Sturbridge when he observed a white Datsun automobile
bearing Massachusetts registration number 462‑PGF, travelling
in the eastbound lane at a rate substantially in excess of the speed
limit. Trooper
The
vehicle was occupied by two men: the
driver, Harold Lebron, and a passenger, the defendant
David Figueroa. Trooper
Trooper
Roy returned to his cruiser and conducted a records check of both occupants of
the vehicle. The trooper ascertained
that neither of the two men held a valid driver's license and that the vehicle
was unregistered. He also discovered
that four warrants were outstanding for Lebron's
arrest. He then radioed for another
officer to assist him.
Trooper
John E. Hackett responded to Trooper Roy's request. On Trooper Hackett's arrival, Trooper Roy
returned to the stopped vehicle, placed Lebron under
arrest, and secured him in the cruiser.
Meanwhile, Trooper Hackett explained Lebron's
arrest to the defendant. Trooper Hackett
advised the defendant that it was necessary to tow the defendant's vehicle and
that the troopers were required to take an inventory of the vehicle's contents. He further advised the defendant that the
troopers would take him to a location where he could obtain a ride home.
After the
defendant stepped out from the vehicle, Trooper Hackett commenced the inventory
search in the front of the vehicle.
During this phase of the search the trooper did not notice anything "of
value." The trooper then proceeded
to the rear of the vehicle and, from outside of the vehicle, observed that an
interior wall panel immediately to the rear of the driver's seat was detached
from the wall. The loose panel, which
was just below the rear window on the driver's side, created a gap of one to
two inches. Trooper Hackett shone his
flashlight into this open area and observed a brown paper bag which was wrapped
inside a clear plastic or cellophane bag.
Based on his training and experience, Trooper Hackett became suspicious
that the package contained contraband.
He called Trooper Roy to observe what he had located. Trooper Roy, who had been speaking with the
defendant, came to the vehicle and shone his flashlight into the open area
behind the wall panel. On observing the
brown paper bag, Trooper Roy looked toward where the defendant had been
standing and discovered that the defendant had fled [412 Mass. 748] down an
embankment from the overpass and was several hundred yards away on Route 131. Trooper Hackett abandoned his inventory
search, seized the package from behind the wall panel, and began to pursue the
defendant. Trooper Hackett searched for
the defendant unsuccessfully until approximately 7 A.M. (FN3) Trooper Hackett returned to the State police
barracks, where he opened the package he had seized from the defendant's
vehicle. The package contained 500 small
packets of white powder which subsequent tests
revealed to be 38.5 grams of heroin.
1. Scope of inventory search. The defendant's principal argument on appeal
is that, by looking into the gap behind the loose wall panel in the defendant's
automobile, the troopers exceeded the scope of the Massachusetts State Police
Motor Vehicle Inventory Procedure, OPR‑‑26A. (FN4) That procedure provides in part that
"[t]he inventory listing of personal items and valuables will extend to
all storage areas and compartments that are accessible to the operator and/or
passengers." The defendant argues
that the area behind the wall panel could not logically be considered a
"storage area" or "compartment" and therefore was not the
proper focus of an inventory search. The
defendant further argues that, by straying from the inventory policy, the
troopers violated his rights under art. 14.
[1][2][3][4]
The defendant is correct to the extent he argues that art. 14 requires that an
inventory search be conducted pursuant to a standardized policy set forth in
writing. See Commonwealth v. Garcia, 409 Mass. 675, 569 N.E.2d 385 (1991);
Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988). See also
Commonwealth v. [412 Mass. 749] Rostad,
410 Mass. 618, 574 N.E.2d 381 (1991); Commonwealth v. Ford, 394 Mass. 421, 476
N.E.2d 560 (1985). Such a requirement
removes from the individual police officer the discretion to determine the
scope of an inventory search and thereby minimizes its intrusiveness. See
Commonwealth v. Garcia, supra, 409 Mass. at 681, 569 N.E.2d 385. We disagree, however, with the defendant's
argument that, by looking into the area behind the open wall panel in question,
the trooper in this case exceeded the scope of the applicable inventory
policy. OPR‑26A expressly provides
that "the inventory listing of personal items and valuables will extend to
all storage areas and compartments that are accessible to the operator and/or
passengers.... This encompasses all open areas, including the area
under the seats, the glove compartment and other places where property is
likely to be held" (emphasis supplied).
We think it clear that the officers stayed within the confines of this
language when looking into the area behind the wall panel because that area was
an "open area" at the time the officers conducted their search. We note that this is not a situation where
the officers physically uncovered the area in question. Rather, the area was open to their view as
they were proceeding with a lawful inventory search of the interior of the
vehicle. (FN5) In these circumstances, even if the area were
not expressly encompassed by the policy in question, the officers' observation
of the area, which came from a lawful vantage point, would be justified under
the plain view doctrine. See
Commonwealth v. Sergienko, 399 Mass. 291,
294‑295, 503 N.E.2d 1282 (1987), and cases cited. (FN6)
That the officers employed a flashlight in making their observation does
not change our [412 Mass. 750] analysis. See Commonwealth v. Sergienko,
supra at 295, 503 N.E.2d 1282; Commonwealth v. Cavanaugh, 366 Mass. 277,
281, 317 N.E.2d 480 (1974); Commonwealth v. Oreto,
20 Mass.App.Ct. 581, 584‑585, 482 N.E.2d 329
(1985).
[5][6] 2.
Seizure of the contraband.
The defendant also challenges the warrantless
seizure of the bag from behind the wall panel.
Our conclusion that the State police inventory policy encompassed the
area from which the bag was seized does not resolve this question because the
motion judge specifically found that Trooper Hackett had abandoned his
inventory search prior to seizing the bag.
Thus, because the bag was seized without a warrant, the Commonwealth
bore the burden of proving that the seizure was justified by one of the other
recognized exceptions to the warrant requirement. See
Commonwealth v. Ortiz, 376 Mass. 349, 353, 380 N.E.2d 669 (1978). In denying the defendant's motion to
suppress, the motion judge apparently accepted the Commonwealth's argument that
the seizure was justified because the trooper possessed probable cause to
believe the package contained contraband (FN7) and because there were exigent
circumstances which made obtaining a warrant impracticable. (FN8)
The undisputed findings of the motion judge support this
conclusion. (FN9)
[412 Mass. 751] The motion judge found that, prior to seizing the package in
question, Trooper Hackett was apprised of the following facts and
circumstances. A brown paper package
wrapped in clear cellophane or plastic was partially concealed in a makeshift
compartment in the defendant's automobile.
Based on his previous experience, including an instance where he had
discovered illegal drugs in a similar location during a search of an
automobile, Trooper Hackett knew from the nature of the package and its place
of concealment that the package contained contraband. After the trooper became suspicious and asked
Trooper Roy to observe the package, the defendant suddenly fled the scene. These circumstances were sufficient "to
warrant a person of reasonable caution in believing" that the package
contained contraband, and thus were sufficient to establish probable cause.
Commonwealth v. Gullick, 386 Mass. 278,
283, 435 N.E.2d 348 (1982). See also Commonwealth v. Ortiz, supra (upon
observing approaching police officers, defendant threw packet into automobile
and retreated from scene; officers
recognized the packet as being of the type used to conceal heroin).
[7] We are
also persuaded that the situation facing the trooper at the time he seized the
package was of such an exigent nature that it was impracticable for him to get
a warrant. See Commonwealth v. Cast, 407 Mass. 891, 904, 556 N.E.2d 69
(1990). In arguing to the contrary, the
defendant contends that, by the time the troopers seized the package, they had
already taken custody of his vehicle.
Thus, the defendant contends, the factors which traditionally support a
finding of exigency, such as the inherent mobility of an automobile or the
possibility that its contents would never be found again if a warrant was first
obtained were not present. See Chambers v. Maroney,
399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419
(1970). The motion judge found, however,
that,
once it became necessary for Trooper Hackett to pursue the
defendant, the trooper "had every reason to believe that the vehicle might
have to be left unattended." We
cannot say [412 Mass. 752] that this finding was clearly
erroneous. (FN10) See
Commonwealth v. Yesilciman, 406 Mass. 736, 743,
550 N.E.2d 378 (1990). In light of this
fact, the situation facing the trooper at the time he seized the package was
such that he faced the choice of forgoing his pursuit of the defendant in order
to obtain a warrant or leaving the contraband unattended in an open vehicle on
a public highway. If the trooper chose
the latter option, the possibility existed that the defendant, a person alerted
by the defendant, or a passerby could have returned to the vehicle and moved
the vehicle or the contraband prior to the trooper's return. In these circumstances, we conclude the
officer acted reasonably in seizing the package. See
Commonwealth v. Ortiz, supra 376 Mass. at 355‑358, 380 N.E.2d 669
(exigent circumstances existed where contraband was located in automobile on
public street even though defendant had been apprehended; possibility existed that others might move
the vehicle or the contraband in the officers' absence). Accordingly, the judge properly denied the
defendant's motion to suppress. (FN11)
3. Conclusion. The order denying the motion to suppress is
affirmed. The judgment of conviction is
affirmed.
So ordered.
(FN1.) The defendant was also convicted of
possession of heroin with intent to distribute.
This charge was dismissed as duplicative.
(FN2.)
In this appeal, the defendant has not raised any arguments under the Fourth
Amendment to the United States Constitution, nor has he raised any arguments
under G.L. c. 276, § 1. Thus, we consider the defendant's challenges
only under art. 14 of the Massachusetts Declaration of Rights.
(FN3.)
The defendant was not located that day, but was arrested some time later in
Puerto Rico.
(FN4.)
The defendant does not dispute that the trooper was justified in stopping the
defendant's vehicle because it was travelling in
excess of the speed limit. Nor does the
defendant dispute that the officer was required to perform an inventory search
once he determined it was necessary to impound the vehicle because neither the
defendant nor the driver possessed a license and because the vehicle was
unregistered. The defendant argues
instead that the officer exceeded the scope of the written policy governing
inventory searches by the Massachusetts State police.
(FN5.)
The motion judge found that "the search was conducted as an inventory
search and for no other purpose."
(FN6.)
It is important to distinguish between the
observation of an item in plain view and the seizure of an item in plain view.
The observation of an item in plain view "involves no intrusion
into an area in which the defendant has a reasonable expectation of
privacy" and does not rise to the level of a search. Commonwealth v. Sergienko, supra, 399 Mass. at 294, 503 N.E.2d
1282. See also, Horton v. California, 496 U.S. 128, 138 & n. 5, 110 S.Ct. 2301, 2309 & n. 5, 110 L.Ed.2d 112 (1990). The seizure of an item in plain view,
however, intrudes upon the owner's possessory
interest in that item and thus implicates constitutional considerations. Sergienko, supra, 399 Mass. at 296, 503 N.E.2d 1282.
Horton, supra 496 U.S. at 133 n. 5, 110 S.Ct.
2306 n. 5.
(FN7.)
The defendant makes no explicit argument to us that there was no probable cause
to seize the bag, but we think it appropriate to address this issue.
(FN8.)
The motion judge concluded that the "observations made by Officer Hackett
of the package within the wall compartment, its nature and location, were
sufficient to lead him to believe that it contained a narcotic substance.
"He had
a perfect right thereupon to seize the object;
but even if that were not so, in fact the seizure was made by Officer
Hackett when it was observed that the defendant Figueroa had fled the scene; and it was then necessary to pursue him. At that point there was every reason to
believe that the vehicle might have to be left unattended, and there [were]
adequate reasons to open the panel further and seize the object within it and
take custody of it."
(FN9.) The Commonwealth has not argued that
the seizure of the package was justified under the plain view doctrine. A warrantless
seizure is justified under the plain view doctrine only where the incriminating
nature of the item is immediately apparent and where the officer has a lawful right
of access to the item. See Commonwealth v. Cefalo,
381 Mass. 319, 330, 409 N.E.2d 719 (1980).
See also Horton v. California,
supra 496 U.S. at 136‑137, 110 S.Ct. at
2308.
(FN10.) The record reflects that, although
Trooper Hackett had called a tow truck and the Sturbridge police to the scene,
neither had yet arrived. Further,
although Trooper Roy was present at the scene, he was occupied with the driver,
Lebron, whom he had taken into custody.
(FN11.) On appeal the defendant seeks to
challenge the opening of the closed package containing the heroin. The defendant did not raise this argument
before the motion judge. We will not
ordinarily consider an argument raised for the first time on appeal. Thus we do not reach it here. See Commonwealth v. Garcia, 409 Mass. 675,
678‑679, 569 N.E.2d 385 (1991). We
have previously left open the question whether an inventory search of a closed
container that is conducted pursuant to a standardized written policy is
permissible under art. 14. See id. at 685 n. 1, 569 N.E.2d 385;
Commonwealth v. Bishop, 402 Mass. 449, 451 n. 1, 523 N.E.2d 779
(1988). See also Commonwealth v. Rostad, 410 Mass. 618, 622‑623, 574 N.E.2d 381
(1991).