|
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. Garcia, 409
Supreme Judicial Court of Massachusetts,
Argued
Decided
[409
James E. McCall, for Albert F. Heredia.
Claudia R. Sullivan, Asst. Dist. Atty., for the Com.
Before [409
[409
The
defendants, Saturnino Garcia and Alberto Heredia, appeal from convictions of trafficking in cocaine
in violation of G.L. c. 94C, § 32E. Both defendants contend that the trial judge
improperly denied their motions to suppress cocaine seized from the trunk of
the vehicle which Garcia drove and in which Heredia
was a passenger. Heredia
also claims error in the judge's denial of a motion to suppress statements he
made while in the police station. Garcia
claims that the judge should have allowed his motion for a required finding of
not guilty. We agree with Garcia that
the evidence against him was insufficient to support a conviction. We also conclude that the cocaine was
properly admitted in evidence, and that Heredia's
statements also were properly admitted.
We therefore reverse Garcia's conviction and affirm Heredia's
conviction.
We set
forth the facts as found by the judge.
Garcia was driving a vehicle on Route 84 in Sturbridge at about
[409 Mass. 678] 1. Motion to suppress the
cocaine. Both defendants contend
that the judge erred in denying their motions to suppress the cocaine seized
from the trunk of the vehicle. Heredia argues that the search violated his rights under
the Fourth Amendment to the United States Constitution. Garcia argues that his rights under art. 14
of the Massachusetts Declaration of Rights also were violated. The motions to suppress filed by the
defendants sought the suppression of the cocaine seized as a result of the
inventory search.
[1][2] A. The impoundment of the vehicle. On appeal, both defendants argue that the
inventory search was improper because the police were not justified in
impounding the vehicle. (FN2) We agree that the propriety of the
impoundment of the vehicle is a threshold issue in determining the lawfulness
of the inventory search. Neither
defendant, however, raised this issue at the suppression hearing or at
trial. Thus, the judge made no findings
of fact concerning the circumstances surrounding the impoundment of the vehicle
at the police barracks. (FN3) Nor are there any findings of fact whether
the automobile was lawfully parked where it was first stopped and need not have
been driven to the station.
"An
issue not fairly raised before the trial judge will not be considered for the first
time on appeal. Commonwealth v. Lewis, 346 Mass. 373, 383
[191 N.E.2d 753] (1963), cert. denied,
376 U.S. 933 [84 S.Ct. 704, 11 L.Ed.2d 653]
(1964)." Commonwealth v. Marchionda,
385 Mass. 238, [409 Mass. 679] 242, 431 N.E.2d 177 (1982).
Commonwealth v. Cote, 386 Mass. 354, 435 N.E.2d 1047 (1982). See
United States v. Medina, 887 F.2d 528, 533 (5th Cir.1989);
United States v. Acevedo, 842 F.2d 502, 508
(1st Cir.1988); United States v. White, 766 F.2d 22, 25
(1st Cir.1985); United States v. Whitten, 706 F.2d 1000,
1012 (9th Cir.1983), cert. denied,
465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125
(1984). While we do have the power to
consider such issues, we exercise it only in the rare instance of a serious
error which creates a substantial risk of a miscarriage of justice.
Commonwealth v. Oakes, 407 Mass. 92, 94‑95, 551 N.E.2d 910
(1990).
Commonwealth v. Pares‑Ramirez, 400 Mass. 604, 609, 511 N.E.2d
344 (1987). This is not such a
case. The parties failed to develop any
evidence on the issue of the propriety of the impoundment of the vehicle,
either at the suppression hearing or at trial.
Because the defendants failed to raise this issue below, they cannot
raise it on appeal.
[3] Heredia also claims that the police impounded the vehicle
in order to gain a pretext for an investigative search because there was no
probable cause to search the vehicle. Heredia's counsel argued at the suppression hearing that
the trooper opened the trunk because he was looking for drugs. The judge, however, found that an inventory
search was performed in accordance with established State police
procedures. "In reviewing the
denial of a motion to suppress, we accept the motion judge's subsidiary
findings of fact absent clear error." Commonwealth v. Yesilciman,
406 Mass. 736, 743, 550 N.E.2d 378 (1990).
The fact that police know of an outstanding warrant does not render
unlawful any subsequent inventory of a towed vehicle. "[T]aking an
inventory of the contents of a [vehicle] about to be towed or impounded is a reasonable
procedure; and the fact that the
searching officer may have harbored a suspicion that evidence of criminal
activity might be uncovered as a result of the search should not vitiate his
obligation to conduct the inventory." Commonwealth v. Matchett,
386 Mass. 492, 510, 436 N.E.2d 400 (1982), quoting Commonwealth v. Tisserand, 5 Mass.App.Ct. 383, 386‑387, 363 N.E.2d 530 (1977).
[4] The
facts found by the judge and supported by the evidence at the suppression
hearing indicate that the trooper asked Garcia to accompany him to the State
police barracks [409 Mass. 680] rather than issuing him a citation on
the road because of Garcia's continued insistence that he was licensed. The trooper did not ask the defendants about
contraband when he stopped the vehicle or when he arrested them. The trooper called the tow truck almost
immediately after he arrested the defendants, and the vehicle was towed shortly
thereafter. Written standard procedures
required that an inventory be made when a vehicle was towed. A trooper prepared an inventory list of those
items which were left with the vehicle, for which the police department would
be liable.
The facts
of this case distinguish it from the ruling in Commonwealth v. Woodman, 11 Mass.App.Ct.
965, 417 N.E.2d 469 (1981), that an inventory search was unlawful. In
Woodman, the defendant had been arrested for assault and battery by means
of a dangerous weapon. His vehicle was
taken to the police station where it remained for two days. An officer, according to his own testimony,
then searched the vehicle in order to perform an inventory as well as to look
for a missing knife. The Appeals Court
concluded that the knife discovered by the officer must be suppressed because
the search was not lawful as a noninvestigative
inventory. The fact that the officer was
looking for a knife led the Appeals Court to conclude that the inventory search
was unlawful. Those facts are not
relevant to the issue in this case. The
judge's conclusion that the trooper conducted an inventory search according to
the requirements of established policy is supported by the evidence.
B. Inventory procedure. The defendants next argue that the trial
judge should have suppressed evidence of the cocaine because police were not
authorized by written procedures to open a locked trunk in the course of an
inventory search.
[5] The
Fourth Amendment does not prohibit inventory searches of impounded vehicles
when police act pursuant to reasonable police
regulations administered in good faith. South Dakota v. Opperman,
428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000
(1975). The Supreme Court has emphasized
that inventory searches are to be conducted according to standardized criteria.
Florida v. [409 Mass. 681] Wells, 495 U.S. 1, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). South Dakota v. Opperman, supra.
Standard procedures reduce the discretion of police to search at will,
and so lessen the possibility that police will use inventory procedures as
investigative searches. This court also
has stressed the importance of standardized procedures in determining whether
an inventory search passes constitutional muster. Commonwealth v. Ford, 394
Mass. 421, 476 N.E.2d 560 (1985). Commonwealth v. Matchett,
386 Mass. 492, 436 N.E.2d 400 (1982).
Thus, we have held that art. 14 of the Massachusetts Declaration of
Rights requires that evidence seized during an inventory search must be
suppressed unless the search was conducted pursuant to standard police
procedures. Police procedures can be
considered "standard" only if they are set forth in writing.
Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988).
[6] At the
time of the defendants' arrest, two written State police policies governed the
actions of the State troopers. State
police policy OPR‑26 authorized the State trooper in Sturbridge "to
conduct and record an inventory of the contents of vehicles towed, removed, or
stored ... as the result of a police action." Policy OPR‑26A directed that "[a]ny vehicle in lawful custody of the [State police] shall be
examined and an inventory of the contents and general condition of the vehicle
shall be recorded on the inventory form."
The policy expressly assigned to the person requesting the tow the responsibility
of securing "any monies or articles of value that cannot be properly
secured by the tow company."
(FN4) Both defendants, however,
argue that these written procedures did not authorize the trooper to open a
locked trunk as part of an inventory search.
Heredia stresses the discretion that is left
to the police officer under these procedures and suggests that the procedures
are not detailed enough to constitute standard written procedures. Garcia argues more narrowly[409 Mass. 682] that the procedures are
silent as to locked trunks, and therefore cannot authorize the opening of
locked trunks.
This is
the first time that we have had occasion to decide in what circumstances a
police officer may open a locked trunk in the course of a noninvestigative
inventory search. We have suggested in
dicta, however, that it may be necessary to open a locked trunk in order to
conduct an inventory search. Commonwealth v. Ford, 394 Mass. 421, 425‑426
n. 3, 476 N.E.2d 560 (1985). We now look
more closely at the purposes of allowing warrantless
inventory searches to assess more carefully the propriety of opening the locked
trunk in this case.
We have
recognized three separate interests which are protected by permitting police to
conduct 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. Matchett, supra. Two of these purposes, the protection of the
vehicle and its contents and the protection of the reputation of the police and
tow company, are part of the policy governing the State police in this
case. In order to achieve these goals,
many States have concluded that it is reasonable for police to open the trunk,
as well as the passenger compartment, in order to complete an inventory. See
State v. Roth, 305 N.W.2d 501 (Iowa),
cert. denied, 454 U.S. 870, 102 S.Ct. 338, 70
L.Ed.2d 174 (1981); State v. Fortune, 236 Kan. 248, 689 P.2d
1196 (1984); Fallon v. State, 725 P.2d 603
(Okla.Crim.1986); State v. Flittie,
425 N.W.2d 1, 5 (S.D.1988); State v. Howard, 645 S.W.2d 751
(Tenn.1982). A vehicle owner may be just
as likely to store valuables in a trunk as in the passenger area of the vehicle. See
State v. Prober, 98 Wis.2d 345, 353‑354,
297 N.W.2d 1 (1980), overruled in part on
other grounds, State v. Weide, 155 Wis.2d 537,
455 N.W.2d 899 (1990); K.B. Smith, Criminal Practice & Procedure § 274
(1983). While a locked trunk may be
somewhat more secure than a locked passenger area, it is certainly not
invulnerable to vandalism or theft. See State v. Roth, supra at 505. Protection of the police department and the
tow company also requires inventory of both the basic compartments of a
vehicle. An owner [409 Mass. 683] could
as easily make a false claim that police or tow company negligence had resulted
in the loss of an item from the trunk as an item from the passenger area. See Prober, supra, 98 Wis.2d at 354, 297 N.W.2d 1. For these reasons, several courts have expressed
the view that there is no reason to distinguish between an inventory of the
passenger area and an inventory of a trunk. See State v. Roth, supra; State v. Fortune, supra; State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980);
State v. Flittie, supra; State v. Prober, supra.
Some courts thus have referred to items as "in plain view"
when the items were discovered upon opening the trunk. See People v. Meeks, 194
Colo. 214, 570 P.2d 835 (1977); State v. Gwinn, 301 A.2d 291
(Del.Super.1972). Additionally, some
courts have stated that, because a vehicle trunk is in effect a
"container" that is no more secure than the vehicle itself, the
purposes of an inventory search cannot be attained without opening the trunk.
People v. Meeks, supra. Prober, supra, 98 Wis.2d at 354‑355, 297 N.W.2d
1. (FN5)
[409 Mass. 684] We conclude that the best approach is to consider that a noninvestigative inventory search of a vehicle, aimed at
protecting the contents of the vehicle, the police department, and the tow company,
reasonably includes opening a locked trunk.
In Massachusetts, such a search must be conducted pursuant to written
police procedures. See Commonwealth v. Bishop, 402 Mass.
449, 523 N.E.2d 779 (1988). Although
procedures OPR‑26 and OPR‑26A do not specifically mention opening
the trunk, they do impose on the police the responsibility for safeguarding the
contents of the vehicle, and they direct that an inventory be taken of the
contents of the vehicle. These procedures
do not leave police with improper discretion as to whether to open the
trunk. There are only two major
compartments of a vehicle: the passenger
area and the trunk. This procedure
requiring inventory of the vehicle is sufficient to direct police to enter both
compartments. The search was not
unreasonable under either the Fourth Amendment or art. 14 of the Massachusetts
Declaration of Rights.
[7] Both
defendants argue further that the cocaine should be suppressed because
procedures OPR‑26 and OPR‑26A do not specifically authorize the
opening of closed containers in the course of an inventory
search. We join other courts in
distinguishing the propriety of opening a trunk in the course of an inventory
search from the propriety of opening a closed container in the course of such a
search.
See People v. Meeks, 194 Colo. 214, 570 P.2d 835 (1977);
State v. Gwinn, 301 A.2d 291, 294 (Del.Super.1972);
Fallon v. State, 725 P.2d 603, 605 (Okla.Crim.1986). Our conclusion that a procedure directing an
officer to inventory the contents of a vehicle is sufficient to direct him to
open the trunk does not extend to the opening of a closed container. See
Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988). See
also State v. Gwinn, supra. We have
made it clear that, if police open a closed container during an inventory
search in the absence of a specific written procedure requiring them to do so,
then any evidence[409 Mass. 685]
they discover in the container must be suppressed. (FN6) Commonwealth v. Bishop, supra 402 Mass.
at 451, 523 N.E.2d 779.
[8] In
this case, however, the judge found that the paper bag containing the cocaine
was not a closed container. After
hearing testimony and looking at the bag, the judge found that the top of the
bag was open when the bag was discovered.
He also found that, when the trooper picked up the bag, he could tell by
the look and feel of the bag that it likely contained contraband. In light of the judge's findings of fact,
there was no error in the judge's conclusion that the motions should be denied.
[9]
Finally, the defendants point to the trooper's failure to obtain the signature
of the tow truck operator on the inventory form as required by procedure OPR‑26A. Heredia argues that
this is evidence that the inventory was a pretext for an investigative
search; Garcia argues that this failure
made the entire search unlawful. We
agree with the motion judge that this deficiency does not affect the
defendants' constitutional rights.
[10] 2. Admissibility of Heredia's
statements. Heredia
claims that it was violation of his Fourth Amendment rights when the State
troopers were allowed to testify as to statements made by Heredia
in the course of a telephone call made from the police barracks.
Two State
troopers testified that, after the arrest, one of the troopers helped Heredia to place a telephone call to Florida. The two troopers were near Heredia as he spoke on the telephone and overheard part of
his conversation. During the
conversation, Heredia said, "I got
busted.... They got most of it."
The
threshold question in examining a Fourth Amendment issue is whether a person
had a "constitutionally protected reasonable expectation of privacy."
California v. Ciraolo, 476 U.S. 207, 211,
106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986), quoting Katz v. United States, [409 Mass. 686] 389 U.S. 347, 360, 88 S.Ct. 507, 516,
19 L.Ed.2d 576 (1967) (Harlan, J., concurring). See Commonwealth v. Panetti, 406 Mass. 230, 231, 547 N.E.2d 46 (1989). The defendant in this case spoke on a
telephone at the police barracks. The
evidence indicates that two State troopers were present, within approximately
four to five feet of the defendant. One
of the troopers helped him to place the telephone call. The defendant knew the troopers were in the
room. The defendant spoke in a normal
voice. In these circumstances, the
defendant did not have a reasonable expectation of privacy. The judge did not err in allowing the
troopers to testify as to the inculpatory statements
they overheard. (FN7)
Required finding of not guilty. Each defendant made a motion for a required
finding of not guilty at the close of the Commonwealth's case. Both motions were denied. Both defendants contend that the denial of
the motions was error.
[11][12]
When reviewing the denial of a motion for a required finding of not guilty, we
look at the evidence in the light most favorable to the Commonwealth.
Commonwealth v. Salemme, 395 Mass. 594,
595, 481 N.E.2d 471 (1985). The
defendants were convicted of trafficking in cocaine under G.L.
c. 94C, § 32E. The Commonwealth must
prove "possession" of the contraband.
" 'Possession implies "control and power," ... exclusive
or joint, ... or, in the case of "constructive possession," knowledge
coupled with the ability and intention to exercise dominion and control.'
Commonwealth v. Deagle, 10 Mass.App.Ct. 563, 567 [409 N.E.2d 1347] (1980) (citations
omitted)." Commonwealth v. Rosa, 17 Mass.App.Ct. 495, 498, 459 N.E.2d 1236 (1984). The Commonwealth may prove that the defendant
had knowledge of the contraband by circumstantial evidence, if the evidence
warrants a reasonable inference to that effect. See Commonwealth v. Brown,
401 Mass. 745, 747, 519 N.E.2d 1291 (1988); Commonwealth v. Rosa, supra, 17 Mass.App.Ct. at 498, 459 N.E.2d 1236. Discovery of contraband in the same
automobile with the defendant, without more, is not [409 Mass. 687]
sufficient evidence to warrant a finding of possession. Commonwealth v. Brown, supra,
401 Mass. at 747, 519 N.E.2d 1291. Commonwealth v. Boone, 356 Mass. 85, 87,
248 N.E.2d 279 (1969). Presence in the
same vehicle supplemented by other incriminating evidence, however, may suffice
to show knowledge or intent to control. Brown, supra, 401 Mass. at 747, 519
N.E.2d 1291. In the present case, the
cocaine was discovered in the locked trunk of a vehicle which did not belong to
either defendant. It was not within the
plain view of the defendants, a circumstance which might have supported an
inference that they had knowledge of it. See Commonwealth v. Almeida, 381 Mass.
420, 423, 409 N.E.2d 776 (1980). The
Commonwealth does not allege that before the arrests either defendant gave any
indication of knowledge that drugs were in the vehicle. After his arrest and the inventory search,
police overheard Heredia say, "I got
busted.... They got most of
it." As discussed above, this
statement was admissible against Heredia. The jury was warranted in inferring from this
statement that Heredia knew that the cocaine was
present in the vehicle. Heredia's motion for a required finding of not guilty was
properly denied.
The
Commonwealth agrees with Garcia that the statements made by Heredia
did not inculpate Garcia and were not admissible against him. The sum of the Commonwealth's evidence
against Garcia is his presence in the vehicle where the cocaine was
discovered. The Commonwealth contends
that an additional factor pointing to knowledge can be found in the fact that
the cocaine was extremely valuable. The
Commonwealth argues that it is unlikely that anyone would lend a vehicle
containing such valuable contents unless the borrowers knew of those contents,
and that therefore a jury could infer that both Heredia
and Garcia knew of the cocaine. This
argument is simply another way of stating that one can infer knowledge of
contraband from its presence in a vehicle.
As the Commonwealth concedes, presence alone is not sufficient to prove
knowledge and intent to control contraband.
There was insufficient evidence to prove that Garcia had knowledge of
the cocaine, and thus had constructive possession[409 Mass. 688] of it.
The trial judge erred in denying Garcia's motion for a required finding
of not guilty.
The
judgment against Garcia is reversed, the verdict is set aside. Judgment of acquittal should be entered in
the Superior Court. The judgment against
Heredia is affirmed.
So ordered.
(FN1.) Commonwealth vs. Alberto F. Heredia.
(FN2.)
The Commonwealth contends that the trooper performed a proper inventory
search. It does not attempt to justify
the search as based on probable cause.
(FN3.)
The Commonwealth points to the following factors as support for the contention
that the impoundment was proper. Neither
defendant could have driven the vehicle from the barracks after the arrests
because Garcia had no license and Heredia had been
arrested on non‑bailable warrants. Neither defendant was the owner of the
vehicle, and the trooper was unsuccessful in contacting the owner. The barracks are in an isolated area, and,
even if police had been able to contact the owner, it would have been several
hours before the owner could have arrived.
Leaving the vehicle in the parking lot might have caused problems
because of snow removal or crowding in the lot.
Finally, even if the police had left the vehicle in the State police
parking lot, they would have been responsible for its contents, and therefore
would have been obliged to inventory its contents.
(FN4.)
This version of procedure OPR‑26A was replaced. The later version includes a specific list of
situations in which a vehicle is to be impounded and a detailed list of the
areas to be searched.
(FN5.) Not all States recognize the necessity
of opening a trunk in the course of an inventory search. See State v. Sawyer, 174
Mont. 512, 571 P.2d 1131 (1977),
overruled on other grounds, 216 Mont. 65, 700 P.2d 153 (1985);
State v. Houser, 95 Wash.2d 143, 622 P.2d 1218 (1980);
State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980). However, "the obvious trend is away from
the plain view limitation" which prohibits the opening of automobile
trunks.
State v. Fortune, 236 Kan. 248, 256, 689 P.2d 1196 (1984). Kansas formerly had a rule that restricted
inventory searches to articles in plain view.
After reviewing developments in the Federal and State case law and
reconsidering the purpose of routine inventory searches, the Kansas Supreme
Court concluded that "an inventory search of the vehicle, including
customary storage areas such as the glove box and trunk, is clearly
justified...." State v. Fortune, supra at 257, 689 P.2d
1196 (approving the opening of a locked trunk as part of a routine inventory
search). After the Supreme Court ruled
that an inventory search of a glove compartment did not violate the Fourth
Amendment, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct.
3092, 49 L.Ed.2d 1000 (1976), the South Dakota Supreme Court ruled on remand
that the State Constitution permitted inventory searches only of items in plain
view.
State v. Opperman, 247 N.W.2d 673, 675
(S.D.1976). The South Dakota court
recently altered that State rule to permit inventory searches of a locked
trunk.
State v. Flittie, 425 N.W.2d 1
(S.D.1988). Colorado also has followed a
similar path. Compare People v. Grana,
185 Colo. 126, 527 P.2d 543 (1974) (where defendant's vehicle was placed in a
secured storage lot, inventory search must be limited to items in plain view),
with People v. Meeks, 194 Colo. 214,
570 P.2d 835 (1977) (evidence discovered in a trunk during an inventory search
admissible against defendant).
(FN6.) We have left unanswered the question
whether an inventory search of a closed container that is conducted pursuant to
a written standard procedure is permissible under art. 14 of the Massachusetts
Declaration of Rights. Commonwealth v. Bishop, supra at 451, n.
1, 523 N.E.2d 779.
(FN7.) Trial counsel did not object to the
admission of the statements. Heredia claims that trial counsel's failure to object to
the admission of these statements constitutes ineffective assistance of
counsel. Because the statements were
admissible, there is no basis for Heredia's claim of
ineffective assistance of counsel. See Commonwealth v. Saferian,
366 Mass. 89, 315 N.E.2d 878 (1974).