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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. George, 35 Mass.App.Ct.
551 (1993)
Appeals Court of Massachusetts,
No. 92‑P‑732.
Argued
Decided
Eric Brandt, Committee for Public Counsel Services,
for defendant.
Nijole Makaitis,
Asst. Dist. Atty., for Com.
Before ARMSTRONG, JACOBS and GREENBERG, JJ.
GREENBERG, Justice.
While
making a search after a traffic arrest, Officer Mark Parolin
found several white rocks of "crack" cocaine, which, on analysis,
weighed 242 grams. The [35 Mass.App.Ct.
552] driver, the defendant George,
was convicted by a jury of trafficking in more than two hundred grams of
cocaine, G.L. c. 94C, § 32E(b )(4), and possession of ammunition without a firearm
identification card, G.L. c. 269, § 10(h ).
The latter conviction was placed on file with the defendant's
consent. The question presented is
whether the police officer acted within the bounds of a reasonable search and
seizure when he dipped into the gym bag removed from the automobile by the
defendant.
These are the
facts found by the judge of the Superior Court, who heard and denied the motion
to suppress the incriminating evidence, supplemented by the transcript of the
evidence. While on a special motorcycle
patrol on
The
defendant handed over the automobile registration, which indicated that it was
a rental car, but he was unable to produce a driver's license because, he said,
he did not have it on his person or within the vehicle. The defendant explained that he had been
stopped previously by two other police officers who had checked out the
defendant's license and said "his license was good." The defendant then gave Parolin
a nine‑digit license number. Parolin called in to check on the defendant's license; the check precipitated a "no
response" message. This meant to Parolin that either the defendant had a pending application
for a license or was unlicensed. Parolin told the defendant that he had better think of a
better number, which prompted the defendant to say that the license number was
from New York. Parolin
asked the defendant if New York used Social Security numbers as license
numbers, [35 Mass.App.Ct.
553] to which the defendant replied
in the affirmative. Knowing that New
York did not use Social Security numbers to identify its drivers, the officer
became suspicious but feigned ignorance.
Next, Parolin returned to his motorcycle and began an outstanding
warrant check on the defendant. Before
he received his answer, Officer Williams finished writing out the other
citation, and the two approached the car operated by George‑‑Parolin on the driver's side and Williams on the
passenger's side. Parolin
told George he was under arrest for driving without a license. George stepped out of the car and stood
approximately two to three feet away from Parolin. The passenger, Gunn, also got out of the car, and
together with Williams, walked around the rear of the Thunderbird to the
driver's side, to about three feet from where Parolin
stood.
George
protested that he lived "right across the street" at 32 Columbia
Road, and asked if he could get his license.
Parolin knew that 32 Columbia Road was
actually about ten blocks from where the four men were standing. As it became apparent to George that he was
not going to be permitted to drive away, he asked whether Gunn could obtain his
license. Parolin
said that Gunn could do whatever he pleased.
Suddenly,
George reached behind the driver's seat of the car, and retrieved a zippered
black canvas gym bag with red straps. He
passed it immediately to Gunn.
(FN1) Uncertain about what was in
the bag, which earlier had not caught his eye, Parolin
asked what was in the bag and then told Gunn to open it. George said to Gunn, "Go ahead, open the
bag, it's only my jewelry."
(FN2) Just as Gunn started to
unzip the bag, [35 Mass.App.Ct. 554]
Parolin grabbed it because, as he explained in his
testimony, "if there was a weapon, he [Gunn] could have just got in the
bag and pulled it out." As he
carried the bag by the straps to the rear of the car, Parolin
hefted the bag. It felt heavy. He unzipped it and discovered inside plastic
bags containing white rocks which he believed to be crack cocaine‑‑later
testing bore out that surmise‑‑a heat sealer, a scale, and
bullets. Both men were then placed under
arrest, patted‑down, handcuffed, and placed in the Thunderbird to await
transportation to the police station.
When the transport vehicle arrived, the men were patted‑down
again, and Parolin discovered what appeared to be a
package of crack cocaine in the defendant's left pocket.
George's
claim on appeal is that it was error for the motion judge to deny his motion to
suppress evidence obtained as a result of a warrantless
search and seizure. He does not contend
that he was not under arrest at the time of the search or that the search was
untimely. See Commonwealth v. Turner, 14 Mass.App.Ct.
1023, 1024, 442 N.E.2d 40 (1982), and cases cited. His argument is twofold: first, that the search and seizure cannot be
justified as a protective search for weapons, see Commonwealth v. Fraser, 410 Mass. 541, 546, 573 N.E.2d 979
(1991); and, second, that the bag was
not within his immediate control or his "grab area" at the time of
the search, see Chimel
v. California, 395 U.S. 752, 762‑764, 89 S.Ct.
2034, 2039‑2041, 23 L.Ed.2d 685 (1969).
In the
circumstances, the judge did not err in denying the defendant's motion to
suppress. The search was lawful under G.L. c. 276, § 1, as amended by St.1974, c. 508, which
provides in pertinent part that "[a] search conducted incident to an
arrest may be made only for the purposes of seeking fruits, instrumentalities,
contraband and other evidence of the crime for which the arrest has been made
... and removing any weapons that the arrestee might use to resist arrest or
effect his escape." No argument
was presented by the Commonwealth that the search of the gym bag was undertaken
to secure evidence of the unlicensed operation of a motor vehicle. See
Commonwealth v. Toole, 389 Mass. 159, 161‑162, 448 N.E.2d 1264
(1983). Rather, as the defendant
contends, the question[35 Mass.App.Ct. 555] is whether the search can be justified as one
for weapons. (FN3)
[1] Given
the plenary power that the police have to arrest for traffic offenses, c. 276,
§ 1, requires us to be on guard for pretext searches not based on a genuine and
reasonable concern about a concealed weapon or destruction of evidence.
Commonwealth v. Skea, 18 Mass.App.Ct. 685, 701‑702 n. 19, 470 N.E.2d 385 (1984). Operating without a license is not an offense
which ordinarily generates a reason to believe that weapons are present. Open to question are the officers' motives to
search the gym bag. The defendant's
evasive replies and sudden and unexpected movement of the bag, however, created
an objectively reasonable concern on the part of the police that the bag might
contain a weapon. Cf. Commonwealth v. Lucido,
18 Mass.App.Ct. 941, 942, 467 N.E.2d 478 (1984)
(valid protective search for weapons occurred where the defendant's passengers,
who had not been arrested, might retaliate against the arresting officer or
assist the defendant in escape). Not
until the defendant had lied to the police officers about his license and
exaggerated the proximity of his apartment did he remove the gym bag, which was
large enough to contain a weapon, from behind his driver's seat and hand it to
his companion. Gunn, in turn, started to
open the bag in front of the officers.
See Commonwealth v. Brillante, 399 Mass. 152, 155‑156, 503 N.E.2d 459
(1987) (where bag was big enough to contain a weapon, a valid search incident
to an arrest occurred); Commonwealth v. Madera, 402 Mass. at 157,
521 N.E.2d 738. Compare Commonwealth v. Johnson, 413 Mass. 598,
602 n. 5, 602 N.E.2d 555 (1992) (where the court intimated that, if the police
discover a closed container which is not on the defendant's person and could
not contain a weapon, then a search incident to arrest is invalid).
[2] Having
a genuine reason to fear that the bag contained weapons, the officers were
justified in conducting a search incident[35
Mass.App.Ct. 556] to arrest.
Such a search "generally is limited for purposes of both the Fourth
Amendment to the United States Constitution and art. 14 of the Massachusetts
Declaration of Rights, to the body of the person arrested and the area and
items within his or her immediate possession and control at the time."
Commonwealth v. Santiago, 410 Mass. 737, 743, 575 N.E.2d 350 (1991),
and cases cited.
[3] As to
the defendant's contention that he had relinquished control of the gym bag, the
situation before us provides greater justification to search the gym bag than
those cases in which the suspects were standing immediately outside their
vehicles at the time the vehicles were validly searched incident to a lawful
arrest. See Commonwealth v. Bongarzone, 390 Mass.
326, 351‑352, 455 N.E.2d 1183 (1983); Commonwealth v. Brillante,
supra. Here, the gym bag was within
the defendant's reach when the officer grabbed it; neither the defendant nor his companion was
handcuffed, and the officers did not have their weapons drawn. Gunn, who was standing only about three feet
away from the defendant, started to open the bag, which gave the two men greater
access to its contents. Compare Madera, supra, 402 Mass. at 160, 521
N.E.2d 738 (risk of the defendant repossessing the bag in hands of police
officers was minimal); Commonwealth v. Cassidy, 32 Mass.App.Ct. 160, 163, 587 N.E.2d 235 (1992) (search
incident to arrest invalid where the defendant was handcuffed, and he and
passenger were secured in police cruisers).
[4] After Parolin discovered cocaine in the bag, the officers had
probable cause to arrest the defendant on a controlled substance violation and
conduct a pat‑down search which led to the seizure of the crack cocaine
from the defendant's pocket. Commonwealth v. Johnson, supra, 413 Mass.
at 603, 602 N.E.2d 555. The motion to
suppress the physical evidence was properly denied.
Judgment affirmed.
(FN1.) The judge's findings imply that the bag
was in the process of being passed from George to Gunn when Parolin
grabbed it. We do not disturb this
finding unless clearly erroneous. Commonwealth v. Rose, 25 Mass.App.Ct. 905, 906, 514 N.E.2d 683 (1987), and cases
cited. A reading of the motion
transcript, however, clearly indicates that Gunn had already received complete
possession of the bag when the officer intercepted it.
(FN2.)
After the motion hearing, the judge suppressed this statement because the
defendant had not yet been read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).
(FN3.) That the
evidence discovered is not evidence of the crime which justified the arrest
does not make it inadmissible under G.L. c. 276, § 1.
Commonwealth v. Johnson, 413 Mass. 598, 602 n. 5, 602 N.E.2d 555
(1992). See also Commonwealth v. Madera, 402 Mass. 156, 159, 521 N.E.2d 738 (1988).