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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. Peters, 48 Mass.App.Ct.
15 (1999)
Appeals Court of Massachusetts,
No. 98‑P‑437.
Argued
Decided
Jens Bahrawy,
Linda A. Wagner, Assistant District Attorney,
Present:
ARMSTRONG, DREBEN, & GREENBERG, JJ.
DREBEN, J.
Originally
arrested for a suspended driver's license after his car was stopped in the
course of a drug investigation, the defendant was later charged and convicted
of possession with the intent to distribute a Class B substance. The subsequent charge was based on items
found in his automobile and on his person pursuant to "inventory"
searches. The defendant's primary claim
on this appeal relates to the warrantless search of
his person. We affirm his conviction,
although we uphold the search of his person on grounds other than an inventory
search.
[48 Mass.App.Ct.
16] 1. Facts elicited at the hearing on the motion to suppress. We state the facts as found by the motion
judge after the hearing on the motion to suppress, supplemented by uncontested
details necessary to our analysis.
After
receiving a transmission from McCabe, Trooper James Massari
of the Massachusetts State police saw the defendant's vehicle (FN2) and pulled
it over. The defendant and,
subsequently, the female passenger were asked to step from the vehicle. The defendant was pat frisked. The passenger stated to another officer on
the scene, Trooper Serpa, that she had a
"joint" in her pocket. Serpa confiscated it and arrested her. Thereafter, Massari
ran a "registry check" on the defendant's license and registration
and was informed that the defendant had two licenses, one a suspended
"A" number and the other a valid "S" number. (FN3)
He arrested the defendant for operating on a suspended license and
arranged for an inventory search of the vehicle, which included a canine
inspection, before it was towed. A
written inventory policy was introduced in evidence, [48 Mass.App.Ct. 17] and Massari testified that its
procedures were followed. Discovered in
the glove compartment of the vehicle was $3,500 in cash to which a small
business card was attached with a rubber band.
Names and initials with amounts of money next to them were noted on the
card. Massari,
who had "training and experience" in narcotics investigations,
recognized the card as a "tally sheet," that is, "a listing of
names and numbers" showing what people have paid for narcotics.
The
defendant and his passenger were taken to the Bourne barracks. After being photographed and fingerprinted,
and prior to being placed in his cell, the defendant was searched pursuant to a
written policy. An inventory search of
"whatever was on [the defendant's] body was made." Six hundred seventy‑two dollars in
cash and a beeper were found in his left front pocket and two baggies believed
to contain cocaine were found in one of his socks. The written inventory policy applicable to
the search of the defendant's person was not introduced in evidence.
2. The judge's conclusions. The judge, in his memorandum denying the
motion to suppress, concluded that McCabe, based on his observations, had
specific, articulable facts to believe that the
defendant had engaged in a drug transaction, see Terry v. Ohio, 392 U.S. 1, 21‑22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that, once the defendant
was stopped, the officers acted appropriately in arresting the defendant for
operating on a suspended license, and that the inventory search of the
automobile was conducted in accordance with the written policy introduced as an
exhibit. As to the search of the
defendant's person, the judge stated, "[T]he police testified that the
search of the defendant at the station was conducted pursuant to a written
policy. The policy was not introduced
into evidence by either party.
Therefore, there is no evidence before the court that the search at the
station was unreasonable."
[1][2] 3. Validity of the stop. The defendant's argument that McCabe's suspicions
were unreasonable on an objective standard is without merit. In reviewing a judge's denial of a motion to
suppress, "we accept the motion judge's subsidiary findings of fact absent
clear error, and we view, with particular respect, the conclusions of law that
are based on them." Commonwealth v. Kennedy, 426 Mass. 703,
705, 690 N.E.2d 436 (1998). McCabe had
seen the defendant enter a condominium complex known to police as a location
for drug transactions, remain there for ten minutes, then drive a short
distance away where he met a man who had pulled up to the defendant's car. The defendant then engaged in [48 Mass.App.Ct.
18] what appeared to McCabe, a
trained narcotics officer, to be a drug transaction. McCabe specifically saw the man give the
defendant money and receive something in exchange. These observations by McCabe, communicated,
and even if not, imputed (FN4) to Massari, reasonably
led the officers to suspect that the defendant had committed a crime, and
therefore warranted at least a threshold inquiry. The circumstances may even have constituted
probable cause to arrest the defendant.
See id. at 704, 690 N.E.2d
436.
4. Inventory search of defendant's person. Since the defendant's primary challenge both
at the hearing on the motion to suppress and now on appeal is to the
"inventory" search of his person, we set forth in detail in the
margin the evidence as to the policy underlying that search. (FN5)
The
defendant claims that without the written policy there is [48 Mass.App.Ct. 19] no way to determine whether the procedures were complied with
and, in any event, the testimony did not indicate, as required, an absence of
discretion on the part of the police. Commonwealth v. Rostad,
410 Mass. 618, 622, 574 N.E.2d 381 (1991), makes [48 Mass.App.Ct. 20] clear that the requirement established by Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988),
that standard police procedures for an inventory search be in writing, applies
also to searches of the person. Quoting
from Colorado v. Bertine,
479 U.S. 367, 376, 107 S.Ct. 738, 93 L.Ed.2d 739
(1987) (Blackmun, J., concurring), the Rostad court,
at 622, stated that the underlying rationale for allowing an inventory
exception to art. 14 of the Massachusetts Declaration of Rights was the same as
under the Fourth Amendment, namely, "that police officers are not vested
with discretion to determine the scope of an inventory search." Although in Rostad the Belchertown police had a
written policy which allowed the officer in charge to "search the arrestee
and make an inventory of all items collected," the court held that the
policy was not
"explicit enough to guard
against the possibility that police officers would exercise discretion with
respect to whether to open closed wallets and handbags as part of their
inventory search. It may be true, as the
judge observed, that '[a]uthority to search such
containers is ... implicit in an injunction to search the person of an arrestee
and inventory all items collected,' but we think that an injunction in such
general terms is not entirely clear and therefore unacceptably invites the
exercise of police officer discretion."
Ibid.
Thus, the court held that art. 14 required the exclusion of drugs seized
in an inventory search of the defendant's handbag.
[3]
Here, the motion judge's basis for upholding the search‑‑since the
policy was not introduced, there was no evidence that the search was
unreasonable‑‑was based on an incorrect determination of the burden
of proof. The Commonwealth has the burden
of establishing that this was a lawful inventory search. Commonwealth v. Sullo, 26 Mass.App.Ct. at
772, 532 N.E.2d 1219. See Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974) (where the search is without a warrant,
the burden of establishing its reasonableness is on the Commonwealth).
It
is doubtful that the Commonwealth has sustained its burden. While the defendant urges that Bishop and Rostad require the introduction of the
written policy, (FN6) our difficulty is more basic. Even accepting the oral testimony, we
consider the [48 Mass.App.Ct.
21] policy, as described, to be in
such general terms that, like the policy in
Rostad, supra at 622, 574 N.E.2d 381, it
"unacceptably invites the exercise of police officer discretion." The scope of the search was
"anything" and although at one point Massari
limited it to "anything that he [the defendant] might use to hurt
himself," he later again said "anything."
[4]
Moreover, the testimony also leaves doubt whether the policy meets the
requirements set forth in Commonwealth v.
Sullo, 26 Mass.App.Ct.
at 768, 532 N.E.2d 1219, for an inventory search to be legitimate.
Those are: "First, the
search must follow a standard or routine procedure adopted and recognized by
the police force.[ (FN7)] Second, it may not extend beyond the
custodial necessities which are its sole justification. Third, it may not become a cover or pretext
for an investigative search."
[5]
5. Search incident to an arrest on ground
other than suspension of license.
We need not, however, rely on the "inventory" search to uphold
the search of the defendant's person. At
the time of the defendant's arrest for a suspended license, the police had seen
the defendant in a place known for drug activity, and had seen him in the
presence of his female companion engage in what appeared to trained narcotics
officers to be a drug transaction. In Commonwealth v. Kennedy, 426 Mass. at
708, 690 N.E.2d 436, not dissimilar circumstances supported a finding of
probable cause to arrest. Here there was
additional evidence‑‑the female companion had acknowledged that she
had drugs (a "joint") in her pocket, and the police had confiscated
the drugs. In these circumstances, the
police had probable cause to arrest and search the defendant for possession of
drugs. See G.L.
c. 276, § 1. (FN8) That this was not
stated to be the ground of arrest is not dispositive. "[T]he citizens of the Commonwealth,
whom the police are organized and exist to protect, and the Commonwealth should
not be conclusively bound or limited by the officer's choice of words made
subjectively in the active execution of his duties." Commonwealth v. Lawton, 348
Mass. 129, 132, 202 N.E.2d 824 (1964). Commonwealth v. Perretti,
20 Mass.App.Ct. 36, 40, 477 N.E.2d 1061 (1985). See
Commonwealth v. Perez, 357 Mass. 290, 300, 258 N.E.2d 1 (1970). The [48
Mass.App.Ct. 22]
ground given originally was not a sham, contrast Mills v. Wainwright, 415 F.2d 787 (5th Cir.1969), and probable
cause for an arrest for violation of the controlled substance laws, even if not
existing at the time of the stop, derived from the evidence gleaned as the
result of a valid Terry stop. See
Commonwealth v. Clermy, 421 Mass. 325, 330, 656
N.E.2d 1253 (1995). Contrast Commonwealth v. Toole, 389 Mass. 159,
163‑164, 448 N.E.2d 1264 (1983), in which probable cause to believe there
was a gun in the cab of a truck was held not to justify a search in the absence
of exigent circumstances or evidence that the gun was illegal.
In
some cases, e.g., United States v.
Atkinson, 450 F.2d 835, 838‑839 (5th Cir.1971), cert. denied, 406
U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972),
courts have suggested that the crime for which the arrest was made (here,
suspension of license) and the crime for which there is also probable cause
(here, illicit drug activity) should be related, so as to preclude improper ex
post facto manipulation of the facts by the police. See
Commonwealth v. Perretti, 20 Mass.App.Ct.
at 40, 477 N.E.2d 1061. If such a link
is necessary, compare Commonwealth v. Clermy, 421 Mass. at 330, 656 N.E.2d 1253, the
connection between the basis for the stop and the evidence found on the
defendant's companion when the stop was effected provides sufficient safeguards
to validate the subsequent search as one for possession of controlled
substances. See United States v. Bizier, 111 F.3d 214,
220 (1st Cir.1997). See generally 3 LaFave, Search and Seizure § 5.1(e) (3d ed.1996).
[6]
6. Canine search of car. The defendant claims that the canine search
included as part of the inventory search of the car exceeded the officers'
authority. As no drugs or other
contraband were found by reason of the canine search, the
defendant can claim no prejudice.
Moreover, the existence of probable cause to arrest the defendant for
possession of controlled substances, discussed in part 5 above, would also have
warranted the canine inspection as a search incident to that arrest.
7. Remaining contentions. The remaining contentions of the defendant
are without merit. His claim that he
should have been permitted to cross‑examine two officers as to their
financial interest in a possible forfeiture is disposed of by Commonwealth v. Sendele,
18 Mass.App.Ct. 755, 760‑761, 470 N.E.2d 811
(1984). In view of the expert testimony
at trial, the defendant's claim that the business card (tally sheet) should not
have been admitted is baseless.
Judgment affirmed.
(FN1.) No drugs were found in the vehicle
driven by the other man.
(FN2.) The judge in his memorandum stated that
Massari "allege[d]" that he observed the
vehicle traveling with a loud exhaust and he also "allege[d]" that he
saw furtive movements by the occupants.
The judge noted that he took "no position on the loud muffler or
the furtive movements in the vehicle other than to say that the defendant
introduced no evidence at the suppression hearing and therefore, the evidence
stands unchallenged."
(FN3.) The record does not explain why the
defendant had two licenses nor the difference between the two.
(FN4.)
Commonwealth v. Lanoue, 356 Mass. 337, 340, 251
N.E.2d 894 (1969) (knowledge of one officer is knowledge of all).
(FN5.) Massari was
asked on direct examination by the Commonwealth:
Q.:
"And that search, that was prior to his being placed in the
cell; is that right?"
A.:
"Yes."
Q.:
"And is that the policy of the state police?"
A.:
"Yes, everybody is searched prior to being placed in the
cells."
On
cross‑examination by the defendant's counsel Massari
was asked:
Q.:
"So, he was searched, sir, at that point in time in a cell at the
state police barracks while under arrest for operating after suspension,
correct?"
A.:
"Sure."
Q.:
"And what were you looking for then, sir?"
A.:
"Anything."
Q.:
"Anything?"
A.:
"Anything that he might use to hurt himself. If we had‑‑we had to put him in
the cell."
Q.:
"So, at some point in time, he's told to take his socks off,
right?"
A.:
"Absolutely."
Q.:
"Turn his socks inside out, right?
And that was pursuant to your inventory;
is that correct?"
A.:
"Yes."
Q.:
"Sir, there is a written inventory policy for prisoners, is there
not?"
A.:
"I believe there is."
Q.:
"Do you have that?"
A.:
"No, I didn't bring that."
Q.:
"But clearly the search that occurred at the station in the cell
was an inventory search at that point in time according to what you say,
right?"
A.:
"Yes."
Q.:
"Now, generally, Trooper, when you have someone under arrest for a
motor vehicle offense, do you ask them to take off their clothes and search
them?"
A.:
"Yes."
Q.:
"All prisoners, you ask to do that?"
A.:
"I do."
Q.:
"And that's what you did to Mr. Peters right?"
A.:
"Yeah."
Q.:
"Had him strip, and you searched all his clothing?"
A.:
"Yes."
Q.:
"Looking for personal property, right? To protect‑‑"
A.:
"Anything, yeah."
Q.:
"And it was during this search when he was taking off his socks
that you made this observation of these two bags of cocaine, correct?"
A.:
"Yes."
At
the end of his cross‑examination, defense counsel asked:
Q.:
"And once again, Trooper, you do have a written inventory policy
and procedure for search of prisoners at the station; is that correct?"
A.:
"Yes."
Q.:
"And you don't have that here today; is that correct?"
A.:
"No."
(FN6.) Obviously, the written policy would
provide the best proof of its contents and the Commonwealth would be well
advised to introduce such policies in evidence.
(FN7.) After Bishop, supra, and Rostad, supra, the procedure must be in writing.
(FN8.) Subsequent to oral argument, the
parties were asked to brief the question whether the search could be upheld as
a search incident to an arrest for drugs.
In his supplemental brief, the defendant argues that the strip search is
precluded by Commonwealth v. Thomas,
429 Mass. 403, 408, 708 N.E.2d 669 (1999).
Here there was, however, probable cause for such a search of the
defendant.