|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Rose, 25 Mass.App.Ct.
905 (1987)
Appeals Court of Massachusetts,
Argued
Decided
Robert P. Snell, Asst. Dist. Atty., for Com.
Antone B. Cruz, Jr. (Donna M. Sowa,
Before GREANEY, C.J., and GRANT and KASS, JJ.
RESCRIPT.
On a
motion to suppress evidence of unlawful possession of controlled substances (G.L. c. 94C, § 34), the trial judge found as follows: When State trooper Sheehan came upon the
scene, the defendant's car was stopped in the breakdown lane of Route 195. The engine was running and the defendant was
leaning out of the car, vomiting.
Sobriety tests satisfied trooper Sheehan that the defendant was
drunk. The officer arrested the
defendant for operating under the influence of alcohol.
After
placing the defendant in handcuffs in the rear of his police cruiser, Trooper
Sheehan returned to the defendant's car to search it, permissibly, i.e.,
incident to an arrest, G.L. c. 276, § 1, for evidence
of drink. Trooper Sheehan's examination
of the car was rewarded with three empty beer cans and and
an empty liquor bottle. On the rear seat
the trooper found a zipped up red nylon bag, such as one might use to carry
personal effects. That bag the trooper
unzipped, claiming to have first felt something like a bottle inside. The judge expressly did not credit the
trooper's testimony about palpating the bag before opening it. What inspection of the bag disclosed was drug
paraphernalia (e.g., mortar and pestle) and a white residue suggestive of
cocaine. Behind the driver's seat, on
the floor, there was a black suitcase.
Trooper Sheehan opened it and found a scale with white powder on it,
again suggestive of cocaine.
An
automobile search may be reasonable under the Fourth Amendment to the United
States Constitution, as expounded in
United States v. Robinson, 414 U.S. 218, 234‑235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973), and New York v. Belton, 453 U.S. 454, 460,
101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981), but may
not be legally permissible under the more restrictive criteria prescribed by G.L. c. 276, § 1. Commonwealth v. Toole, 389
As the
trial judge observed, once the single occupant of the car was manacled in the
police cruiser, there was no longer a basis for concern that the defendant
would use anything in his car to resist arrest or to escape. Compare
Commonwealth v. Brillante, 399 Mass. 152, 155,
503 N.E.2d 459 (1987), and Commonwealth
v. Lucido, 18 Mass.App.Ct.
941, 942‑943, 467 N.E.2d 478 (1984), in which potentially hostile persons
not under restraint had access to the car in question. Indeed, the Commonwealth does not argue
otherwise; rather, it contends that the warrantless search was lawful because its purpose was to
seize evidence that the defendant had been imbibing alcoholic beverages.
On that
score, however, the Commonwealth confronts the trial judge's express finding
that trooper Sheehan's explanation for exploring the red tote bag was a
pretext. That finding we accept unless
clearly erroneous. Commonwealth v. Moon, 380 Mass. 751,
756, 405 N.E.2d 947 (1980). Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 462, 488 N.E.2d 780 (1986). The judge's finding, in addition to the usual
ability to size up the witness and the judge's feel of the case, was further
informed by his common sense observation that intoxicating liquors which are
being consumed are not usually stored or transported in hand baggage. The implausibility of ferreting for evidence
of driving under the influence of alcohol in hand luggage distinguishes the
instant case from a case such as
Commonwealth v. Beasley, 13 Mass.App.Ct. 62, 64,
430 N.E.2d 437 (1982), in which a glove compartment was a reasonable place to
look for contraband firecrackers. In
view of the trial judge's findings and the circumstances, the search of the
bags was not, as in Commonwealth v.
Turner, 14 Mass.App.Ct. 1023, 1024, 442 N.E.2d 40
(1982), a "natural part of the arrest transaction." Cases sanctioning searches of containers or
compartments in automobiles such as
Commonwealth v. Bongarzone, 390 Mass. 326, 351‑352,
455 N.E.2d 1183 (1983), and Commonwealth
v. Ierardi, 17 Mass.App.Ct.
297, 300‑301, 457 N.E.2d 1127 (1983), turned on the basis of probable
cause that contraband was present, rather than on the basis of a search
incident to arrest. See in a similar
vein, although not involving car searches,
Commonwealth v. Skea, 18 Mass.App.Ct.
685, 701 n. 19, 470 N.E.2d 385 (1984); Commonwealth v. Stafford, 18 Mass.App.Ct. 964, 965, 469 N.E.2d 1267 (1984). The judge was warranted in concluding that
the Commonwealth had not sustained its burden of justifying the reasonableness
of its search of Rose's red bag and black suitcase. See
Commonwealth v. Toole, 389 Mass. at 163, n. 8, 448 N.E.2d 1264;
Commonwealth v. Ford, 17 Mass.App.Ct. 505,
508‑509, 459 N.E.2d 1242 (1984).
The order of the judge suppressing the evidence of the defendant's
possession of controlled substances is affirmed.
So ordered.