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18-P-1109 Appeals Court
COMMONWEALTH vs. JUAN ROSARIO-SANTIAGO.
No. 18-P-1109.
Worcester. May 2, 2019. - October 2, 2019.
Present: Milkey, Hanlon, & Sacks, JJ.
Controlled Substances. Practice, Criminal, Motion to suppress.
Search and Seizure, Probable cause, Reasonable suspicion,
Search incident to lawful arrest, Protective frisk,
Inventory, Impoundment of vehicle. Constitutional Law,
Search and seizure, Probable cause, Reasonable suspicion.
License. Motor Vehicle, License to operate.
Indictment found and returned in the Superior Court
Department on January 16, 2015.
A pretrial motion to suppress evidence was heard by David
Ricciardone, J., and a motion for reconsideration was heard by
him.
An application for leave to prosecute an interlocutory
appeal was allowed by David A. Lowy, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported by
him to the Appeals Court.
Eduardo A. Masferrer for the defendant.
Shayna L. Woodard, Assistant District Attorney, for the
Commonwealth.
2
HANLON, J. The defendant, Juan Rosario-Santiago, appeals
from the denial of his motion to suppress drug and other
evidence found in a "mechanical hide" and elsewhere in his motor
vehicle and on his person.1 He argues that the arresting officer
lacked probable cause to order him out of the vehicle and to pat
frisk him, and that the subsequent inventory search that led to
the discovery of most of the evidence at issue "exceeded the
bounds of a proper inventory search and did not fall under any
other exception to the warrant requirement." We affirm,
essentially for the reasons well explained by the judge.
1. Background.2 We take our summary of the underlying
facts from the judge's findings, supplemented by uncontested
testimony at the motion to suppress hearing. On October 9,
2014, at about 5:45 P.M., Trooper Michael Reynolds of the
Massachusetts State Police was patrolling in the area of the
Massachusetts Turnpike and Route 495. Reynolds had ten years of
experience as a police officer, and had completed 200 hours of
1 On February 2, 2018, the defendant filed an application
for an interlocutory appeal. The motion was allowed and the
case was entered in this court on August 1, 2018.
2 This case has been thoroughly litigated. There was an
evidentiary hearing on the motion to suppress and, afterward,
the judge dictated detailed findings of fact which we summarize
below. Thereafter, defense counsel filed a motion to
reconsider. The judge heard from both counsel and reviewed
written submissions; he denied the motion in a written ruling.
3
training in narcotics investigations.3 He observed a Toyota
Camry enter the roadway on Route 495 North and abruptly change
lanes. Reynolds followed the Camry and saw it approach the
vehicle ahead of it in an aggressive manner. The Camry then
followed that vehicle, going at least sixty-five to seventy
miles per hour at a distance of less than one car length behind.
The trooper determined that this was unsafe because, in his
view, any sudden stop by the vehicle in front would have
resulted in a rear-end collision; he had witnessed such results
"a lot of times" "as a state trooper." He followed the Camry,
and observed it move to the center lane and continue in the same
manner. Based upon these observations, Reynolds pulled the
Camry over and asked the defendant, who was the Camry's sole
occupant, for his license and registration; he also explained
the reason for the stop.
The defendant produced a New Hampshire driver's license and
vehicle registration and Reynolds conducted what he
characterized as a "normal conversation" that lasted
approximately two minutes. He asked the defendant where he was
coming from and the defendant answered, "New York City." When
3 Reynolds's training included "the issuance and execution
of search warrants, dealing with confidential informants,
identifying drugs, and also finding concealed mechanical hides
in motor vehicles."
4
the trooper asked where, more specifically, the defendant
responded, "downtown . . . [and, eventually,] . . . [s]eeing a
friend." Reynolds asked what the friend's name was and the
defendant first answered, "Dave." When Reynolds asked for more
information about Dave, including his last name, after a delay,
the defendant said, "Santiago." Throughout the exchange, the
trooper noticed an unusual delay in the time that the defendant
took to answer the questions. This made him suspicious, and he
felt that the defendant was making up the answers. Reynolds
also inquired whether the defendant had a criminal history, and
the defendant responded "that he had had some trouble with the
[F]ederal authorities in New Hampshire regarding drug
distribution." Reynolds then went back to his cruiser to verify
the defendant's information. As he was doing that, he noticed a
"fast-food bag" on the rear passenger floor of the Camry; he
could not see what was inside it.
When Reynolds checked the defendant's information, he
discovered that the defendant had a valid New Hampshire driver's
license but that his right to operate in Massachusetts was
suspended. He noticed that the defendant was assigned a
Massachusetts license number that began with the letter "A"
(assigned for administrative purposes), "as opposed to the
letter S, which the normal, active license in Massachusetts
has." Reynolds confirmed the status of the defendant's
5
Massachusetts driver's license either through the computer in
his cruiser or through information relayed to him by the
dispatcher at his home barracks; he learned that the defendant's
license or right to operate a motor vehicle was suspended in
Massachusetts,4 and that he had in fact been charged by the Drug
Enforcement Administration (DEA) in the past "with distribution
of synthetic narcotics."5
While waiting in his cruiser for the information to
process, Reynolds observed the defendant in the Camry reach
toward the back of the car in a subtle way, ostensibly in the
act of yawning. The judge found that Reynolds concluded that
the defendant actually "was reaching back for the [fast food]
bag in the back seat." At that point, the trooper went back to
the defendant's vehicle. Based upon his observations and the
4 It is not entirely clear from the record whether the
defendant in fact had a driver's license in Massachusetts that
had been suspended or whether his right to operate in
Massachusetts had been suspended.
5 Reynolds testified that when he "ran" the defendant's
information in his cruiser, he learned that the defendant had an
"administrative number," indicating some issue with the status
of the Massachusetts license. The judge asked him, "So did you
take the next step and determine that the license was actually
suspended in Massachusetts?" Reynolds responded, "Correct." On
cross-examination, Reynolds clarified that he was sure that the
dispatcher informed him that the defendant's Massachusetts
license was suspended. In his exchange with the police
dispatcher, Reynolds also learned of the defendant's Federal
criminal record.
6
information gathered, Reynolds asked the defendant to step out
of the vehicle. He pat frisked the defendant and discovered two
cell phones and keys,6 and placed the defendant in his cruiser.7,8
Reynolds then, pursuant to the written policy of the
Massachusetts State Police, called a tow truck for the Camry.
At that point, the judge concluded, "the trooper ultimately had
to conclude that there was going to be a charge for operating
after [license] suspension."
Before the tow truck arrived, Reynolds was required --
pursuant to the written State Police inventory policy -- to
return to the defendant's car and inventory its contents.
Reynolds first looked inside the fast food bag. He discovered
"a clear plastic heat-sealed packet, which was empty but had
been ripped open."9 Also in the car was a gym bag containing
6 Reynolds observed two sets of keys, one on the defendant's
person and another in the ignition. Based upon Reynolds's
training and experience, he knew that vehicles used by drug
couriers to transport drugs often only have the key to the
vehicle in the ignition, and not the driver's house keys, for
example, because the vehicles are passed from individual to
individual throughout the drug courier organization.
7 When Reynolds asked the defendant "what he was reaching
for," the defendant replied that "he wasn't reaching for
anything."
8 The judge concluded that the defendant was not free to
leave at this point.
9 Reynolds believed this type of packaging indicated drug
distribution because it would conceal the scent of drugs. The
heat-sealed bag was on top of the fast food wrappers within the
7
clothes. Near the front seat, the trooper saw "small black
elastic bands.10 Reynolds also noticed that, in the rear of the
center console there was a "crease" in the carpet, which, based
on his training and experience, he believed to have been caused
by the repeated opening of a "mechanical hide." In addition,
Reynolds found a cup of urine in the center console. Based on
his training and experience, Reynolds knew that people who
engage in drug distribution and, in so doing, drive long
distances, often do not want to stop to use rest rooms because
this gives them greater risk of exposure.11 There also was an
"aftermarket wire" that ran from the dashboard area near the
radio, trailing to the back area of the console.
After making these observations, Reynolds formally arrested
the defendant, took him out of the cruiser, placed him in
handcuffs, and further searched his person, discovering a "wad
of money" in the process; he then placed the defendant back into
fast food bag. Reynolds asked the defendant about the heat-
sealed bag and the reason that it was in the vehicle, and the
defendant told him he used it to wrap his sandwich. Reynolds
testified that "to [his] knowledge, there's no reason to heat-
seal a sandwich."
10Reynolds believed these elastic bands could have been
used to wrap money or drugs.
11Reynolds explained, "So by urinating in a cup, they don't
have to stop on the side of the road and risk being stopped by
the police or going to a park and ride or a rest stop area where
the police often patrol and can more easily notice."
8
the cruiser and the Camry was towed to the State Police
barracks.
Another trooper, Trooper McCammon, assisted in the search
of the Camry at the barracks. McCammon was very experienced in
detecting mechanical hides in vehicles, and Reynolds considered
him an expert in the field. When both troopers examined the
undercarriage of the Camry, they "saw a weld mark in the middle
of the muffler that looked like it had been altered and
lowered." "By applying power to some wires that went to the
console, the troopers actually operated the mechanical hide and"
discovered that the console rose up from the floor to reveal a
compartment. Inside the console were several "packets of
oxycodone pills that were taped up and otherwise secured with
the same type of rubber bands as were found in the car."
In denying the motion to suppress, the judge ruled that
"[t]he exit order was legal when the officer determined that the
defendant's right to operate in Massachusetts was suspended."
The judge agreed that what was initially a proper inventory
search "here morphed into something beyond inventorying
property." However, he concluded, essentially, that by the time
that happened, the experienced trooper had probable cause to
search for illegal drugs.
The defendant moved for reconsideration, arguing that the
inventory search was a pretext and that the trooper in fact was
9
searching for drugs based upon nothing more than a hunch. The
judge disagreed and denied the motion to reconsider; he
concluded that, even though the trooper may have had suspicions
before he began the inventory search, that fact did not detract
from the conclusion that the inventory search was proper. In
addition, the judge noted that there "was a legitimate safety
concern born of the fact that the trooper saw the defendant
reaching for the backseat bag (an act that the defendant felt he
had to conceal), which provided further justification for the
search here."
Discussion. "In reviewing a decision on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of [his]
ultimate findings and conclusions of law" (quotation omitted).
Commonwealth v. Ramos, 470 Mass. 740, 742 (2015).
1. Probable cause for arrest. The defendant argues first
that there was no probable cause to arrest him for operating
after his license or right to operate had been suspended in
Massachusetts.12 He contends that, because he had been issued a
12The defendant does not contest the legality of the
initial stop, which he conceded at the motion to suppress
hearing. See Commonwealth v. Buckley, 478 Mass. 861, 865-866
(2018) ("a stop is reasonable under art. 14 [of the
Massachusetts Declaration of Rights] as long as there is a legal
justification for it. We have long held that an observed
traffic violation is one such justification. See Commonwealth
v. Bacon, 381 Mass. 642, 644 [1980] ['Where the police have
10
license in New Hampshire, he was not operating illegally under
the language of G. L. c. 90, § 10,13 and, further, that the
information Reynolds received from the dispatcher about his
license suspension was inherently unreliable.
First, we note that at least the first portion of this
argument was not made to the judge. That is, counsel offered
evidence that the defendant's Massachusetts license was expired,
not suspended. The judge responded, "If his license is
suspended in Massachusetts, he's not supposed to be driving in
Massachusetts." Counsel responded, "Suspended, yes; not
expired. So the document I showed you just said that his
license was expired, not suspended." The judge pointed out that
the document proffered had been printed in 2016 (two years after
the stop) and that "what the trooper [had] at the scene can
control, even if it's incorrect."14
observed a traffic violation, they are warranted in stopping a
vehicle']").
13General Laws c. 90, § 10, provides that "no person shall
operate on the ways of the Commonwealth any motor vehicle,
whether registered in this Commonwealth or elsewhere, if the
registrar shall have suspended or revoked any license to operate
motor vehicles issued to him under this chapter, or shall have
suspended his right to operate such vehicles, and such license
or right has not been restored or a new license to operate motor
vehicles has not been issued to him."
14Defense counsel also explicitly agreed that the trooper
believed that, at all times relevant, the defendant's right to
operate in Massachusetts was in fact suspended.
11
The defendant now argues for the first time that G. L.
c. 90, § 10, can be read to permit a driver whose license is
suspended in Massachusetts to operate a vehicle lawfully in
Massachusetts if he subsequently acquires a valid license in
another State. That argument is waived as it was not made to
the judge; in addition, there is no information in this record
about when the defendant acquired his New Hampshire license --
that is, whether it was before or after his license or right to
operate in Massachusetts was suspended. In any event, even were
we to consider the argument, we are not persuaded. Such a
result would appear contrary to the purpose of the law -- to
prohibit those whose licenses have been suspended in
Massachusetts to operate in Massachusetts without taking any
action in Massachusetts to address the issue giving rise to the
suspension. The defendant cites no authority, apart from his
strained reading of the statute itself, for this newly raised
argument.15 Finally, as the judge observed, the issue here is
what the trooper knew at the time that he made the decision to
arrest the defendant. See Commonwealth v. Wilkerson, 436 Mass.
137, 140 (2002) ("Probable cause to arrest is not vitiated when
15In Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 577 n.7
(2015), this court explicitly did not decide "whether a driver
whose Massachusetts license has been suspended is prohibited
from driving in Massachusetts if validly licensed elsewhere."
12
the basis on which the police officer acted is shown after the
fact to have been erroneous, because the existence of probable
cause is determined 'at the moment of arrest,' not in light of
subsequent events").
The defendant did argue to the judge that the information
the trooper received from the dispatcher was not reliable. For
authority he cited the same cases he cites to us -- Commonwealth
v. Cheek, 413 Mass. 492 (1992), and Commonwealth v. Pinto, 476
Mass. 361 (2017). Neither case assists him. In Cheek, the
officers stopped the defendant on the basis of a radio broadcast
describing a stabbing with a very general description of a
suspect. 413 Mass. at 493. When the officers could not
understand the defendant's answer to their question about his
name, they frisked him and recovered a firearm and, later, a
quantity of marijuana. Id. at 493-494. The court concluded
that "[t]he facts in [this] case fall short of constituting
sufficient articulable facts on which the officers could have
based a reasonable suspicion that the defendant had committed a
crime." Id. at 497. In particular, the court stressed,
"[w]here the police rely on a police radio call to conduct an
investigatory stop, under both Federal and State law, the
Commonwealth must present evidence at the hearing on the motion
to suppress on the factual basis for the police radio call in
order to establish its indicia of reliability." Id. at 494-495.
13
In the present case, the trooper did not, in fact, rely on
a radio call from an anonymous source giving a general
description of a suspect in an uncorroborated report of a
stabbing. Instead, he reasonably relied on a report from the
police dispatcher of information obtained either from the
Registry of Motor Vehicles (RMV) or from State Police records
after making a stop for a motor vehicle offense that he
personally had observed. See Commonwealth v. Ramos, 88 Mass.
App. Ct. 68, 71 (2015) ("the RMV records that formed the basis
of [the officer]'s reasonable suspicion have sufficient indicia
of reliability on which to predicate a traffic stop. See
Wilkerson, 436 Mass. at 141-142. Indeed, RMV records are
generally considered reliable. See ibid.").
In Pinto, the officers stopped the defendant's car after
hearing a radio broadcast telling them to look for a described
motor vehicle based upon a report of "an alleged domestic
assault and battery." 476 Mass. at 362. In suppressing
evidence seized as a result of the stop, the court noted that
the Commonwealth had shown no basis to conclude that the person
who had supplied the information conveyed in the radio broadcast
either was reliable or had some basis of knowledge about the
facts reported. Id. at 364-365. That case, too, is very
different from the case before us. In both Cheek and Pinto, all
the impetus for the defendants' encounters with the police came
14
from an anonymous source. Here, it is agreed that the stop was
proper; the trooper then sought further information about the
defendant's license status that he reasonably believed was
maintained by and available to the police dispatcher.
The other cases cited by the defendant for this argument
require little discussion. In Commonwealth v. Royal, 89 Mass.
App. Ct. 168, 169, 170-173 (2016), this court concluded that the
evidence at trial was insufficient to prove beyond a reasonable
doubt that the defendant had operated a motor vehicle after his
license had been suspended, because the officer's testimony
about RMV records was inadmissible hearsay. Likewise, in
Commonwealth v. Oyewole, 470 Mass. 1015, 1015-1016 (2014), the
court concluded that the Commonwealth failed to prove its case
at trial because there was no evidence that the defendant had
been notified that his license had been suspended. Neither of
these cases is at all helpful in deciding the case before us,
where the issue is the reliability of hearsay in determining
probable cause. In sum, we conclude that, once Reynolds
received information from the State Police dispatcher that the
defendant's license or right to operate had been suspended in
Massachusetts, he had probable cause to arrest the defendant for
that offense.
2. Exit order and patfrisk. The rest of the case flows
naturally from that conclusion. Because there was probable
15
cause to arrest the defendant, the trooper was authorized to
order him to get out of the car. See Commonwealth v. Greenwood,
78 Mass. App. Ct. 611, 616 (2011) ("Where police officers have a
reasonable, articulable suspicion that a person in a vehicle has
committed, is committing, or is about to commit a crime, they
may . . . issue an exit order"). This is so, even if the
officer has not yet decided whether to arrest the defendant.
Cf. Commonwealth v. Blais, 428 Mass. 294, 296-297 (1998) ("The
officer's actual belief as to the legal basis for his authority,
however, is irrelevant, so long as the circumstances justified
the action he took. See Whren v. United States, 517 U.S. 806,
813 [1996], quoting Scott v. United States, 436 U.S. 128, 138
[1978] ['the fact that the officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer's action does not invalidate
the action taken as long as the circumstances, viewed
objectively, justify that action']; Commonwealth v. Smigliano,
427 Mass. 490, 493 [1998]").
As to the patfrisk, "[a] search incident to a custodial
arrest is well established as an exception to the warrant
requirement under both the Fourth Amendment [to the United
States Constitution] and art. 14 [of the Massachusetts
Declaration of Rights]. See United States v. Edwards, 415 U.S.
800, 802 (1974), and cases cited; Commonwealth v. Santiago, 410
16
Mass. 737, 742-743 (1991), and cases cited. Under both Fourth
Amendment and art. 14 jurisprudence, the purpose of the search
incident to arrest exception is twofold: (1) to prevent the
destruction or concealing of evidence of the crime for which the
police have probable cause to arrest; and (2) to strip the
arrestee of weapons that could be used to resist arrest or
facilitate escape. See Chimel v. California, 395 U.S. 752, 762-
763 (1969); Santiago, supra at 743." Commonwealth v. Mauricio,
477 Mass. 588, 592 (2017). Moreover, "[t]he fact that a search
preceded a formal arrest is not important, 'as long as probable
cause [to arrest] existed independent of the results of the
search.'" Commonwealth v. Johnson, 413 Mass. 598, 602 (1992),
quoting Santiago, supra at 742. See Commonwealth v. Sweezey, 50
Mass. App. Ct. 48, 53 (2000), quoting Commonwealth v. Mantinez,
44 Mass. App. Ct. 513, 517-518 (1998) ("Probable cause for an
arrest, even if not acted upon by a formal arrest, brings with
it the 'search incident to arrest' exception to the warrant
requirement for a search").16
3. Towing the car. Given the license suspension, whether
or not the trooper in fact intended to arrest the defendant
16However, "the search and the arrest 'must be roughly
contemporaneous.' Commonwealth v. Washington, 449 Mass. 476,
481 (2007)." Commonwealth v. Craan, 469 Mass. 24, 29 (2014).
The defendant does not argue that that requirement was violated
here.
17
rather than summons him later, he could not reasonably permit
the defendant to drive the car away. Nor could he leave the car
on the side of Route 495 at approximately 6 P.M. in the evening.
Therefore, it is clear that the trooper was obliged to have the
vehicle towed from the side of the highway, pursuant to the
written tow policy of the State Police, which was admitted in
evidence.17 See Commonwealth v. Davis, 481 Mass. 210, 218
(2019), where the court agreed that the police had reasonable
grounds to impound (and tow) the defendant's vehicle that was
"stopped on the left hand side of a toll exit on the
Massachusetts Turnpike, in the middle of the day."
4. Inventory search. The inventory search also was
proper. In these circumstances, such searches serve legitimate
interests, including "protecting the arrestee's property,
protecting the police from false claims of theft, and public
safety." Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 374
(2009). "Although a well-established exception to the warrant
requirement, an inventory search must hew closely to written
police procedures and may not conceal an investigatory motive.
See South Dakota v. Opperman, 428 U.S. 364, 376 (1976);
17"Officers are authorized to remove (or cause to be
removed) any vehicle found upon a road/state highway when . . .
[t]he operator of the vehicle is arrested and the vehicle would
be left unattended on a public way." Department of State Police
General Order TRF-09 (December 10, 2007).
18
Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The
lawfulness of an inventory search turns on the threshold
propriety of the vehicle's impoundment, and the Commonwealth
bears the burden of proving the constitutionality of both. See
Commonwealth v. Eddington, 459 Mass. 102, 108 (2011);
Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000)."
Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017).
As required, the trooper's inventory followed the written
policy of the State Police, which also was admitted in
evidence.18 As this court noted in Commonwealth v. Silva, 61
Mass. App. Ct. 28, 35 (2004), "[i]n considering whether the
government has met [its] burden of proof [as to the legality of
the search], the written inventory policy is the best evidence."
18"Any vehicle ordered towed . . . shall be inventoried and
properly documented . . . . The Department shall inventory any
vehicle ordered towed, removed, or impounded . . . pursuant to a
lawful arrest when the vehicle would be left unattended . . . .
The standard inventory procedure shall consist of a detailed
inspection of the interior and exterior of the vehicle for
damaged and missing parts, as well as to locate and record the
contents of the vehicle. The following areas shall be
inventoried: The interior of the vehicle; [t]he glove
compartment and trunk (unless they are locked and there is no
key available); and [t]he exterior of the vehicle for missing or
damaged parts. The inventory listing of personal items and
valuables shall extend to all storage areas and compartments
that are accessible to the operator or occupants. . . . All
closed but unlocked containers shall be opened, and each article
inventoried individually" (emphasis added). Department of State
Police General Order TRF-10 (April 23, 2009).
19
The defendant contends, however, that the purpose of the
inventory was investigative, not administrative (i.e., not to
obtain an inventory), because the trooper first opened a paper
fast food bag in the rear of the vehicle and also opened a paper
cup (found to contain urine) because he had seen people "put
stuff inside a cup before," including, specifically, drugs.
This argument fails for several reasons. First, the policy
clearly instructs the trooper to open all closed but unlocked
containers; this would include both a bag, even one that looked
like trash, and a paper cup. The fact that he did those things
first, rather than open the glove compartment, cannot be
dispositive; the policy required that he do them at some point
during the inventory. Nor did the judge find (or the defendant
argue) that the trooper spent any longer looking into the bag
and the cup than was necessary to determine their contents.
Second, the fact that the trooper might also have had
suspicions that the defendant was involved in drug trafficking
does not invalidate the validity of the inventory search,
otherwise justified and properly conducted. See Commonwealth v.
Horton, 63 Mass. App. Ct. 571, 577 (2005) ("Even the fact that
the police might have suspected that the inventory search could
turn up more weapons does not make it an impermissible pretext
search. See Commonwealth v. Garcia, 409 Mass. 675, 679 [1991],
and cases cited").
20
The facts in Commonwealth v. Ortiz, 88 Mass. App. Ct. 573
(2015), on which the defendant heavily relies, are very
different. In Ortiz, the motion judge found that the defendant
was targeted in advance; he was the subject of a DEA
investigation into drug trafficking. Id. at 574. The DEA
agents had learned that the defendant's license to operate had
been suspended and later, when they also had information that he
would be transporting a kilogram of cocaine, they contacted the
State Police and asked to have a uniformed trooper stop and
arrest "the defendant as a pretext to conduct a search for
investigative purposes," i.e., " with the expectation that
impoundment and an inventory search of the defendant's motor
vehicle would follow." Id. at 574.
"The judge found that but for these explicit instructions,
[the arresting trooper] 'would not have stopped [the defendant]
for changing lanes' and 'that in other circumstances he would
not arrest someone for operating a motor vehicle with a
suspended license.'" Id. at 575. This court affirmed the
motion judge's decision to suppress the drugs seized during the
search. We recognized that " '[t]he 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. Tisserand, 5 Mass. App. Ct. 383, 386-387 (1977). However,
21
'an inventory search [will] not be upheld if . . . there [is] a
"suggestion . . . that this standard procedure" [is] a pretext
concealing an investigatory police motive.' Ibid., quoting from
South Dakota v. Opperman, 428 U.S. 364, 376 (1976)." Ortiz, 88
Mass. App. Ct. at 576.
In the present case, by contrast, the judge concluded
explicitly that the search was not pretextual. "We entrust
credibility determinations to the motion judge, Commonwealth v.
Yesilciman, 406 Mass. 736, 743 (1990), and discern no error in
[his] finding that the inventory search was not a pretext."
Ehiabhi, 478 Mass. at 166. See Davis, 481 Mass. at 218
("Commonwealth v. Hoose, 467 Mass. 395, 399-400 [2014] [court
defers to motion judge's subsidiary findings of fact absent
clear error]").
5. Probable cause to search: automobile exception. The
judge determined, appropriately in our view, that when the
trooper looked underneath the dashboard to see if he could
observe a wire leading to a hidden compartment, the vehicle
search "morphed into something beyond inventorying property."
The judge found that the trooper's decision to do so was
supported by the following information, which the trooper knew
at that point:
"the defendant was driving fast and erratic; he seemed
to be making up answers as he went along in response
to early, routine questions; the defendant . . . had
22
surreptitiously reached [toward] the bag in the back
seat and then denied it; there was an open heat-sealed
baggie in the fast food bag . . .; the defendant had
evidently urinated in a cup rather than stop; and
there [were] . . . elastics of the type used to bind
cash and drugs. All of these things spelled 'hidden
compartment' to the experienced trooper even though
any one of the factors may not have spelled illegal
activity."
In addition, the trooper had noticed wear marks in the Camry's
carpet that, he knew, based upon his training, were consistent
with a hidden compartment, or "hide." These marks were in plain
view. See Commonwealth v. Santana, 420 Mass. 205, 211 (1995)
("'Under [the plain view] doctrine, if police are lawfully in a
position from which they view an object, if its incriminating
character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without
a warrant.' Minnesota v. Dickerson, 508 U.S. 366, 375 [1993]").
See also Commonwealth v. Goncalves, 62 Mass. App. Ct. 153, 157
(2004).
Given everything he knew, the trooper had probable cause at
that point to search the car for drugs and other evidence of
drug trafficking (including a wire leading to a hide), an
automobile search that clearly fell within a recognized
exception to the warrant requirement. See Davis, 481 Mass. at
220 ("Due to the inherent mobility of an automobile, and the
owner's reduced expectation of privacy when stopped on a public
road, police are permitted to search a vehicle based upon
23
probable cause to believe that it contains evidence of a
crime"). In Davis, the court determined that the introduction
of a drug sniffing dog converted the inventory search into an
investigatory one, id. at 219-220; however, the search of the
glove compartment was upheld because the officer had probable
cause to believe that it contained evidence of a crime. Id. at
221-222. So, too, here, armed with probable cause to search for
drug evidence, the troopers properly searched the car, including
for a wire leading to the hidden compartment and then the
compartment itself.
Again, the cases cited by the defendant are distinguishable
and therefore do not assist him. In Mauricio, 477 Mass. at 595-
596, the court upheld an inventory search of the defendant's
backpack, ruling that a ring discovered in that search was
properly seized. It was only the further search of the digital
images on a camera that the court deemed unreasonable because
the purpose of that search was admittedly investigatory, that
is, to discover the "true owner" of the camera, which the police
officers believed to have been stolen.
Commonwealth v. White, 469 Mass. 96, 100-102 (2014),
involved a search incident to an arrest on an outstanding
warrant and the seizure of a container of pills from the
defendant's person. The court concluded that although the
container could be opened pursuant to the police department's
24
inventory policy, id. at 101, the incriminating nature of the
pills was not immediately apparent and was, in fact, only
discovered through a subsequent computer search "in an attempt
to identify the pills," id. at 98, which "transformed a lawful
inventory seizure of the pills into an unlawful investigatory
search of the pills." Id. at 102.
Nor does Commonwealth v. Vuthy Seng, 436 Mass. 537, cert.
denied, 527 U.S. 942 (2002), compel a different result. In
Vuthy Seng, when the defendant was booked, his property was
inventoried and a bank card was removed from his wallet. Id. at
548. The officers not only noted the information on the front
of the card, but recorded the account numbers on the back. Id.
at 548-549. The court distinguished between the two
observations, and explained the distinction: "Applying the
principles distinguishing an inventory from an investigative
search to the facts before us, the information on the front of
the bank card, that it is a Shawmut bank card, declares its
nature to anyone at sight. The account numbers written on the
back of the card are not as obvious and would not be recalled
simply from a permissible inventory viewing. 'What the police
may not do is hunt for information by sifting and reading
materials taken from an arrestee which do not so declare
themselves.' [Commonwealth v. Sullo, 26 Mass. App. Ct. 766,]
770 [(1989)]. Nor would there be any need for the police to
25
record the account numbers on an inventory list, given that this
particular card was of no value. . . . Recording this
information would not serve any of the generally accepted
objectives of an inventory search preceding incarceration." Id.
at 553-554. In the present case, because the incriminating
nature of the wear marks in the carpet was immediately apparent
to the trooper, given his expertise and his other observations,
it is proper to include that observation in our calculus about
whether there was probable cause to conduct a further search.
Finally, in Commonwealth v. Muckle, 61 Mass. App. Ct. 678,
683 (2004), we found the search unreasonable because the
inventory policy at issue "requiring that the passenger area of
a vehicle be 'thoroughly examined' and all personal property be
removed and secured at the police station" did not provide
specifically that containers be opened. In so doing, we said,
"[w]hile we recognize that valuables may be secreted virtually
anywhere, a bag of trash is not a customary storage area for
valuables. Even were we to accept the premise that because a
bag of refuse might contain valuables it should permissibly be
inventoried along with other items, a bag of refuse that must be
'opened' for its contents to be visible is like any other
unlocked closed container. . . . What is important is whether
the item constitutes a closed container capable of holding
personal property of value. Even broadly read, the Bridgewater
26
police department's inventory policy fails to require the police
to open closed containers" (emphasis added). Id. at 683-684.
In the present case, of course, the State Police policy
explicitly did require the opening of a closed but unlocked
container and, as we observed in Muckle, "[w]e emphasize that we
are not concerned with whether, consonant with Federal and State
constitutional requirements, police may open closed but unlocked
containers in conducting an inventory search. Clearly, police
may do so, provided the written inventory policy requires them
to do so" (emphasis added). 61 Mass. App. Ct. at 684.
We conclude that the motion to suppress was properly
denied.
Order denying motion to
suppress affirmed.
Order denying motion to
reconsider affirmed.
MILKEY, J. (dissenting). During the evening rush hour on
Route 495, Trooper Michael Reynolds pulled the defendant over
for driving too closely to the car in front of him (a practice
commonly known as "tailgating"). Fresh off a training on the
concealment of illegal drugs in cars, Reynolds embraced the
opportunity to put his newly-honed skills to work.1 What began
as the most routine of traffic stops, progressed into a full-
scale investigatory search of the defendant's car. Through
Reynolds's enterprising efforts, the State Police eventually
discovered underneath the car's center console a well-hidden
compartment in which an unspecified number of oxycodone pills
were secreted. Because I believe the escalation of the routine
traffic stop here crossed constitutional bounds, I respectfully
dissent.
From the outset, I want to highlight that I agree with most
of the majority's subsidiary holdings, including that the stop,
exit order, and patfrisk here all were valid, that the
defendant's car had to be towed, and that an inventorying of the
car's contents was warranted. For the reasons that follow,
however, I believe that the judge erred as a matter of law in
determining the point at which an investigatory search of the
1 Reynolds attended that training the day before the traffic
stop. He previously had received extensive other training in
narcotics enforcement, and for many years had been engaged in
such enforcement as a local police officer.
2
car began. Because there was not probable cause at that earlier
point in time, I would reverse the order denying the motion to
suppress.
Background.2 Immediately after he approached the
defendant's stopped car, Reynolds made the customary request
that the defendant present his license and registration. The
defendant obliged by producing the requested documents, both of
which had been issued by the State of New Hampshire (where the
defendant currently resided). Before returning to his cruiser
to "run" these documents, Reynolds proceeded to ask the
defendant a series of questions. Although this questioning
lasted only approximately two minutes, the questions themselves
were markedly pointed, and -- as Reynolds acknowledged -- they
were designed "to verify that everything is normal."
Specifically, Reynolds serially posed the following queries to
the defendant: where was he coming from, where specifically in
New York City (the Bronx) was that, what was he doing there,
what was the name of the friend he was visiting, what was the
last name of that friend, how long had he been there, what was
the specific purpose of the trip, and where was he now traveling
to. According to Reynolds, although the defendant was
2The factual recitation that follows is drawn from the
judge's findings, supplemented by uncontested testimony that the
judge explicitly or implicitly credited. See Commonwealth v.
Lopez, 458 Mass. 383, 384-385 (2010).
3
"relatively calm" in responding to these questions, his demeanor
seemed "slightly confrontational," with "an edge," and
"agitated."3 Reynolds considered the defendant's individual
responses "nondescript" and delayed.4 This aroused his
suspicion. Adding to that suspicion was the fact that the
defendant had admitted to having come from New York City, which
Reynolds viewed as a "source city" for narcotics.
Because "things seem[ed] off," Reynolds proceeded to ask
the defendant if he ever had been in trouble with the police.
The defendant responded that he previously "had been charged
with trafficking in pills" in New Hampshire, but had "been in
little to no trouble in the state of Massachusetts." At that
point, Reynolds "went back to [his] cruiser to run [the
defendant's license and registration] and to further corroborate
or investigate his criminal history that he spoke of." On his
way to the cruiser he performed a quick visual scan of the
defendant's car, spotting a discarded fast food bag on the floor
of the rear seat.
3 In explaining that the defendant seemed "agitated,"
Reynolds alluded to the fact that the defendant appeared to be
recording their conversation on his cell phone.
4 Reynolds acknowledged that the defendant spoke with an
accent, but believed that he had a sufficient command of English
that this was not the cause of his delayed responses.
4
Back at his cruiser, Reynolds confirmed through a
dispatcher that the license that the defendant provided was
valid, and that the defendant did in fact have a criminal record
that included a charge by the Drug Enforcement Administration
(DEA) for "distribution of synthetic narcotics." However,
according to Reynolds's account of what an unidentified
dispatcher told him, the defendant's right to drive in
Massachusetts was currently under suspension, which Reynolds
understood to be the result of the defendant's having not paid
traffic tickets incurred in Massachusetts.5 See G. L. c. 90C,
§ 3(6) (requiring that operators who do not pay traffic tickets
have their licenses or right to operate in Massachusetts
"suspended by operation of law and without further notice"). As
Reynolds ran the defendant's information, he observed the
defendant appear to yawn and then reach back toward the rear
seat of the car.
Once back at the defendant's car, Reynolds ordered the
defendant out of the car and pat frisked him. Through the
5 In his initial testimony, Reynolds could not recall
whether he learned this information from a dispatcher or had
logged onto the computerized recordkeeping system himself.
However, he later clarified that he was sure it was a dispatcher
who told him this information. In delivering his oral findings
from the bench, the judge initially stated that Reynolds learned
the information from one of these two methods. After defense
counsel reminded the judge of Reynolds's later clarifying
testimony, the judge stated, "All right. I'll adopt that
finding."
5
patfrisk, Reynolds found two cell phones on the defendant's
person and a set of keys in his pocket (separate from the key in
the ignition). Reynolds asked the defendant about his seeming
to reach into the rear seat, which the defendant denied doing.
At that point, Reynolds had not yet decided whether he was going
to arrest the defendant for driving while his right to operate
on Massachusetts roads was under suspension. However, Reynolds
understood that in any event, the defendant could not drive his
vehicle from the scene because of the suspension. Reynolds
proceeded to detain the defendant in the back seat of his
cruiser while he searched the defendant's car.
In conducting that search, Reynolds examined first the rear
seat area toward which he believed he had seen the defendant
reach. He went through the discarded fast food bag that he
previously had spotted on the floor there. In Reynolds's view,
drug traffickers "don't want to stop anywhere for long periods
of time," and patronage of fast food restaurants by those on
highways itself was an "indicator" of drug trafficking. Inside
the bag, Reynolds found -- amongst "other wrappers in there from
fast food, items . . . like from the French fries or
cheeseburger or whatever" -- an empty plastic bag bearing a
Ziploc brand logo. According to Reynolds, this was a "heat-
sealed" bag of the sort used "for packaging up food and freezing
6
it and stuff like that."6 Reynolds nonetheless found the
presence of the empty bag significant, because he knew from his
training and experience that drug dealers sometimes stored drugs
in such bags in an effort to prevent "narcotics detection
canines" from picking up the scent. Reynolds asked the
defendant about the discarded plastic bag, and the defendant
responded that he had used it to store his sandwich. Reynolds
found this explanation implausible, because -- in his words --
"to my knowledge, there's no reason to heat-seal a sandwich."
On the rear seat, Reynolds also found a gym bag with clothes in
it that apparently had no inculpatory import.
Turning to the front area of the car, Reynolds found a
number of small rubber bands on the front passenger seat floor
that he concluded were "consistent with those used for packaging
up money, sometimes drugs." He also spotted a fast food cup
that had a lid on it. According to Reynolds, he decided to look
inside the cup in order to see if narcotics were hidden inside
it. He discovered instead that the cup contained urine.
Reynolds viewed this as a further indicator that the defendant
6In fact, a photograph admitted in evidence reveals
lettering on the bag that denotes it as a "Ziploc vacuum sealer"
bag, not a heat-sealed one. Although Reynolds may have
misspoken in referring to it as a heat-sealed bag, his larger
point that the bag is of a sort designed to prevent its contents
from being exposed to air stands.
7
was engaged in a concerted effort to minimize having to stop
along his journey back from a "source city."
While searching the front of the defendant's car, Reynolds
paid particular attention to the center console area because he
knew from his training that this area is "a common place for
hidden compartments to be." Proceeding in this fashion, he
discovered that the edge of the carpeting where it met the rear
of the center console appeared to be worn. This was something
he specifically had been taught to look for, because such wear
marks could be a sign that the center console had been moved in
and out over time to gain access to a concealed "hide" in that
area. Reynolds then began to conduct a search for after-market
wiring, another potential indicator of a drug hide. This
involved looking up underneath the dashboard area, as well as
lifting up and "peek[ing]" under the plastic that ran along the
floorboard of the console. Finding the presence of such wiring,
Reynolds decided to arrest the defendant for driving while his
right to operate on Massachusetts roads was suspended.
In order to continue his search of the defendant's car,
Reynolds had it towed to State police barracks instead of the
tow yard. To assist him in that search, Reynolds called in
another trooper who had even more experience than he did in the
discovery of drug hides. Together, the troopers examined the
underside of the car, where they discovered that the muffler had
8
been altered in a manner that would have allowed room for a
secret compartment to be placed under the center console. They
eventually found such a compartment that could be accessed
through a hydraulic system. The troopers were able to apply
power to override the complicated hide system, which raised up
the center console and revealed an after-market box beneath it
containing oxycodone pills.
Based on this discovery, the defendant was indicted for
trafficking in between thirty-six and one hundred grams of
"opium or any derivative thereof." G. L. c. 94C, § 32E (c).
The fate of the separate charge for which the defendant
initially was arrested (operating a motor vehicle in
Massachusetts while his right to do so was under suspension) is
not clear. There is nothing in the record to suggest that the
defendant ever was cited for tailgating, the original infraction
for which he had been stopped.
Discussion. As the judge properly concluded, Reynolds's
search of the defendant's car plainly exceeded the spatial
bounds of the State Police inventory search policy once he began
hunting for after-market wiring. The judge concluded, however,
that at that point, probable cause had been established by
Reynolds's finding numerous indicia he had been trained to look
for. For purposes of my analysis, I assume arguendo that the
sum total of the observations Reynolds had made by the time he
9
began looking up under the dashboard -- however innocent each
alone might be -- amounted to probable cause. Commonwealth v.
Santaliz, 413 Mass. 238, 242 (1992) (innocent details "disclosed
to the eyes of an experienced narcotics investigator" can add up
to probable cause of illegal narcotics activity). However, for
the reasons explained below, I believe an investigatory search
began at an earlier point in time when probable cause did not
yet exist.
With Reynolds personally having observed the defendant
driving too closely to the car in front of him, the initial
traffic stop itself plainly was valid. Commonwealth v. Buckley,
478 Mass. 861, 865-866 (2018), citing Commonwealth v. Bacon, 381
Mass. 642, 644 (1980). However, virtually from the moment
Reynolds first encountered the defendant face-to-face, his focus
was on investigating potential drug trafficking, not on
completing an ordinary traffic stop. I do not mean to suggest
that an officer who has stopped a car for a civil traffic
infraction must immediately run the license and registration
presented to him; although that might be the more prudent
practice, a traffic officer's engaging in some amount of
conversation before doing so is not constitutionally proscribed.
But here, Reynolds developed an almost immediate hunch that the
defendant might be involved in nefarious activity, and --
without reasonable suspicion -- he employed his pointed
10
questioning of the defendant toward building a case.7 In my
view, such questioning, while relatively brief, was unwarranted.
See Commonwealth v. Cordero, 477 Mass. 237, 241-247 (2017)
(addressing permissible bounds of routine traffic stop and under
what circumstances such stop may be extended).8
Of course, unlike Cordero, this is not a case where a
driver was long detained after the traffic stop was complete.
In Cordero, the officer's check of the driver's license and
registration revealed no infirmities, whereas here, Reynolds was
told by a dispatcher that the defendant's right to operate on
Massachusetts roads currently was under suspension. 477 Mass.
at 242-243. Although the Commonwealth presented no
documentation corroborating that such a suspension in fact was
in effect,9 I accept arguendo the majority's conclusion that it
7 Nothing in this dissent should be read as suggesting that
I believe Reynolds was acting in bad faith. It is evident that
he was trying to fulfill his mission of uncovering criminal
activity, and he showed great initiative and skill in doing so.
8 In Cordero, a trooper's suspicions were aroused in very
similar circumstances: the driver was from what the trooper
considered a "source city," he was providing seemingly evasive
answers to the trooper's questions, and he had a record that
included drug-related crimes. 477 Mass. at 239, 244-246.
Nevertheless, the court concluded that such factors did not
constitute reasonable suspicion necessary to detain the
defendant.
9 The evidentiary record on this point is murky at best.
The defendant himself provided some Registry of Motor Vehicle
records, which the judge admitted in evidence. Those records
showed that the defendant once had a Massachusetts license that
11
was reasonable for Reynolds to rely on what the police
dispatcher had told him and that his reasonable belief was
sufficient for present purposes. Compare Commonwealth v.
Wilkerson, 436 Mass. 137, 140-141 (2002) (probable cause to
arrest not vitiated by fact that police were relying on
erroneous information obtained from Registry of Motor Vehicles
records that defendant's license had been revoked), with
Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 694-700
(2014) (firearm found on defendant when he was arrested
suppressed where police mistakenly believed there was
outstanding arrest warrant and police would have learned that
this was mistaken had they followed department policy).
I agree with the majority that the actions Reynolds took
after being told of the suspension were, in large measure,
warranted. Like the majority, I do not accept the defendant's
argument that his acquiring an out-of-state license allowed him
to drive in Massachusetts even if his right to drive on
expired in 2009, and that he subsequently incurred two traffic
tickets (one for speeding and one for excessive window tinting).
The records do not note whether he paid the assessed fines or
whether his right to drive had been suspended as a result of
nonpayment of them. As Reynolds himself acknowledged, the fact
that a driver like the defendant had been assigned an "A"
license number does not by itself mean that there had been a
suspension of his license or right to drive on Massachusetts
roads. There is nothing in the record to suggest that Reynolds
ever asked the defendant whether his right to drive on
Massachusetts roads was under suspension.
12
Massachusetts roads had been suspended.10 Having learned of the
suspension, Reynolds could not let the defendant drive the car
regardless of whether he arrested the defendant for already
having done so.11 In addition, there being no alternative driver
present, Reynolds was justified in concluding that the car
needed to be towed from the side of the busy highway. With the
car needing to be towed, Reynolds was further justified in
ordering the defendant to get out of the car, see Commonwealth
v. Cruz, 459 Mass. 459, 466-467 (2011) (discussing when exit
orders are permissible), and I agree with the majority that
where Reynolds had seen the defendant reach toward the rear
10That said, the defendant's argument that the language of
the statute provides support for that curious result is stronger
than the majority credits. See G. L. c. 90, § 10 (criminalizing
operation of motor vehicle in Massachusetts if driver's license
or right to operate in Massachusetts has been suspended "and
such license or right has not been restored or a new license to
operate motor vehicles has not been issued to him").
11As noted, Reynolds believed the defendant's right to
drive in Massachusetts was suspended for being delinquent in
paying traffic tickets. See G. L. c. 90C, § 3(6). I do not
question the validity of such a means of trying to ensure that
assessed fines are paid (although I recognize that this may
result in disproportionate impacts on people of limited economic
means). However, it still bears noting that any suspension here
appears to have been a result of that collection mechanism, not
because the defendant had been adjudicated a menace on the
roads. Moreover, I note that whether the defendant had actual
notice that his right to drive had been suspended is not
addressed by the current record.
13
seat, a patfrisk also was justified for officer safety. See
Commonwealth v. Stampley, 437 Mass. 323, 325-329 (2002).12
Most significantly, I agree with the majority that, in
advance of the tow, an inventorying of the defendant's car was
warranted pursuant to the written State Police inventory search
policy in order to safeguard any belongings inside. See
Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016), quoting
Commonwealth v. Vuthy Seng, 436 Mass. 537, 550-551, cert.
denied, 537 U.S. 942 (2002) ("An inventory search conducted by
police officers pursuant to a police department's written policy
is 'justified to safeguard the defendant's property, protect the
police against later claims of theft or lost property, and keep
weapons and contraband from the prison population'"). However,
the fact that an inventorying of the car's contents was
warranted does not end the inquiry.
The inventory search policy applicable here is decidedly
expansive in scope. For example, that policy requires an
inventorying of "[t]he interior of the vehicle," it encompasses
"[a]ll open areas, including the floor areas, the area in and
around the instrument panel and the rear deck above the rear
12But see Commonwealth v. Hooker, 52 Mass. App. Ct. 683,
687 (2001) (observation made during traffic stop that occupant
of car "appeared to place something on the seat is neither
indicative of criminality nor a ground for reasonable
apprehension").
14
passenger seat, the open area under the seats, the glove
compartment and trunk,[13] and other places where property is
likely to be kept," and it requires that "[a]ll closed but
unlocked containers shall be opened, and each article [inside]
inventoried individually." Department of State Police General
Order TRF-10 (April 23, 2009). In light of this breadth, it is
unsurprising that the judge concluded that Reynolds did not
exceed the spatial bounds of that policy until he started to
hunt for after-market wiring outside the physical confines of
the passenger compartment. That assessment appears correct.
However, it does not thereby follow that -- in the shorthand
employed by the judge -- "the inventory policy allowed the
trooper to search throughout the vehicle." Put differently, the
fact that an officer purporting to conduct an inventorying of a
car's contents may not have violated the express terms of a
broadly-crafted administrative inventory search policy does not
mean that constitutional norms have been satisfied as to how
that search actually was conducted.14
13The glove compartment and trunk need not be inventoried
if they are locked and no key is available.
14In my view, the term "inventory search" is a misnomer
that beckons for abuse. It wrongly suggests that the
inventorying of a car's contents should be thought of as being
just like other types of searches, just with a different legal
justification. Although I recognize that appellate courts
commonly use the phrase "inventory search," I have avoided using
15
First principles bear remembering. Warrantless searches of
private property are presumptively unconstitutional under both
the Federal and State Constitutions. Commonwealth v.
Antobenedetto, 366 Mass. 51, 57 (1974). Although the cases have
long recognized that search warrants generally need not be
obtained for searches of motor vehicles,15 the police still may
not conduct investigatory searches of them absent probable cause
to believe that the vehicle contains evidence of a crime.
Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997).
Exceptions allowing for noninvestigatory searches are to be
narrowly construed, and where such an exception is claimed, "the
burden rests with the Commonwealth to demonstrate that the
search 'was conducted for some legitimate police purpose other
than a search for evidence.'" Buckley, 478 Mass. at 872,
quoting Commonwealth v. Benoit, 382 Mass. 210, 219 (1981), S.C.,
389 Mass. 411 (1983). In this context, that is, where the
Commonwealth is seeking to justify a search without probable
it here to the extent feasible, employing instead the term
"inventorying."
15Such an exception is based on the inherent mobility of
motor vehicles. Under the cases, this "automobile exception"
applies even where the vehicle has been impounded, so long as
the search takes place relatively soon after the impoundment has
incurred. Compare Commonwealth v. Bongarzone, 390 Mass. 326,
350-351 (1983) (no warrant needed where car was searched "less
than two hours" after impoundment), with Commonwealth v. Agosto,
428 Mass. 31, 34-35 (1998) (warrant required for additional
searches conducted "over a span of twenty-one days").
16
cause, "consideration of an officer's 'purpose' for conducting
the search is relevant to an assessment of the lawfulness of the
search itself." Buckley, 478 Mass. at 872 & n.15.16
The cases establish that where the police searched a
defendant's possessions absent probable cause, it is not enough
for the Commonwealth to prove that an inventorying of those
possessions was warranted. That is because "[t]he inventory
search exception to the search warrant requirement is strictly
limited to the purposes underlying that exception."
Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 17 (2005), citing
Vuthy Seng, 436 Mass. at 554 n.16. This principle is well
illustrated by our seminal decision in Commonwealth v. Sullo, 26
Mass. App. Ct. 766 (1989).17 In that case, the police arrested
the defendant for outstanding warrants related to traffic
violations. Id. at 767. At booking, the arresting officer
discovered large amounts of cash in the defendant's pockets,
together with multiple business cards and a folded piece of
16As the Buckley court explained, although the validity of
a traffic stop itself is assessed without attention to "the
actual motivations of the officer involved" (quotation and
citation omitted), this principle does not apply to assessing
whether a purported noninvestigatory search arising out of that
stop amounted to a search for evidence, thereby requiring
probable cause. Buckley, 478 Mass. at 872 n.15.
17The Supreme Judicial Court repeatedly has cited to Sullo
and relied on its reasoning, including recently. See
Commonwealth v. Mauricio, 477 Mass. 588, 595-596 (2017).
17
paper. Id. With his interest piqued by the cash, the officer
closely examined the cards and paper, which were annotated with
initials, figures, and mathematical symbols. Id. at 767, 772.
The arresting officer discerned the paper to be a "cuff sheet"
related to illegal gambling, and the defendant was charged with
a gaming violation. Id. at 767, 768. The Commonwealth defended
its examination of the cards and papers "as a legitimate part of
an inventory search" of the defendant's person. Id. at 768.
Apparently on that basis, a District Court judge denied the
defendant's motion to suppress that evidence.
In an opinion authored by Justice Kaplan, we reversed. Id.
at 772. We emphasized that an inventory search "is carefully
circumscribed by law because, as an exception to the ordinary
constitutional requirements, the search may be conducted without
warrant or probable cause." Id. at 768. To pass muster,
however, an inventory search must satisfy three criteria:
"First, the search must follow a standard or routine procedure
adopted and recognized by the police force. 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." Id. We also observed that "[i]n
making an inventory -- taking from the person, noting what is
received, and placing it in safekeeping -- the police are to act
more or less mechanically, according to a set routine, for to
18
allow then a range of discretion in going about a warrantless
search would be to invite conduct which by design or otherwise
would subvert constitutional requirements." Id. at 772.
Applying those principles, we concluded that the officer in
Sullo was not mechanically cataloguing the contents taken for
safekeeping, but instead was following the lead provided by the
large amounts of cash found in the defendant's pockets. Id.
Accordingly, we held that "[t]he Commonwealth ha[d] not carried
its burden of establishing that this was a lawful inventory
search." Id. Significantly, in reaching such conclusions, we
expressly relied in part on the judge's description of how the
officer's suspicions animated his follow up perusal of the
defendant's property. Id.
In the three decades since Sullo was published, the Supreme
Judicial Court has adopted and consistently applied the same
principles. In Vuthy Seng, the court directly addressed the
extent to which police could obtain evidence through
scrutinizing an item being inventoried, specifically, a bank
card found on the defendant's person. 436 Mass. at 550-555.
The court concluded that the police could use the bank logo
appearing on the front of the card, because "police need not
'blind themselves' to obvious facts," that is, to information
that "declares its nature to anyone at sight." Id. at 551-552 &
n.12, 553, quoting Sullo, 26 Mass. App. Ct. at 770. However,
19
the court concluded that the account numbers appearing on the
bank card must be suppressed where that information was "not as
obvious and would not be recalled simply from a permissible
inventory viewing." Vuthy Seng, supra at 553. Vuthy Seng thus
firmly establishes that observations made during the
inventorying of a defendant's possessions cannot be justified as
the product of an inventory search where such evidence was
gleaned from applying a level of scrutiny that exceeded
custodial ends.
In Commonwealth v. Blevines, 438 Mass. 604, 608-610 (2003),
the court ruled that -- although the police properly seized keys
from a defendant's pocket that potentially could be used as
weapons -- "detailed scrutiny of the keys" amounted to an
investigatory search that required probable cause and a
warrant.18 Similarly, in Commonwealth v. White, 469 Mass. 96,
102 (2014), the court concluded that once the police closely
examined pills that lawfully had been seized from a defendant
and used "the number imprinted on the pills to identify them,"
such use "transformed a lawful inventory seizure of the pills
into an unlawful investigatory search of the pills." Finally,
the court recently held that although police properly took
18Accord Murphy, 63 Mass. App. Ct. at 14-16 (detailed
observation of keys properly seized from defendant "improperly
transformed an inventory search of [defendant's] person into an
investigatory search").
20
possession of a digital camera found in a backpack during an
inventory search, they could not examine the contents of the
camera without a warrant. Commonwealth v. Mauricio, 477 Mass.
588, 595-596 (2017), citing Vuthy Seng, 436 Mass. at 550-553;
Sullo, 26 Mass. App. Ct. at 770. The court reasoned that the
police's examination of the contents of the camera was not "a
benign inventory of the contents of the backpack," but instead
was "investigatory in nature." Mauricio, supra.
Taken together, the line of cases dating to Sullo stands
for the following overarching point: where police validly have
initiated the inventorying of objects taken into their custody
for safekeeping, once their examination of such objects goes
beyond "mechanical" cataloguing, the search becomes
"investigatory in nature" and therefore must be justified as
such. The cases also stand for a subtle but important
procedural point. It remains the Commonwealth's burden to
demonstrate that the inventory search exception applies to the
discovery of the specific evidence at issue; the burden does not
shift to the defendant just because the items in question
properly had been seized and needed to be inventoried. See
Vuthy Seng, 436 Mass. at 554 (explaining that although police
may be justified in inventorying items, Commonwealth must still
"present . . . evidence to carry its burden to establish that
this was a lawful inventory search").
21
Of course, the boundaries drawn by such cases sometimes may
be difficult to locate in practice. This is because the mere
"fact that the searching officer may have harbored a suspicion
that evidence of criminal activity might be uncovered as a
result of [an inventory] search should not vitiate his
obligation to conduct the inventory" (quotation and citation
omitted). Commonwealth v. Garcia, 409 Mass. 675, 679 (1991).
Moreover -- as Sullo itself touched on -- police conducting a
valid inventorying need not ignore obvious incriminating
evidence lying in plain view. 26 Mass. App. Ct. at 770.
However, turning back to the case before us, I do not think it
is difficult to determine on which side Reynolds's search of the
defendant's car falls. In my view, the conclusion is
inescapable that Reynolds was not engaged in a mechanical
cataloguing of the car's contents. Notably, Reynolds did not
testify that he filled out an inventory form, nor was any
documentary evidence offered that he did so. In fact, other
than his agreeing with the prosecutor's prompting that he had
conducted an "inventory" search, Reynolds himself made no
mention whatsoever of his cataloguing the car's contents. This
is unsurprising given that -- as Reynolds effectively admitted
-- he was searching the car to look for evidence to follow up on
his suspicions that the defendant might be engaged in drug
trafficking. In other words, this is not a case where a police
22
officer who benignly was inventorying a car's contents
inadvertently happened across "obvious" or "overtly
incriminating" evidence lying in plain view. Vuthy Seng, 436
Mass. at 551 & n.12, 554. To conclude otherwise on this record
is to indulge in a fiction that the Constitution does not
countenance.
My view of this case flows both from the objective facts of
how Reynolds conducted the search, and from Reynolds's own
characterization of his thought processes. This can be shown,
for example, with respect to Reynolds's key discovery of the
wear mark on the carpeting at the edge of the center console.
By Reynolds's own admission, he discovered that wear mark
because his training had taught him to look for it as an
indicator that there may be a secret compartment hidden there.
The type and level of scrutiny that Reynolds applied to the
center console and carpeting is comparable to that applied to
the bank card in Vuthy Seng, 436 Mass. at 551-554, the keys in
Blevines, 438 Mass. at 608-610, or "the markings on the backs of
the cards" in Sullo, 26 Mass. App. Ct. at 772.19 Reynolds's
19The police photographs of the interior of the car reveal
at most a barely visible discoloration along the edge of the
carpeting. This is far from evidence that "declares its nature
to anyone at sight." Vuthy Seng, 436 Mass. at 553. Of course,
it may well be that such a sign was more immediately apparent to
someone specifically looking for it with a well-trained eye.
However, the fact that the police utilized such mission-oriented
expertise undermines the Commonwealth's claim that the officer
23
close examination had nothing to do with cataloguing the car's
contents; rather, it was "investigatory in nature" and therefore
needed to be supported by probable cause.
The discovery of the wear mark next to the center console
provided the keystone on which the judge's finding of probable
cause rests. Regardless of whether the judge was correct that
Reynolds had probable cause to believe that the car contained
illegal drugs after he discovered the wear mark, I believe it is
plain that he did not have probable cause before that. Although
Reynolds at that point may have had reasonable suspicion based
on the various indicia he had collected in following up on his
hunch -- the empty plastic bag, the rubber bands, the urine, the
defendant's coming from a "source city," and so forth -- he did
not have probable cause to believe that narcotics were hidden in
the car. See Commonwealth v. Alvarado, 420 Mass. 542, 546, 550
(1995) (discovery of cocaine found in coffee maker inside box on
floor of back seat of stopped car suppressed where search "was
was not conducting an investigatory search. The Supreme
Judicial Court recently observed that "[t]he use of a drug
detection dog to conduct what is supposedly a search to
safeguard property -- and not a search for drugs -- raises a red
flag." Commonwealth v. Davis, 481 Mass. 210, 219 (2019).
Similar concerns are raised when the drug detection expert
employed to do putative inventorying has two legs instead of
four. Again, I do not question Reynolds's good faith; he ably
was executing his job as he was trained to do. But it is up to
the courts to determine whether his actions crossed the
constitutional line designed to protect citizens from undue
government intrusion.
24
of an investigatory nature" but not supported by probable cause,
even though car's driver and passenger were from known "source
city," cocaine was found on passenger who was "very nervous,"
and police observed driver of car reach his hand "near, or
perhaps in, the coffee maker box just prior to his arrest").
See also Cordero, 477 Mass. at 243-247 (not even reasonable
suspicion established where driver stopped for routine civil
infraction was from "source city," had record of drug-related
crimes, and had given evasive answers to trooper's questions).
See generally Commonwealth v. Hason, 387 Mass. 169, 175 (1982),
quoting Commonwealth v. Bond, 375 Mass. 201, 210 (1978) (to
establish probable cause, although police need not make "a prima
facie case of the commission of a crime, let alone a case beyond
a reasonable doubt," "[w]hat ha[s] to be shown [i]s more than a
suspicion of criminal involvement, something definite and
substantial").
Given my views, I do not believe it is necessary to decide
whether the plastic bag and the urine also were discovered
through what amounted to an investigatory search. For
completeness, however, I note my view that they were. The
discarded, fast food bag and other detritus on the floor of the
rear seat were of no apparent interest to someone cataloguing
valuables in the car. See Commonwealth v. Muckle, 61 Mass. App.
Ct. 678, 683 (2004) (observing -- in reference to crumpled fast
25
food bag that police searched during inventorying of car's
contents -- that "[w]hile we recognize that valuables may be
secreted virtually anywhere, a bag of trash is not a customary
storage area for valuables").20 Even if safety concerns
justified Reynolds in checking the discarded fast food bag as
the majority suggests,21 the undisputed facts belie that this was
Reynolds's intent. It would have taken but a glance to
determine that there was no weapon in there. The fact that
after checking the fast food bag, Reynolds then scrutinized the
empty, torn plastic bag found inside to see what type it was and
20In Muckle, we held that evidence found inside the bag had
to be suppressed. 61 Mass. App. Ct. at 685. That holding
turned on the absence from the police department's written
inventory search policy of an authorization of police to open
closed containers (an absence not present in the case before
us). Id. at 684. However, while compliance with a written
inventory search policy may be a necessary prerequisite to an
inventory search, the provisions of such a policy cannot
override other constitutional requirements. See Sullo, 26 Mass.
App. Ct. at 768 (listing compliance with "a standard or routine
procedure adopted and recognized by the police force" as only
one of three criteria that valid inventory search must satisfy).
21A search of the trash in the rear seat could not be
justified as a protective "frisk" of the car, because the
defendant had already been removed from the car and was not
going to be allowed back in to drive it. See Commonwealth v.
Manha, 479 Mass. 44, 50 (2018) (protective sweep of vehicle
"must be confined to the area from which the suspect might gain
possession of a weapon, either because he is still within the
vehicle or because he is likely to return to the vehicle at the
conclusion of the officer's inquiry" [quotation omitted]). I
state no view on whether a search of the bag for weapons was
warranted for protection of whatever caretakers were slated to
take possession of the impounded car.
26
proceeded to question the defendant about it demonstrated that
his interest in the plastic bag was wholly investigatory, not
custodial. With regard to the cup found to contain urine,
Reynolds himself acknowledged that he opened the cup for the
specific purpose of seeing whether drugs were secreted inside
it, not to see if the cup was being used as a container to store
valuables. See Alvarado, 420 Mass. at 553-554 (even though
relevant inventory search policy stated that "[a]ll closed but
unlocked containers should be opened," opening of coffee maker's
water well held to be "of an investigatory nature" and therefore
not part of valid inventory search).22
My concerns about Reynolds's sweeping search of the
defendant's car are exacerbated by the fact that his suspicions
were built in great part on the defendant's answers to questions
that he had no business asking in the context of a routine
traffic stop. See Cordero, 477 Mass. at 241-242. This is not
to say that Cordero itself requires reversal; in light of the
fact that Reynolds did not improperly detain the defendant after
the traffic stop was, or should have been, completed, the
holding of Cordero plainly does not apply. However, Cordero is
22Alvarado establishes that just because an item found in a
car can, for some purposes, be considered an unlocked
"container," it does not mean that police necessarily are
justified in looking inside it as part of an inventorying of the
car's contents. 420 Mass. at 553-554.
27
based on concerns about police improperly using routine traffic
stops to conduct criminal investigations based on hunches that
some of the people they have stopped might be guilty of
unrelated offenses. See id. Those underlying concerns are
equally present here.23
Finally, I address the majority's suggestion that we are
bound by the judge's conclusion that the inventory search here
was not done as a "pretext." The judge drew that conclusion in
the context of distinguishing this case from Commonwealth v.
Ortiz, 88 Mass. App. Ct. 573, 576-578 (2015). His assessment
that -- unlike in Ortiz -- Reynolds did not stop the defendant
in order to search his car is well supported by the record. Nor
was Reynolds's decision that the contents of the car should be
inventoried pretextual in this sense. The problem here is not
that Reynolds was acting in bad faith; indeed, throughout his
testimony, Reynolds was laudably forthcoming about both his
investigatory actions and what motivated them. Rather, the
problem is that once he went beyond a mechanical cataloguing of
the car's contents, he exceeded the "sole justification" for
exempting the search from the constitutional requirement of
23It bears remembering that because of "explicit bias
(i.e., racial profiling), unconscious bias, or a combination of
both" (footnote omitted), "pretextual [traffic] stops
disproportionately affect people of color," even where the
driver was not stopped merely for "driving while black."
Buckley, 478 Mass. at 876, 878 & n.4 (Budd, J., concurring).
28
probable cause. Sullo, 26 Mass. App. Ct. at 768. At that
point, any efforts to invoke the label of an inventory search
became a "cover" for what amounted to an investigatory search,
which needed to be justified as such.24 Id.
Conclusion. In my view, the Commonwealth was unable to
meet its burden of proving that its discovery of the well-
secreted drug hide here was valid, and the motion to suppress
therefore should have been allowed. Beyond the outcome of this
case, however, I am concerned about the message that the
24Even in the context of discussing police conduct, the
cases use the term pretext in different respects. In some
cases, the term is used to refer to police officers' having
taken an action for a different reason than they claim, that is,
misstating their motivations. See Buckley, 478 Mass. at 866-867
(referring to defendant's contention that he was stopped not
because of observed traffic violation but for other reasons as
allegation of "pretext"). This meaning of the term does not
apply here. In Sullo, Justice Kaplan used pretext in a less
loaded sense, not to indicate bad faith, but as synonymous with
the term "cover." 26 Mass. App. Ct. at 768. In other words,
pretext is used in Sullo to refer to where police have initiated
a valid inventorying of items they have seized, but their
actions have strayed beyond narrow custodial aims. See Murphy,
63 Mass. App. Ct. at 15-16 (evidence must be suppressed not
because officer doing inventorying "harbored an investigatory
motive," but because his close examination of items seized
exceeded purpose of inventorying). That is precisely what
occurred here. Assessing whether the inventorying became
pretextual in this sense does not require us to divine the
"true" motivations of Reynolds, nor does it invade the judge's
fact finding role. Rather, it calls upon us to serve our proper
role of examining the judge's ultimate findings to see whether
he correctly applied constitutional principles. See Mauricio,
477 Mass. at 591, quoting Commonwealth v. Wilson, 441 Mass. 390,
393 (2004) ("[w]e review independently the application of
constitutional principles to the facts found").
29
majority opinion effectively delivers. That message is that any
time a police officer has a valid justification for having a car
towed, he has free rein to conduct a sweeping investigatory
search of that car without probable cause, under the guise of an
"inventory search," so long as there is a written inventory
search policy in place and the officer does not exceed the
express bounds of that policy. Such a ruling improperly
relieves the Commonwealth of its burden to prove that an
exception to the probable cause requirement is warranted under
the particular circumstances presented. What's more, it
threatens to immunize inventory searches from any meaningful
judicial oversight.