945 N.E.2d 976
Mass. App. Ct.2011Background
- On Oct. 18, 2007, at about 9:30 p.m., MBTA Officer Morgan and Officer Foley observed a Dodge Charger in a crosswalk on Dorchester Ave, identified in a rental-vehicle alert related to a prior shooting.
- The driver, later the defendant, could not present a valid license and was found to have a revoked license; he was arrested for operating after revocation and cited for parking in a crosswalk.
- The vehicle contained six air fresheners, cash and IDs on the center console, and the defendant appeared nervous and reluctant to produce identification; the rental agreement listed a female as the lessee, not the defendant.
- A narcotics-sniffing dog alerted to an interior area of the roof near the windshield from which police recovered a bag of marijuana weighing 52 grams; a $100 bill was found inside the vehicle.
- At booking, 14 bundles totaling $1,700 were found in the defendant’s pocket; the vehicle was inventoried under Boston police policy.
- The suppression motion was denied; the court concluded there was probable cause to search the vehicle, and that the defendant had automatic standing, with the Commonwealth ultimately prevailing on the suppression issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and search in the constitutional sense | Commonwealth argued no privacy expectation; defendant lacks standing to challenge search. | Defendant asserts privacy interests and standing to challenge the search. | Defendant has automatic standing; the search complied with Fourth Amendment and art. 14. |
| Probable cause to search the vehicle | Probable cause existed from license revocation, nervous behavior, cash, air fresheners, and prior drug-record. | No sufficient cause to search without a weaponized narcotics-detecting dog. | There was probable cause to search the vehicle; suppression denied. |
| Use of a drug-sniffing dog with reasonable suspicion | Even if only reasonable suspicion, dog search is permissible as a less intrusive alternative. | No basis for extending canine search to vehicle without sufficient suspicion. | The dog search was proper under the circumstances; valid as a proportional, less intrusive option. |
Key Cases Cited
- Commonwealth v. Mubdi, 456 Mass. 385 (2010) (automatic standing; but must show search in constitutional sense)
- Commonwealth v. Carter, 424 Mass. 409 (1997) (standing and search in constitutional sense; privacy expectations evaluated)
- Commonwealth v. Montanez, 410 Mass. 290 (1991) (defendant bears burden to prove reasonable expectation of privacy)
- Commonwealth v. Watts, 74 Mass. App. Ct. 514 (2009) (air-freshener scent and other factors considered in probable cause)
- Commonwealth v. Sinforoso, 434 Mass. 320 (2001) (drug-sniffing dog with reasonable suspicion; proportional search)
- Commonwealth v. Feyenord, 445 Mass. 72 (2005) (drug-sniffing dog proper where reasonable suspicion exists)