420 Mass. 542 | Mass. | 1995
The defendants, Laurentino Alvarado and Manuel Londono, were indicted on charges of trafficking over 200 grams of cocaine and conspiring to traffic in cocaine. The defendants each filed motions to suppress the cocaine seized during two separate warrantless searches. The motions were denied with respect to twenty-eight grams of cocaine seized during a search of Londono’s person,
We recognize that the judge’s findings of fact are “binding in the absence of clear error.” Also, we view with respect his conclusions of law which are based on those findings. Commonwealth v. Bottari, 395 Mass. 777, 780 (1985), quoting Commonwealth v. Correia, 381 Mass. 65, 76 (1980). However, as this is a matter of constitutional dimension, the judge’s ultimate findings and rulings of law are open to reexamination by this court. Commonwealth v. Bottari, supra.
We recite the facts. On the evening of January 13, 1993, Trooper Peter C. Cummings of the Massachusetts State po
At the hearing on the motion to suppress, Cummings described what he saw in Londono’s hand as a clear plastic material which he believed to be a glossine bag. Based on his knowledge and experience as a police officer with extensive narcotics training, Cummings was aware that glossine bags are commonly used to store controlled substances.
Once in the rest area, Cummings approached the passenger side of the Buick and instructed Londono to step out of the automobile. Londono complied. Cummings asked Londono what he had put in his pants. Londono denied having placed anything in his pants. Cummings then asked Alvarado for his license and registration. Alvarado handed Cummings a license which Cummings believed to be falsified but was later determined to be valid. The record shows that Alvarado also produced a valid registration which listed Londono as the owner of the Buick. Cummings testified that he asked Alvarado for his social security number and Alvarado replied that all he could remember of it was “944.” Cummings was aware that social security numbers do not start with the number “9.”
Cummings then turned his attention to Londono and asked him again what he had placed in his pants. Londono said, “Nothing,” and, without any instruction from Cummings, as
Cummings then patted the front of Londono’s pants and felt a bulge. Cummings asked Londono if what he felt was cocaine and Londono admitted that it was and removed it from his pants. Cummings then placed Londono under arrest and advised him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He placed Londono in his police cruiser and radioed for back-up assistance and a tow truck. After being advised of his rights, Londono told Cummings that he had purchased the cocaine in Lowell and that Alvarado was with him and knew of the presence of the cocaine in the automobile.
Cummings returned to the Buick, where Alvarado was still seated in the driver’s seat. As he approached the Buick, Cummings saw Alvarado remove his hand from the floor area of the back seat on the passenger side. Cummings observed that there was a Norelco coffee maker box on the floor behind the passenger seat. Cummings directed Alvarado to step out of the Buick and placed him under arrest.
After Alvarado was placed under arrest, a second State trooper and a tow truck arrived on the scene. The defendants were taken to the Concord barracks for booking. Trooper Cummings ordered the Buick to be towed to the barracks. On route to the barracks, Cummings contacted his desk officer and requested the assistance of a K-9 officer.
After the defendants were booked and read their Miranda rights again, Cummings learned that both defendants had entered the United States illegally. Cummings then conducted a preliminary inventory search of the Buick. While conducting this search, he noticed the box containing the cof
Two hours after the defendants were brought to the barracks, a K-9 officer, Trooper Timothy Luce, arrived with his canine, Max. Luce removed the coffee maker box from the car and placed it on the roof of the Buick. Max then examined the vehicle. Max reacted to the odor of cocaine near the glove compartment of the Buick but a search of the compartment revealed no narcotic substance.
Luce reported the negative findings to Cummings. Cummings then went with Luce and Max to the garage area and observed that Luce had placed the coffee maker box on the roof of the Buick. Cummings retrieved the box and opened it. He opened the water well of the coffee maker and found that it contained a plastic bag. He carried the entire box to his work area and opened the plastic bag. Inside were three more layers of plastic wrapping. He removed these and found that the package contained a large quantity of a white, rocky substance. The substance was later determined to be cocaine.
1. Arrest and search of Londono. When Cummings approached the Buick after having stopped it, he observed Londono stuffing what he believed to be a glossine bag down the front of his pants.
The defendants argue that Cummings’s view of the glassine bag, combined with Londono’s placing the bag in his pants did not rise to the level of probable cause required for a valid arrest. We agree with this portion of the defendants’
Preliminarily, we agree with the judge’s ruling that Trooper Cummings’s original view from the exterior of the vehicle of Londono’s placing the bag into his pants did not implicate the defendants’ Fourth Amendment or art. 14 interests. Cummings did not intrude into an area in which the defendants had a reasonable expectation of privacy. The view was from outside the automobile during a valid traffic stop. See Commonwealth v. Santana, ante 205, 207 (1995). Cummings’s use of a flashlight to illuminate the interior of the Buick did not render the view a search. Commonwealth v. Doulette, 414 Mass. 653, 655 (1993), and cases cited; Commonwealth v. Sergienko, 399 Mass. 291, 295 (1987). The defendants do not dispute this finding.
Cummings testified that he observed a portion of a clear plastic material, which he believed to be a glossine bag, in Londono’s fist. However, Cummings did not see the bag or
Although probable cause to arrest Londono did not arise at the time Cummings saw Londono place the glossine bag in his pants, events subsequent to the initial view of the bag but prior to the patting down of Londono’s pants bolstered Cummings’s reasonable suspicions, raising them to the level of probable cause. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense.” Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). More than a mere suspicion of criminal activity, but less than proof necessary for a conviction, is required. Commonwealth v. Santaliz, supra.
It was the combination of all of these circumstances which gave rise to probable cause to arrest Londono. We need not decide at precisely what point the probable cause arose; it is sufficient that it existed at the time that Cummings conducted his search of Londono’s person by patting down the front of his pants in search of the object he had seen Londono place there.
Because Cummings had probable cause to arrest at the moment he patted the front of Londono’s pants, we conclude that the search was a valid search incident to the arrest. G. L. c. 276, § 1 (1992 ed.). Commonwealth v. Sabetti, 411 Mass. 770, 776 (1992). Commonwealth v. Gullick, 386 Mass. 278, 283 (1982). The fact that Cummings searched Londono just prior to placing him under arrest does not render the search unreasonable. See Commonwealth v. Johnson, 413 Mass. 598, 602-603 (1992); Commonwealth v. Brillante, 399 Mass. 152, 154-155 n.5 (1987).
2. Arrest of Alvarado. The judge’s ruling that there was probable cause also to arrest Alvarado, following the arrest
3. Automobile search. The judge concluded that the cocaine seized from the coffee maker must be suppressed because the search of the Buick at the Concord barracks was neither a valid inventory search, a search incident to arrest, or a search within the “automobile exception” to the warrant requirement of the Fourth Amendment. The Commonwealth appeals from this portion of the judge’s order. We agree with the judge that the search cannot be justified as an inventory search or a search incident to an arrest. Nor does the search meet the requirements of the “automobile exception.”
The Commonwealth’s argument that the search of the Buick at the barracks can be justified as an inventory search, conducted pursuant to written police guidelines, is unpersuasive. First, the judge concluded that the order to tow the Buick exceeded the general order of the department of State police regarding towing. We are inclined to agree with the judge on that point. However, even if we were to decide that the towing was within the written guidelines, the subsequent search of the coffee maker exceeded the scope of a permissible inventory search. Finally, the use of a canine to aid in the search indicates that the search was investigatory in nature, and not an inventory search.
Law enforcement officers do not have discretion regarding what or where to search during an inventory search. Colo
The Commonwealth’s contention that the search of the Buick was an inventory search is also defeated by the fact that the police enlisted the assistance of a canine in conducting the search. The canine was trained for, and used in this instance for, the detection of controlled substances. Thus, it is clear that the search of the Buick was of an investigatory nature and was not an inventory search.
The Commonwealth argues, in the alternative, that the search of the Buick can be justified as a search based on the “automobile exception” to the warrant requirement. The so-called “automobile exception” exists when police have probable cause to believe that an automobile contains contraband or evidence of a crime and they are faced with exigent circumstances, making obtaining a warrant impracticable. Chambers v. Maroney, 399 U.S. 42 (1970). Carroll v. United States, 267 U.S. 132, 149 (1925). Commonwealth v. King, 389 Mass. 233, 246 (1983). Commonwealth v. Ortiz, 376 Mass. 349, 357-358 (1978). In these circumstances, the Commonwealth bears the burden of proving probable cause and exigent circumstances. Commonwealth v. Santiago, supra at 744.
In his memorandum of decision and order regarding the Commonwealth’s motion for reconsideration, the judge found that Cummings “did not have probable cause to believe there was any cocaine in the vehicle other than that already seized
The judge’s order denying the defendants’ motions with respect to the cocaine seized from Londono’s person and allowing the motions with respect to the cocaine seized from the automobile is affirmed.
So ordered.
Alvarado has standing to challenge the arrest of Londono because Alvarado was charged with constructive possession of the cocaine seized from Londono’s person at the time of his arrest. Commonwealth v. Santaliz, 413 Mass. 238, 240 n.5 (1992). Commonwealth v. Amendola, 406 Mass. 592, 596-601 (1990).
The defendants claim that the single justice erred in accepting the Commonwealth’s application for interlocutory review under G. L. c. 278, § 28E (1992 ed.), and Mass. R. Crim. P. 15 (b) (2), as amended, 397 Mass. 1226 (1986), because the application was not filed within the “reasonable time” required by Mass. R. Crim. P. 15 (b) (3), 378 Mass. 882 (1979).
The motion judge’s initial order suppressing the evidence was filed on January 18, 1994. Thereafter, the Commonwealth filed a notice of appeal under Mass. R. Crim. P. 15 (b) (2) on January 24, 1994. The Commonwealth filed a motion for reconsideration of the motion to suppress on the same day. The motion for reconsideration was denied on February 15, 1994. On March 1, 1994, the Commonwealth filed a notice of appeal under rule 15 (b) (2) from the denial of its motion for reconsideration. The Commonwealth filed its application for interlocutory appeal with a single justice of this court on April 6, 1994, pursuant to an order of a Superior Court judge. The defendants claim that the filing of the application for interlocutory review was seventy-eight days after the original order on the
The single justice denied the defendants’ motions to dismiss the Commonwealth’s appeal and allowed the Commonwealth’s application and the applications of the defendants. He ordered the matters consolidated for appellate argument. We uphold the single justice “absent clear error of law or abuse of discretion,” Forte v. Commonwealth, 418 Mass. 98, 99 (1994), quoting Campiti v. Commonwealth, 417 Mass. 454, 455 (1994). See Commonwealth v. Nettis, 418 Mass. 715, 717 (1994). In Commonwealth v. Guaba, 417 Mass. 746 (1994), where an application also was reported by a single justice to the full bench, the defendant made an argument similar to the one made by Alvarado and Londono. We acknowledged in Guaba, supra at 751, that, although Mass. R. A. P. 4 (b), as amended, 378 Mass. 928 (1979), setting forth a thirty-day deadline, applied to notices of appeal of suppression orders, the rule was unclear as to when the thirty-day period begins to run. Although the application for interlocutory review was filed a little over one month after the notice of appeal, that period of time is not “unreasonable.” See Commonwealth v. Lewin (No. 3), -408 Mass. 147, 150-151 (1990).
Neither defendant contests the judge’s finding that the initial stop of the automobile was justified and within constitutional limits. See Terry v. Ohio, 392 U.S. 1 (1968). See also Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Thus we proceed directly to an examination of the validity of the arrest of Londono, of which the searches at issue are the fruit.
To the extent that the judge concluded that Cummings observed a controlled substance in plain view, we disagree. The incriminating nature of the object in Londono’s fist, a piece of plastic which may or may not have been a glossine bag, was not “immediately apparent.” See Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971); Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650-651 (1993). Compare Commonwealth v. Santana, ante 205, 210-211 (1995).
Indeed, Cummings testified that when he asked Londono to step out of the automobile and began asking him questions, he considered himself to be conducting a threshold inquiry.
The Commonwealth’s argument that Cummings was justified in examining the water well because it could have contained “valuables” is unpersuasive.