A judgе found the defendant guilty of the crime of possessing a narcotic drug in violation of G. L. c. 94, § 205 (as amendеd through St. 1958, c. 95, § 1), and, being of opinion that the conviction raised questions of law which are doubtful and important, did not impose sentence, but reported the case to this court with the consent of the defendant and the Commonwealth. G. L. (Ter. Ed.) c. 278, §30._
Prior to trial the defendant filed a motion (1) to suppress all thе evidence in the possession of the Commonwealth on the ground that it was obtained as a result оf an illegal *152 search and seizure and (2) to dismiss the indictment. The judge made findings which resulted in his ruling that an illegal and unconstitutional search had been made of a motor vehicle of which the defendant was bailee. Certain evidence, which the judge found had been obtained directly as the result of the search, he ruled should be suppressed. The suppressed evidence comprised narcotics in manila envelopes taken from the motor vehicle; a statement signed by the defendant after interrogation at the State police barracks subsequent to the search; admissions made during the interrogation; and “testimony concerning this evidence.”
Other evidence, which the judge ruled “was admissible as not having resulted directly or indirectly from the illegal search, concerned a film container of marijuana which fell out of the defendant’s clothing after the illegal search and while he was still at the scene.” At the trial this evidence along with admissions made “right after the container fell to the ground” was introduced and was the sole basis for the finding of guilty.
An officer of the State police testified that on Oсtober 6, 1961, at 10:45 p.m. he stopped a motor vehicle, of which it was later determined the defendаnt was the bailee, as it entered the Massachusetts Turnpike from a ramp. The vehicle was stoрped on a “routine check” because a headlight was not working. 1 The three occupants, apart from the defendant, were one Williams, a friend, and two navy personnel, who were “hitch-hiking.” Aftеr verifying the driver’s license and the registration, the officer conducted an illegal search of the vehicle which resulted in his seizing some envelopes of marijuana from under the defendant’s seat. Before searching, the officer had ordered the defendant out of the car. The officer еstablished that the envelopes did contain marijuana and was interrogating the defendant at the rеar of the car when the defendant started to walk toward the shoulder of the road. The officеr saw a small tin vial falling to the ground from the defendant’s *153 person and the defendant attempting to kick it. A smаll metal 35 millimeter film container of marijuana was introduced in evidence. The officer testified thаt he asked the defendant, “What’s that?” and the defendant answered, “That’s the rest of it,” or “That’s the rest of thе pot,” “pot” being marijuana. The officer later ordered the defendant into a police “cruiser” and took him to the barracks for further interrogation, and considered that he had plaсed him under arrest.
Williams testified that he and the two sailors got out of the car and joined the officеr and the defendant, who were behind it and in front of the “cruiser.” The officer questioned them separаtely. Eventually Williams “saw the defendant start to walk toward the front of the car when a film can ‘dropped off of him.’ ” The can appeared to have been dropped or to have fallеn rather than thrown. Three to five minutes had elapsed from the time the officer and the defendant wеnt to the rear of the car.
The crucial ruling of the judge was that the film container, or can, had nоt “resulted directly or indirectly from the illegal search.” He recognized that the distinction from the suppressed evidence was doubtful. We are inclined to resolve that doubt in favor of the defendant.
Thе evidence is not wholly clear whether the verification of the driver’s license and of the registrаtion occurred before the defendant was ordered out of the car. From the statements in thе record the verification might have come first. If so, the record suggests no purpose of ordеring him out of the car other than to make an illegal search. Having found the envelopes, the officer was still interrogating him when the film container fell to the ground. On the other hand, if we assume that the defendant was properly ordered out so that the papers could be verified, once that рurpose had been accomplished, there appears no reason, apart from the search of the vehicle, why the defendant should not have been permitted to resume his seat and continue on his way. See
Rios
v.
United States,
*154
Without undue elaboration of the decisions, we are unable to sеe any sound distinction between this case and
Commonwealth
v.
Spofford,
In accordance with the terms of the report, the indictment is dismissed.
So ordered.
Notes
See G. L. c. 90, §§ 7, 9, both as amended.