25 Mass. App. Ct. 905 | Mass. App. Ct. | 1987
As the trial judge observed, once the single occupant of the car was manacled in the police cruiser, there was no longer a basis for concern that the defendant would use anything in his car to resist arrest or to escape. Compare Commonwealth v. Brillante, 399 Mass. 152, 155 (1987), and Commonwealth v. Lucido, 18 Mass. App. Ct. 941, 942-943 (1984), in which potentially hostile persons not under restraint had access to the car in question. Indeed, the Commonwealth does not argue otherwise; rather, it contends that the warrantless search was lawful because its purpose was to seize evidence that the defendant had been imbibing alcoholic beverages.
On that score, however, the Commonwealth confronts the trial judge’s express finding that Trooper Sheehan’s explanation for exploring the red tote bag was a pretext. That finding we accept unless clearly erroneous. Commonwealth v. Moon, 380 Mass. 751, 756 (1980). Commonwealth v. Crowe, 21 Mass. App. Ct. 456,462 (1986). The judge’s finding, in addition to the usual ability to size up the witness and the judge’s feel of the case, was further informed by his common sense observation that intoxicating liquors which are being consumed are not usually stored or transported in hand baggage. The implausibility of ferreting for evidence of driving under the influence of alcohol in hand luggage distinguishes the instant case from a case such as Commonwealth v. Beasley, 13 Mass. App. Ct. 62, 64 (1982), in which a glove compartment was a reasonable place to look for contraband firecrackers. In view of the trial judge’s findings and the circumstances, the search of the bags was not, as in Commonwealth v. Turner, 14 Mass. App. Ct. 1023,1024 (1982), a “natural part of the arrest transaction.” Cases sanctioning searches of containers or compartments in automobiles such as Commonwealth v. Bongarzone, 390 Mass. 326, 351-352 (1983), and Commonwealth v. lerardi, 17 Mass. App. Ct. 297, 300-301 (1983), turned on the basis of probable cause that contraband was present, rather than on the basis of a search incident to arrest. See in a similar vein, although not involving car searches, Commonwealth v. Skea, 18 Mass. App. Ct. 685, 701 n.19 (1984); Commonwealth v. Stafford, 18 Mass. App. Ct. 964, 965 (1984). The judge was warranted in concluding that the Commonwealth had not sustained its burden of justifying the reasonableness of its search of Rose’s red bag and black suitcase. See Commonwealth v. Toole, 389 Mass. at 163, n.8; Commonwealth v. Ford, 17 Mass. 505, 508-509 (1984). The order of the judge suppressing the evidence of the defendant’s possession of controlled substances is affirmed.
So ordered.