FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON
DEFENDANTS' MOTION TO SUPPRESS
Shannon Frison, J.
defendants were indicted on charges of Trafficking Heroin of
more than 36 grams and less than 100 grams. Their Motions to
Suppress Evidence were heard on January 25 and 26, 2016 in
Worcester County. This case represents a motor vehicle stop
that escalated to an investigatory search without probable
cause. The search of the vehicle involved was based almost
solely on a hunch, and the searches of the vehicle and
occupants were improper and illegal at every stage of the
interaction. For the reasons below, the motions are
Court finds the following facts based upon the testimony of
Massachusetts State Police Troopers Alena Sullivan ("
Trooper Sullivan"), Thomas Eliason (" Trooper
Eliason"), and James Bazzinotti (" Sergeant
Tuesday, June 2, 2015, Trooper Sullivan observed a motor
vehicle traveling in the middle lane of Route 495 Northbound
in Southborough, Massachusetts. She followed that vehicle for
approximately two miles and estimated its speed to be, at
various points, between eighty-two and eighty-three miles per
hour in a sixty-five mile-per-hour speed zone. Trooper
Sullivan activated her police cruiser lights and pulled that
vehicle over to the shoulder of the highway. She then
approached the driver side of the vehicle and noted that
there were a total of four people in the vehicle. Trooper
Sullivan was the only police personnel on the scene at that
operator of the vehicle, defendant Mr. Marquis Moore ("
Moore"), seemed confused and asked why he was stopped.
Trooper Sullivan told him he was pulled over for speeding.
Moore had and provided a valid driver's license from the
state of New York upon request. He also provided a rental
agreement from Hertz rental cars. The back seat passengers in
the vehicle were not wearing seat belts. Defendant Ms.
Trishana Singh (" Singh") was the front seat
passenger. Defendants Mr. Elijah Russaw (" Russaw")
and Mr. Quinbon Williams (" Williams") were seated
in the back of the vehicle. Each passenger provided valid
driver's licenses from the state of New York. The renter
on the Hertz agreement was one Mr. Deran Thomas ("
Thomas"), who was not present in the vehicle. The rental
agreement also appeared, at that time, to be expired. Moore
told the trooper that Thomas was the renter, and that he was
a friend who had allowed him to use the vehicle.
Sullivan requested additional cruisers to assist her. She
then notified all of the occupants that the vehicle was going
to be towed. At that time, Trooper Sullivan intended to
summons Moore for the criminal charge of Use of Motor Vehicle
Without Authority. Sergeant Bazzinotti and Troopers Bertozzi,
Mather, and Nunes arrived to assist her. Trooper Sullivan
called Hertz and learned that the rental agreement with
Thomas was extended and was not expired. However, no other
names were listed as drivers on the agreement with Hertz.
Sullivan decided that she would tow the vehicle because none
of the occupants were listed on the rental agreement. The
troopers ordered all of the defendants out of the vehicle and
pat-frisked each one of them. After being searched, all four
individuals were placed in the back of four different locked
police cruisers. None of the occupants were under arrest at
that time, but they were not free to leave. Despite that
fact, Trooper Sullivan stated on the radio to dispatch that
she had " four parties in custody."
Moore also told the troopers that there was another rental
agreement in the car, which they found in the console. That
agreement was consistent with the information obtained by
Trooper Sullivan that the rental was extended and currently
Sullivan then began a search of the vehicle that she
considered to be an inventory search in compliance with the
State Police Vehicle Inventory policy. Trooper Sullivan
searched the interior of the car and found that she could not
open the locked glove compartment. The trunk of the vehicle
was also locked and closed. Sergeant Bazzinotti directed that
the trunk be unlocked and opened. He then searched the trunk
and recovered a plaster canister of white powdery substance
with a plastic baggie tied off at the top of it that also
contained a white powdery substance. Trooper Sullivan (who
had been on the force for roughly eight months at that time)
and Sergeant Bazzinoti believed one of the
substances to be cocaine and one to be a cutting agent
commonly used when packaging cocaine for distribution.
Although Sergeant Bazzinotti had a field test with him in his
cruiser, he did not test any of the substances at
the scene. The four occupants of the vehicle were all placed
under arrest without the benefit of that testing.
troopers then prepared to tow the vehicle. The white powdery
substance was taken back to the State Police barracks in
Millbury. Trooper Bazzinotti and Trooper Nunes " field
tested" the substance at the barracks, and the substance
apparently tested positive for cocaine. That field test has
been discarded by Trooper Sullivan and is no longer available
for review. Later, and before the grand jury, an actual
laboratory analysis of the substance determined that cocaine
was not present in that white powdery substance.
Sullivan booked all of the defendants at the barracks. She
recovered no evidence during the searches attendant to
booking. Williams was uncooperative at the barracks. He
refused to sign his property inventory form and made
derogatory comments about the troopers when he made his
telephone call from the barracks.
the scene, Sergeant Bazzinotti called for assistance from
canine troopers to meet him at the barracks. Trooper Eliason
arrived with his canine partner " Victor" and
searched the vehicle again at the Millbury barracks. Trooper
Sullivan was there with Trooper Eliason. Victor was allowed
to walk around the vehicle. At the driver's window,
Victor stopped and looked into the window of the vehicle.
Victor alerted the troopers to the possible presence of drugs
by sitting at or near the glove compartment of the vehicle.
Victor also touched the glove box with his paw.
Bazzinotti oversaw the booking of Russaw. He directed another
trooper to have Russaw empty his pockets into his hat. When
Russaw did so, Sergeant Bazzinotti noticed what appeared to
be a key that is usually inserted in the key " fob,
" but that was missing from the fob to the subject
vehicle. There was no testimony on how the key from
Russaw's pocket got from his hat to the glove compartment
of the vehicle. However, the troopers, at some point, used
that key to unlock and open the glove compartment. They
recovered a clear plastic bag containing a brown powdery
substance from that compartment and field-tested it. That
substance was positive for heroin according to the field
Sullivan asked Ms. Singh where they were driving; she stated
that the four were headed to Boston to meet a friend.
stop of the defendants' car was a permissible traffic
stop; the defendants do not argue otherwise. See
Commonwealth v. Sinforoso, 434 Mass. 320, 323, 749
N.E.2d 128 (2001) (validating stop for speeding violation).
The defendants dispute the permissibility of the
troopers' remaining actions. Specifically, the defendants
maintain that (1) there was no lawful basis to arrest Mr.
Moore; and (2) the troopers had no basis to impound or search
the vehicle. They argue that, for these reasons, the fruits
of the search must be suppressed.
Commonwealth's proffered basis for arresting Mr. Moore is
his operation of the rental car without permission from
Hertz, conduct the Commonwealth asserts establishes probable
cause to bring charges for use of a motor vehicle without
authority in violation of G.L.c. 90, §
24(2)(a). The defendants disagree that Mr.
Moore's conduct is criminally actionable and maintain
that his arrest was unlawful. Our cases have not yet
addressed the criminality of driving a rental car without
permission from the lessee of the vehicle under §
24(2)(a). See Commonwealth v. Watts, 74 Mass.App.Ct.
514, 518 n.4, 908 N.E.2d 788 (2009) (" We need not
decide whether the fact that [the rental company] no longer
authorized the defendant to operate the rental car provided
the police with probable cause to arrest him for use of a
motor vehicle without authority in violation of G.L.c. 90,
§ 24(2)(a)"). Contra Commonweal ...