Heard: October 13, 2016.
received and sworn to in the Plymouth Division of the
District Court Department on September 2, 2014. A pretrial
motion to suppress evidence was heard by Brian F. Gilligan,
application for leave to prosecute an interlocutory appeal
was allowed by Robert J. Cordy, J., in the Supreme Judicial
Court for the county of Suffolk, and the matter was reported
by him to the Appeals Court.
M. McKenna, Assistant District Attorney, for the
J. Mondou for the defendant.
Present: Cypher, Cohen, & Green, JJ.
Commonwealth appeals from an order by a judge of the District
Court allowing the defendant's motion to suppress
evidence seized during a warrantless search of his vehicle
while it was parked in a parking lot outside the Plymouth
County correctional facility (facility)- We conclude that
the motion judge correctly ruled that the search was not
justified by probable cause, and reject the
Commonwealth's alternative suggestion that the presence
of the vehicle on correctional facility grounds, in these
circumstances, furnished "special needs" to justify
an exception to the warrant requirement, as a permissible
summarize the facts found by the motion judge, which we
supplement, for the purpose of furnishing context, with
uncontroverted evidence the motion judge implicitly credited.
See Commonwealth v. Isaiah I., 448
Mass. 334, 337 (2007), §.C., 450 Mass. 818
approximately 7:30 P.M. on Friday evening, August 29, 2014,
Officer James Creed of the Plymouth County sheriff's
department was on patrol in the parking lot of the facility,
when he saw two motor vehicles -- a gray BMW and a gray Volvo
--enter the visitor's lot. Two Hispanic males, the
defendant and a companion, emerged from the BMW, and a white
male, later identified as an attorney, emerged from the
Volvo. All three men entered the bail lobby of the facility.
At the time of their arrival, visiting hours at the facility
had ended; the three men had come to the facility for the
purpose of posting bail for a person being held there.
Creed proceeded to the parked vehicles, walked around each of
them, and conducted a visual inspection. He saw a
prescription pill bottle, face down, in the map pocket on the
driver's side of the BMW. Using his flashlight to improve
illumination, he saw a small quantity of white pills and a
small plastic bag containing blue pills within the pill
bottle. He then requested registration information for the
Creed proceeded to the bail lobby of the facility, where he
talked to the defendant and instructed him to accompany Creed
back to the BMW. When the two reached the BMW, Creed
instructed the defendant to unlock the vehicle to allow an
inspection of its interior; the defendant complied with
Creed's instruction. After the defendant unlocked the
vehicle, Creed opened the prescription pill bottle and
inspected its contents; the white pills appeared to him to be
an antibiotic, and the blue pills appeared to him, based on
his training and experience, to be oxycodone. Creed also
discovered a quantity of heroin, wrapped in plastic, inside
the center console between the driver's and the front
passenger's seats. He then requested canine assistance;
with the assistance of a canine, he subsequently discovered
about $700 in cash in a small storage area under the radio.
entrance to the parking lot of the facility is a guard
shack. Adjacent to the guard shack a sign is
posted, advising as follows: "Warning: all vehicles
beyond this point are subject to search." Other than the
warning delivered by the posted sign, the record includes no
evidence of a written policy authorizing ...