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Commonwealth v. Garcia-German

Appeals Court of Massachusetts, Plymouth

December 20, 2016

COMMONWEALTH
v.
JASON A. GARCIA-GERMAN.

          Heard: October 13, 2016.

         Complaint 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, J.

         An 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.

          Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

          Darla J. Mondou for the defendant.

          Present: Cypher, Cohen, & Green, JJ.

          GREEN, J.

         The 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)-[1] 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 administrative search.

         Background.

         We 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 (2008).

         At 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.

         Officer 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 BMW.[2]

         Officer 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.[3] 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.

         At the entrance to the parking lot of the facility is a guard shack.[4] Adjacent to the guard shack a sign is posted, advising as follows: "Warning: all vehicles beyond this point are subject to search."[5] Other than the warning delivered by the posted sign, the record includes no evidence of a written policy authorizing ...


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