Heard: October 3, 2017.
Result of illegal search.
found and returned in the Superior Court Department on March
25, 2015. A pretrial motion to suppress evidence was heard by
Edward J. McDonough, Jr., J.
application for leave to prosecute an interlocutory appeal
was allowed by Hines, J., in the Supreme Judicial
Court for the county of Suffolk, and the appeal was reported
by her to the Appeals Court. The Supreme Judicial Court
granted an application for direct appellate review.
Cynthia Cullen Payne, Assistant District Attorney (Bethany
Lynch, Assistant District Attorney, also present) for the
Patrick Levin, Committee for Public Counsel Services, for the
Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
case we must decide whether a driver's consent to allow
the police to search for narcotics or firearms "in the
vehicle" authorizes a police officer to search under the
hood of the vehicle and, as part of that search, to remove
the vehicle's air filter. We hold that it does not. A
typical reasonable person would understand the scope of such
consent to be limited to a search of the interior of the
vehicle, including the trunk. Because the police here
exceeded this scope by searching under the hood and removing
the air filter, and because the search was not otherwise
supported by probable cause and was not a lawful inventory
search, the Superior Court judge's order granting the
defendant's motion to suppress is affirmed.
summarize the facts as found by the motion judge,
supplemented by uncontroverted evidence that the judge
explicitly or implicitly credited. See Commonwealth
v. Isaiah I., 448 Mass. 334, 337 (2007),
S.C., 450 Mass. 818 (2008). On January 23, 2015, Officer
Jared Hamel and Detective Boyle of the Holyoke police department
were on patrol in an unmarked police cruiser when they heard
loud music coming from a vehicle. The officers determined
that the loud music posed a public safety hazard under a
local ordinance that prohibits excessively loud music in a
motor vehicle. Officer Hamel activated the cruiser lights and
initiated a stop of the vehicle.
officers approached the vehicle, Hamel recognized the driver
(the defendant) as someone he had earlier pursued in a foot
chase during an incident where the defendant was arrested for
breaking into an apartment. Hamel also recalled that the
defendant had been charged in two separate incidents with
attempted murder and with narcotics and firearms offenses.
Hamel also recognized one of the two passengers, George
Ortiz, because he recalled an incident where Ortiz had been
arrested for trafficking in cocaine after the execution of a
safety precaution, Hamel requested a backup unit to provide
assistance over the police radio. Hamel then asked the
defendant for his license and registration. The defendant
looked at Hamel, and turned for assistance to Ortiz, who
spoke in Spanish to the defendant. Hamel recalled from his
prior encounters with the defendant that the defendant
"only spoke a little English, " and understood that
Ortiz was translating Hamel's request for the
defendant's benefit. The defendant presented to Hamel a
Massachusetts identification card that was not a driver's
license, which confirmed that the driver was the defendant.
Hamel asked the other passengers if either had a driver's
license, and neither did.
asked the defendant in English if there was anything in the
vehicle that the police should know about, including
narcotics or firearms. The defendant responded, without
hesitation and without any translation from Ortiz, "No,
you can check." Hamel asked the defendant and the two
passengers to leave the vehicle, and placed all three in
handcuffs. All were frisked for weapons; none were found, but
the two passengers were each found in possession of
thereafter, other police officers arrived on the scene,
including an officer in the K-9 unit; the officer's dog
walked around the vehicle but did not alert to anything. The
officers searched the front and back seat areas of the
vehicle, but found no contraband. Hamel then instructed one
of the officers to check under the hood of the vehicle. The
officers raised the hood, and a few minutes later, after
removing the air filter, Boyle found a black bag that
contained two firearms. ...