Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Ortiz

Supreme Judicial Court of Massachusetts, Hampden

February 12, 2018

COMMONWEALTH
v.
ANTHONY C. ORTIZ

          Heard: October 3, 2017.

         Evidence, Result of illegal search.

         Indictments 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.

         An 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 Commonwealth.

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         In this 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.

         Background.

         We 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[1] 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.

         As the 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 search warrant.

         As 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.

          Hamel 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 marijuana.

         Shortly 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.