Substances. Trespass. Cellular Telephone. Search and Seizure,
Expectation of privacy, Search incident to lawful arrest.
Evidence, Operative words. Practice, Criminal, Motion to
Matthew J. Koes for the defendant.
H. Lazar-Moore, Assistant District Attorney, for the
a jury trial in Superior Court, the defendant, Carlos
Alvarez, Jr., was convicted of possession of cocaine with
intent to distribute, as a subsequent offense, and criminal
trespass. The defendant was arrested for selling cocaine in a
grocery store parking lot. He unsuccessfully moved to
suppress evidence related to his cellular telephone (cell
phone) that had been lawfully seized during a search incident
to his arrest. After trial, the defendant appealed to the
Appeals Court, challenging the denial of his motion to
suppress and his convictions, and we granted his application
for direct appellate review.
presented at the hearing on the motion to suppress.
police officer observed the defendant conducting a
hand-to-hand drug transaction in the parking lot behind a
grocery store. The officer approached the defendant as he was
completing the sale. The defendant fled the scene shortly
after the officer approached him, but he was apprehended by
another officer moments later. After the defendant was
arrested, the officer who had observed the drug transaction
searched the defendant's pockets and recovered money and
a cell phone. The officer also observed a plastic bag
containing a small, rocklike object -- later determined to be
cocaine -- on the ground in the area where the defendant had
been on the ground.
recovery of the cell phone from the defendant's pocket
during the arrest, the officer did not attempt to open it,
look into it, or press any buttons. At some unspecified point
after the officer returned to the police station, the cell
phone rang; the officer glanced at the "ringing"
cell phone and saw a text message on its outer screen. A
Superior Court judge denied the defendant's motion to
suppress the cell phone and the text message.
defendant contends that by glancing at the ringing cell phone
and observing a text message on its outer screen, the officer
conducted a search. In a motion to suppress, the defendant
bears the initial burden of establishing that a search
occurred pursuant to the Fourth Amendment to the United
States Constitution. See Commonwealth v.
D'Onofrio, 396 Mass. 711, 714-715 (1986). See also
Commonwealth v. Boyarsky, 452 Mass. 700, 708 (2008),
quoting Commonwealth v. Netto, 438 Mass. 686, 697
(2003) ("burden is initially on the defendant to
demonstrate that [he] had a reasonable expectation of privacy
. . . . Thus, if the record is unclear . . . it is the
defendant -- not the Commonwealth -- who [has] failed to
meet [his] burden of proof . . .") .
record before us presents a dearth of evidence concerning the
cell phone. It is clear, however, that the defendant's
cell phone was seized during a valid search incident to his
lawful arrest. See Commonwealth v. Mauricio, 477
Mass. 588, 592 (2017). At some point after the
defendant's cell phone was lawfully seized and the
officer returned to the police station, the cell phone rang.
In response, the officer glanced at the outer screen of the
ringing cell phone, where he observed the text message at
issue. There was no evidence that the officer opened the cell
phone, manipulated it to view the text message, or otherwise
perused its contents. Because the record is devoid of
evidence suggesting that the officer's observation of the
outside of the defendant's cell phone constituted a
search, the defendant did not establish that a search
occurred.Accordingly, within this factual
vacuum, we cannot say that the judge erred in denying the
motion to suppress.
officer's testimony about the drug deal substantially
conformed to the evidence presented at the hearing on the
motion to suppress. The officer observed the defendant
meeting with another individual and conducting a hand-to-hand
drug transaction in the parking lot behind a grocery store.
Several "no trespassing" signs were prominently
posted around that area of the parking lot. As the defendant
was completing the drug deal, the officer approached the
defendant. The defendant fled the scene but was arrested
moments later. The officer recovered money and a cell phone
from the defendant's pockets and observed a plastic bag
containing cocaine fall from the defendant's pants.
officer testified that the cell phone recovered from the
defendant was a "flip phone." As the officer was
writing his report at the police station, he heard the
defendant's cell phone ring. In response, he glanced at
its outer screen and saw a text message: "N word, I need
some shit." The officer testified that he had not
opened the cell phone or otherwise manipulated it to view the
message appearing on the outer screen. The cell phone was
admitted in evidence.
officer testified that individuals looking to buy drugs will
often contact a drug dealer through text message, and use
coded words indicating that the person wants to meet to
purchase drugs. That officer testified that a person found in
possession of one small rock of cocaine, multiple twenty
dollar bills, and a cell phone with a coded text message is
more consistent with an individual dealing drugs than a