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Commonwealth v. Darosa

Appeals Court of Massachusetts, Plymouth

January 8, 2019


          Heard: April 12, 2018

         Complaint received and sworn to in the Brockton Division of the District Court Department on September 14, 2012.

         A pretrial motion to suppress evidence was heard by James M. Sullivan, J., and a motion for reconsideration was also heard by him; and the case was tried before Antoinette E. McLean Leoney, J.

          Eric W. Ruben for the defendant.

          Johanna S. Black, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Trainor, Rubin, Shin, & McDonough, JJ.[1]

          SHIN, J.

         The defendant appeals from his conviction of possession with intent to distribute marijuana.[2] The police recovered the marijuana during a traffic stop, which led to a search of the defendant's vehicle because he did not have a valid driver's license. With probable cause to arrest for the license violation, two detectives searched the front compartment of the vehicle while the defendant, already pat frisked, sat at the rear of the vehicle, guarded by a third detective. The motion judge found the search lawful and denied the defendant's motion to suppress on the rationale that, because the detectives had not yet decided whether to arrest the defendant, they were entitled to conduct a "protective sweep prior to allowing [him] to return to his vehicle." But the evidence did not show, and the Commonwealth did not argue, that the detectives had a reasonable belief that the defendant was armed and dangerous, and the detectives did not decide to arrest him until they discovered contraband during a more thorough search conducted after the arrival of a K-9 unit.[3]

         No recognized exception to the warrant requirement applies in these circumstances. To hold otherwise would confer a police entitlement to search based on probable cause to arrest for any offense, including minor traffic offenses, in contravention of G. L. c. 276, § 1, [4] and the United States Supreme Court decision in Arizona v. Gant, 556 U.S. 332 (2009). Because the items seized from the defendant's vehicle were fruits of the unlawful search, the motion to suppress should have been allowed. We therefore vacate the judgment and set aside the verdict.[5]

         Factual background.

         We summarize the facts as found by the judge and as derived from the detectives' testimony at the suppression hearing, which the judge implicitly credited in full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) . Brockton police Detective Brian Donahue was on patrol on Main Street in Brockton around 10:15 P.M. He was in an unmarked vehicle and accompanied by Detective William Carpenter and Detective Sergeant Frank Vardaro. Main Street is a heavily traveled one-way road with two lanes and parking on both sides. The surrounding area is a commercial district, "densely populated" with retail businesses, bars, and nightclubs. It is also an area "with a high instance of criminal activity" including "narcotic activity."

         As the detectives traveled on Main Street, a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes. The vehicles were stopped in an area that was heavily trafficked and illuminated by lights from a nearby court house and businesses. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified that it was consistent with a drug sale. In fact, two detectives affirmatively testified that the transfer did not resonate as suspicious based on their training and experience.[6]

         Because the minivan was blocking traffic, Donahue sounded his horn. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling. Donahue then activated the emergency lights on his vehicle and effectuated a traffic stop without incident.

         The defendant was the driver and only occupant of the minivan. Upon Donahue's request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver's compartment. When Donahue asked what he was looking for, the defendant replied, "[my] license," prompting Donahue to ask, "[W]hy are you looking for it if you already told me you don't have it with you?" The defendant then stopped looking around and complied with Donahue's request to write down his name and date of birth. Leaving the defendant in the minivan, Donahue returned to his vehicle and conducted a computer query, which revealed that the defendant's license was revoked and that he had a criminal record for narcotics violations.[7]

         Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue agreed that the defendant did not "do anything other than cooperate" during the course of the stop. Likewise, Carpenter agreed that he saw "nothing ... in [the defendant's] manner, mood, gestures, or anything else" to suggest that he was going to pose a "problem." Four officers testified in total, and none indicated that the defendant appeared to be armed and dangerous. Indeed, Donahue acknowledged that he had no evidence that "there would be a weapon in the [minivan]."[8]

         Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by Carpenter, while Donahue and Vardaro searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana and saw and smelled fabric softener sheets, which he knew from experience are often used to mask the odor of drugs. Vardaro also discovered a large package of money under the front passenger seat.

         Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine, trained to detect drugs, alerted to a bag in the rear compartment of the minivan. Inside the bag was a large amount of marijuana.[9] At this point Donahue placed the defendant under arrest "for the license being revoked."

         Judge's decision.

         The judge issued a three-page memorandum of decision denying the defendant's motion to suppress.[10] The decision begins with a statement of the facts, which is drawn directly from the detectives' testimony. The judge then made the following "[f]indings and [r]ulings" regarding the events that occurred prior to the arrival of the K-9 unit:

"The initial stop of the defendant's motor vehicle was proper and valid. The defendant's vehicle was double parked in an active travel lane. It was observed making a transfer to a second vehicle in an area that is known for narcotic activity. Commonwealth v. Thompson, 427 Mass. 729, 735 (1998). Donahue further observed the operator change lanes without signaling and cutting off other motorists in the process. Commonwealth v. Santana, 420 Mass. 205, 207 (1995).
"The scope of the stop is often fluid. The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness. Commonwealth v. Sinforoso, 434 Mass. 320 (2001). The defendant's inability to produce a driver's [license] was problematic. The fact that the defendant's right to operate had in fact been revoked caused the situation to rise to the level of ongoing criminal activity. Donahue also became aware of the defendant's criminal history involving narcotics.
"As the defendant was subject to arrest it was proper to detain him away from the vehicle. Thus it was proper to ask the defendant to exit the vehicle and pat frisk him for the safety of the officers present. Commonwealth v. Bostock, 450 Mass. 616, 619-621 (2008) . The defendant was informed that his right to operate had been revoked. At that time the officers could have released the defendant and summonsed him to court to answer to the charge at a later date. Accordingly, the defendant could have regain[ed] access to the vehicle. The search of the front [driver] and passenger compartment was an appropriate step for the police as a protective sweep prior to allowing the defendant to return to his vehicle. Commonwealth v. Santiago, 53 Mass.App.Ct. 567, 571 (2002). See also Commonwealth v. Lantigua, 38 Mass.App.Ct. 526, 528 (1995) ."

         The defendant moved for reconsideration, and the judge held a nonevidentiary hearing. After the hearing, the judge denied the motion based in part on "recent decisional case law" -- namely, Commonwealth v. Wright, 85 Mass.App.Ct. 380 (2014), in which the issue was not the validity of a search, but whether an officer's expansion of the scope of a routine traffic stop, by calling a K-9 unit, was supported by reasonable suspicion of further criminal activity. Id. at 383-384.


         Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, "subject only to a few specifically established and well-delineated exceptions." Gant, 556 U.S. at 338, quoting Katz v. United States, 389 U.S. 347, 357 (1967). See Commonwealth v. Craan, 469 Mass. 24, 28 (2014). It is the Commonwealth's burden to show the applicability of one of those exceptions. See Commonwealth v. Perkins, 465 Mass. 600, 603 (2013). Here, the Commonwealth seeks to defend the search on two alternative grounds: (1) by arguing it was a search incident to an arrest; and (2) by asking us to create a new exception for circumstances where, although the officers had probable cause to arrest, they did not do so right away and thus could, theoretically, have allowed the defendant to return to his vehicle.[12] In addition, the dissent concludes that the search was a Terry-type[13] search for weapons. None of these justifications withstands scrutiny.

         1. Search incident to arrest.

         The Commonwealth's primary argument is that the search was permissible as incident to the defendant's arrest for operating a motor vehicle without a license. This argument faces the threshold problem that, at the time of the search, the defendant was not arrested. While it is true that a search can qualify as incident to arrest even where it precedes a formal arrest, the search and the arrest still must be "substantially contemporaneous." Commonwealth v. Washington, 449 Mass. 476, 481 (2007), quoting New York v. Belton, 453 U.S. 454, 465 (1981) (Brennan, J., dissenting). See Stoner v. California, 376 U.S. 483, 486 (1964). The contemporaneity requirement is consistent with "[t]he purpose, long established, of a search incident to an arrest," which "is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape." Commonwealth v. Santiago, 410 Mass. 737, 743 (1991). See Chimel v. California, 395 U.S. 752, 762-763 (1969). "To permit a search incident to arrest where the suspect is not arrested until much later, or is never arrested, would sever this exception completely from its justifications." Washington, 449 Mass. at 482.

         Here, the defendant was not arrested until after the K-9 unit arrived, conducted a more thorough search, and discovered the marijuana in the rear of the minivan. The Commonwealth presented no evidence establishing within a reasonable degree of certainty how much time elapsed between the initial search and the arrival of the K-9 unit, [14] or how much additional time elapsed until the discovery of the marijuana.[15] Thus, even accepting the Commonwealth's assertion that the search incident to arrest doctrine allowed the officers to delay their decision to arrest until after seeing the results of the search, [16] the Commonwealth did not meet its burden of showing that the search and the arrest were substantially contemporaneous.

         Moreover, even assuming contemporaneity, the search was not a lawful search incident to arrest under either Gant or G. L. c. 276, § 1, the latter of which "is more restrictive than the Fourth Amendment." Commonwealth v. Mauricio, 477 Mass. 588, 594 n.2 (2017), quoting Commonwealth v. Blevines, 438 Mass. 604, 607 (2003). Gant holds that the police can search a vehicle incident to an occupant's arrest in only two circumstances: "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" such that he might gain access to a weapon, or "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle'" (citation omitted). Gant, 556 U.S. at 343. The Commonwealth concedes that the officers could not have expected to find evidence of the crime of arrest, i.e., operating without a license, inside the defendant's minivan. See Id. at 344; Perkins, 465 Mass. at 605. Thus, to justify the search as incident to arrest, the Commonwealth had to show that the defendant was within reaching distance of the passenger compartment of the minivan.

         The Commonwealth did not meet this burden either. The judge did not find that the defendant was in reaching distance, and the evidence would not support such a finding. As noted supra, the defendant was seated on the curb toward the rear bumper of the minivan, guarded by Carpenter, while Donahue and Vardaro conducted the search. The defendant was already pat frisked and secured by Carpenter, who stayed "in close proximity" to him during the search. The detectives could not reasonably have believed in these circumstances that the defendant was within reaching distance of a weapon inside the minivan. This is supported by Donahue's testimony, which he reiterated several times, that he searched the minivan not because he thought the defendant could reach for a weapon, but because the detectives might have allowed him to get back in the minivan and leave the scene.

         The Commonwealth points out that, unlike in Gant, the defendant was not handcuffed or restrained inside a police vehicle. This is a factual distinction with no legal difference. Gant itself acknowledges that "officers have many means of ensuring the safe arrest of vehicle occupants," such that "it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains." Gant, 556 U.S. at 343 n.4. Here, the defendant was outnumbered three to one and was being guarded closely by one of the detectives. Although the defendant was not handcuffed, he was still secured in a practical sense and not reasonably within reaching distance of any weapons that might have been in the minivan.[17] See Commonwealth v. Cavanaugh, 366 Mass. 277, 280 (1974) (although defendant not handcuffed, it was "at least doubtful that the car was within [his] reach . . . once the [two] officers had him on the sidewalk"). See also United States v. McCraney, 674 F.3d 614, 619-620 (6th Cir. 2012) (although two defendants "were not handcuffed or secured in the back of a patrol car," officers could not reasonably believe they were within reaching distance where "[t]hey were standing . . . behind the [vehicle] as instructed, two or three feet from the rear bumper, with three officers standing around them, while the other two officers on the scene conducted the search").

         2. "Search incident to probable cause to arrest."

         While the Commonwealth strives on appeal to justify the search as one incident to arrest, the judge, as noted, based his ruling on the opposite supposition -- that the defendant might not have been arrested and thus "could have regain[ed] access to the vehicle." The Commonwealth relies on the judge's rationale in the alternative, arguing that the search was justified -- "even were [it] not to fit within the search incident to arrest exception" and even absent "Terry prerequisites" -- because "if [the officers] were to allow the defendant to contact an acquaintance to drive his minivan, the defendant would most likely have returned to his minivan either while they waited or once his acquaintance arrived."

         The Commonwealth's position is untenable and would eviscerate the limitations imposed by Gant, which sought to rein in the previously "unbridled discretion" of officers "to rummage at will among a person's private effects" based on the person's commission of an arrestable traffic offense. Gant, 556 U.S. at 345. See Commonwealth v. George, 35 Mass.App.Ct. 551, 555 (1993) ("Given the plenary power that the police have to arrest for traffic offenses, [G. L.] c. 276, § 1, requires us to be on guard for pretext searches not based on a genuine and reasonable concern about a concealed weapon or destruction of evidence"). The United States Supreme Court acknowledged that its earlier decision in Belton, 453 U.S. 454, had been widely understood by lower courts as authorizing a vehicle search "incident to every arrest of a recent occupant" even where "the vehicle's passenger compartment will not be within the arrestee's reach at the time of the search." Gant, 556 U.S. at 343. The Court stated, in no uncertain terms, that to construe Belton so broadly "would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis." Id. at 347.

         Upholding the search here on the assumption that the officers might not have arrested the defendant and might have let him return to his vehicle would permit an end run around Gant. It would be tantamount to conferring an automatic police entitlement to search a vehicle whenever there is probable cause to arrest a recent occupant. But if there is no police entitlement to search incident to formal arrest, there certainly can be no entitlement to search incident to probable cause to arrest. See Washington, 449 Mass. at 482 (there is no "search incident to probable cause to arrest" exception to warrant requirement).

         Suggesting otherwise, the Commonwealth claims that officer safety concerns justified the search because the minivan was stopped in a high crime area at night. But as Gant holds, other exceptions to the warrant requirement "ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle's recent occupant justify a search." Gant, 556 U.S. at 347. One such exception, established by Michiganv.Long, 463 U.S. 1032, 1049 (1983), authorizes a Terry-type search of the passenger compartment of a vehicle when the officer has reasonable suspicion that a recent occupant is "dangerous" and might access the vehicle to "gain immediate control of weapons." Lantigua and Santiago, cited in the judge's decision, both concern this exception.[18] Neither stands for the proposition that an officer is entitled to search a vehicle any time a recent occupant is (or might ...

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