Heard: April 12, 2018
received and sworn to in the Brockton Division of the
District Court Department on September 14, 2012.
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
W. Ruben for the defendant.
Johanna S. Black, Assistant District Attorney, for the
Present: Green, C.J., Trainor, Rubin, Shin, & McDonough,
defendant appeals from his conviction of possession with
intent to distribute marijuana. 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.
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,  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
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."
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.
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.
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.
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
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.
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. At this point
Donahue placed the defendant under arrest "for the
license being revoked."
judge issued a three-page memorandum of decision denying the
defendant's motion to suppress. 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
"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) ."
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
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. In addition, the
dissent concludes that the search was a
Terry-type search for weapons. None of these
justifications withstands scrutiny.
Search incident to arrest.
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
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,  or how much additional
time elapsed until the discovery of the
marijuana. 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,
 the Commonwealth did not meet its
burden of showing that the search and the arrest were
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.
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.
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. 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 incident to probable cause to
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
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.
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).
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. Neither stands for the proposition
that an officer is entitled to search a vehicle any time a
recent occupant is (or might ...