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Commonwealth v. Rosario-Santiago

Appeals Court of Massachusetts, Worcester

October 2, 2019


          Heard: May 2, 2019

         Indictment found and returned in the Superior Court Department on January 16, 2015. A pretrial motion to suppress evidence was heard by David Ricciardone, J., and a motion for reconsideration was heard by him.

         An application for leave to prosecute an interlocutory appeal was allowed by David A. Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

          Eduardo A. Masferrer for the defendant.

          Shayna L. Woodard, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Hanlon, & Sacks, JJ.

          HANLON, J.

         The defendant, Juan Rosario-Santiago, appeals from the denial of his motion to suppress drug and other evidence found in a "mechanical hide" and elsewhere in his motor vehicle and on his person.[1] He argues that the arresting officer lacked probable cause to order him out of the vehicle and to pat frisk him, and that the subsequent inventory search that led to the discovery of most of the evidence at issue "exceeded the bounds of a proper inventory search and did not fall under any other exception to the warrant requirement." We affirm, essentially for the reasons well explained by the judge.

         1. Background.[2]

         We take our summary of the underlying facts from the judge's findings, supplemented by uncontested testimony at the motion to suppress hearing. On October 9, 2014, at about 5:45 £.M., Trooper Michael Reynolds of the Massachusetts State Police was patrolling in the area of the Massachusetts Turnpike and Route 495. Reynolds had ten years of experience as a police officer, and had completed 200 hours of training in narcotics investigations.[3] He observed a Toyota Camry enter the roadway on Route 495 North and abruptly change lanes. Reynolds followed the Camry and saw it approach the vehicle ahead of it in an aggressive manner. The Camry then followed that vehicle, going at least sixty-five to seventy miles per hour at a distance of less than one car length behind. The trooper determined that this was unsafe because, in his view, any sudden stop by the vehicle in front would have resulted in a rear-end collision; he had witnessed such results "a lot of times" "as a state trooper." He followed the Camry, and observed it move to the center lane and continue in the same manner. Based upon these observations, Reynolds pulled the Camry over and asked the defendant, who was the Camry's sole occupant, for his license and registration; he also explained the reason for the stop.

         The defendant produced a New Hampshire driver's license and vehicle registration and Reynolds conducted what he characterized as a "normal conversation" that lasted approximately two minutes. He asked the defendant where he was coming from and the defendant answered, "New York City." When the trooper asked where, more specifically, the defendant responded, "downtown . . . [and, eventually, ] . . . [s]eeing a friend." Reynolds asked what the friend's name was and the defendant first answered, "Dave." When Reynolds asked for more information about Dave, including his last name, after a delay, the defendant said, "Santiago." Throughout the exchange, the trooper noticed an unusual delay in the time that the defendant took to answer the questions. This made him suspicious, and he felt that the defendant was making up the answers. Reynolds also inquired whether the defendant had a criminal history, and the defendant responded "that he had had some trouble with the [F]ederal authorities in New Hampshire regarding drug distribution." Reynolds then went back to his cruiser to verify the defendant's information. As he was doing that, he noticed a "fast-food bag" on the rear passenger floor of the Camry; he could not see what was inside it.

         When Reynolds checked the defendant's information, he discovered that the defendant had a valid New Hampshire driver's license but that his right to operate in Massachusetts was suspended. He noticed that the defendant was assigned a Massachusetts license number that began with the letter "A" (assigned for administrative purposes), "as opposed to the letter S, which the normal, active license in Massachusetts has." Reynolds confirmed the status of the defendant's Massachusetts driver's license either through the computer in his cruiser or through information relayed to him by the dispatcher at his home barracks; he learned that the defendant's license or right to operate a motor vehicle was suspended in Massachusetts, [4] and that he had in fact been charged by the Drug Enforcement Administration (DEA) in the past "with distribution of synthetic narcotics."[5]

         While waiting in his cruiser for the information to process, Reynolds observed the defendant in the Camry reach toward the back of the car in a subtle way, ostensibly in the act of yawning. The judge found that Reynolds concluded that the defendant actually "was reaching back for the [fast food] bag in the back seat." At that point, the trooper went back to the defendant's vehicle. Based upon his observations and the information gathered, Reynolds asked the defendant to step out of the vehicle. He pat frisked the defendant and discovered two cell phones and keys, [6] and placed the defendant in his cruiser.[7]'[8]Reynolds then, pursuant to the written policy of the Massachusetts State Police, called a tow truck for the Camry. At that point, the judge concluded, "the trooper ultimately had to conclude that there was going to be a charge for operating after [license] suspension."

         Before the tow truck arrived, Reynolds was required --pursuant to the written State Police inventory policy -- to return to the defendant's car and inventory its contents. Reynolds first looked inside the fast food bag. He discovered "a clear plastic heat-sealed packet, which was empty but had been ripped open."[9] Also in the car was a gym bag containing clothes. Near the front seat, the trooper saw "small black elastic bands.[10] Reynolds also noticed that, in the rear of the center console there was a "crease" in the carpet, which, based on his training and experience, he believed to have been caused by the repeated opening of a "mechanical hide." In addition, Reynolds found a cup of urine in the center console. Based on his training and experience, Reynolds knew that people who engage in drug distribution and, in so doing, drive long distances, often do not want to stop to use rest rooms because this gives them greater risk of exposure.[11] There also was an "aftermarket wire" that ran from the dashboard area near the radio, trailing to the back area of the console.

         After making these observations, Reynolds formally arrested the defendant, took him out of the cruiser, placed him in handcuffs, and further searched his person, discovering a "wad of money" in the process; he then placed the defendant back into the cruiser and the Camry was towed to the State Police barracks.

         Another trooper, Trooper McCammon, assisted in the search of the Camry at the barracks. McCammon was very experienced in detecting mechanical hides in vehicles, and Reynolds considered him an expert in the field. When both troopers examined the undercarriage of the Camry, they "saw a weld mark in the middle of the muffler that looked like it had been altered and lowered." "By applying power to some wires that went to the console, the troopers actually operated the mechanical hide and" discovered that the console rose up from the floor to reveal a compartment. Inside the console were several "packets of oxycodone pills that were taped up and otherwise secured with the same type of rubber bands as were found in the car."

         In denying the motion to suppress, the judge ruled that "[t]he exit order was legal when the officer determined that the defendant's right to operate in Massachusetts was suspended." The judge agreed that what was initially a proper inventory search "here morphed into something beyond inventorying property." However, he concluded, essentially, that by the time that happened, the experienced trooper had probable cause to search for illegal drugs.

         The defendant moved for reconsideration, arguing that the inventory search was a pretext and that the trooper in fact was searching for drugs based upon nothing more than a hunch. The judge disagreed and denied the motion to reconsider; he concluded that, even though the trooper may have had suspicions before he began the inventory search, that fact did not detract from the conclusion that the inventory search was proper. In addition, the judge noted that there "was a legitimate safety concern born of the fact that the trooper saw the defendant reaching for the backseat bag (an act that the defendant felt he had to conceal), which provided further justification for the search here."


         "In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [his] ultimate findings and conclusions of law" (quotation omitted). Commonwealth v. Ramos, 470 Mass. 740, 742 (2015).

         1. Probable cause for arrest.

         The defendant argues first that there was no probable cause to arrest him for operating after his license or right to operate had been suspended in Massachusetts.[12] He contends that, because he had been issued a license in New Hampshire, he was not operating illegally under the language of G. L. c. 90, § 10, [13] and, further, that the information Reynolds received from the dispatcher about his license suspension was inherently unreliable.

         First, we note that at least the first portion of this argument was not made to the judge. That is, counsel offered evidence that the defendant's Massachusetts license was expired, not suspended. The judge responded, "If his license is suspended in Massachusetts, he's not supposed to be driving in Massachusetts." Counsel responded, "Suspended, yes; not expired. So the document I showed you just said that his license was expired, not suspended." The judge pointed out that the document proffered had been printed in 2016 (two years after the stop) and that "what the trooper [had] at the scene can control, even if it's incorrect."[14]

         The defendant now argues for the first time that G. L. c. 90, § 10, can be read to permit a driver whose license is suspended in Massachusetts to operate a vehicle lawfully in Massachusetts if he subsequently acquires a valid license in another State. That argument is waived as it was not made to the judge; in addition, there is no information in this record about when the defendant acquired his New Hampshire license --that is, whether it was before or after his license or right to operate in Massachusetts was suspended. In any event, even were we to consider the argument, we are not persuaded. Such a result would appear contrary to the purpose of the law -- to prohibit those whose licenses have been suspended in Massachusetts to operate in Massachusetts without taking any action in Massachusetts to address the issue giving rise to the suspension. The defendant cites no authority, apart from his strained reading of the statute itself, for this newly raised argument.[15] Finally, as the judge observed, the issue here is what the trooper knew at the time that he made the decision to arrest the defendant. See Commonwealth v. Wilkerson, 436 Mass. 137, 140 (2002) ("Probable cause to arrest is not vitiated when the basis on which the police officer acted is shown after the fact to have been erroneous, because the existence of probable cause is determined 'at the moment of arrest,' not in light of subsequent events").

         The defendant did argue to the judge that the information the trooper received from the dispatcher was not reliable. For authority he cited the same cases he cites to us -- Commonwealth v. Cheek, 413 Mass. 492 (1992), and Commonwealth v. Pinto, 476 Mass. 361 (2017). Neither case assists him. In Cheek, the officers stopped the defendant on the basis of a radio broadcast describing a stabbing with a very general description of a suspect. 413 Mass. at 493. When the officers could not understand the defendant's answer to their question about his name, they frisked him and recovered a firearm and, later, a quantity of marijuana. Id. at 493-494. The court concluded that "[t]he facts in [this] case fall short of constituting sufficient articulable facts on which the officers could have based a reasonable suspicion that the defendant had committed a crime." Id. at 497. In particular, the court stressed, "[w]here the police rely on a police radio call to conduct an investigatory stop, under both Federal and State law, the Commonwealth must present evidence at the hearing on the motion to suppress on the factual basis for the police radio call in order to establish its indicia of reliability." Id. at 494-495.

         In the present case, the trooper did not, in fact, rely on a radio call from an anonymous source giving a general description of a suspect in an uncorroborated report of a stabbing. Instead, he reasonably relied on a report from the police dispatcher of information obtained either from the Registry of Motor Vehicles (RMV) or from State Police records after making a stop for a motor vehicle offense that he personally had observed. See Commonwealth v. Ramos, 88 Mass.App.Ct. 68, 71 (2015) ("the RMV records that formed the basis of [the officer]'s reasonable suspicion have sufficient indicia of reliability on which to predicate a traffic stop. See Wilkerson, 436 Mass. at 141-142. Indeed, RMV records are generally considered reliable. See ibid.").

         In Pinto, the officers stopped the defendant's car after hearing a radio broadcast telling them to look for a described motor vehicle based upon a report of "an alleged domestic assault and battery." 476 Mass. at 362. In suppressing evidence seized as a result of the stop, the court noted that the Commonwealth had shown no basis to conclude that the person who had supplied the information conveyed in the radio broadcast either was reliable or had some basis of knowledge about the facts reported. Id. at 364-365. That case, too, is very different from the case before us. In both Cheek and Pinto, all the impetus for the defendants' encounters with the police came from an anonymous source. Here, it is agreed that the stop was proper; the trooper then sought further information about the defendant's license status that he reasonably believed was maintained by and available to the police dispatcher.

         The other cases cited by the defendant for this argument require little discussion. In Commonwealth v. Royal, 89 Mass.App.Ct. 168, 169, 170-173 (2016), this court concluded that the evidence at trial was insufficient to prove beyond a reasonable doubt that the defendant had operated a motor vehicle after his license had been suspended, because the officer's testimony about RMV records was inadmissible hearsay. Likewise, in Commonwealth v. Oyewole, 470 Mass. 1015, 1015-1016 (2014), the court concluded that the Commonwealth failed to prove its case at trial because there was no evidence that the defendant had been notified that his license had been suspended. Neither of these cases is at all helpful in deciding the case before us, where the issue is the reliability of hearsay in determining probable cause. In sum, we conclude that, once Reynolds received information from the State Police dispatcher that the defendant's license or right to operate had been suspended in Massachusetts, he had probable cause to arrest the defendant for that offense.

         2. Exit order and patfrisk.

         The rest of the case flows naturally from that conclusion. Because there was probable cause to arrest the defendant, the trooper was authorized to order him to get out of the car. See Commonwealth v. Greenwood, 78 Mass.App.Ct. 611, 616 (2011) ("Where police officers have a reasonable, articulable suspicion that a person in a vehicle has committed, is committing, or is about to commit a crime, they may . . . issue an exit order"). This is so, even if the officer has not yet decided whether to arrest the defendant. Cf. Commonwealth v. Blais, 428 Mass. 294, 296-297 (1998) ("The officer's actual belief as to the legal basis for his authority, however, is irrelevant, so long as the circumstances justified the action he took. See Whren v. United States, 517 U.S. 806, 813 [1996], quoting Scott v. United States, 436 U.S. 128, 138 [1978] ['the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action']; Commonwealth v. Smigliano, 427 Mass. 490, 493 [1998]").

         As to the patfrisk, "[a] search incident to a custodial arrest is well established as an exception to the warrant requirement under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights]. See United States v. Edwards, 415 U.S. 800, 802 (1974), and cases cited; Commonwealth v. Santiago, 410 Mass. 737, 742-743 (1991), and cases cited. Under both Fourth Amendment and art. 14 jurisprudence, the purpose of the search incident to arrest exception is twofold: (1) to prevent the destruction or concealing of evidence of the crime for which the police have probable cause to arrest; and (2) to strip the arrestee of weapons that could be used to resist arrest or facilitate escape. See Chimel v. California, 395 U.S. 752, 762-763 (1969); Santiago, supra at 743." Commonwealth v. Mauricio, 477 Mass. 588, 592 (2017). Moreover, "[t]he fact that a search preceded a formal arrest is not important, 'as long as probable cause [to arrest] existed independent of the results of the search.'" Commonwealth v. Johnson, 413 Mass. 598, 602 (1992), quoting Santiago, supra at 742. See Commonwealth v. Sweezey, 50 Mass.App.Ct. 48, 53 (2000), quoting Commonwealth v. Mantinez, 44 Mass.App.Ct. 513, 517-518 (1998) ("Probable cause for an arrest, even if not acted upon by a formal arrest, brings with it the 'search incident to arrest' exception to the warrant requirement for a search").[16]

         3. Towing the car.

         Given the license suspension, whether or not the trooper in fact intended to arrest the defendant rather than summons him later, he could not reasonably permit the defendant to drive the car away. Nor could he leave the car on the side of Route 495 at approximately 6 P.M. in the evening. Therefore, it is clear that the trooper was obliged to have the vehicle towed from the side of the highway, pursuant to the written tow policy of the State Police, which was admitted in evidence.[17] See Commonwealth v. Davis, 481 Mass. 210, 218 (2019), where the court agreed that the police had reasonable grounds to impound (and tow) the defendant's vehicle that was "stopped on the left hand side of a toll exit on the Massachusetts Turnpike, in the middle of the day."

         4. Inventory search.

         The inventory search also was proper. In these circumstances, such searches serve legitimate interests, including "protecting the arrestee's property, protecting the police from false claims of theft, and public safety." Commonwealth v. Vanya V., 75 Mass.App.Ct. 370, 374 (2009). "Although a well-established exception to the warrant requirement, an inventory search must hew closely to written police procedures and may not conceal an investigatory motive. See South Dakota v. Opperman, 428 U.S. 364, 376 (1976); Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The lawfulness of an inventory search turns on the threshold propriety of the vehicle's impoundment, and the Commonwealth bears the burden of proving the constitutionality of both. See Commonwealth v. Eddington, 459 Mass. 102, 108 (2011); Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000)." Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017).

         As required, the trooper's inventory followed the written policy of the State Police, which also was admitted in evidence.[18] As this court noted in Commonwealth v. Silva, 61 Mass.App.Ct. 28, 35 (2004), "[i]n considering whether the government has met [its] burden of proof [as to the legality of the search], the written inventory policy is the best evidence."

         The defendant contends, however, that the purpose of the inventory was investigative, not administrative (i.e., not to obtain an inventory), because the trooper first opened a paper fast food bag in the rear of the vehicle and also opened a paper cup (found to contain urine) because he had seen people "put stuff inside a cup before," including, specifically, drugs. This argument fails for several reasons. First, the policy clearly instructs the trooper to open all closed but unlocked containers; this would include both a bag, even one that looked like trash, and a paper cup. The fact that he did those things first, rather than open the glove compartment, cannot be dispositive; the policy required that he do them at some point during the inventory. Nor did the judge find (or the defendant argue) that the trooper spent any longer looking into the bag and the cup than was necessary to determine their contents.

         Second, the fact that the trooper might also have had suspicions that the defendant was involved in drug trafficking does not invalidate the validity of the inventory search, otherwise justified and properly conducted. See Commonwealth v. Horton, 63 Mass.App.Ct. 571, 577 (2005) ("Even the fact that the police might have suspected that the inventory search could turn up more weapons does not make it an impermissible pretext search. See Commonwealth v. Garcia, 409 Mass. 675, 679 [1991], and cases cited").

         The facts in Commonwealth v. Ortiz, 88 Mass.App.Ct. 573 (2015), on which the defendant heavily relies, are very different. In Ortiz, the motion judge found that the defendant was targeted in advance; he was the subject of a DEA investigation into drug trafficking. Id. at 574. The DEA agents had learned that the defendant's license to operate had been suspended and later, when they also had information that he would be transporting a kilogram of cocaine, they contacted the State Police and asked to have a uniformed trooper stop and arrest "the defendant as a pretext to conduct a search for investigative ...

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