Heard: May 2, 2019
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.
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.
L. Woodard, Assistant District Attorney, for the
Present: Milkey, Hanlon, & Sacks, JJ.
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. 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.
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. 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
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.
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,  and that he had in fact
been charged by the Drug Enforcement Administration (DEA) in
the past "with distribution of synthetic
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,
and placed the defendant in his cruiser.'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
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." Also in the car was a gym bag
containing clothes. Near the front seat, the trooper saw
"small black elastic bands. 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. There also was an "aftermarket
wire" that ran from the dashboard area near the radio,
trailing to the back area of the console.
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.
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."
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.
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."
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).
Probable cause for arrest.
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. 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,  and, further, that the
information Reynolds received from the dispatcher about his
license suspension was inherently unreliable.
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."
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. 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").
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.
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
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.
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.
Exit order and patfrisk.
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 , quoting
Scott v. United States, 436 U.S. 128, 138 
['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
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
Towing the car.
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. 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."
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,
required, the trooper's inventory followed the written
policy of the State Police, which also was admitted in
evidence. 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."
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
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 , and cases
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 ...