Commonwealth v. Abdallah , 475 Mass. 47 ( 2016 )

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SJC-12001
COMMONWEALTH vs. JARED ABDALLAH.
Bristol. February 11, 2016. - July 28, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Constitutional Law, Search and seizure. Search and Seizure,
Inventory.
Indictments found and returned in the Superior Court
Department on June 19 and 20, 2013, and March 6, 2014.
A pretrial motion to suppress evidence was heard by Raymond
P. Veary, Jr., J.
An application for leave to prosecute an interlocutory
appeal was allowed by Hines, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
Michael J. Fellows for the defendant.
DUFFLY, J. After causing a disturbance, the defendant was
1
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
arrested outside his hotel room in the town of Raynham on an
outstanding warrant for larceny of $250 or less. Raynham police
took possession of a small backpack (a cloth drawstring bag with
shoulder straps made of rope) that the defendant had been
carrying on his person and transported the bag, along with the
defendant, to the police station, where it was searched pursuant
to the Raynham police department's inventory policy. The search
of the bag uncovered several thousand dollars in cash, glassine
bags containing what appeared to be cocaine, and several hundred
Percocet pills. The defendant was indicted on charges of
trafficking in a class B substance (cocaine), G. L. c. 94C,
§ 32E (b) (1); trafficking in a class B substance (Percocet),
G. L. c. 94C, § 32E (c) (2); and possession with the intent to
distribute a Class B substance (Percocet), G. L. c. 94C,
§ 32A (a).2 Following an evidentiary hearing, the defendant's
motion to suppress the items found during the search was allowed
by a Superior Court judge.
A single justice of this court granted the Commonwealth's
application for interlocutory appeal and reported the matter to
the Appeals Court. We transferred the case to this court on our
2
The defendant also was indicted on charges of breaking and
entering in the nighttime with intent to commit a felony, G. L.
c. 266, § 16; breaking and entering in the daytime with intent
to commit a felony, G. L. c. 266, § 18; two counts of larceny
from a building, G. L. c. 266, § 20,; and receiving stolen
property having a value over $250, G. L. c. 266, § 60.
3
own motion. We conclude that, in the circumstances presented
here, there was no error in the allowance of the defendant's
motion to suppress. Accordingly, we affirm the allowance of the
motion, although for reasons that differ somewhat from those
relied upon by the motion judge.
Background. We set forth the facts found by the motion
judge, supplementing those findings with uncontroverted evidence
in the record that was credited by the judge.3 See Commonwealth
v. White, 469 Mass. 96, 97 (2014), citing Commonwealth v. Isaiah
I., 448 Mass. 334, 337 (2007).
Just before noon on June 1, 2013, three officers of the
Raynham police department responded to a call regarding a
disturbance at a local hotel that allegedly involved the
defendant. While en route to the hotel, Sergeant David LaPlante
learned from a police dispatcher that the defendant was wanted
on an outstanding warrant for larceny of $250 or less. When the
officers arrived at the hotel, the desk clerk informed them that
the defendant had refused to leave his hotel room when she
informed him at the posted checkout time that it was time to
check out.
3
Sergeant David LaPlante, one of the three arresting
officers, was the sole witness at the hearing on the defendant's
motion to suppress. The motion judge stated that he found "all
of the testimony of Sergeant LaPlante to be credible." The
Commonwealth also introduced the Raynham police department's
detainee processing policy and inventory search policy.
4
As the officers approached the defendant's room, they could
hear a male voice engaged in a conversation. They knocked on
the door and announced their presence. When the defendant
opened the door, LaPlante recognized him from prior encounters,
most recently an incident in which the defendant had been the
victim of a stabbing. As the defendant stepped out of the room,
he was speaking on a cellular telephone that he was holding.
LaPlante told him to drop the telephone, and the defendant
complied. LaPlante then told the defendant that he was under
arrest, asked him to turn around, and handcuffed him.
As LaPlante conducted a patfrisk of the defendant to check
for weapons, he saw that the defendant was wearing a small cloth
backpack. LaPlante removed the defendant's handcuffs and
another officer, Lieutenant Brian Carr, took possession of the
backpack. LaPlante then again handcuffed the defendant. The
bag remained in Carr's custody as the officers escorted the
defendant to LaPlante's police cruiser. The officers informed
the defendant that he would be able to pick up his belongings,
including clothing and personal items that had been left in the
hotel room, at the hotel's front desk after he was released.
The defendant asked the officers to secure a computer and a
video game system that were in his room, and they did so. The
officers also asked the defendant whether he had an automobile
with him; he informed them that he had parked his grandmother's
5
vehicle in the hotel's parking lot. The officers sought and
obtained permission from the front desk clerk to allow the
vehicle to remain in the lot until someone could pick it up.
LaPlante placed the defendant in the back seat of the
cruiser. The defendant's bag, which had remained in Carr's
possession, was handed to LaPlante, who kept it with him in the
front seat.4 After they arrived at the police station, the
defendant was booked pursuant to the Raynham police department's
established booking procedures. As part of the booking process,
LaPlante opened the bag and removed its contents, which included
several rolls of cash amounting to over $7,000, small plastic
bags containing cocaine, and approximately 500 Percocet pills.
The defendant moved to suppress all of the items seized,
arguing that the search violated his rights under the Fourth and
Fourteenth Amendments to the United States Constitution, art. 14
of the Massachusetts Declaration of Rights, and G. L. c. 276,
§ 1. The judge allowed the motion, finding as follows:
"[B]y the Commonwealth's testimony, [the defendant's
bag] had no connection at all with the arrest of this
particular defendant. The defendant was arrested pursuant
to [an outstanding] warrant . . . for the crime of
larceny . . . under $250. [O]n that basis, there was no
probable cause connecting the bag with the arrest. I
further find under these facts that once the bag was
4
When defense counsel asked LaPlante why he did not tell
Carr to leave the bag with the rest of the defendant's property
at the hotel, LaPlante responded, "I don't know -- that was on
his person. I have no idea what was in it, and it's the way
that we always have done it."
6
removed from the defendant, and he was rehandcuffed, that
bag [did not] offer[], and I have heard no testimony
suggesting that it offered, any threat to any police
officer. . . . [T]he only reason that that bag[,] which
was searched[,] was eventually brought to the booking
procedure and the station . . . is by police action, not by
action of this defendant. It was the police that removed
that bag from the defendant, the police that seized the
bag, the police that transported the bag back to the police
station, and the police who searched the bag as part of its
booking procedure."
Relying on Commonwealth v. Madera, 402 Mass. 156 (1988), the
judge concluded that there was no probable cause to search the
bag as incident to the defendant's arrest on the outstanding
warrant, and therefore the search of the bag that had been on
the defendant's person when he was arrested was unlawful.
On appeal, the Commonwealth argues, as it did during the
hearing on the motion to suppress, that the search of the
defendant's bag was a permissible inventory search that may be
undertaken not only of an arrested defendant's person, but also
of a defendant's clothing and articles he or she is carrying.
See, e.g., Illinois v. Lafayette, 462 U.S. 640, 643-649 (1983).
According to the Commonwealth, the defendant's bag was
"constructively part of his person" at the time of his arrest,
and the fact that an arresting officer removed it from his
person before placing the bag and the defendant in the police
cruiser does not affect the validity of the inventory search,
7
which, the judge found, was conducted in compliance with the
Raynham police department's written inventory policy.5
The defendant maintains that the items properly were
suppressed because the Commonwealth has not established that the
search was not "a cover or pretext for an investigative search."
See Commonwealth v. Peters, 48 Mass. App. Ct. 15, 21 (1999),
quoting Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 768
(1989). He argues in essence that, where police had a practical
alternative to seizing the bag and bringing it to the police
station -- the officers could have left it in the custody of the
hotel clerk, who already had agreed to hold the defendant's
other belongings and to allow his grandmother's vehicle to
remain in the parking lot -- the decision to take it to the
police station was an impermissible exercise of discretion that
supports the conclusion that the inventory search was a pretext
for an impermissible investigative search.
Discussion. We "may affirm [a motion judge's] ruling on
any grounds supported by the record and the findings of fact."
Commonwealth v. Bartlett, 465 Mass. 112, 117 (2013).
An inventory search conducted by police officers pursuant
to a police department's written policy is "justified to
5
The Commonwealth argues for the first time on appeal, and
without citation to relevant authority, that the police were
"not required to leave the backpack on the defendant during
transportation, where the backpack itself could have contained a
weapon." The argument is waived.
8
safeguard the defendant's property, protect the police against
later claims of theft or lost property, and keep weapons and
contraband from the prison population." Commonwealth v. Vuthy
Seng, 436 Mass. 537, 550-551, cert. denied, 537 U.S. 942 (2002).
Because the police are authorized to conduct an inventory search
without a warrant, "it is the Commonwealth's burden to establish
that the evidence was lawfully obtained." Commonwealth v.
Eddington, 459 Mass. 102, 108 (2011). See 3 W.R. LaFave, Search
and Seizure § 5.5(b) (5th ed. 2012) ("A police inventory of some
possession of the arrestee, such as a suitcase, presupposes that
the police had some valid reason for taking custody of that
object, for it is only because of such taking of custody that
the police can be said to have some obligation to safeguard the
contents").
We have not previously considered whether police officers
are authorized to seize a bag worn by a suspect at the time of
arrest and later search it pursuant to an inventory policy,
where police lack probable cause to seize or search it, and no
other exception to the warrant requirement applies.6 Cf.
Commonwealth v. Craan, 469 Mass. 24, 28 (2014) ("When a search
is conducted without a warrant, the burden is on the
Commonwealth to show that the search 'falls within a narrow
6
The Commonwealth does not assert that the police had
probable cause to seize the defendant's bag or that any other
recognized exception to the warrant requirement applies.
9
class of permissible exceptions' to the warrant requirement"
[citation omitted]). In addressing this issue, we must
ascertain whether it was reasonable for the officers in this
case to take possession of, or seize,7 the defendant's bag and
transport it to the police station. Cf. Commonwealth v.
Oliveira, 474 Mass. 10, 13 (2016). This inquiry is "fact
driven, with the overriding concern being the guiding touchstone
of '[r]easonableness.'" See Commonwealth v. Eddington, 459
Mass. at 108, quoting Commonwealth v. Ellerbe, 430 Mass. 769,
776 (2000).
The defendant argues that, as an alternative to seizing the
bag and transporting it to the police station, the officers
could have left it in the custody of the hotel clerk who had
agreed to secure the rest of his possessions. We must ascertain
whether this option would have presented any public safety
concerns or a danger of theft that would have rendered it
unreasonable. See Commonwealth v. Eddington, supra at 108-109.
Because, in these circumstances, there was a third party present
who was willing to take possession of the defendant's
7
For purposes of analysis, we conclude that the officers
seized the defendant's bag when LaPlante handed it to Carr to
transport to the police station, rather than leaving it in the
defendant's hotel room or with the hotel clerk. Cf.
Commonwealth v. Oliveira, 474 Mass. 10, 13-16 (2016) (discussing
impoundment of vehicle preceding inventory search as "seizure").
We are not concerned with the initial removal of the bag from
the defendant's person, because that is not the act that made it
available for subsequent inventory search at the police station.
10
belongings, we do not think that the police reasonably could
have been concerned about public safety. Likewise, there is no
indication that the potential risk of theft reasonably could
have led the police to seize the bag. The officers were aware
that the hotel was securing the rest of the defendant's
belongings, including a computer and a video game system that
the police obtained from the defendant's hotel room and gave to
the hotel clerk to secure. If not seized by the police, the bag
would not have been accessible to the general public, as it
would have been in the possession of the hotel. In these
circumstances, the officers could not reasonably have believed
that they needed to seize the bag in order to protect the public
or the contents of the bag.
Having concluded that public safety concerns or the danger
of theft did not justify the seizure of the bag, we consider
whether, in the totality of the circumstances, it was reasonable
for the police to seize it and transport it to the police
station rather than leave it in the care of hotel personnel.
Cf. Commonwealth v. Oliveira, supra at 13-14. In conducting
this analysis, we consider it significant that, at the time of
the defendant's arrest, the officers made arrangements with the
hotel to provide safekeeping for all of his other belongings,
including the computer and video game system. The police also
obtained permission from the hotel clerk for the defendant's
11
vehicle to remain in the hotel parking lot until it could be
retrieved by one of the defendant's relatives. This suggests
that the officers believed it was reasonable to leave the
defendant's personal possessions in the custody of the hotel.
In such circumstances, we cannot conclude that it was reasonable
for the officers to single out the defendant's bag to take to
the police station, and to conduct a search pursuant to the
police department's inventory search policy. Contrast
Commonwealth v. Ellerbe, 430 Mass. at 774 ("the police had no
practical alternative to towing the vehicle, and thus no
discretion to exercise"); Commonwealth v. Caceres, 413 Mass.
749, 751 (1992) ("We conclude that there was no practical
available alternative to the removal of the vehicle and to an
inventory search of it").
The Commonwealth points out that the defendant did not ask
the officers to leave his bag with the hotel clerk. That fact
alone is not dispositive, however, where the officers took
affirmative steps to arrange for the hotel to secure the
defendant's other possessions.8 In the totality of the
circumstances, we conclude that it was unreasonable to seize the
8
We observe also that LaPlante stated that he did not leave
the bag with the rest of the defendant's property at the hotel
in part because he had "no idea what was in it." An officer's
curiosity about the contents of a bag carried by an individual
who is being arrested does not, without more, provide a valid
justification to seize that bag at the time of arrest.
12
bag.9 Thus, any subsequent search, even pursuant to a generally
lawful inventory search policy, was tainted by the unlawful
seizure. See Commonwealth v. Blevines, 438 Mass. 604, 610-611
(2003).
Order allowing motion
to suppress affirmed.
9
Because of the result we reach, we need not address the
defendant's argument that the inventory search was a pretext to
conduct an investigatory search. See Commonwealth v. Ortiz, 88
Mass. App. Ct. 573, 577 (2015) (inventory policy used as pretext
to conduct investigatory search). See also Gaston v. State, 155
Ga. App. 337, 338 (1980) ("We find under the facts of this case
that the search conducted on the bag was only pretextually an
inventory search, since the facts indisputably show that the
'need' for an inventory of the bag was artificially created to
enable the police officers to conduct a search of the bag
without probable cause").