Commonwealth v. White ( 2014 )

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SJC-11497
COMMONWEALTH vs. WILLIAM T. WHITE, JR.
Middlesex. March 4, 2014. - July 11, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly &
Lenk, JJ.
Search and Seizure, Arrest, Container, Inventory, Plain
view, Protective frisk, Search incident to lawful arrest.
Constitutional Law, Search and seizure, Arrest.
Controlled Substances. Practice, Criminal, Motion to
suppress, Warrant.
Complaint received and sworn to in the Cambridge Division
of the District Court Department on April 13, 2007.
A pretrial motion to suppress evidence was heard by
Severlin B. Singleton, III, J., and the case was heard by
Michele B. Hogan, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Edward R. Molari for the defendant.
Crystal Lee Lyons, Assistant District Attorney, for the
Commonwealth.
GANTS, J. The issues presented in this case concern the
lawful scope of a search incident to arrest, an inventory
2
search, and a seizure under the plain view doctrine where a
defendant is arrested on outstanding arrest warrants. Because
we conclude that, in the circumstances of this case, the police
exceeded the lawful scope of a search under each of these
exceptions to the warrant requirement, we reverse the denial of
the defendant's motion to suppress, vacate the defendant's
conviction, and remand the case for a new trial.
Background. We summarize the facts as found by the motion
judge, supplementing those findings with evidence in the record
that is uncontroverted and that was implicitly credited by the
judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337
(2007), S.C., 450 Mass. 818 (2008).
On the morning of April 13, 2007, Officers Steven Bikofsky
and Brian Hussey of the Cambridge police department, while on
patrol in a marked cruiser, learned that the registered owner of
a motor vehicle they observed had two outstanding arrest
warrants, one for violation of a protective order under G. L.
c. 209A and another for a drug offense. They stopped the motor
vehicle by pulling behind it and activating the cruiser's blue
lights. Officer Bikofsky approached the motor vehicle on foot
and asked the driver for his driver's license. After confirming
that the driver (the defendant) was the registered owner,
Officer Bikofsky ordered him out of the vehicle, handcuffed him,
and placed him under arrest on the outstanding warrants.
3
Officer Bikofsky then pat frisked the defendant's outer
clothing. The officer felt a small, hard object in the
defendant's front pants pocket that he believed to be a
prescription pill container. He asked the defendant what it
was, and the defendant replied that it was his blood pressure
medication. The officer removed the pill container from the
defendant's pocket and saw that the defendant's name was on the
container's label and that there was one pill inside. He then
continued the patfrisk of the defendant and felt a similar
object, which he removed from the defendant's pocket. This was
a black opaque plastic "One Touch" container that the officer
knew normally would contain small, thin strips for use with a
blood sugar testing kit. But when the officer shook the
container, the sound was more consistent with the presence of
pills than the presence of these strips. The officer opened the
container and saw several pills inside, which the defendant said
were also for his blood pressure. The officer was unfamiliar
with these pills, but because they appeared dissimilar to those
in the prescription container, he decided to retain them for
further investigation.
Before transporting the defendant to the station for
booking, Officer Bikofsky asked the defendant if he wanted his
vehicle towed to the station or secured where it was parked.
The defendant said that he wanted his vehicle secured and left
4
where it was parked. Officer Hussey then entered the vehicle to
retrieve the keys from the ignition so that he could lock the
doors to the vehicle. While doing so, he saw in plain view on
the front passenger seat another prescription pill container
with no label and pills inside that were identical to the pills
in the "One Touch" container.
After returning to the police station, Officer Bikofsky
accessed a medical information Web site on the Internet in an
attempt to identify the pills in the "One Touch" and unlabeled
containers. He succeeded in identifying them as ten-milligram
methadone pills by matching the color, shape, and number
imprinted on the pills with the image of a ten-milligram
methadone pill on the Web site. Because the defendant did not
have a valid prescription for the methadone pills, he was
charged with illegal possession of a class B substance, in
violation of G. L. c. 94C, § 34.
The defendant moved to suppress all the evidence seized as
a result of his arrest on the outstanding warrants. A judge of
the District Court denied the motion. The defendant then waived
his right to a jury trial and was found guilty by another judge
of the illegal possession of methadone after a "stipulated
5
facts" trial on April 28, 2008, in which the defendant admitted
to having possessed the pills without a prescription. 1
A panel of the Appeals Court affirmed the denial of the
motion to suppress in an unpublished decision pursuant to its
rule 1:28. 2 Commonwealth v. White, 83 Mass. App. Ct. 1127(2013). The panel concluded that Officer Bikofsky properly
discovered the "One Touch" container during a search of the
defendant's person incident to arrest, because it was a hard
object "that merited further investigation." The panel ruled
that it was proper for him to open the container when he shook
it and heard sounds more consistent with pills than with thin
strips, and that he had reasonable grounds to seize the pills in
accordance with G. L. c. 276, § 1, "as evidence plausibly
related to" the drug offense that was the underlying offense in
one of the two outstanding warrants on which the defendant was
arrested. The panel also concluded that Officer Hussey lawfully
entered the defendant's vehicle to retrieve the keys and secure
it, saw the unlabeled container in plain view, and was entitled
to seize the pills because they, too, were plausibly related to
1
The defendant was sentenced to six months in a house of
correction, suspended, and one year of probation, with special
conditions.
2
The defendant filed a notice of appeal on May 13, 2008,
but the case was not docketed in the Appeals Court until April
9, 2012. The record is silent regarding the reason for this
unusual delay.
6
the drug offense described in the outstanding warrant. The
panel concluded that, where the pills were seized for these
reasons, Officer Bikofsky did not need a search warrant to
conduct a "close visual examination and [I]nternet comparison of
these pills." 3
Discussion. In United States v. Robinson, 414 U.S. 218,
234-236 (1973), the United States Supreme Court concluded that a
search incident to arrest for weapons, contraband, or evidence
is reasonable under the Fourth Amendment to the United States
Constitution, regardless of whether the contraband or evidence
is related to the crime of arrest. 4 The next year, through an
amendment to G. L. c. 276, § 1, St. 1974, c. 508, "the
Legislature adopted a statutory exclusionary rule concerning
evidence seized during a search incident to an arrest [that]
requires the exclusion of evidence that the Supreme Court of the
3
The panel of the Appeals Court rejected the Commonwealth's
argument that Officer Stephen Bikofsky's investigative
comparison of these pills with photographs of pills on the
Internet was part of a proper inventory search.
4
In United States v. Robinson, 414 U.S. 218, 220-222
(1973), a police officer arrested the defendant for operating a
motor vehicle after revocation of his operator's permit, and
conducted a search incident to arrest. During the course of the
search, the police officer felt an unknown object in the breast
pocket of the defendant's heavy jacket, and pulled out the
object, which turned out to be a "crumpled up cigarette
package." Id. at 223. The police officer then opened the
cigarette package, revealing fourteen capsules containing white
powder that appeared to be (and later proved to be) heroin. Id.7
United States would not exclude in its implementation of the
prohibition against unreasonable searches and seizures" under
the Fourth Amendment. Commonwealth v. Toole, 389 Mass. 159, 161
(1983). Under the amended G. L. c. 276, § 1, the police are
authorized to conduct a search incident to arrest "only (1) for
the purpose of seizing evidence of the crime for which the
arrest has been made in order to prevent its destruction or
concealment or (2) for the purpose of removing any weapon the
person arrested might use to resist arrest or to escape." 5
Commonwealth v. Blevines, 438 Mass. 604, 607 (2003), quoting
Commonwealth v. Wilson, 389 Mass. 115, 118 (1983). See Wilson,
supra (by amending G. L. c. 276, § 1, "the Legislature signaled
its disapproval of the general rule that evidence of another
crime found during a search incident to arrest may be admitted
in evidence against the arrested person").
Here, the defendant was arrested on outstanding arrest
warrants for violation of a protective order under G. L. c. 209A
5
By St. 1974, c. 508, the following paragraph was added to
G. L. c. 276, § 1:
"A search conducted incident to an arrest may be made
only for the purposes of seizing fruits, instrumentalities,
contraband and other evidence of the crime for which the
arrest has been made, in order to prevent its destruction
or concealment; and removing any weapons that the arrestee
might use to resist arrest or effect his escape. Property
seized as a result of a search in violation of the
provisions of this paragraph shall not be admissible in
evidence in criminal proceedings."
8
and for a drug offense. Therefore, the crimes for which the
defendant was arrested were allegedly committed at an unknown
time in the past, not at or shortly before the time of arrest.
Officer Bikofsky reasonably could not have conducted a search
incident to arrest for the purpose of seizing contraband or
evidence related to the prior crimes of arrest, because there
was no reason to believe that any such contraband or evidence
would have any connection to those prior crimes. 6
Consequently, the lawful scope of his search incident to arrest
was limited to a search for weapons that the defendant might use
to resist arrest or escape, or objects that might be used as a
weapon. See Commonwealth v. Clermy, 421 Mass. 325, 328-329
(1995) (where defendant arrested on outstanding motor vehicle
default warrant, search incident to arrest limited to search for
weapons). It was reasonable for the officer to pat frisk the
defendant for possible weapons and, where he felt a hard object,
6
We reject the conclusion of the Appeals Court panel that
Officer Bikofsky was authorized to search for drugs under G. L.
c. 276, § 1, because one of the outstanding warrants was for an
earlier drug offense, especially where the evidentiary record is
silent as to the date of this offense, the nature of the
offense, and the type of drug at issue. The Commonwealth, in
opposing the defendant's motion to suppress, described the
outstanding warrant on the drug offense as "a post dispositional
default warrant" on a 1992 case for possession of a class A
substance. Drugs seized at the time of arrest would not
generally be evidence of the defendant's possession, sale, or
distribution of drugs at the time of the earlier drug offense,
and would certainly not be evidence where the arrest warrant, as
here, was for a postdispositional default.
9
to examine the object to assure himself that it could not be
used as a weapon and did not contain a weapon, such as a razor
blade. See Blevines, 438 Mass. at 608 (officer justified in
retrieving as potential weapon "hard object" [keys] discovered
during patfrisk). After he shook the "One Touch" container, he
recognized that it contained only pills and did not contain
anything that could be used as a weapon. Once it was plain the
container held no weapon, the officer was not authorized under
G. L. c. 276, § 1, to open the container because its contents
reasonably could not be contraband or other evidence "of the
crime for which the arrest" was made. See Blevines, 438 Mass.
at 608 (because keys found on defendant during search incident
to arrest "bore no relationship to the crime of drinking in
public, the offense for which the defendant was arrested[,]
. . . the police could not seize the keys as evidence related to
that offense" and were not permitted to use keys "for purposes
of investigation").
The "One Touch" container, however, lawfully could be
opened in accordance with the inventory policy of the Cambridge
police department, where that policy was admitted in evidence at
the suppression hearing and provides that, at booking, "[a]ny
container or article found on the arrestee's person . . . will
be opened and its contents inventoried." See Commonwealth v.
Vuthy Seng, 436 Mass. 537, 550, cert. denied, 537 U.S. 94210
(2002) ("It is clear that, before a person is placed in a cell,
the police, without a warrant, but pursuant to standard written
procedures, may inventory and retain in custody all items on the
person, including even those within a container"); Commonwealth
v. Bishop, 402 Mass. 449, 451 (1988) (inventory search lawful
under art. 14 of Massachusetts Declaration of Rights where
conducted pursuant to standard, written police procedures).
Inventory searches "are justified to 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." Vuthy Seng, supra at 550-551. "Such inventory
searches are intended to be 'noninvestigatory.'" Vuthy Seng,
supra at 551, citing Commonwealth v. Alvarado, 420 Mass. 542,
553 (1995). "Noninvestigatory" means that a police officer,
when looking, for instance, at a bank card seized during an
inventory search, may see what is "obvious" from the card, such
as the bank name and logo on the front of the card, but may not
examine the card "closely enough to comprehend (and record) the
multi-digit account numbers that were written on the back of the
card" where "no valid inventory purpose would be served by
recording the detailed information." Vuthy Seng, supra at 551-
552. See Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 770
(1989) ("What the police may not do is hunt for information by
sifting and reading materials taken from an arrestee which do
11
not so declare themselves"). Here, Officer Bikofsky, who was
not the booking officer, examined the seized pills from the
container solely for an investigative rather than an inventory
purpose by using the number imprinted on the pills to identify
them on an Internet Web site. The investigative use of these
pills transformed a lawful inventory seizure of the pills into
an unlawful investigatory search of the pills. Vuthy Seng,
supra at 554. A search warrant was required to examine the
pills for investigative purposes. Id. (police not permitted to
"investigate the information in the wallet without obtaining a
search warrant"). Therefore, the judge erred in denying the
motion to suppress the pills found in the "One Touch" container.
The pills in the unlabeled pill container found in the
defendant's vehicle also should have been suppressed even though
Officer Hussey lawfully entered the vehicle to retrieve the keys
from the ignition in order to secure the vehicle, and the
unlabeled container was found in plain view on the front
passenger seat. Under our plain view doctrine, a police officer
may seize objects in plain view where four requirements are met:
(1) the officer is "lawfully in a position to view the object";
(2) the officer has "a lawful right of access to the object";
(3) with respect to "contraband, weapons, or other items
illegally possessed, where the incriminating character of the
object is immediately apparent" or, with respect to "other types
12
of evidence ('mere evidence'), where the particular evidence is
plausibly related to criminal activity of which the police are
already aware"; and (4) the officer "come[s] across the object
inadvertently." Commonwealth v. Sliech-Brodeur, 457 Mass. 300,
306-307 (2010) (noting that first three requirements are
mandated by Fourth Amendment to United States Constitution and
fourth by art. 14 of Massachusetts Declaration of Rights).
Here, the first, second, and fourth requirements were met, but
not the third: it was not "immediately apparent" that the pills
in the unlabeled prescription pill container were contraband
until Officer Bikofsky conducted his Internet search, and the
pills could not "plausibly" have been evidence related to known
criminal activity where the defendant had been arrested on
outstanding arrest warrants. Because the warrantless seizure of
the pills in this container was not authorized under the plain
view doctrine, the judge erred in denying the motion to suppress
these pills as well.
Conclusion. We reverse the denial of the motion to
suppress, vacate the defendant's conviction, and remand the case
to the District Court for a new trial.
So ordered.