Commonwealth v. Garcia-German , 90 Mass. App. Ct. 753 ( 2016 )

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15-P-947 Appeals Court
COMMONWEALTH vs. JASON A. GARCIA-GERMAN.
No. 15-P-947.
Plymouth. October 13, 2016. - December 20, 2016.
Present: Cypher, Cohen, & Green, JJ.
Search and Seizure, Motor vehicle, Probable cause,
Administrative inspection. Probable Cause. Constitutional
Law, Search and seizure, Probable cause.
Complaint received and sworn to in the Plymouth Division of
the District Court Department on September 2, 2014.
A pretrial motion to suppress evidence was heard by Brian
F. Gilligan, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the matter was
reported by him to the Appeals Court.
Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
Darla J. Mondou for the defendant.
GREEN, J. The Commonwealth appeals from an order by a
judge of the District Court allowing the defendant's motion to
2
suppress evidence seized during a warrantless search of his
vehicle while it was parked in a parking lot outside the
Plymouth County correctional facility (facility).1 We conclude
that the motion judge correctly ruled that the search was not
justified by probable cause, and reject the Commonwealth's
alternative suggestion that the presence of the vehicle on
correctional facility grounds, in these circumstances, furnished
"special needs" to justify an exception to the warrant
requirement, as a permissible administrative search.
Background. We summarize the facts found by the motion
judge, which we supplement, for the purpose of furnishing
context, with uncontroverted evidence the motion judge
implicitly credited. See Commonwealth v. Isaiah I., 448 Mass.
334, 337 (2007), S.C., 450 Mass. 818 (2008).
At approximately 7:30 P.M. on Friday evening, August 29,
2014, Officer James Creed of the Plymouth County sheriff's
department was on patrol in the parking lot of the facility,
when he saw two motor vehicles -- a gray BMW and a gray Volvo --
enter the visitor's lot. Two Hispanic males, the defendant and
a companion, emerged from the BMW, and a white male, later
identified as an attorney, emerged from the Volvo. All three
men entered the bail lobby of the facility. At the time of
1
A single justice of the Supreme Judicial Court granted
leave to pursue this interlocutory appeal, pursuant to
Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).
3
their arrival, visiting hours at the facility had ended; the
three men had come to the facility for the purpose of posting
bail for a person being held there.
Officer Creed proceeded to the parked vehicles, walked
around each of them, and conducted a visual inspection. He saw
a prescription pill bottle, face down, in the map pocket on the
driver's side of the BMW. Using his flashlight to improve
illumination, he saw a small quantity of white pills and a small
plastic bag containing blue pills within the pill bottle. He
then requested registration information for the BMW.2
Officer Creed proceeded to the bail lobby of the facility,
where he talked to the defendant and instructed him to accompany
Creed back to the BMW. When the two reached the BMW, Creed
instructed the defendant to unlock the vehicle to allow an
inspection of its interior; the defendant complied with Creed's
instruction.3 After the defendant unlocked the vehicle, Creed
opened the prescription pill bottle and inspected its contents;
the white pills appeared to him to be an antibiotic, and the
2
Officer Creed testified that he did not request
information for the Volvo, as his observations of its interior
elicited nothing suspicious.
3
The officer did not request the defendant's consent, and
the Commonwealth does not suggest that the defendant's
compliance with the officer's instruction constituted consent.
See Commonwealth v. Rogers, 444 Mass. 234, 237 (2005) (to
establish consent, Commonwealth must show "something more than
mere 'acquiescence to a claim of lawful authority'" [citation
omitted]).
4
blue pills appeared to him, based on his training and
experience, to be oxycodone. Creed also discovered a quantity
of heroin, wrapped in plastic, inside the center console between
the driver's and the front passenger's seats. He then requested
canine assistance; with the assistance of a canine, he
subsequently discovered about $700 in cash in a small storage
area under the radio.
At the entrance to the parking lot of the facility is a
guard shack.4 Adjacent to the guard shack a sign is posted,
advising as follows: "Warning: all vehicles beyond this point
are subject to search."5 Other than the warning delivered by the
posted sign, the record includes no evidence of a written policy
authorizing or regulating routine or random searches of vehicles
entering the parking lot.
Discussion. a. Probable cause. The Commonwealth contends
that Officer Creed's observation of a prescription pill bottle
containing both white and blue pills, the latter in a separate
4
We note that, although the photographs of the parking lot
admitted as exhibits at the motion hearing were not included in
the record appendix or otherwise transmitted to this court, the
hearing transcript makes clear that the parking lot is enclosed
by a fence, so that only persons and vehicles passing through
the entrance at the guard shack would have the opportunity to
bring items into the parking lot.
5
A photograph of the warning sign apparently was admitted
in evidence as an exhibit at the motion hearing, but it (along
with the other hearing exhibits, see note 4, supra) was not
included in the record appendix or otherwise transmitted to this
court.
5
plastic bag, furnished probable cause to believe that the pill
bottle contained illegal narcotics, thereby justifying a
warrantless search of the vehicle. Like the motion judge, we
disagree.
At the time Officer Creed instructed the defendant to
unlock the BMW to allow access to the vehicle interior, the sole
factor suggesting the presence of contraband in the vehicle was
Creed's observation of a prescription pill bottle containing two
different colors of pills.6 However, the illegal character of
the blue pills was not apparent to the officer; it was not until
he gained access to the interior of the vehicle, opened the
bottle, and examined the contents more closely that he formed a
belief that the blue pills were oxycodone.7 See Commonwealth v.
6
The Commonwealth suggests that additional support for
probable cause may be drawn from the officer's testimony that he
also observed two cellular telephones in the vehicle, a fact the
motion judge did not mention in his findings. We need not
speculate whether his failure to enter a finding on the topic
reflected a disbelief of the officer's testimony, because we
consider the presence of cellular telephones in the vehicle to
be immaterial to the question of probable cause. Although
multiple cellular telephones, combined with other accoutrements
of the drug trade, have contributed to proof of criminal
activity in certain circumstances, see, e.g., Commonwealth v.
Suarez, 59 Mass. App. Ct. 111, 115-116 (2003), the observation
of two cellular telephones in a vehicle recently occupied by two
individuals adds nothing of consequence to the calculus of
probable cause in the present case.
7
We note as well that Officer Creed's observation of the
blue pills would not, in these circumstances, have furnished
probable cause of criminality even if he had recognized them as
oxycodone; the label of the prescription bottle was not visible
6
White, 469 Mass. 96, 102 (2014) (plain view observation of
unlabeled prescription pill bottle did not justify warrantless
seizure, as character of its contents as contraband was not
"immediately apparent" from observation alone [citation
omitted]). See also Commonwealth v. Garcia, 34 Mass. App. Ct.
645, 651 (1993) (observation of "empty baggie" capable of both
lawful and unlawful use does not furnish probable cause to
justify warrantless search or seizure).
b. Administrative (or special needs) search. In the
alternative, the Commonwealth suggests that entry into and
search of the vehicle was justified as an administrative or
special needs search. As framed by the Commonwealth, the
justifiable concern of facility officials for the possibility
that weapons or contraband could be brought onto facility
grounds and made available to prisoners, as reflected in G. L.
c. 127, § 33,8 and the fact that, as provided in G. L. c. 127,
to him, and he could not plausibly have ascertained from his
vantage point peering through the window of the locked vehicle
whether the pills were a medication validly prescribed to the
defendant or another occupant of the vehicle.
8
General Laws c. 127, § 33, as amended by St. 1979, c. 485,
§ 22, states as follows:
"The superintendents of all institutions under the
jurisdiction of the department of correction and the
superintendents and keepers of jails and houses of
correction shall cause all necessary means to be used to
maintain order in the institutions under their supervision,
enforce obedience, suppress insurrection and prevent
7
§ 36,9 no one has the right to visit a penal institution without
the permission of the superintendent or jail keeper, combine to
justify routine searches of persons and vehicles that enter onto
the facility grounds. Based on that justification, the
Commonwealth's argument continues, the sign posted at the
parking lot entrance, warning that all vehicles are subject to
search, operates to divest all persons driving a vehicle into
the facility parking lot of any reasonable expectation of
privacy in their vehicle.
It is settled that "area-entry inspections at court house
entrances, for safety and security purposes, are permissible
without a warrant or individualized suspicion of wrongdoing or
danger." Commonwealth v. Roland R., 448 Mass. 278, 281 (2007).
"Where a search of persons entering a public place is necessary
escapes, and for that purpose they may at all times require
the aid and utmost exertions of all the officers of the
institution except the chaplain and the physician."
9
General Laws c. 127, § 36, as appearing in St. 1962,
c. 142, states as follows:
"No person except [enumerated officials not relevant here]
may visit any . . . jail or house of correction in the
commonwealth without the permission of the commissioner or
of the superintendent of such institution or of the keeper
of such jail or house of correction. Every visitor who is
required to obtain such permission shall also make and
subscribe a statement under the penalties of perjury
stating his true name and residence, whether or not he has
been convicted of a felony, and, if visiting an inmate of
such institution, his relationship by blood or marriage, if
any, to such inmate, and, if not so related, the purpose of
the visit."
8
to protect a sensitive facility from a real danger of violence,
an 'administrative search' without a warrant may be justified.
'The search must be limited and no more intrusive than necessary
to protect against the danger to be avoided, but nevertheless
reasonably effective to discover the materials sought. The
inspection must be conducted for a purpose other than the
gathering of evidence for criminal prosecutions.'" Commonwealth
v. Harris, 383 Mass. 655, 657 (1981) (citation omitted). Among
the considerations applicable to an assessment of the
intrusiveness of an administrative search program are whether
persons subject to search have prior notice, see Commonwealth v.
Carkhuff, 441 Mass. 122, 128 (2004),10 and whether the parameters
of the search established by statute or policy are sufficiently
defined and constrained to limit the discretion of officials
conducting the search, see Commonwealth v. Eagleton, 402 Mass.
199, 204-205 (1988). As in the case of inventory searches, see
Commonwealth v. Garcia, 409 Mass. 675, 681 (1991), or storage
searches, see Commonwealth v. Ford, 394 Mass. 421, 426 (1985),
written policies and procedures serve to ensure that an
administrative search is conducted consistently with the neutral
10
Prior notice does not imply consent, but instead serves
to minimize the degree of intrusiveness of the search. See id.at 128 n.7. In Commonwealth v. Roland R., supra, the juvenile's
implied consent derived not from the prior notice itself but
from his act of placing his bag on the table in the screening
area and then passing through a metal detector.
9
purposes that justify it, that the decision to search is the
result of the protocol rather than a discretionary determination
to search, and "there is no significant danger of hindsight
justification." Commonwealth v. Ford, supra at 425, quoting
from South Dakota v. Opperman, 428 U.S. 364, 383 (1976) (Powell,
J., concurring).
In the present case, the interest of facility officials in
preventing weapons, drugs, or other contraband from becoming
accessible to prisoners is apparent. Cf. Rasheed v.
Commissioner of Correction, 446 Mass. 463, 473-474 (2006).11 In
addition, as we have observed, a sign posted at the entrance of
the parking lot warns that all vehicles are subject to search.
However, no written policy regulates the conduct of searches,
and not all vehicles are searched. Indeed, the circumstances of
the present case illustrate the discretionary nature of the
decision to search: Officer Creed's decision to search the
defendant's vehicle (and not, for example, the Volvo driven by
the attorney) was triggered by a particularized suspicion, well
11
The defendant suggests that no reasonable concern for the
transfer of contraband to prisoners was present in the
circumstances of this case, as the defendant and his companion
had already left the vehicle and entered the bail lobby.
However, as the Commonwealth observes, items could easily have
been removed from the vehicle and secreted within the parking
lot for later retrieval by a prisoner on work detail. Similar
considerations have been held to justify a vehicle search in
cases decided in other jurisdictions. See, e.g., State v.
Daniels, 382 N.J. Super. 14, 17 (2005).
10
short of probable cause, that the prescription pill bottle might
contain contraband. Although a subjective investigatory motive
will not invalidate an otherwise permissible administrative
search, see Commonwealth v. Eagleton, supra at 206-207, in the
absence of a written policy or consistent procedures the
presence of an expressly investigatory motive may suggest that
the search was investigatory rather than administrative in
nature. In any event, the absence of a written policy detracts
from the requirement that an administrative search "meet
standard, neutral guidelines, and be conducted pursuant to a
plan devised in advance by law enforcement supervisory
personnel." Commonwealth v. Bizarria, 31 Mass. App. Ct. 370,
378 (1991), quoting from Commonwealth v. Anderson, 406 Mass.
343, 347 (1989).
We acknowledge that there is no inherent right to visit a
correctional facility, see G. L. c. 127, § 36; note 9, supra, so
that visitors have a diminished expectation of privacy when they
choose to visit.12 However, we are not persuaded that the mere
posting of a sign at the entrance to the facility so reduces a
visitor's expectation of privacy that he may be subjected to a
search of his vehicle at the discretion of correction officials,
12
We note, however, that this defendant is not within the
class of visitors described in the statute, in the sense that he
traveled to the facility for the purpose of posting bail, and
did not visit the facility itself or any inmate within it.
11
without any consistent policy or procedure to guide the decision
regarding which vehicles to search.
This case is unlike those decided in other jurisdictions
upholding administrative searches of vehicles in correctional
facility parking lots. In State v. Daniels, 382 N.J. Super. 14,
16 (2005), the search was conducted pursuant to a Department of
Corrections policy instituted in 1999. In Neumeyer v. Beard,
301 F. Supp. 2d 349, 349-350 (M.D. Pa. 2004), aff'd, 421 F.3d
210 (3d Cir. 2005), the search was conducted pursuant to a
written Department of Corrections policy, and the plaintiff
signed a written form consenting to the search of her vehicle.
In Estes v. Rowland, 14 Cal. App. 4th 508, 517 (1993), not only
was the search conducted pursuant to a written policy, but the
policy was mailed to prospective visitors before their visit.
In Romo v. Champion, 46 F.3d 1013, 1016 (10th Cir.), cert.
denied, 516 U.S. 947 (1995), officials searched all vehicles
passing through a roadblock on a road leading to a prison. In
People v. Turnbeaugh, 116 Ill. App. 3d 199, 202 (1983), the
routine search of vehicles approaching the facility was the
subject of internal regulations of the facility, pursuant to
which the owner or driver of any such vehicle was advised that
he must consent to a search of his vehicle or he would be
refused access to the facility. Finally, in State v. Putt, 955
S.W.2d 640, 642 (Tenn. Crim. App. 1997), a task force was
12
assigned to search all vehicles entering a prison facility,
after the vehicles passed a sign warning they would be subject
to search.
In sum, although correction officials have a legitimate
interest in preventing the introduction of weapons, drugs, or
other contraband onto facility grounds, in the absence of
regulations or a written policy describing the parameters of an
administrative search procedure (or, alternatively, a procedure
in which every vehicle is searched as it enters the facility),
the mere posting of a sign advising that vehicles entering the
facility parking lot are subject to search was inadequate to
justify the warrantless search, on a discretionary basis, of
vehicles selected by officers patrolling the parking lot. The
defendant's motion to suppress was properly allowed.
Order allowing motion to
suppress affirmed.