DocketNumber: No. 11-P-1121
Citation Numbers: 81 Mass. App. Ct. 910
Filed Date: 3/30/2012
Status: Precedential
Modified Date: 6/25/2022
On August 11, 2010, Sergeant Detective Joseph Horton arrested the defendant at a residential housing complex of the Boston Housing Authority after recognizing the defendant to be on the Boston Housing Authority’s “no-trespass list.” In effectuating the arrest, Sergeant Horton seized two mountain bicycles located near the defendant, only one of which the defendant said was his. Upon the factual record, we conclude there was no ground on which the police could properly seize the bicycles.
First, seizure of the bicycles was beyond the scope of a search incident to the lawful, underlying arrest for trespass. See G. L. c. 276, § l;
In failing to find the requisite probable cause in Commonwealth v. Wojcik, 358 Mass. 623, 629 (1971), where the court held that the seizure of particular stolen items not described in the search warrant was unlawful, the court noted that “[t]he one fact or circumstance which appears in almost every case in which such a seizure has been upheld is that the officer making the seizure then knew or had probable cause to believe that the articles [seized] were stolen.” The court found significance in factors present in seizures determined to be lawful, such as where “the searching officers knew that [a] post office had been robbed . . . [t]he seized articles were readily identifiable ... as government property . . . [t]hey were presumptive fruits of the crime and their presence in the basement of appellant’s home was cogent evidence of his identification with the offense.” Ibid., quoting from Seymour v. United States, 369 F.2d 825, 827 (10th Cir. 1966), cert, denied, 386 U.S. 987 (1967). Cf. Commonwealth v. Balicki, 436 Mass. 1, 11 (2002). Such factors are absent here.
Instead, at the moment of seizure, the officer was without knowledge, definite or otherwise, of a reported bicycle theft in the area or that the bicycles were otherwise related to criminal activity. We disagree that the defendant’s apparent lack of specific knowledge of the bicycle brand, and his alleged apathy regarding the security of an expensive bicycle after his arrest, permitted a reasonable inference that the bicycle was stolen; instead, while the circumstances understandably raised suspicion, without more information this conclusion remained speculative. The record lacks any evidence suggesting that, when observed and seized, the bicycles located near the defendant were apparently stolen.
Turning to the Commonwealth’s alternative contention, that officers seized the bicycles for the sole purpose of protecting the unsecured property, we similarly find this argument to be without merit. This court is bound by the factual determinations made by the motion judge, absent clear error, and reviews the judge’s application of the law to the facts as found. See Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 391-392 (2004). The motion judge explicitly discredited testimony that the bicycles were taken for the non-investigatory purpose of “safekeeping.”
Even if a warrantless seizure of the bicycles for safekeeping was proper under these circumstances, a proposition with which we do not agree,
Discerning no legal error, we affirm the judge’s allowance of the motion.
Order allowing motion to suppress affirmed.
Obviously, once seized, item(s) shown to have been stolen need not be returned to anyone other than the rightful owner.
The statute reads, in relevant part: “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.” G. L. c. 276, § 1, as amended by St. 1964, c. 557, § 1.
The judge specifically found that “the Sergeant took the bikes back to the police station to investigate further to determine if they were stolen.”
Notably, the judge found that there were two potential custodians on the premises: the defendant’s aunt, seated next to him when he was first observed; and his grandmother, a resident of the housing complex.