NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-113
COMMONWEALTH
vs.
BRANDON L. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from the order of a District Court
judge suppressing evidence including heroin that police found in
the defendant's pockets during his arrest on an unrelated
warrant. Because the Commonwealth did not prove that the search
complied with the statutory requirements for a search incident
to arrest, see G. L. c. 276, § 1, we affirm.
Background. Based on the evidence at the hearing on the
defendant's motion to suppress evidence, the judge found as
follows. On August 7, 2022, Pittsfield police Officer David
Carusotto and his partner were in an unmarked cruiser when they
saw a Chevrolet Silverado pickup truck being driven by a man who
they knew had an outstanding arrest warrant. The police stopped the truck. While his partner interacted with the driver,
Officer Carusotto spoke to the passenger, the defendant, whom
Officer Carusotto had known for years. The defendant was
holding a black tote bag by its straps so that it dangled
between his legs. Officer Carusotto learned from a police
dispatcher that the defendant also had an outstanding arrest
warrant and told the defendant he was under arrest. The
defendant became visibly nervous, shaking and sweating, and
dropped the black tote bag to the floor of the truck.
Police removed the defendant from the truck and handcuffed
him. Officer Carusotto took the black tote bag and put it in
his cruiser, without pat frisking it. Officer Carusotto walked
the defendant to a second police cruiser that had arrived as
backup. Then Officer Carusotto searched the defendant and in
his front pockets found packets of heroin and cash. After
securing the defendant in the second cruiser, Officer Carusotto
went to his cruiser and looked inside the black tote bag, which
contained items including a loaded firearm and a digital scale.
The judge allowed the motion to suppress, concluding that
the Commonwealth did not prove that the police search of the
defendant's pockets was for the purposes permitted by the search
incident to arrest statute, G. L. c. 276, § 1, or that it was
permitted by any other exception to the warrant requirement.
The judge further concluded that the subsequent search of the
2 black tote bag was as a result of the improper search of the
defendant's pockets. The Commonwealth appeals.
Discussion. 1. Search incident to arrest. The
Commonwealth argues that the judge erred in ruling that the
police search of the defendant's pockets was not a valid search
incident to arrest. The Commonwealth contends that the judge
"conflated" the standard for police patfrisk of an individual
based on reasonable suspicion with that for search for weapons
incident to arrest. We are not persuaded.
The search incident to arrest statute provides:
"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" (emphasis added). G. L. c. 276, § 1.
That statutory exclusionary rule was created by an
amendment, St. 1974, c. 508, enacted one year after the Supreme
Court decided United States v. Robinson, 414 U.S. 218, 234-235
(1973). The amendment signaled the Legislature's "disapproval"
of a rule permitting police to conduct searches incident to
arrest for evidence of other crimes. Commonwealth v. White, 469
Mass. 96, 100 (2014), quoting Commonwealth v. Wilson, 389 Mass.
115, 118 (1983). Thus, to justify a search as incident to an
3 arrest, the Commonwealth must prove that it was conducted for
one of the purposes permitted by G. L. c. 276, § 1.
In the circumstances of this case, to justify the search of
the defendant's pockets under G. L. c. 276, § 1, the
Commonwealth was required to prove that the purpose of the
search was to remove weapons that he might use to resist arrest
or escape. Case law has interpreted "any weapons" in that
statute to include a variety of items. See, e.g., Commonwealth
v. Barillas, 484 Mass. 250, 255 (2020) (cell phone);
Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) (car keys);
Commonwealth v. Clermy, 421 Mass. 325, 328-329 (1995)
(prescription bottle). See also Commonwealth v. Barbosa, 92
Mass. App. Ct. 587, 591-592 (2018) (hotel room key with
immediate evidentiary significance in human trafficking case).
During the suppression hearing, after the officer testified
that he escorted the defendant to the police cruiser, this
exchange took place:
PROSECUTOR: "And at [the] cruiser, what did you do?"
OFFICER CARUSOTTO: "So we opened the door and we patted [the defendant] down, just to make sure he didn't have any weapons or anything on him."
PROSECUTOR: "Did [the defendant] have anything on him?"
OFFICER CARUSOTTO: "He had [seventeen] bags of heroin and a good amount of cash on him."
The officer testified that the heroin was in one of the
defendant's front pockets, and the money was in the other.
4 The prosecutor did not ask the officer what he felt when he
patted the defendant down, or what his purpose was in searching
the defendant's pockets. The judge found that, before seizing
the items in the defendant's pockets, Officer Carusotto did not
believe that they could be a weapon and did not recognize them
by feel as contraband. Absent any testimony about the purpose
of the search of the defendant's pockets, we discern no clear
error or abuse of discretion in the judge's determination that
the Commonwealth did not prove that the search was justified
under G. L. c. 276, § 1.
To the extent that the judge's memorandum cited
Commonwealth v. Wilson, 441 Mass. 390, 396-397 (2004), a case
involving a patfrisk in the context of a Terry stop, we read the
memorandum as concluding that the Commonwealth did not prove
that the search of the defendant's pockets was justified on that
alternative basis. See Commonwealth v. Torres-Pagan, 484 Mass.
34, 37 (2020) (based on reasonable suspicion that individual is
armed and dangerous, officer may pat frisk for weapon). The
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-113
COMMONWEALTH
vs.
BRANDON L. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from the order of a District Court
judge suppressing evidence including heroin that police found in
the defendant's pockets during his arrest on an unrelated
warrant. Because the Commonwealth did not prove that the search
complied with the statutory requirements for a search incident
to arrest, see G. L. c. 276, § 1, we affirm.
Background. Based on the evidence at the hearing on the
defendant's motion to suppress evidence, the judge found as
follows. On August 7, 2022, Pittsfield police Officer David
Carusotto and his partner were in an unmarked cruiser when they
saw a Chevrolet Silverado pickup truck being driven by a man who
they knew had an outstanding arrest warrant. The police stopped the truck. While his partner interacted with the driver,
Officer Carusotto spoke to the passenger, the defendant, whom
Officer Carusotto had known for years. The defendant was
holding a black tote bag by its straps so that it dangled
between his legs. Officer Carusotto learned from a police
dispatcher that the defendant also had an outstanding arrest
warrant and told the defendant he was under arrest. The
defendant became visibly nervous, shaking and sweating, and
dropped the black tote bag to the floor of the truck.
Police removed the defendant from the truck and handcuffed
him. Officer Carusotto took the black tote bag and put it in
his cruiser, without pat frisking it. Officer Carusotto walked
the defendant to a second police cruiser that had arrived as
backup. Then Officer Carusotto searched the defendant and in
his front pockets found packets of heroin and cash. After
securing the defendant in the second cruiser, Officer Carusotto
went to his cruiser and looked inside the black tote bag, which
contained items including a loaded firearm and a digital scale.
The judge allowed the motion to suppress, concluding that
the Commonwealth did not prove that the police search of the
defendant's pockets was for the purposes permitted by the search
incident to arrest statute, G. L. c. 276, § 1, or that it was
permitted by any other exception to the warrant requirement.
The judge further concluded that the subsequent search of the
2 black tote bag was as a result of the improper search of the
defendant's pockets. The Commonwealth appeals.
Discussion. 1. Search incident to arrest. The
Commonwealth argues that the judge erred in ruling that the
police search of the defendant's pockets was not a valid search
incident to arrest. The Commonwealth contends that the judge
"conflated" the standard for police patfrisk of an individual
based on reasonable suspicion with that for search for weapons
incident to arrest. We are not persuaded.
The search incident to arrest statute provides:
"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" (emphasis added). G. L. c. 276, § 1.
That statutory exclusionary rule was created by an
amendment, St. 1974, c. 508, enacted one year after the Supreme
Court decided United States v. Robinson, 414 U.S. 218, 234-235
(1973). The amendment signaled the Legislature's "disapproval"
of a rule permitting police to conduct searches incident to
arrest for evidence of other crimes. Commonwealth v. White, 469
Mass. 96, 100 (2014), quoting Commonwealth v. Wilson, 389 Mass.
115, 118 (1983). Thus, to justify a search as incident to an
3 arrest, the Commonwealth must prove that it was conducted for
one of the purposes permitted by G. L. c. 276, § 1.
In the circumstances of this case, to justify the search of
the defendant's pockets under G. L. c. 276, § 1, the
Commonwealth was required to prove that the purpose of the
search was to remove weapons that he might use to resist arrest
or escape. Case law has interpreted "any weapons" in that
statute to include a variety of items. See, e.g., Commonwealth
v. Barillas, 484 Mass. 250, 255 (2020) (cell phone);
Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) (car keys);
Commonwealth v. Clermy, 421 Mass. 325, 328-329 (1995)
(prescription bottle). See also Commonwealth v. Barbosa, 92
Mass. App. Ct. 587, 591-592 (2018) (hotel room key with
immediate evidentiary significance in human trafficking case).
During the suppression hearing, after the officer testified
that he escorted the defendant to the police cruiser, this
exchange took place:
PROSECUTOR: "And at [the] cruiser, what did you do?"
OFFICER CARUSOTTO: "So we opened the door and we patted [the defendant] down, just to make sure he didn't have any weapons or anything on him."
PROSECUTOR: "Did [the defendant] have anything on him?"
OFFICER CARUSOTTO: "He had [seventeen] bags of heroin and a good amount of cash on him."
The officer testified that the heroin was in one of the
defendant's front pockets, and the money was in the other.
4 The prosecutor did not ask the officer what he felt when he
patted the defendant down, or what his purpose was in searching
the defendant's pockets. The judge found that, before seizing
the items in the defendant's pockets, Officer Carusotto did not
believe that they could be a weapon and did not recognize them
by feel as contraband. Absent any testimony about the purpose
of the search of the defendant's pockets, we discern no clear
error or abuse of discretion in the judge's determination that
the Commonwealth did not prove that the search was justified
under G. L. c. 276, § 1.
To the extent that the judge's memorandum cited
Commonwealth v. Wilson, 441 Mass. 390, 396-397 (2004), a case
involving a patfrisk in the context of a Terry stop, we read the
memorandum as concluding that the Commonwealth did not prove
that the search of the defendant's pockets was justified on that
alternative basis. See Commonwealth v. Torres-Pagan, 484 Mass.
34, 37 (2020) (based on reasonable suspicion that individual is
armed and dangerous, officer may pat frisk for weapon). The
judge found that, during his interaction with the defendant,
Officer Carusotto had a generalized concern for his safety, but
did not describe any reason to believe that the defendant was
armed or dangerous.
2. Inventory policy. The Commonwealth further argues that
the judge "intervene[d] on an unraised ground" when she
5 concluded that the Commonwealth had not shown that the search of
the defendant's pockets and the black tote bag could be
justified because the evidence in them would have been
inevitably discovered during an inventory search of the
defendant at booking. The Commonwealth contends that the judge
improperly considered those theories because the defendant did
not raise them in his motion to suppress. The argument is
unavailing.
Pursuant to Mass. R. Crim. P. 13 (a) (2), as appearing in
442 Mass. 1516 (2004) (rule 13), a motion to suppress "shall
state the grounds on which it is based and shall include in
separately numbered paragraphs all reasons, defenses, or
objections then available, which shall be set forth with
particularity." The Supreme Judicial Court has interpreted that
rule to require the defendant's motion to state "the suppression
theories at issue," Commonwealth v. Delossantos, 492 Mass. 242,
248 (2023), quoting Commonwealth v. Dew, 478 Mass. 304, 309
(2017), and to give "fair notice 'of the particular search or
seizure that the defendant is challenging.'" Delossantos,
supra, quoting Commonwealth v. Mubdi, 456 Mass. 385, 389 (2010).
The defendant did that here when he stated in his motion that he
was seeking to suppress "17 Bags of Heroin" and a ".22 Caliber
Revolver" that were seized during a "search . . . conducted
absent an exception to the warrant requirement." We do not read
6 rule 13 or the cases interpreting it to require the defendant's
motion to suppress to specify the theories on which the
Commonwealth might justify a warrantless search. On the
contrary, the Commonwealth always bears the burden of proving
the reasonableness of a warrantless search. See Commonwealth v.
Roderick, 490 Mass. 669, 672 (2022), citing Commonwealth v.
Antobenedetto, 366 Mass. 51, 57 (1974).
The Commonwealth does not argue that it did justify the
searches of the defendant's pockets or the black tote bag under
an inventory policy or on a theory of inevitable discovery.1 In
those circumstances, the Commonwealth was not prejudiced by the
judge's reference to those theories. Contrast Commonwealth v.
Lugo, 102 Mass. App. Ct. 170, 176-177 (2023) (judge ruled in
Commonwealth's favor on theory not raised by Commonwealth or
briefed by either party, which was unsupported by evidence). If
1 The Commonwealth did not introduce -- or even elicit a description of -- any inventory policy, either for vehicles or for arrested persons. Officer Carusotto testified that police began an inventory search of the truck, but stopped after learning that the driver's girlfriend was coming to take the truck.
7 anything, we read the judge's mention of those alternative
theories as a teachable moment for the prosecutor.
Order dated December 11, 2023, allowing motion to suppress, affirmed.
By the Court (Ditkoff, Grant & Toone, JJ.2),
Clerk
Entered: February 6, 2025.
2 The panelists are listed in order of seniority.