Commonwealth v. Ferguson

574 N.E.2d 990, 410 Mass. 611, 1991 Mass. LEXIS 352
CourtMassachusetts Supreme Judicial Court
DecidedJuly 10, 1991
StatusPublished
Cited by17 cases

This text of 574 N.E.2d 990 (Commonwealth v. Ferguson) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ferguson, 574 N.E.2d 990, 410 Mass. 611, 1991 Mass. LEXIS 352 (Mass. 1991).

Opinions

[612]*612O’Connor, J.

Following a jury-waived trial, the defendant was convicted of trafficking in cocaine. This is an appeal from that conviction. The issue raised by the appeal is whether reversible error occurred when a judge denied the defendant’s pretrial motion to suppress (1) cocaine that had been seized from the defendant’s jacket pocket and (2) statements that the defendant made when he was arrested. The Appeals Court affirmed the denial of the motion in an unpublished memorandum pursuant to Appeals Court Rule 1:28. Commonwealth v. Ferguson, 29 Mass. App. Ct. 1103 (1990). We granted the defendant’s application for further appellate review, and we now reverse the defendant’s conviction and remand this case to the Superior Court for a new trial.

The only witness at the suppression hearing was Boston police officer Carlos Lara. He testified substantially as follows. As he and another officer were patrolling in a cruiser, an unidentified woman flagged down the cruiser and told the officers that a black man in his thirties, who had a beard and a mustache and was wearing a black and blue sweater and a blue jacket, had pointed a gun at her. The woman pointed out the direction in which the man had gone, and the officers drove off in that direction. Within a minute, about two blocks away, the officers saw the defendant and he matched the description given by the woman. Lara asked the defendant to come to the cruiser, but the defendant fled. Lara pursued the defendant on foot across several yards. As the defendant was jumping over a fence, Lara “grabbed his jacket.” The defendant “ran out of his jacket,” and kept running. The officer kept the jacket.

Lara testified that, when the jacket came off in his hands, he noticed that it was heavy. The following questions were asked by defense counsel and answers given:

Defense attorney: “And so when you felt something heavy in this jacket which you had seized, you first off thought that it was a weapon, is that right?”
The witness: “Yes, I thought it was something heavy, right.”
[613]*613Defense attorney: “And so you patted down the outside of the jacket, is that right?”
The witness: “Right. And then I saw —“
Defense attorney: “And then you — then you — “
The witness: “ — that the pocket was up and I saw the plastic coming out of the pocket.”
Defense attorney: “All right. So you could see plastic sticking out from the outside of the pocket?”
The witness: “Yes, (inaudible).”
Defense attorney: “All right. So at that point you knew you had a bag and not a gun, is that right?”
The witness: “That’s correct.” Lara also testified that the bag was a “black plastic bag.”

According to Officer Lara’s testimony, after he saw the plastic “sticking out from the outside of the pocket” and he knew he “had a bag and not a gun,” he then put his hand into the pocket and took out the bag which contained a white powder which was the cocaine sought to be suppressed. The officer then resumed the chase and, with his gun drawn and “the cocaine in [his] hand,” caught up with the defendant who said, “You’ve got me. You’ve got me. You just busted my business.” The officer then arrested the defendant for possession of cocaine. No gun connected with the defendant was ever found.

In explanation of his denial of the motion to suppress, the judge reported his findings and rulings in a written memorandum. The judge’s findings concerning the events leading up to the defendant’s having left his jacket in Lara’s grasp tracked Lara’s testimony. Then, however, the judge found as follows: “Lara noticed that the jacket was unusually heavy and he observed a plastic bag containing a white powdery substance protruding from the pocket. The bag contained 342 grams of cocaine.” In addition, contained in a section of the memorandum entitled “Rulings of Law,” the judge stated: “While trying to stop the defendant Lara grabbed his jacket. Lara noticed immediately that the jacket was unusually heavy and that there was a large bag of a white substance protruding from the pocket.” The judge made no [614]*614other findings with respect to Officer Lara’s discovery of cocaine in the defendant’s jacket.

The judge concluded that the seizure of the cocaine was lawful. He also concluded that the remarks the defendant made should not be suppressed because they were voluntarily and spontaneously made and were not in response to police interrogation.

Based on the information he had received from the woman while he was on patrol, Officer Lara’s attempt to conduct a threshold inquiry of the defendant and his related pursuit of the defendant leading up to his obtaining possession of the jacket and frisking it for a gun were lawful. See Terry v. Ohio, 392 U.S. 1, 20-27 (1968). The defendant does not suggest otherwise. Furthermore, if Lara saw the white substance, which turned out to be cocaine, in plain view during the course of his lawful patting down of the jacket for a gun, the defendant would not have been entitled to suppression of the cocaine. Coolidge v. New Hampshire, 403 U.S. 443, 464-473 (1971). Commonwealth v. Sergienko, 399 Mass. 291, 293 (1987). The defendant’s position, however, is that the Commonwealth, on whom the burden of proof to justify the warrantless seizure of the cocaine rests, see Commonwealth v. Franklin, 376 Mass. 885, 898 (1978); Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974), has failed to show either that the cocaine was in plain view or that Officer Lara discovered it while he was lawfully patting down the jacket for a gun. On the contrary, the defendant argues, the only relevant finding that would have been warranted by the evidence at the suppression hearing was that Lara saw the cocaine for the first time after he removed the black plastic bag from the jacket which happened only after he saw the plastic “coming out of the pocket” and knew that he had a bag and not a gun. Once Lara knew that he had a bag and not a gun, the defendant says, the justification for Lara’s intrusion into the jacket had come to an end, and any discovery of a pocket’s contents thereafter constituted a warrantless search lacking probable cause and exigent circumstances in violation of the defendant’s rights under the Fourth and Four[615]*615teenth Amendments to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution.

We agree with the defendant’s contentions. We are not sure from the judge’s memorandum whether he found that Officer Lara observed not only the plastic bag but also its contents before he knew that the jacket did not contain a gun, but such a finding would have been unwarranted. For all that appears in the record, the justification for the intrusion leading to the discovery of the cocaine had ended before the discovery was made, and therefore the Commonwealth is not aided by the plain view doctrine articulated in Coolidge v. New Hampshire, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
574 N.E.2d 990, 410 Mass. 611, 1991 Mass. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ferguson-mass-1991.