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-1004
COMMONWEALTH
vs.
MORRIS I. CLEMONS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a District Court
judge allowing the motion of the defendant, Morris I. Clemons,
to suppress evidence seized during a police search of the
defendant's Toyota Tacoma and from an order denying its motion
for reconsideration. The Commonwealth argues that, based on
information the police learned during a traffic stop of the
defendant's vehicle, including seeing a "corner-cut baggie" in
it, they had probable cause to search the vehicle pursuant to
the automobile exception to the warrant requirement.
Alternatively, the Commonwealth argues that because of the
defendant's behavior, the police permissibly conducted a
protective sweep of the vehicle for officer safety. Because the Commonwealth did not introduce police testimony explaining the
significance of the corner-cut baggie or why the defendant's
behavior justified a protective sweep, we cannot conclude that
the judge erred in allowing the motion to suppress, and thus we
affirm.
Background. From the evidence adduced at the suppression
hearing at which Northbridge police Officer Jordan Tredeau
testified, we set forth the facts found by the judge in his
"sparse" findings in two margin endorsements, supplemented by
additional facts "needed to provide context." Commonwealth v.
Jones-Pannell, 472 Mass. 429, 436 (2015).
At about 9:32 P.M. on November 6, 2022, Officer Tredeau saw
the Toyota stopped to the side of a roadway. The Toyota's brake
lights were on, its transmission was in drive, and the
defendant, who was its sole occupant, was slumped over and
asleep with his foot on the brake pedal. When Officer Tredeau
knocked on the window, the defendant awoke and took his foot off
the brake, causing the Toyota to move forward slowly; Officer
Tredeau told him to put the Toyota in park, and he complied.
Asked for his license and registration, the defendant took a
folder from the glove compartment and searched through it. The
defendant then reached down with both hands between his legs;
the judge found that he was "reaching for a bag on the floor."
Because the defendant was showing signs of impairment, Officer
2 Tredeau ordered him out of the Toyota and administered field
sobriety tests, which the defendant performed satisfactorily.
Officer Tredeau did not form an opinion that the defendant was
under the influence of any substance.
Sergeant Ryan Levesque arrived and saw on the floor of the
Toyota a small, clear plastic bag that the judge found was a
"corner-cut baggie." Officer Tredeau went to the Toyota and saw
the corner-cut baggie. During a subsequent search of the
Toyota, the police seized a canvas bag containing bags of an
off-white powdery substance, a scale, and a handgun.1 From the
Toyota's center console, the police also seized items including
cocaine and cash.
The judge initially denied the motion to suppress, ruling,
"[b]ased on the totality of the circumstances including the
[defendant] showing signs of impairment, [defendant] reaching
for a bag on the floor and Sgt. Levesque clearly recognizing a
corner cut baggie on the floor of the vehicle the search was
1 Officer Tredeau testified that when he reached into the Toyota to look at the corner-cut baggie, he saw "in plain view" some of the contents of the canvas bag, which was nearby. However, the judge found that "[t]he [police] did not observe anything in the m[otor] vehicle in conjunction with the corner baggie that justified a search." In those circumstances, we do not consider any evidence of where the canvas bag was found in relation to the corner-cut baggie, because for us to do so would "detract from the judge's ultimate findings." Jones-Pannell, 472 Mass. at 431, quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
3 lawful." The defendant filed a motion to reconsider, calling
the judge's attention to Commonwealth v. Garcia, 34 Mass. App.
Ct. 645, 649-652 (1993). On reconsideration, the judge allowed
the motion to suppress, ruling,
"[m]otion for reconsideration allowed. The [police] did not observe anything in the m[otor] vehicle in conjunction with the corner baggie that justified a search. Corner baggie was a 'benign' object and did not give the officer probable cause to search the MV. See Comm. v. Garcia, 34 Mass. App. 645."
The Commonwealth filed a motion to reconsider, which the judge
denied.2 The Commonwealth filed a timely notice of appeal.
Discussion. 1. Probable cause. The Commonwealth argues
that the judge erred in ruling that the police did not have
probable cause to search the Toyota.
"Due to the inherent mobility of an automobile, and the
owner's reduced expectation of privacy when stopped on a public
road, police are permitted to search a vehicle based upon
probable cause to believe that it contains evidence of a crime."
Commonwealth v. Davis, 481 Mass. 210, 220 (2019). "The
existence of probable cause depends on whether the facts and
circumstances within the officer's knowledge at the time of
2 On the defendant's motion, the judge then dismissed the complaint. After the Commonwealth moved for reconsideration of the dismissal pending this appeal, the judge reinstated the complaint. No issue is before us with respect to that ruling, and so we do not consider it.
4 making the search or seizure were sufficient to warrant a
prudent [person] in believing that the defendant had committed,
or was committing, an offense" (citation omitted). Commonwealth
v. Hernandez, 473 Mass. 379, 383 (2015). What is required is a
showing that the police "entertained rationally 'more than a
suspicion of criminal involvement, something definite and
substantial, but not a prima facie case of the commission of a
crime'" (citation omitted). Commonwealth v. Santaliz, 413 Mass.
238, 241 (1992).
The Commonwealth argues that the judge's initial ruling was
correct, and the police had probable cause to search the Toyota
based on the defendant's signs of impairment, reaching for a bag
on the floor, and police discovery of the corner-cut baggie.
Conversely, the Commonwealth argues that the judge's ruling on
reconsideration -- that the corner-cut baggie was a "benign
object," and nothing the police "observed . . . in conjunction
with" it gave them probable cause to search the Toyota -- was
error. We are not persuaded.
The main problem with the Commonwealth's argument is that
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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-1004
COMMONWEALTH
vs.
MORRIS I. CLEMONS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a District Court
judge allowing the motion of the defendant, Morris I. Clemons,
to suppress evidence seized during a police search of the
defendant's Toyota Tacoma and from an order denying its motion
for reconsideration. The Commonwealth argues that, based on
information the police learned during a traffic stop of the
defendant's vehicle, including seeing a "corner-cut baggie" in
it, they had probable cause to search the vehicle pursuant to
the automobile exception to the warrant requirement.
Alternatively, the Commonwealth argues that because of the
defendant's behavior, the police permissibly conducted a
protective sweep of the vehicle for officer safety. Because the Commonwealth did not introduce police testimony explaining the
significance of the corner-cut baggie or why the defendant's
behavior justified a protective sweep, we cannot conclude that
the judge erred in allowing the motion to suppress, and thus we
affirm.
Background. From the evidence adduced at the suppression
hearing at which Northbridge police Officer Jordan Tredeau
testified, we set forth the facts found by the judge in his
"sparse" findings in two margin endorsements, supplemented by
additional facts "needed to provide context." Commonwealth v.
Jones-Pannell, 472 Mass. 429, 436 (2015).
At about 9:32 P.M. on November 6, 2022, Officer Tredeau saw
the Toyota stopped to the side of a roadway. The Toyota's brake
lights were on, its transmission was in drive, and the
defendant, who was its sole occupant, was slumped over and
asleep with his foot on the brake pedal. When Officer Tredeau
knocked on the window, the defendant awoke and took his foot off
the brake, causing the Toyota to move forward slowly; Officer
Tredeau told him to put the Toyota in park, and he complied.
Asked for his license and registration, the defendant took a
folder from the glove compartment and searched through it. The
defendant then reached down with both hands between his legs;
the judge found that he was "reaching for a bag on the floor."
Because the defendant was showing signs of impairment, Officer
2 Tredeau ordered him out of the Toyota and administered field
sobriety tests, which the defendant performed satisfactorily.
Officer Tredeau did not form an opinion that the defendant was
under the influence of any substance.
Sergeant Ryan Levesque arrived and saw on the floor of the
Toyota a small, clear plastic bag that the judge found was a
"corner-cut baggie." Officer Tredeau went to the Toyota and saw
the corner-cut baggie. During a subsequent search of the
Toyota, the police seized a canvas bag containing bags of an
off-white powdery substance, a scale, and a handgun.1 From the
Toyota's center console, the police also seized items including
cocaine and cash.
The judge initially denied the motion to suppress, ruling,
"[b]ased on the totality of the circumstances including the
[defendant] showing signs of impairment, [defendant] reaching
for a bag on the floor and Sgt. Levesque clearly recognizing a
corner cut baggie on the floor of the vehicle the search was
1 Officer Tredeau testified that when he reached into the Toyota to look at the corner-cut baggie, he saw "in plain view" some of the contents of the canvas bag, which was nearby. However, the judge found that "[t]he [police] did not observe anything in the m[otor] vehicle in conjunction with the corner baggie that justified a search." In those circumstances, we do not consider any evidence of where the canvas bag was found in relation to the corner-cut baggie, because for us to do so would "detract from the judge's ultimate findings." Jones-Pannell, 472 Mass. at 431, quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015).
3 lawful." The defendant filed a motion to reconsider, calling
the judge's attention to Commonwealth v. Garcia, 34 Mass. App.
Ct. 645, 649-652 (1993). On reconsideration, the judge allowed
the motion to suppress, ruling,
"[m]otion for reconsideration allowed. The [police] did not observe anything in the m[otor] vehicle in conjunction with the corner baggie that justified a search. Corner baggie was a 'benign' object and did not give the officer probable cause to search the MV. See Comm. v. Garcia, 34 Mass. App. 645."
The Commonwealth filed a motion to reconsider, which the judge
denied.2 The Commonwealth filed a timely notice of appeal.
Discussion. 1. Probable cause. The Commonwealth argues
that the judge erred in ruling that the police did not have
probable cause to search the Toyota.
"Due to the inherent mobility of an automobile, and the
owner's reduced expectation of privacy when stopped on a public
road, police are permitted to search a vehicle based upon
probable cause to believe that it contains evidence of a crime."
Commonwealth v. Davis, 481 Mass. 210, 220 (2019). "The
existence of probable cause depends on whether the facts and
circumstances within the officer's knowledge at the time of
2 On the defendant's motion, the judge then dismissed the complaint. After the Commonwealth moved for reconsideration of the dismissal pending this appeal, the judge reinstated the complaint. No issue is before us with respect to that ruling, and so we do not consider it.
4 making the search or seizure were sufficient to warrant a
prudent [person] in believing that the defendant had committed,
or was committing, an offense" (citation omitted). Commonwealth
v. Hernandez, 473 Mass. 379, 383 (2015). What is required is a
showing that the police "entertained rationally 'more than a
suspicion of criminal involvement, something definite and
substantial, but not a prima facie case of the commission of a
crime'" (citation omitted). Commonwealth v. Santaliz, 413 Mass.
238, 241 (1992).
The Commonwealth argues that the judge's initial ruling was
correct, and the police had probable cause to search the Toyota
based on the defendant's signs of impairment, reaching for a bag
on the floor, and police discovery of the corner-cut baggie.
Conversely, the Commonwealth argues that the judge's ruling on
reconsideration -- that the corner-cut baggie was a "benign
object," and nothing the police "observed . . . in conjunction
with" it gave them probable cause to search the Toyota -- was
error. We are not persuaded.
The main problem with the Commonwealth's argument is that
it did not introduce any police testimony explaining why the
corner-cut baggie gave the police reason to believe that
contraband would be found in the Toyota. In Garcia, 34 Mass.
App. Ct. at 647, during a traffic stop, a State police trooper
saw a transparent glassine baggie measuring one inch by one and
5 one-half inches, of a type that he recognized as often used for
distribution of controlled substances. This court held that the
presence of the glassine baggie, which was "apparently empty,"
did not supply probable cause to search that vehicle because
"[s]uch an item is 'capable of use for a lawful as well as an
unlawful purpose.'" Id. at 650, quoting Commonwealth v. Rivera,
27 Mass. App. Ct. 41, 43 n.3 (1989). In contrast, in Rivera,
id. at 42, an experienced narcotics officer recognized a baggie
that the defendant was holding as a type used to contain and
carry smaller packets of cocaine, and when the defendant saw the
police approaching, he immediately "plunged" the baggie inside
the front of his pants. This court held that the officer's
testimony about the baggie's connection to drug distribution,
coupled with the defendant's "evasive reaction," "readily
cumulate[d] to provide probable cause." Id. at 43. Cf.
Commonwealth v. Torres, 102 Mass. App. Ct. 359, 363-365 (2023)
(probable cause to search vehicle based on trooper's seeing used
"crack" pipe with "burnt Brillo on the end").
Here, in contrast to the cases just cited, the Commonwealth
did not offer any police testimony that the corner-cut baggie in
this case was typically used in packaging drugs. On cross-
examination, Officer Tredeau described the corner-cut baggie as
a small, transparent plastic bag with one open end and an off-
white residue inside. The prosecutor did not ask Officer
6 Tredeau what his understanding was of the significance of the
corner-cut baggie or the residue.3 It may be that the
Commonwealth could have elicited testimony from Officer Tredeau
or Sergeant Levesque that would have established that the
corner-cut baggie was "primarily used for an illegal purpose."
Torres, 102 Mass. App. Ct. at 363. It did not do so.
Nor did the remaining facts found by the judge in his
initial ruling -- that the defendant showed signs of impairment
and reached for a bag on the floor -- require a finding of
probable cause. The defendant's apparent impairment could be
attributed to his just having been awoken, particularly because
he successfully completed field sobriety tests. And the
defendant's reaching for the bag on the floor could be
attributed to his searching for his license and registration,
particularly because the Commonwealth never elicited whether he
found those papers in the folder. The officers' subsequent
discovery of the canvas bag and its contents could not be used
to justify the search. See Garcia, 34 Mass. App. Ct. at 651 n.8
("a search is not to be made legal by what it turns up"
[citation omitted]).
3 Officer Tredeau did testify that, after he saw the corner- cut baggie and leaned into the Toyota, he saw the scale and recognized it as related to the sale of narcotics. He was not asked if he had any similar understanding of the significance of the corner-cut baggie.
7 Absent any testimony about the significance of the corner-
cut baggie, we discern no clear error or abuse of discretion in
the judge's determination that the police did not have probable
cause to search the Toyota.
2. Protective sweep of vehicle. Alternatively, the
Commonwealth argues that even if seeing the corner-cut baggie
did not give the police probable cause to search the Toyota,
they permissibly conducted a protective sweep of it for officer
safety. The defendant argues that the Commonwealth waived this
argument by not raising it in the District Court. Assuming,
without deciding, that the issue is properly before us, we
conclude that it is not grounds for reversal.
The police may conduct a protective sweep of the interior
of a motor vehicle for a weapon in circumstances in which they
are "warranted in the belief that the[ir] safety . . . or that
of other persons [is] in danger" (citation omitted).
Commonwealth v. Manha, 479 Mass. 44, 49 (2018) (protective sweep
of vehicle justified after driver pointed gun at another
motorist on highway). The search must be "limited to areas from
where the defendant could access a weapon." Commonwealth v.
Galarza, 93 Mass. App. Ct. 740, 744 (2018). However, a
motorist's nervousness during a traffic stop is not ordinarily
grounds for the police to believe that the motorist poses a
danger to the police. See Commonwealth v. Sheridan, 470 Mass.
8 752, 758-759 (2015), quoting Commonwealth v. Cruz, 459 Mass.
459, 468 (2011) (it is "common" and "not necessarily indicative
of criminality" for person "to appear nervous during even a
mundane encounter with police"). See also Commonwealth v.
Torres-Pagan, 484 Mass. 34, 39-40 (2020) (no reasonable
suspicion that defendant was armed and dangerous because he got
out of vehicle unprompted by police).
Officer Tredeau testified that, before he ordered the
defendant out of the Toyota, he feared for his own safety
because the defendant was reaching for something on the floor
and appeared disoriented and nervous. Officer Tredeau did not
testify that he looked inside the Toyota because he was
concerned that the defendant was armed. Indeed, at the hearing
on the defendant's motion to reconsider, when the judge asked
the prosecutor, "[w]ere [police] looking for a loaded firearm or
were they looking for drugs?" the prosecutor replied, "[n]o,
they were looking for whatever. He's acting suspicious."
Acknowledging that "it does not take much for a police officer
to establish a reasonable basis to justify . . . [a] search
based on safety concerns," Commonwealth v. Gonsalves, 429 Mass.
658, 664 (1999), we conclude that the evidence elicited from
9 Officer Tredeau was insufficient to establish a permissible
basis for this search.
Order entered on May 14, 2024, allowing motion to suppress, affirmed.
Order entered on June 28, 2024, denying motion to reconsider, affirmed.
By the Court (Hand, Grant & Wood, JJ.4),
Clerk
Entered: June 26, 2025.
4 The panelists are listed in order of seniority.