Commonwealth v. Peters

717 N.E.2d 266, 48 Mass. App. Ct. 15, 1999 Mass. App. LEXIS 1092
CourtMassachusetts Appeals Court
DecidedSeptember 30, 1999
DocketNo. 98-P-437
StatusPublished
Cited by16 cases

This text of 717 N.E.2d 266 (Commonwealth v. Peters) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Peters, 717 N.E.2d 266, 48 Mass. App. Ct. 15, 1999 Mass. App. LEXIS 1092 (Mass. Ct. App. 1999).

Opinion

Dreben, J.

Originally arrested for a suspended driver’s license after his car was stopped in the course of a drug investigation, the defendant was later charged and convicted of possession with the intent to distribute a Class B substance. The subsequent charge was based on items found in his automobile and on his person pursuant to “inventory” searches. The defendant’s primary claim on this appeal relates to the warrantless search of his person. We affirm his conviction, although we uphold the search of his person on grounds other than an inventory search.

[16]*161. Facts elicited at the hearing on the motion to suppress. We state the facts as found by the motion judge after the hearing on the motion to suppress, supplemented by uncontested details necessary to our analysis. See Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 767 n.1 (1989). On March 30, 1995, during police surveillance of a condominium complex known to them as a location for drug transactions, Trooper Scott McCabe saw the defendant enter a condominium unit with a female companion, remain for ten minutes and together with the woman leave the area in an automobile. When, shortly thereafter, the vehicle was seen in a mini-mall, McCabe drove there and saw the defendant enter a store. Another vehicle pulled up next to the defendant’s car. A man got out and met the defendant in the doorway of the store. While the two men walked side by side with the woman McCabe had seen earlier with the defendant, McCabe saw the man reach into his pocket, take out some money and hand it to the defendant. The latter took the money and dropped something into the man’s hand. McCabe, who had specialized training in narcotics investigation, believed that a drug transaction had occurred and radioed other officers to stop both vehicles.1

After receiving a transmission from McCabe, Trooper James Massari of the Massachusetts State police saw the defendant’s vehicle2 and pulled it over. The defendant and, subsequently, the female passenger were asked to step from the vehicle. The defendant was pat frisked. The passenger stated to another officer on the scene, Trooper Serpa, that she had a “joint” in her pocket. Serpa confiscated it and arrested her. Thereafter, Massari ran a “registry check” on the defendant’s license and registration and was informed that the defendant had two licenses, one a suspended “A” number and the other a valid “S” number.3 He arrested the defendant for operating on a suspended license and arranged for an inventory search of the vehicle, which included a canine inspection, before it was towed. A written inventory policy was introduced in evidence, [17]*17and Massari testified that its procedures were followed. Discovered in the glove compartment of the vehicle was $3,500 in cash to which a small business card was attached with a rubber band. Names and initials with amounts of money next to them were noted on the card. Massari, who had “training and experience” in narcotics investigations, recognized the card as a “tally sheet,” that is, “a listing of names and numbers” showing what people have paid for narcotics.

The defendant and his passenger were taken to the Bourne barracks. After being photographed and fingerprinted, and prior to being placed in his cell, the defendant was searched pursuant to a written policy. An inventory search of “whatever was on [the defendant’s] body was made.” Six hundred seventy-two dollars in cash and a beeper were found in his left front pocket and two baggies believed to contain cocaine were found in one of his socks. The written inventory policy applicable to the search of the defendant’s person was not introduced in evidence.

2. The judge’s conclusions. The judge, in his memorandum denying the motion to suppress, concluded that McCabe, based on his observations, had specific, articulable facts to believe that the defendant had engaged in a drug transaction, see Terry v. Ohio, 392 U.S. 1, 21-22 (1968); that, once the defendant was stopped, the officers acted appropriately in arresting the defendant for operating on a suspended license; and that the inventory search of the automobile was conducted in accordance with the written policy introduced as an exhibit. As to the search of the defendant’s person, the judge stated, “[T]he police testified that the search of the defendant at the station was conducted pursuant to a written policy. The policy was not introduced into evidence by either party. Therefore, there is no evidence before the court that the search at the station was unreasonable.”

3. Validity of the stop. The defendant’s argument that Mc-Cabe’s suspicions were unreasonable on an objective standard is without merit. In reviewing a judge’s denial of a motion to suppress, “we accept the motion judge’s subsidiary findings of fact absent clear error, and we view, with particular respect, the conclusions of law that are based on them.” Commonwealth v. Kennedy, 426 Mass. 703, 705 (1998). McCabe had seen the defendant enter a condominium complex known to police as a location for drug transactions, remain there for ten minutes, then drive a short distance away where he met a man who had pulled up to the defendant’s car. The defendant then engaged in [18]*18what appeared to McCabe, a trained narcotics officer, to be a drug transaction. McCabe specifically saw the man give the defendant money and receive something in exchange. These observations by McCabe, communicated, and even if not, imputed4 to Massari, reasonably led the officers to suspect that the defendant had committed a crime, and therefore warranted at least a threshold inquiry. The circumstances may even have constituted probable cause to arrest the defendant. See id. at 704.

4. Inventory search of defendant’s person. Since the defendant’s primary challenge both at the hearing on the motion to suppress and now on appeal is to the “inventory” search of his person, we set forth in detail in the margin the evidence as to the policy underlying that search.5

The defendant claims that without the written policy there is [19]*19no way to determine whether the procedures were complied with and, in any event, the testimony did not indicate, as required, an absence of discretion on the part of the police. Commonwealth v. Rostad, 410 Mass. 618, 622 (1991), makes [20]*20clear that the requirement established by Commonwealth v. Bishop, 402 Mass. 449, 451 (1988), that standard police procedures for an inventory search be in writing, applies also to searches of the person. Quoting from Colorado v. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring), the Rostad court, at 622, stated that the underlying rationale for allowing an inventory exception to art. 14 of the Massachusetts Declaration of Rights was the same as under the Fourth Amendment, namely, “that police officers are not vested with discretion to determine the scope of an inventory search.” Although in Rostad the Belchertown police had a written policy which allowed the officer in charge to “search the arrestee and make an inventory of all items collected,” the court held that the policy was not

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Bluebook (online)
717 N.E.2d 266, 48 Mass. App. Ct. 15, 1999 Mass. App. LEXIS 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-peters-massappct-1999.