Commonwealth v. Rosario-Santiago

• Court: Massachusetts Appeals Court
• Decided: October 2, 2019
• Docket: AC 18-P-1109
• Status: Published

Opinion

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18-P-1109 Appeals Court

COMMONWEALTH vs. JUAN ROSARIO-SANTIAGO.

No. 18-P-1109.

Worcester. May 2, 2019. - October 2, 2019.

Present: Milkey, Hanlon, & Sacks, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress. Search and Seizure, Probable cause, Reasonable suspicion, Search incident to lawful arrest, Protective frisk, Inventory, Impoundment of vehicle. Constitutional Law, Search and seizure, Probable cause, Reasonable suspicion. License. Motor Vehicle, License to operate.

Indictment found and returned in the Superior Court Department on January 16, 2015.

A pretrial motion to suppress evidence was heard by David Ricciardone, J., and a motion for reconsideration was heard by him.

An application for leave to prosecute an interlocutory appeal was allowed by David A. Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

Eduardo A. Masferrer for the defendant. Shayna L. Woodard, Assistant District Attorney, for the Commonwealth. 2

HANLON, J. The defendant, Juan Rosario-Santiago, appeals

from the denial of his motion to suppress drug and other

evidence found in a "mechanical hide" and elsewhere in his motor

vehicle and on his person.1 He argues that the arresting officer

lacked probable cause to order him out of the vehicle and to pat

frisk him, and that the subsequent inventory search that led to

the discovery of most of the evidence at issue "exceeded the

bounds of a proper inventory search and did not fall under any

other exception to the warrant requirement." We affirm,

essentially for the reasons well explained by the judge.

1. Background.2 We take our summary of the underlying

facts from the judge's findings, supplemented by uncontested

testimony at the motion to suppress hearing. On October 9,

2014, at about 5:45 P.M., Trooper Michael Reynolds of the

Massachusetts State Police was patrolling in the area of the

Massachusetts Turnpike and Route 495. Reynolds had ten years of

experience as a police officer, and had completed 200 hours of

1 On February 2, 2018, the defendant filed an application for an interlocutory appeal. The motion was allowed and the case was entered in this court on August 1, 2018.

2 This case has been thoroughly litigated. There was an evidentiary hearing on the motion to suppress and, afterward, the judge dictated detailed findings of fact which we summarize below. Thereafter, defense counsel filed a motion to reconsider. The judge heard from both counsel and reviewed written submissions; he denied the motion in a written ruling. 3

training in narcotics investigations.3 He observed a Toyota

Camry enter the roadway on Route 495 North and abruptly change

lanes. Reynolds followed the Camry and saw it approach the

vehicle ahead of it in an aggressive manner. The Camry then

followed that vehicle, going at least sixty-five to seventy

miles per hour at a distance of less than one car length behind.

The trooper determined that this was unsafe because, in his

view, any sudden stop by the vehicle in front would have

resulted in a rear-end collision; he had witnessed such results

"a lot of times" "as a state trooper." He followed the Camry,

and observed it move to the center lane and continue in the same

manner. Based upon these observations, Reynolds pulled the

Camry over and asked the defendant, who was the Camry's sole

occupant, for his license and registration; he also explained

the reason for the stop.

The defendant produced a New Hampshire driver's license and

vehicle registration and Reynolds conducted what he

characterized as a "normal conversation" that lasted

approximately two minutes. He asked the defendant where he was

coming from and the defendant answered, "New York City." When

3 Reynolds's training included "the issuance and execution of search warrants, dealing with confidential informants, identifying drugs, and also finding concealed mechanical hides in motor vehicles." 4

the trooper asked where, more specifically, the defendant

responded, "downtown . . . [and, eventually,] . . . [s]eeing a

friend." Reynolds asked what the friend's name was and the

defendant first answered, "Dave." When Reynolds asked for more

information about Dave, including his last name, after a delay,

the defendant said, "Santiago." Throughout the exchange, the

trooper noticed an unusual delay in the time that the defendant

took to answer the questions. This made him suspicious, and he

felt that the defendant was making up the answers. Reynolds

also inquired whether the defendant had a criminal history, and

the defendant responded "that he had had some trouble with the

[F]ederal authorities in New Hampshire regarding drug

distribution." Reynolds then went back to his cruiser to verify

the defendant's information. As he was doing that, he noticed a

"fast-food bag" on the rear passenger floor of the Camry; he

could not see what was inside it.

When Reynolds checked the defendant's information, he

discovered that the defendant had a valid New Hampshire driver's

license but that his right to operate in Massachusetts was

suspended. He noticed that the defendant was assigned a

Massachusetts license number that began with the letter "A"

(assigned for administrative purposes), "as opposed to the

letter S, which the normal, active license in Massachusetts

has." Reynolds confirmed the status of the defendant's 5

Massachusetts driver's license either through the computer in

his cruiser or through information relayed to him by the

dispatcher at his home barracks; he learned that the defendant's

license or right to operate a motor vehicle was suspended in

Massachusetts,4 and that he had in fact been charged by the Drug

Enforcement Administration (DEA) in the past "with distribution

of synthetic narcotics."5

While waiting in his cruiser for the information to

process, Reynolds observed the defendant in the Camry reach

toward the back of the car in a subtle way, ostensibly in the

act of yawning. The judge found that Reynolds concluded that

the defendant actually "was reaching back for the [fast food]

bag in the back seat." At that point, the trooper went back to

the defendant's vehicle. Based upon his observations and the

4 It is not entirely clear from the record whether the defendant in fact had a driver's license in Massachusetts that had been suspended or whether his right to operate in Massachusetts had been suspended.

5 Reynolds testified that when he "ran" the defendant's information in his cruiser, he learned that the defendant had an "administrative number," indicating some issue with the status of the Massachusetts license. The judge asked him, "So did you take the next step and determine that the license was actually suspended in Massachusetts?" Reynolds responded, "Correct." On cross-examination, Reynolds clarified that he was sure that the dispatcher informed him that the defendant's Massachusetts license was suspended. In his exchange with the police dispatcher, Reynolds also learned of the defendant's Federal criminal record. 6

information gathered, Reynolds asked the defendant to step out

of the vehicle. He pat frisked the defendant and discovered two

cell phones and keys,6 and placed the defendant in his cruiser.7,8

Reynolds then, pursuant to the written policy of the

Massachusetts State Police, called a tow truck for the Camry.

At that point, the judge concluded, "the trooper ultimately had

to conclude that there was going to be a charge for operating

after [license] suspension."

Before the tow truck arrived, Reynolds was required --

pursuant to the written State Police inventory policy -- to

return to the defendant's car and inventory its contents.

Reynolds first looked inside the fast food bag. He discovered

"a clear plastic heat-sealed packet, which was empty but had

been ripped open."9 Also in the car was a gym bag containing

6 Reynolds observed two sets of keys, one on the defendant's person and another in the ignition. Based upon Reynolds's training and experience, he knew that vehicles used by drug couriers to transport drugs often only have the key to the vehicle in the ignition, and not the driver's house keys, for example, because the vehicles are passed from individual to individual throughout the drug courier organization.

7 When Reynolds asked the defendant "what he was reaching for," the defendant replied that "he wasn't reaching for anything."

8 The judge concluded that the defendant was not free to leave at this point.

9 Reynolds believed this type of packaging indicated drug distribution because it would conceal the scent of drugs. The heat-sealed bag was on top of the fast food wrappers within the 7

clothes. Near the front seat, the trooper saw "small black

elastic bands.10 Reynolds also noticed that, in the rear of the

center console there was a "crease" in the carpet, which, based

on his training and experience, he believed to have been caused

by the repeated opening of a "mechanical hide." In addition,

Reynolds found a cup of urine in the center console. Based on

his training and experience, Reynolds knew that people who

engage in drug distribution and, in so doing, drive long

distances, often do not want to stop to use rest rooms because

this gives them greater risk of exposure.11 There also was an

"aftermarket wire" that ran from the dashboard area near the

radio, trailing to the back area of the console.

After making these observations, Reynolds formally arrested

the defendant, took him out of the cruiser, placed him in

handcuffs, and further searched his person, discovering a "wad

of money" in the process; he then placed the defendant back into

fast food bag. Reynolds asked the defendant about the heat- sealed bag and the reason that it was in the vehicle, and the defendant told him he used it to wrap his sandwich. Reynolds testified that "to [his] knowledge, there's no reason to heat- seal a sandwich."

10Reynolds believed these elastic bands could have been used to wrap money or drugs.

11Reynolds explained, "So by urinating in a cup, they don't have to stop on the side of the road and risk being stopped by the police or going to a park and ride or a rest stop area where the police often patrol and can more easily notice." 8

the cruiser and the Camry was towed to the State Police

barracks.

Another trooper, Trooper McCammon, assisted in the search

of the Camry at the barracks. McCammon was very experienced in

detecting mechanical hides in vehicles, and Reynolds considered

him an expert in the field. When both troopers examined the

undercarriage of the Camry, they "saw a weld mark in the middle

of the muffler that looked like it had been altered and

lowered." "By applying power to some wires that went to the

console, the troopers actually operated the mechanical hide and"

discovered that the console rose up from the floor to reveal a

compartment. Inside the console were several "packets of

oxycodone pills that were taped up and otherwise secured with

the same type of rubber bands as were found in the car."

In denying the motion to suppress, the judge ruled that

"[t]he exit order was legal when the officer determined that the

defendant's right to operate in Massachusetts was suspended."

The judge agreed that what was initially a proper inventory

search "here morphed into something beyond inventorying

property." However, he concluded, essentially, that by the time

that happened, the experienced trooper had probable cause to

search for illegal drugs.

The defendant moved for reconsideration, arguing that the

inventory search was a pretext and that the trooper in fact was 9

searching for drugs based upon nothing more than a hunch. The

judge disagreed and denied the motion to reconsider; he

concluded that, even though the trooper may have had suspicions

before he began the inventory search, that fact did not detract

from the conclusion that the inventory search was proper. In

addition, the judge noted that there "was a legitimate safety

concern born of the fact that the trooper saw the defendant

reaching for the backseat bag (an act that the defendant felt he

had to conceal), which provided further justification for the

search here."

Discussion. "In reviewing a decision on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of [his]

ultimate findings and conclusions of law" (quotation omitted).

Commonwealth v. Ramos, 470 Mass. 740, 742 (2015).

1. Probable cause for arrest. The defendant argues first

that there was no probable cause to arrest him for operating

after his license or right to operate had been suspended in

Massachusetts.12 He contends that, because he had been issued a

12The defendant does not contest the legality of the initial stop, which he conceded at the motion to suppress hearing. See Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018) ("a stop is reasonable under art. 14 [of the Massachusetts Declaration of Rights] as long as there is a legal justification for it. We have long held that an observed traffic violation is one such justification. See Commonwealth v. Bacon, 381 Mass. 642, 644 [1980] ['Where the police have 10

license in New Hampshire, he was not operating illegally under

the language of G. L. c. 90, § 10,13 and, further, that the

information Reynolds received from the dispatcher about his

license suspension was inherently unreliable.

First, we note that at least the first portion of this

argument was not made to the judge. That is, counsel offered

evidence that the defendant's Massachusetts license was expired,

not suspended. The judge responded, "If his license is

suspended in Massachusetts, he's not supposed to be driving in

Massachusetts." Counsel responded, "Suspended, yes; not

expired. So the document I showed you just said that his

license was expired, not suspended." The judge pointed out that

the document proffered had been printed in 2016 (two years after

the stop) and that "what the trooper [had] at the scene can

control, even if it's incorrect."14

observed a traffic violation, they are warranted in stopping a vehicle']").

13General Laws c. 90, § 10, provides that "no person shall operate on the ways of the Commonwealth any motor vehicle, whether registered in this Commonwealth or elsewhere, if the registrar shall have suspended or revoked any license to operate motor vehicles issued to him under this chapter, or shall have suspended his right to operate such vehicles, and such license or right has not been restored or a new license to operate motor vehicles has not been issued to him."

14Defense counsel also explicitly agreed that the trooper believed that, at all times relevant, the defendant's right to operate in Massachusetts was in fact suspended. 11

The defendant now argues for the first time that G. L.

c. 90, § 10, can be read to permit a driver whose license is

suspended in Massachusetts to operate a vehicle lawfully in

Massachusetts if he subsequently acquires a valid license in

another State. That argument is waived as it was not made to

the judge; in addition, there is no information in this record

about when the defendant acquired his New Hampshire license --

that is, whether it was before or after his license or right to

operate in Massachusetts was suspended. In any event, even were

we to consider the argument, we are not persuaded. Such a

result would appear contrary to the purpose of the law -- to

prohibit those whose licenses have been suspended in

Massachusetts to operate in Massachusetts without taking any

action in Massachusetts to address the issue giving rise to the

suspension. The defendant cites no authority, apart from his

strained reading of the statute itself, for this newly raised

argument.15 Finally, as the judge observed, the issue here is

what the trooper knew at the time that he made the decision to

arrest the defendant. See Commonwealth v. Wilkerson, 436 Mass.

137, 140 (2002) ("Probable cause to arrest is not vitiated when

15In Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 577 n.7 (2015), this court explicitly did not decide "whether a driver whose Massachusetts license has been suspended is prohibited from driving in Massachusetts if validly licensed elsewhere." 12

the basis on which the police officer acted is shown after the

fact to have been erroneous, because the existence of probable

cause is determined 'at the moment of arrest,' not in light of

subsequent events").

The defendant did argue to the judge that the information

the trooper received from the dispatcher was not reliable. For

authority he cited the same cases he cites to us -- Commonwealth

v. Cheek, 413 Mass. 492 (1992), and Commonwealth v. Pinto, 476

Mass. 361 (2017). Neither case assists him. In Cheek, the

officers stopped the defendant on the basis of a radio broadcast

describing a stabbing with a very general description of a

suspect. 413 Mass. at 493. When the officers could not

understand the defendant's answer to their question about his

name, they frisked him and recovered a firearm and, later, a

quantity of marijuana. Id. at 493-494. The court concluded

that "[t]he facts in [this] case fall short of constituting

sufficient articulable facts on which the officers could have

based a reasonable suspicion that the defendant had committed a

crime." Id. at 497. In particular, the court stressed,

"[w]here the police rely on a police radio call to conduct an

investigatory stop, under both Federal and State law, the

Commonwealth must present evidence at the hearing on the motion

to suppress on the factual basis for the police radio call in

order to establish its indicia of reliability." Id. at 494-495. 13

In the present case, the trooper did not, in fact, rely on

a radio call from an anonymous source giving a general

description of a suspect in an uncorroborated report of a

stabbing. Instead, he reasonably relied on a report from the

police dispatcher of information obtained either from the

Registry of Motor Vehicles (RMV) or from State Police records

after making a stop for a motor vehicle offense that he

personally had observed. See Commonwealth v. Ramos, 88 Mass.

App. Ct. 68, 71 (2015) ("the RMV records that formed the basis

of [the officer]'s reasonable suspicion have sufficient indicia

of reliability on which to predicate a traffic stop. See

Wilkerson, 436 Mass. at 141-142. Indeed, RMV records are

generally considered reliable. See ibid.").

In Pinto, the officers stopped the defendant's car after

hearing a radio broadcast telling them to look for a described

motor vehicle based upon a report of "an alleged domestic

assault and battery." 476 Mass. at 362. In suppressing

evidence seized as a result of the stop, the court noted that

the Commonwealth had shown no basis to conclude that the person

who had supplied the information conveyed in the radio broadcast

either was reliable or had some basis of knowledge about the

facts reported. Id. at 364-365. That case, too, is very

different from the case before us. In both Cheek and Pinto, all

the impetus for the defendants' encounters with the police came 14

from an anonymous source. Here, it is agreed that the stop was

proper; the trooper then sought further information about the

defendant's license status that he reasonably believed was

maintained by and available to the police dispatcher.

The other cases cited by the defendant for this argument

require little discussion. In Commonwealth v. Royal, 89 Mass.

App. Ct. 168, 169, 170-173 (2016), this court concluded that the

evidence at trial was insufficient to prove beyond a reasonable

doubt that the defendant had operated a motor vehicle after his

license had been suspended, because the officer's testimony

about RMV records was inadmissible hearsay. Likewise, in

Commonwealth v. Oyewole, 470 Mass. 1015, 1015-1016 (2014), the

court concluded that the Commonwealth failed to prove its case

at trial because there was no evidence that the defendant had

been notified that his license had been suspended. Neither of

these cases is at all helpful in deciding the case before us,

where the issue is the reliability of hearsay in determining

probable cause. In sum, we conclude that, once Reynolds

received information from the State Police dispatcher that the

defendant's license or right to operate had been suspended in

Massachusetts, he had probable cause to arrest the defendant for

that offense.

2. Exit order and patfrisk. The rest of the case flows

naturally from that conclusion. Because there was probable 15

cause to arrest the defendant, the trooper was authorized to

order him to get out of the car. See Commonwealth v. Greenwood,

78 Mass. App. Ct. 611, 616 (2011) ("Where police officers have a

reasonable, articulable suspicion that a person in a vehicle has

committed, is committing, or is about to commit a crime, they

may . . . issue an exit order"). This is so, even if the

officer has not yet decided whether to arrest the defendant.

Cf. Commonwealth v. Blais, 428 Mass. 294, 296-297 (1998) ("The

officer's actual belief as to the legal basis for his authority,

however, is irrelevant, so long as the circumstances justified

the action he took. See Whren v. United States, 517 U.S. 806,

813 [1996], quoting Scott v. United States, 436 U.S. 128, 138

[1978] ['the fact that the officer does not have the state of

mind which is hypothecated by the reasons which provide the

legal justification for the officer's action does not invalidate

the action taken as long as the circumstances, viewed

objectively, justify that action']; Commonwealth v. Smigliano,

427 Mass. 490, 493 [1998]").

As to the patfrisk, "[a] search incident to a custodial

arrest is well established as an exception to the warrant

requirement under both the Fourth Amendment [to the United

States Constitution] and art. 14 [of the Massachusetts

Declaration of Rights]. See United States v. Edwards, 415 U.S.

800, 802 (1974), and cases cited; Commonwealth v. Santiago, 410 16

Mass. 737, 742-743 (1991), and cases cited. Under both Fourth

Amendment and art. 14 jurisprudence, the purpose of the search

incident to arrest exception is twofold: (1) to prevent the

destruction or concealing of evidence of the crime for which the

police have probable cause to arrest; and (2) to strip the

arrestee of weapons that could be used to resist arrest or

facilitate escape. See Chimel v. California, 395 U.S. 752, 762-

763 (1969); Santiago, supra at 743." Commonwealth v. Mauricio,

477 Mass. 588, 592 (2017). Moreover, "[t]he fact that a search

preceded a formal arrest is not important, 'as long as probable

cause [to arrest] existed independent of the results of the

search.'" Commonwealth v. Johnson, 413 Mass. 598, 602 (1992),

quoting Santiago, supra at 742. See Commonwealth v. Sweezey, 50

Mass. App. Ct. 48, 53 (2000), quoting Commonwealth v. Mantinez,

44 Mass. App. Ct. 513, 517-518 (1998) ("Probable cause for an

arrest, even if not acted upon by a formal arrest, brings with

it the 'search incident to arrest' exception to the warrant

requirement for a search").16

3. Towing the car. Given the license suspension, whether

or not the trooper in fact intended to arrest the defendant

16However, "the search and the arrest 'must be roughly contemporaneous.' Commonwealth v. Washington, 449 Mass. 476, 481 (2007)." Commonwealth v. Craan, 469 Mass. 24, 29 (2014). The defendant does not argue that that requirement was violated here. 17

rather than summons him later, he could not reasonably permit

the defendant to drive the car away. Nor could he leave the car

on the side of Route 495 at approximately 6 P.M. in the evening.

Therefore, it is clear that the trooper was obliged to have the

vehicle towed from the side of the highway, pursuant to the

written tow policy of the State Police, which was admitted in

evidence.17 See Commonwealth v. Davis, 481 Mass. 210, 218

(2019), where the court agreed that the police had reasonable

grounds to impound (and tow) the defendant's vehicle that was

"stopped on the left hand side of a toll exit on the

Massachusetts Turnpike, in the middle of the day."

4. Inventory search. The inventory search also was

proper. In these circumstances, such searches serve legitimate

interests, including "protecting the arrestee's property,

protecting the police from false claims of theft, and public

safety." Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 374

(2009). "Although a well-established exception to the warrant

requirement, an inventory search must hew closely to written

police procedures and may not conceal an investigatory motive.

See South Dakota v. Opperman, 428 U.S. 364, 376 (1976);

17"Officers are authorized to remove (or cause to be removed) any vehicle found upon a road/state highway when . . . [t]he operator of the vehicle is arrested and the vehicle would be left unattended on a public way." Department of State Police General Order TRF-09 (December 10, 2007). 18

Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The

lawfulness of an inventory search turns on the threshold

propriety of the vehicle's impoundment, and the Commonwealth

bears the burden of proving the constitutionality of both. See

Commonwealth v. Eddington, 459 Mass. 102, 108 (2011);

Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000)."

Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017).

As required, the trooper's inventory followed the written

policy of the State Police, which also was admitted in

evidence.18 As this court noted in Commonwealth v. Silva, 61

Mass. App. Ct. 28, 35 (2004), "[i]n considering whether the

government has met [its] burden of proof [as to the legality of

the search], the written inventory policy is the best evidence."

18"Any vehicle ordered towed . . . shall be inventoried and properly documented . . . . The Department shall inventory any vehicle ordered towed, removed, or impounded . . . pursuant to a lawful arrest when the vehicle would be left unattended . . . . The standard inventory procedure shall consist of a detailed inspection of the interior and exterior of the vehicle for damaged and missing parts, as well as to locate and record the contents of the vehicle. The following areas shall be inventoried: The interior of the vehicle; [t]he glove compartment and trunk (unless they are locked and there is no key available); and [t]he exterior of the vehicle for missing or damaged parts. The inventory listing of personal items and valuables shall extend to all storage areas and compartments that are accessible to the operator or occupants. . . . All closed but unlocked containers shall be opened, and each article inventoried individually" (emphasis added). Department of State Police General Order TRF-10 (April 23, 2009). 19

The defendant contends, however, that the purpose of the

inventory was investigative, not administrative (i.e., not to

obtain an inventory), because the trooper first opened a paper

fast food bag in the rear of the vehicle and also opened a paper

cup (found to contain urine) because he had seen people "put

stuff inside a cup before," including, specifically, drugs.

This argument fails for several reasons. First, the policy

clearly instructs the trooper to open all closed but unlocked

containers; this would include both a bag, even one that looked

like trash, and a paper cup. The fact that he did those things

first, rather than open the glove compartment, cannot be

dispositive; the policy required that he do them at some point

during the inventory. Nor did the judge find (or the defendant

argue) that the trooper spent any longer looking into the bag

and the cup than was necessary to determine their contents.

Second, the fact that the trooper might also have had

suspicions that the defendant was involved in drug trafficking

does not invalidate the validity of the inventory search,

otherwise justified and properly conducted. See Commonwealth v.

Horton, 63 Mass. App. Ct. 571, 577 (2005) ("Even the fact that

the police might have suspected that the inventory search could

turn up more weapons does not make it an impermissible pretext

search. See Commonwealth v. Garcia, 409 Mass. 675, 679 [1991],

and cases cited"). 20

The facts in Commonwealth v. Ortiz, 88 Mass. App. Ct. 573

(2015), on which the defendant heavily relies, are very

different. In Ortiz, the motion judge found that the defendant

was targeted in advance; he was the subject of a DEA

investigation into drug trafficking. Id. at 574. The DEA

agents had learned that the defendant's license to operate had

been suspended and later, when they also had information that he

would be transporting a kilogram of cocaine, they contacted the

State Police and asked to have a uniformed trooper stop and

arrest "the defendant as a pretext to conduct a search for

investigative purposes," i.e., " with the expectation that

impoundment and an inventory search of the defendant's motor

vehicle would follow." Id. at 574.

"The judge found that but for these explicit instructions,

[the arresting trooper] 'would not have stopped [the defendant]

for changing lanes' and 'that in other circumstances he would

not arrest someone for operating a motor vehicle with a

suspended license.'" Id. at 575. This court affirmed the

motion judge's decision to suppress the drugs seized during the

search. We recognized that " '[t]he fact that the searching

officer may have harbored a suspicion that evidence of criminal

activity might be uncovered as a result of the search should not

vitiate his obligation to conduct the inventory.' Commonwealth

v. Tisserand, 5 Mass. App. Ct. 383, 386-387 (1977). However, 21

'an inventory search [will] not be upheld if . . . there [is] a

"suggestion . . . that this standard procedure" [is] a pretext

concealing an investigatory police motive.' Ibid., quoting from

South Dakota v. Opperman, 428 U.S. 364, 376 (1976)." Ortiz, 88

Mass. App. Ct. at 576.

In the present case, by contrast, the judge concluded

explicitly that the search was not pretextual. "We entrust

credibility determinations to the motion judge, Commonwealth v.

Yesilciman, 406 Mass. 736, 743 (1990), and discern no error in

[his] finding that the inventory search was not a pretext."

Ehiabhi, 478 Mass. at 166. See Davis, 481 Mass. at 218

("Commonwealth v. Hoose, 467 Mass. 395, 399-400 [2014] [court

defers to motion judge's subsidiary findings of fact absent

clear error]").

5. Probable cause to search: automobile exception. The

judge determined, appropriately in our view, that when the

trooper looked underneath the dashboard to see if he could

observe a wire leading to a hidden compartment, the vehicle

search "morphed into something beyond inventorying property."

The judge found that the trooper's decision to do so was

supported by the following information, which the trooper knew

at that point:

"the defendant was driving fast and erratic; he seemed to be making up answers as he went along in response to early, routine questions; the defendant . . . had 22

surreptitiously reached [toward] the bag in the back seat and then denied it; there was an open heat-sealed baggie in the fast food bag . . .; the defendant had evidently urinated in a cup rather than stop; and there [were] . . . elastics of the type used to bind cash and drugs. All of these things spelled 'hidden compartment' to the experienced trooper even though any one of the factors may not have spelled illegal activity."

In addition, the trooper had noticed wear marks in the Camry's

carpet that, he knew, based upon his training, were consistent

with a hidden compartment, or "hide." These marks were in plain

view. See Commonwealth v. Santana, 420 Mass. 205, 211 (1995)

("'Under [the plain view] doctrine, if police are lawfully in a

position from which they view an object, if its incriminating

character is immediately apparent, and if the officers have a

lawful right of access to the object, they may seize it without

a warrant.' Minnesota v. Dickerson, 508 U.S. 366, 375 [1993]").

See also Commonwealth v. Goncalves, 62 Mass. App. Ct. 153, 157

(2004).

Given everything he knew, the trooper had probable cause at

that point to search the car for drugs and other evidence of

drug trafficking (including a wire leading to a hide), an

automobile search that clearly fell within a recognized

exception to the warrant requirement. See Davis, 481 Mass. at

220 ("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 23

probable cause to believe that it contains evidence of a

crime"). In Davis, the court determined that the introduction

of a drug sniffing dog converted the inventory search into an

investigatory one, id. at 219-220; however, the search of the

glove compartment was upheld because the officer had probable

cause to believe that it contained evidence of a crime. Id. at

221-222. So, too, here, armed with probable cause to search for

drug evidence, the troopers properly searched the car, including

for a wire leading to the hidden compartment and then the

compartment itself.

Again, the cases cited by the defendant are distinguishable

and therefore do not assist him. In Mauricio, 477 Mass. at 595-

596, the court upheld an inventory search of the defendant's

backpack, ruling that a ring discovered in that search was

properly seized. It was only the further search of the digital

images on a camera that the court deemed unreasonable because

the purpose of that search was admittedly investigatory, that

is, to discover the "true owner" of the camera, which the police

officers believed to have been stolen.

Commonwealth v. White, 469 Mass. 96, 100-102 (2014),

involved a search incident to an arrest on an outstanding

warrant and the seizure of a container of pills from the

defendant's person. The court concluded that although the

container could be opened pursuant to the police department's 24

inventory policy, id. at 101, the incriminating nature of the

pills was not immediately apparent and was, in fact, only

discovered through a subsequent computer search "in an attempt

to identify the pills," id. at 98, which "transformed a lawful

inventory seizure of the pills into an unlawful investigatory

search of the pills." Id. at 102.

Nor does Commonwealth v. Vuthy Seng, 436 Mass. 537, cert.

denied, 527 U.S. 942 (2002), compel a different result. In

Vuthy Seng, when the defendant was booked, his property was

inventoried and a bank card was removed from his wallet. Id. at

548. The officers not only noted the information on the front

of the card, but recorded the account numbers on the back. Id.

at 548-549. The court distinguished between the two

observations, and explained the distinction: "Applying the

principles distinguishing an inventory from an investigative

search to the facts before us, the information on the front of

the bank card, that it is a Shawmut bank card, declares its

nature to anyone at sight. The account numbers written on the

back of the card are not as obvious and would not be recalled

simply from a permissible inventory viewing. 'What the police

may not do is hunt for information by sifting and reading

materials taken from an arrestee which do not so declare

themselves.' [Commonwealth v. Sullo, 26 Mass. App. Ct. 766,]

770 [(1989)]. Nor would there be any need for the police to 25

record the account numbers on an inventory list, given that this

particular card was of no value. . . . Recording this

information would not serve any of the generally accepted

objectives of an inventory search preceding incarceration." Id.

at 553-554. In the present case, because the incriminating

nature of the wear marks in the carpet was immediately apparent

to the trooper, given his expertise and his other observations,

it is proper to include that observation in our calculus about

whether there was probable cause to conduct a further search.

Finally, in Commonwealth v. Muckle, 61 Mass. App. Ct. 678,

683 (2004), we found the search unreasonable because the

inventory policy at issue "requiring that the passenger area of

a vehicle be 'thoroughly examined' and all personal property be

removed and secured at the police station" did not provide

specifically that containers be opened. In so doing, we said,

"[w]hile we recognize that valuables may be secreted virtually

anywhere, a bag of trash is not a customary storage area for

valuables. Even were we to accept the premise that because a

bag of refuse might contain valuables it should permissibly be

inventoried along with other items, a bag of refuse that must be

'opened' for its contents to be visible is like any other

unlocked closed container. . . . What is important is whether

the item constitutes a closed container capable of holding

personal property of value. Even broadly read, the Bridgewater 26

police department's inventory policy fails to require the police

to open closed containers" (emphasis added). Id. at 683-684.

In the present case, of course, the State Police policy

explicitly did require the opening of a closed but unlocked

container and, as we observed in Muckle, "[w]e emphasize that we

are not concerned with whether, consonant with Federal and State

constitutional requirements, police may open closed but unlocked

containers in conducting an inventory search. Clearly, police

may do so, provided the written inventory policy requires them

to do so" (emphasis added). 61 Mass. App. Ct. at 684.

We conclude that the motion to suppress was properly

denied.

Order denying motion to suppress affirmed.

Order denying motion to reconsider affirmed. MILKEY, J. (dissenting). During the evening rush hour on

Route 495, Trooper Michael Reynolds pulled the defendant over

for driving too closely to the car in front of him (a practice

commonly known as "tailgating"). Fresh off a training on the

concealment of illegal drugs in cars, Reynolds embraced the

opportunity to put his newly-honed skills to work.1 What began

as the most routine of traffic stops, progressed into a full-

scale investigatory search of the defendant's car. Through

Reynolds's enterprising efforts, the State Police eventually

discovered underneath the car's center console a well-hidden

compartment in which an unspecified number of oxycodone pills

were secreted. Because I believe the escalation of the routine

traffic stop here crossed constitutional bounds, I respectfully

dissent.

From the outset, I want to highlight that I agree with most

of the majority's subsidiary holdings, including that the stop,

exit order, and patfrisk here all were valid, that the

defendant's car had to be towed, and that an inventorying of the

car's contents was warranted. For the reasons that follow,

however, I believe that the judge erred as a matter of law in

determining the point at which an investigatory search of the

1 Reynolds attended that training the day before the traffic stop. He previously had received extensive other training in narcotics enforcement, and for many years had been engaged in such enforcement as a local police officer. 2

car began. Because there was not probable cause at that earlier

point in time, I would reverse the order denying the motion to

suppress.

Background.2 Immediately after he approached the

defendant's stopped car, Reynolds made the customary request

that the defendant present his license and registration. The

defendant obliged by producing the requested documents, both of

which had been issued by the State of New Hampshire (where the

defendant currently resided). Before returning to his cruiser

to "run" these documents, Reynolds proceeded to ask the

defendant a series of questions. Although this questioning

lasted only approximately two minutes, the questions themselves

were markedly pointed, and -- as Reynolds acknowledged -- they

were designed "to verify that everything is normal."

Specifically, Reynolds serially posed the following queries to

the defendant: where was he coming from, where specifically in

New York City (the Bronx) was that, what was he doing there,

what was the name of the friend he was visiting, what was the

last name of that friend, how long had he been there, what was

the specific purpose of the trip, and where was he now traveling

to. According to Reynolds, although the defendant was

2The factual recitation that follows is drawn from the judge's findings, supplemented by uncontested testimony that the judge explicitly or implicitly credited. See Commonwealth v. Lopez, 458 Mass. 383, 384-385 (2010). 3

"relatively calm" in responding to these questions, his demeanor

seemed "slightly confrontational," with "an edge," and

"agitated."3 Reynolds considered the defendant's individual

responses "nondescript" and delayed.4 This aroused his

suspicion. Adding to that suspicion was the fact that the

defendant had admitted to having come from New York City, which

Reynolds viewed as a "source city" for narcotics.

Because "things seem[ed] off," Reynolds proceeded to ask

the defendant if he ever had been in trouble with the police.

The defendant responded that he previously "had been charged

with trafficking in pills" in New Hampshire, but had "been in

little to no trouble in the state of Massachusetts." At that

point, Reynolds "went back to [his] cruiser to run [the

defendant's license and registration] and to further corroborate

or investigate his criminal history that he spoke of." On his

way to the cruiser he performed a quick visual scan of the

defendant's car, spotting a discarded fast food bag on the floor

of the rear seat.

3 In explaining that the defendant seemed "agitated," Reynolds alluded to the fact that the defendant appeared to be recording their conversation on his cell phone.

4 Reynolds acknowledged that the defendant spoke with an accent, but believed that he had a sufficient command of English that this was not the cause of his delayed responses. 4

Back at his cruiser, Reynolds confirmed through a

dispatcher that the license that the defendant provided was

valid, and that the defendant did in fact have a criminal record

that included a charge by the Drug Enforcement Administration

(DEA) for "distribution of synthetic narcotics." However,

according to Reynolds's account of what an unidentified

dispatcher told him, the defendant's right to drive in

Massachusetts was currently under suspension, which Reynolds

understood to be the result of the defendant's having not paid

traffic tickets incurred in Massachusetts.5 See G. L. c. 90C,

§ 3(6) (requiring that operators who do not pay traffic tickets

have their licenses or right to operate in Massachusetts

"suspended by operation of law and without further notice"). As

Reynolds ran the defendant's information, he observed the

defendant appear to yawn and then reach back toward the rear

seat of the car.

Once back at the defendant's car, Reynolds ordered the

defendant out of the car and pat frisked him. Through the

5 In his initial testimony, Reynolds could not recall whether he learned this information from a dispatcher or had logged onto the computerized recordkeeping system himself. However, he later clarified that he was sure it was a dispatcher who told him this information. In delivering his oral findings from the bench, the judge initially stated that Reynolds learned the information from one of these two methods. After defense counsel reminded the judge of Reynolds's later clarifying testimony, the judge stated, "All right. I'll adopt that finding." 5

patfrisk, Reynolds found two cell phones on the defendant's

person and a set of keys in his pocket (separate from the key in

the ignition). Reynolds asked the defendant about his seeming

to reach into the rear seat, which the defendant denied doing.

At that point, Reynolds had not yet decided whether he was going

to arrest the defendant for driving while his right to operate

on Massachusetts roads was under suspension. However, Reynolds

understood that in any event, the defendant could not drive his

vehicle from the scene because of the suspension. Reynolds

proceeded to detain the defendant in the back seat of his

cruiser while he searched the defendant's car.

In conducting that search, Reynolds examined first the rear

seat area toward which he believed he had seen the defendant

reach. He went through the discarded fast food bag that he

previously had spotted on the floor there. In Reynolds's view,

drug traffickers "don't want to stop anywhere for long periods

of time," and patronage of fast food restaurants by those on

highways itself was an "indicator" of drug trafficking. Inside

the bag, Reynolds found -- amongst "other wrappers in there from

fast food, items . . . like from the French fries or

cheeseburger or whatever" -- an empty plastic bag bearing a

Ziploc brand logo. According to Reynolds, this was a "heat-

sealed" bag of the sort used "for packaging up food and freezing 6

it and stuff like that."6 Reynolds nonetheless found the

presence of the empty bag significant, because he knew from his

training and experience that drug dealers sometimes stored drugs

in such bags in an effort to prevent "narcotics detection

canines" from picking up the scent. Reynolds asked the

defendant about the discarded plastic bag, and the defendant

responded that he had used it to store his sandwich. Reynolds

found this explanation implausible, because -- in his words --

"to my knowledge, there's no reason to heat-seal a sandwich."

On the rear seat, Reynolds also found a gym bag with clothes in

it that apparently had no inculpatory import.

Turning to the front area of the car, Reynolds found a

number of small rubber bands on the front passenger seat floor

that he concluded were "consistent with those used for packaging

up money, sometimes drugs." He also spotted a fast food cup

that had a lid on it. According to Reynolds, he decided to look

inside the cup in order to see if narcotics were hidden inside

it. He discovered instead that the cup contained urine.

Reynolds viewed this as a further indicator that the defendant

6In fact, a photograph admitted in evidence reveals lettering on the bag that denotes it as a "Ziploc vacuum sealer" bag, not a heat-sealed one. Although Reynolds may have misspoken in referring to it as a heat-sealed bag, his larger point that the bag is of a sort designed to prevent its contents from being exposed to air stands. 7

was engaged in a concerted effort to minimize having to stop

along his journey back from a "source city."

While searching the front of the defendant's car, Reynolds

paid particular attention to the center console area because he

knew from his training that this area is "a common place for

hidden compartments to be." Proceeding in this fashion, he

discovered that the edge of the carpeting where it met the rear

of the center console appeared to be worn. This was something

he specifically had been taught to look for, because such wear

marks could be a sign that the center console had been moved in

and out over time to gain access to a concealed "hide" in that

area. Reynolds then began to conduct a search for after-market

wiring, another potential indicator of a drug hide. This

involved looking up underneath the dashboard area, as well as

lifting up and "peek[ing]" under the plastic that ran along the

floorboard of the console. Finding the presence of such wiring,

Reynolds decided to arrest the defendant for driving while his

right to operate on Massachusetts roads was suspended.

In order to continue his search of the defendant's car,

Reynolds had it towed to State police barracks instead of the

tow yard. To assist him in that search, Reynolds called in

another trooper who had even more experience than he did in the

discovery of drug hides. Together, the troopers examined the

underside of the car, where they discovered that the muffler had 8

been altered in a manner that would have allowed room for a

secret compartment to be placed under the center console. They

eventually found such a compartment that could be accessed

through a hydraulic system. The troopers were able to apply

power to override the complicated hide system, which raised up

the center console and revealed an after-market box beneath it

containing oxycodone pills.

Based on this discovery, the defendant was indicted for

trafficking in between thirty-six and one hundred grams of

"opium or any derivative thereof." G. L. c. 94C, § 32E (c).

The fate of the separate charge for which the defendant

initially was arrested (operating a motor vehicle in

Massachusetts while his right to do so was under suspension) is

not clear. There is nothing in the record to suggest that the

defendant ever was cited for tailgating, the original infraction

for which he had been stopped.

Discussion. As the judge properly concluded, Reynolds's

search of the defendant's car plainly exceeded the spatial

bounds of the State Police inventory search policy once he began

hunting for after-market wiring. The judge concluded, however,

that at that point, probable cause had been established by

Reynolds's finding numerous indicia he had been trained to look

for. For purposes of my analysis, I assume arguendo that the

sum total of the observations Reynolds had made by the time he 9

began looking up under the dashboard -- however innocent each

alone might be -- amounted to probable cause. Commonwealth v.

Santaliz, 413 Mass. 238, 242 (1992) (innocent details "disclosed

to the eyes of an experienced narcotics investigator" can add up

to probable cause of illegal narcotics activity). However, for

the reasons explained below, I believe an investigatory search

began at an earlier point in time when probable cause did not

yet exist.

With Reynolds personally having observed the defendant

driving too closely to the car in front of him, the initial

traffic stop itself plainly was valid. Commonwealth v. Buckley,

478 Mass. 861, 865-866 (2018), citing Commonwealth v. Bacon, 381

Mass. 642, 644 (1980). However, virtually from the moment

Reynolds first encountered the defendant face-to-face, his focus

was on investigating potential drug trafficking, not on

completing an ordinary traffic stop. I do not mean to suggest

that an officer who has stopped a car for a civil traffic

infraction must immediately run the license and registration

presented to him; although that might be the more prudent

practice, a traffic officer's engaging in some amount of

conversation before doing so is not constitutionally proscribed.

But here, Reynolds developed an almost immediate hunch that the

defendant might be involved in nefarious activity, and --

without reasonable suspicion -- he employed his pointed 10

questioning of the defendant toward building a case.7 In my

view, such questioning, while relatively brief, was unwarranted.

See Commonwealth v. Cordero, 477 Mass. 237, 241-247 (2017)

(addressing permissible bounds of routine traffic stop and under

what circumstances such stop may be extended).8

Of course, unlike Cordero, this is not a case where a

driver was long detained after the traffic stop was complete.

In Cordero, the officer's check of the driver's license and

registration revealed no infirmities, whereas here, Reynolds was

told by a dispatcher that the defendant's right to operate on

Massachusetts roads currently was under suspension. 477 Mass.

at 242-243. Although the Commonwealth presented no

documentation corroborating that such a suspension in fact was

in effect,9 I accept arguendo the majority's conclusion that it

7 Nothing in this dissent should be read as suggesting that I believe Reynolds was acting in bad faith. It is evident that he was trying to fulfill his mission of uncovering criminal activity, and he showed great initiative and skill in doing so.

8 In Cordero, a trooper's suspicions were aroused in very similar circumstances: the driver was from what the trooper considered a "source city," he was providing seemingly evasive answers to the trooper's questions, and he had a record that included drug-related crimes. 477 Mass. at 239, 244-246. Nevertheless, the court concluded that such factors did not constitute reasonable suspicion necessary to detain the defendant.

9 The evidentiary record on this point is murky at best. The defendant himself provided some Registry of Motor Vehicle records, which the judge admitted in evidence. Those records showed that the defendant once had a Massachusetts license that 11

was reasonable for Reynolds to rely on what the police

dispatcher had told him and that his reasonable belief was

sufficient for present purposes. Compare Commonwealth v.

Wilkerson, 436 Mass. 137, 140-141 (2002) (probable cause to

arrest not vitiated by fact that police were relying on

erroneous information obtained from Registry of Motor Vehicles

records that defendant's license had been revoked), with

Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 694-700

(2014) (firearm found on defendant when he was arrested

suppressed where police mistakenly believed there was

outstanding arrest warrant and police would have learned that

this was mistaken had they followed department policy).

I agree with the majority that the actions Reynolds took

after being told of the suspension were, in large measure,

warranted. Like the majority, I do not accept the defendant's

argument that his acquiring an out-of-state license allowed him

to drive in Massachusetts even if his right to drive on

expired in 2009, and that he subsequently incurred two traffic tickets (one for speeding and one for excessive window tinting). The records do not note whether he paid the assessed fines or whether his right to drive had been suspended as a result of nonpayment of them. As Reynolds himself acknowledged, the fact that a driver like the defendant had been assigned an "A" license number does not by itself mean that there had been a suspension of his license or right to drive on Massachusetts roads. There is nothing in the record to suggest that Reynolds ever asked the defendant whether his right to drive on Massachusetts roads was under suspension. 12

Massachusetts roads had been suspended.10 Having learned of the

suspension, Reynolds could not let the defendant drive the car

regardless of whether he arrested the defendant for already

having done so.11 In addition, there being no alternative driver

present, Reynolds was justified in concluding that the car

needed to be towed from the side of the busy highway. With the

car needing to be towed, Reynolds was further justified in

ordering the defendant to get out of the car, see Commonwealth

v. Cruz, 459 Mass. 459, 466-467 (2011) (discussing when exit

orders are permissible), and I agree with the majority that

where Reynolds had seen the defendant reach toward the rear

10That said, the defendant's argument that the language of the statute provides support for that curious result is stronger than the majority credits. See G. L. c. 90, § 10 (criminalizing operation of motor vehicle in Massachusetts if driver's license or right to operate in Massachusetts has been suspended "and such license or right has not been restored or a new license to operate motor vehicles has not been issued to him").

11As noted, Reynolds believed the defendant's right to drive in Massachusetts was suspended for being delinquent in paying traffic tickets. See G. L. c. 90C, § 3(6). I do not question the validity of such a means of trying to ensure that assessed fines are paid (although I recognize that this may result in disproportionate impacts on people of limited economic means). However, it still bears noting that any suspension here appears to have been a result of that collection mechanism, not because the defendant had been adjudicated a menace on the roads. Moreover, I note that whether the defendant had actual notice that his right to drive had been suspended is not addressed by the current record. 13

seat, a patfrisk also was justified for officer safety. See

Commonwealth v. Stampley, 437 Mass. 323, 325-329 (2002).12

Most significantly, I agree with the majority that, in

advance of the tow, an inventorying of the defendant's car was

warranted pursuant to the written State Police inventory search

policy in order to safeguard any belongings inside. See

Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016), quoting

Commonwealth v. Vuthy Seng, 436 Mass. 537, 550-551, cert.

denied, 537 U.S. 942 (2002) ("An inventory search conducted by

police officers pursuant to a police department's written policy

is 'justified to safeguard the defendant's property, protect the

police against later claims of theft or lost property, and keep

weapons and contraband from the prison population'"). However,

the fact that an inventorying of the car's contents was

warranted does not end the inquiry.

The inventory search policy applicable here is decidedly

expansive in scope. For example, that policy requires an

inventorying of "[t]he interior of the vehicle," it encompasses

"[a]ll open areas, including the floor areas, the area in and

around the instrument panel and the rear deck above the rear

12But see Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 687 (2001) (observation made during traffic stop that occupant of car "appeared to place something on the seat is neither indicative of criminality nor a ground for reasonable apprehension"). 14

passenger seat, the open area under the seats, the glove

compartment and trunk,[13] and other places where property is

likely to be kept," and it requires that "[a]ll closed but

unlocked containers shall be opened, and each article [inside]

inventoried individually." Department of State Police General

Order TRF-10 (April 23, 2009). In light of this breadth, it is

unsurprising that the judge concluded that Reynolds did not

exceed the spatial bounds of that policy until he started to

hunt for after-market wiring outside the physical confines of

the passenger compartment. That assessment appears correct.

However, it does not thereby follow that -- in the shorthand

employed by the judge -- "the inventory policy allowed the

trooper to search throughout the vehicle." Put differently, the

fact that an officer purporting to conduct an inventorying of a

car's contents may not have violated the express terms of a

broadly-crafted administrative inventory search policy does not

mean that constitutional norms have been satisfied as to how

that search actually was conducted.14

13The glove compartment and trunk need not be inventoried if they are locked and no key is available.

14In my view, the term "inventory search" is a misnomer that beckons for abuse. It wrongly suggests that the inventorying of a car's contents should be thought of as being just like other types of searches, just with a different legal justification. Although I recognize that appellate courts commonly use the phrase "inventory search," I have avoided using 15

First principles bear remembering. Warrantless searches of

private property are presumptively unconstitutional under both

the Federal and State Constitutions. Commonwealth v.

Antobenedetto, 366 Mass. 51, 57 (1974). Although the cases have

long recognized that search warrants generally need not be

obtained for searches of motor vehicles,15 the police still may

not conduct investigatory searches of them absent probable cause

to believe that the vehicle contains evidence of a crime.

Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997).

Exceptions allowing for noninvestigatory searches are to be

narrowly construed, and where such an exception is claimed, "the

burden rests with the Commonwealth to demonstrate that the

search 'was conducted for some legitimate police purpose other

than a search for evidence.'" Buckley, 478 Mass. at 872,

quoting Commonwealth v. Benoit, 382 Mass. 210, 219 (1981), S.C.,

389 Mass. 411 (1983). In this context, that is, where the

Commonwealth is seeking to justify a search without probable

it here to the extent feasible, employing instead the term "inventorying."

15Such an exception is based on the inherent mobility of motor vehicles. Under the cases, this "automobile exception" applies even where the vehicle has been impounded, so long as the search takes place relatively soon after the impoundment has incurred. Compare Commonwealth v. Bongarzone, 390 Mass. 326, 350-351 (1983) (no warrant needed where car was searched "less than two hours" after impoundment), with Commonwealth v. Agosto, 428 Mass. 31, 34-35 (1998) (warrant required for additional searches conducted "over a span of twenty-one days"). 16

cause, "consideration of an officer's 'purpose' for conducting

the search is relevant to an assessment of the lawfulness of the

search itself." Buckley, 478 Mass. at 872 & n.15.16

The cases establish that where the police searched a

defendant's possessions absent probable cause, it is not enough

for the Commonwealth to prove that an inventorying of those

possessions was warranted. That is because "[t]he inventory

search exception to the search warrant requirement is strictly

limited to the purposes underlying that exception."

Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 17 (2005), citing

Vuthy Seng, 436 Mass. at 554 n.16. This principle is well

illustrated by our seminal decision in Commonwealth v. Sullo, 26

Mass. App. Ct. 766 (1989).17 In that case, the police arrested

the defendant for outstanding warrants related to traffic

violations. Id. at 767. At booking, the arresting officer

discovered large amounts of cash in the defendant's pockets,

together with multiple business cards and a folded piece of

16As the Buckley court explained, although the validity of a traffic stop itself is assessed without attention to "the actual motivations of the officer involved" (quotation and citation omitted), this principle does not apply to assessing whether a purported noninvestigatory search arising out of that stop amounted to a search for evidence, thereby requiring probable cause. Buckley, 478 Mass. at 872 n.15.

17The Supreme Judicial Court repeatedly has cited to Sullo and relied on its reasoning, including recently. See Commonwealth v. Mauricio, 477 Mass. 588, 595-596 (2017). 17

paper. Id. With his interest piqued by the cash, the officer

closely examined the cards and paper, which were annotated with

initials, figures, and mathematical symbols. Id. at 767, 772.

The arresting officer discerned the paper to be a "cuff sheet"

related to illegal gambling, and the defendant was charged with

a gaming violation. Id. at 767, 768. The Commonwealth defended

its examination of the cards and papers "as a legitimate part of

an inventory search" of the defendant's person. Id. at 768.

Apparently on that basis, a District Court judge denied the

defendant's motion to suppress that evidence.

In an opinion authored by Justice Kaplan, we reversed. Id.

at 772. We emphasized that an inventory search "is carefully

circumscribed by law because, as an exception to the ordinary

constitutional requirements, the search may be conducted without

warrant or probable cause." Id. at 768. To pass muster,

however, an inventory search must satisfy three criteria:

"First, the search must follow a standard or routine procedure

adopted and recognized by the police force. Second, it may not

extend beyond the custodial necessities which are its sole

justification. Third, it may not become a cover or pretext for

an investigative search." Id. We also observed that "[i]n

making an inventory -- taking from the person, noting what is

received, and placing it in safekeeping -- the police are to act

more or less mechanically, according to a set routine, for to 18

allow then a range of discretion in going about a warrantless

search would be to invite conduct which by design or otherwise

would subvert constitutional requirements." Id. at 772.

Applying those principles, we concluded that the officer in

Sullo was not mechanically cataloguing the contents taken for

safekeeping, but instead was following the lead provided by the

large amounts of cash found in the defendant's pockets. Id.

Accordingly, we held that "[t]he Commonwealth ha[d] not carried

its burden of establishing that this was a lawful inventory

search." Id. Significantly, in reaching such conclusions, we

expressly relied in part on the judge's description of how the

officer's suspicions animated his follow up perusal of the

defendant's property. Id.

In the three decades since Sullo was published, the Supreme

Judicial Court has adopted and consistently applied the same

principles. In Vuthy Seng, the court directly addressed the

extent to which police could obtain evidence through

scrutinizing an item being inventoried, specifically, a bank

card found on the defendant's person. 436 Mass. at 550-555.

The court concluded that the police could use the bank logo

appearing on the front of the card, because "police need not

'blind themselves' to obvious facts," that is, to information

that "declares its nature to anyone at sight." Id. at 551-552 &

n.12, 553, quoting Sullo, 26 Mass. App. Ct. at 770. However, 19

the court concluded that the account numbers appearing on the

bank card must be suppressed where that information was "not as

obvious and would not be recalled simply from a permissible

inventory viewing." Vuthy Seng, supra at 553. Vuthy Seng thus

firmly establishes that observations made during the

inventorying of a defendant's possessions cannot be justified as

the product of an inventory search where such evidence was

gleaned from applying a level of scrutiny that exceeded

custodial ends.

In Commonwealth v. Blevines, 438 Mass. 604, 608-610 (2003),

the court ruled that -- although the police properly seized keys

from a defendant's pocket that potentially could be used as

weapons -- "detailed scrutiny of the keys" amounted to an

investigatory search that required probable cause and a

warrant.18 Similarly, in Commonwealth v. White, 469 Mass. 96,

102 (2014), the court concluded that once the police closely

examined pills that lawfully had been seized from a defendant

and used "the number imprinted on the pills to identify them,"

such use "transformed a lawful inventory seizure of the pills

into an unlawful investigatory search of the pills." Finally,

the court recently held that although police properly took

18Accord Murphy, 63 Mass. App. Ct. at 14-16 (detailed observation of keys properly seized from defendant "improperly transformed an inventory search of [defendant's] person into an investigatory search"). 20

possession of a digital camera found in a backpack during an

inventory search, they could not examine the contents of the

camera without a warrant. Commonwealth v. Mauricio, 477 Mass.

588, 595-596 (2017), citing Vuthy Seng, 436 Mass. at 550-553;

Sullo, 26 Mass. App. Ct. at 770. The court reasoned that the

police's examination of the contents of the camera was not "a

benign inventory of the contents of the backpack," but instead

was "investigatory in nature." Mauricio, supra.

Taken together, the line of cases dating to Sullo stands

for the following overarching point: where police validly have

initiated the inventorying of objects taken into their custody

for safekeeping, once their examination of such objects goes

beyond "mechanical" cataloguing, the search becomes

"investigatory in nature" and therefore must be justified as

such. The cases also stand for a subtle but important

procedural point. It remains the Commonwealth's burden to

demonstrate that the inventory search exception applies to the

discovery of the specific evidence at issue; the burden does not

shift to the defendant just because the items in question

properly had been seized and needed to be inventoried. See

Vuthy Seng, 436 Mass. at 554 (explaining that although police

may be justified in inventorying items, Commonwealth must still

"present . . . evidence to carry its burden to establish that

this was a lawful inventory search"). 21

Of course, the boundaries drawn by such cases sometimes may

be difficult to locate in practice. This is because the mere

"fact that the searching officer may have harbored a suspicion

that evidence of criminal activity might be uncovered as a

result of [an inventory] search should not vitiate his

obligation to conduct the inventory" (quotation and citation

omitted). Commonwealth v. Garcia, 409 Mass. 675, 679 (1991).

Moreover -- as Sullo itself touched on -- police conducting a

valid inventorying need not ignore obvious incriminating

evidence lying in plain view. 26 Mass. App. Ct. at 770.

However, turning back to the case before us, I do not think it

is difficult to determine on which side Reynolds's search of the

defendant's car falls. In my view, the conclusion is

inescapable that Reynolds was not engaged in a mechanical

cataloguing of the car's contents. Notably, Reynolds did not

testify that he filled out an inventory form, nor was any

documentary evidence offered that he did so. In fact, other

than his agreeing with the prosecutor's prompting that he had

conducted an "inventory" search, Reynolds himself made no

mention whatsoever of his cataloguing the car's contents. This

is unsurprising given that -- as Reynolds effectively admitted

-- he was searching the car to look for evidence to follow up on

his suspicions that the defendant might be engaged in drug

trafficking. In other words, this is not a case where a police 22

officer who benignly was inventorying a car's contents

inadvertently happened across "obvious" or "overtly

incriminating" evidence lying in plain view. Vuthy Seng, 436

Mass. at 551 & n.12, 554. To conclude otherwise on this record

is to indulge in a fiction that the Constitution does not

countenance.

My view of this case flows both from the objective facts of

how Reynolds conducted the search, and from Reynolds's own

characterization of his thought processes. This can be shown,

for example, with respect to Reynolds's key discovery of the

wear mark on the carpeting at the edge of the center console.

By Reynolds's own admission, he discovered that wear mark

because his training had taught him to look for it as an

indicator that there may be a secret compartment hidden there.

The type and level of scrutiny that Reynolds applied to the

center console and carpeting is comparable to that applied to

the bank card in Vuthy Seng, 436 Mass. at 551-554, the keys in

Blevines, 438 Mass. at 608-610, or "the markings on the backs of

the cards" in Sullo, 26 Mass. App. Ct. at 772.19 Reynolds's

19The police photographs of the interior of the car reveal at most a barely visible discoloration along the edge of the carpeting. This is far from evidence that "declares its nature to anyone at sight." Vuthy Seng, 436 Mass. at 553. Of course, it may well be that such a sign was more immediately apparent to someone specifically looking for it with a well-trained eye. However, the fact that the police utilized such mission-oriented expertise undermines the Commonwealth's claim that the officer 23

close examination had nothing to do with cataloguing the car's

contents; rather, it was "investigatory in nature" and therefore

needed to be supported by probable cause.

The discovery of the wear mark next to the center console

provided the keystone on which the judge's finding of probable

cause rests. Regardless of whether the judge was correct that

Reynolds had probable cause to believe that the car contained

illegal drugs after he discovered the wear mark, I believe it is

plain that he did not have probable cause before that. Although

Reynolds at that point may have had reasonable suspicion based

on the various indicia he had collected in following up on his

hunch -- the empty plastic bag, the rubber bands, the urine, the

defendant's coming from a "source city," and so forth -- he did

not have probable cause to believe that narcotics were hidden in

the car. See Commonwealth v. Alvarado, 420 Mass. 542, 546, 550

(1995) (discovery of cocaine found in coffee maker inside box on

floor of back seat of stopped car suppressed where search "was

was not conducting an investigatory search. The Supreme Judicial Court recently observed that "[t]he use of a drug detection dog to conduct what is supposedly a search to safeguard property -- and not a search for drugs -- raises a red flag." Commonwealth v. Davis, 481 Mass. 210, 219 (2019). Similar concerns are raised when the drug detection expert employed to do putative inventorying has two legs instead of four. Again, I do not question Reynolds's good faith; he ably was executing his job as he was trained to do. But it is up to the courts to determine whether his actions crossed the constitutional line designed to protect citizens from undue government intrusion. 24

of an investigatory nature" but not supported by probable cause,

even though car's driver and passenger were from known "source

city," cocaine was found on passenger who was "very nervous,"

and police observed driver of car reach his hand "near, or

perhaps in, the coffee maker box just prior to his arrest").

See also Cordero, 477 Mass. at 243-247 (not even reasonable

suspicion established where driver stopped for routine civil

infraction was from "source city," had record of drug-related

crimes, and had given evasive answers to trooper's questions).

See generally Commonwealth v. Hason, 387 Mass. 169, 175 (1982),

quoting Commonwealth v. Bond, 375 Mass. 201, 210 (1978) (to

establish probable cause, although police need not make "a prima

facie case of the commission of a crime, let alone a case beyond

a reasonable doubt," "[w]hat ha[s] to be shown [i]s more than a

suspicion of criminal involvement, something definite and

substantial").

Given my views, I do not believe it is necessary to decide

whether the plastic bag and the urine also were discovered

through what amounted to an investigatory search. For

completeness, however, I note my view that they were. The

discarded, fast food bag and other detritus on the floor of the

rear seat were of no apparent interest to someone cataloguing

valuables in the car. See Commonwealth v. Muckle, 61 Mass. App.

Ct. 678, 683 (2004) (observing -- in reference to crumpled fast 25

food bag that police searched during inventorying of car's

contents -- that "[w]hile we recognize that valuables may be

secreted virtually anywhere, a bag of trash is not a customary

storage area for valuables").20 Even if safety concerns

justified Reynolds in checking the discarded fast food bag as

the majority suggests,21 the undisputed facts belie that this was

Reynolds's intent. It would have taken but a glance to

determine that there was no weapon in there. The fact that

after checking the fast food bag, Reynolds then scrutinized the

empty, torn plastic bag found inside to see what type it was and

20In Muckle, we held that evidence found inside the bag had to be suppressed. 61 Mass. App. Ct. at 685. That holding turned on the absence from the police department's written inventory search policy of an authorization of police to open closed containers (an absence not present in the case before us). Id. at 684. However, while compliance with a written inventory search policy may be a necessary prerequisite to an inventory search, the provisions of such a policy cannot override other constitutional requirements. See Sullo, 26 Mass. App. Ct. at 768 (listing compliance with "a standard or routine procedure adopted and recognized by the police force" as only one of three criteria that valid inventory search must satisfy).

21A search of the trash in the rear seat could not be justified as a protective "frisk" of the car, because the defendant had already been removed from the car and was not going to be allowed back in to drive it. See Commonwealth v. Manha, 479 Mass. 44, 50 (2018) (protective sweep of vehicle "must be confined to the area from which the suspect might gain possession of a weapon, either because he is still within the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry" [quotation omitted]). I state no view on whether a search of the bag for weapons was warranted for protection of whatever caretakers were slated to take possession of the impounded car. 26

proceeded to question the defendant about it demonstrated that

his interest in the plastic bag was wholly investigatory, not

custodial. With regard to the cup found to contain urine,

Reynolds himself acknowledged that he opened the cup for the

specific purpose of seeing whether drugs were secreted inside

it, not to see if the cup was being used as a container to store

valuables. See Alvarado, 420 Mass. at 553-554 (even though

relevant inventory search policy stated that "[a]ll closed but

unlocked containers should be opened," opening of coffee maker's

water well held to be "of an investigatory nature" and therefore

not part of valid inventory search).22

My concerns about Reynolds's sweeping search of the

defendant's car are exacerbated by the fact that his suspicions

were built in great part on the defendant's answers to questions

that he had no business asking in the context of a routine

traffic stop. See Cordero, 477 Mass. at 241-242. This is not

to say that Cordero itself requires reversal; in light of the

fact that Reynolds did not improperly detain the defendant after

the traffic stop was, or should have been, completed, the

holding of Cordero plainly does not apply. However, Cordero is

22Alvarado establishes that just because an item found in a car can, for some purposes, be considered an unlocked "container," it does not mean that police necessarily are justified in looking inside it as part of an inventorying of the car's contents. 420 Mass. at 553-554. 27

based on concerns about police improperly using routine traffic

stops to conduct criminal investigations based on hunches that

some of the people they have stopped might be guilty of

unrelated offenses. See id. Those underlying concerns are

equally present here.23

Finally, I address the majority's suggestion that we are

bound by the judge's conclusion that the inventory search here

was not done as a "pretext." The judge drew that conclusion in

the context of distinguishing this case from Commonwealth v.

Ortiz, 88 Mass. App. Ct. 573, 576-578 (2015). His assessment

that -- unlike in Ortiz -- Reynolds did not stop the defendant

in order to search his car is well supported by the record. Nor

was Reynolds's decision that the contents of the car should be

inventoried pretextual in this sense. The problem here is not

that Reynolds was acting in bad faith; indeed, throughout his

testimony, Reynolds was laudably forthcoming about both his

investigatory actions and what motivated them. Rather, the

problem is that once he went beyond a mechanical cataloguing of

the car's contents, he exceeded the "sole justification" for

exempting the search from the constitutional requirement of

23It bears remembering that because of "explicit bias (i.e., racial profiling), unconscious bias, or a combination of both" (footnote omitted), "pretextual [traffic] stops disproportionately affect people of color," even where the driver was not stopped merely for "driving while black." Buckley, 478 Mass. at 876, 878 & n.4 (Budd, J., concurring). 28

probable cause. Sullo, 26 Mass. App. Ct. at 768. At that

point, any efforts to invoke the label of an inventory search

became a "cover" for what amounted to an investigatory search,

which needed to be justified as such.24 Id.

Conclusion. In my view, the Commonwealth was unable to

meet its burden of proving that its discovery of the well-

secreted drug hide here was valid, and the motion to suppress

therefore should have been allowed. Beyond the outcome of this

case, however, I am concerned about the message that the

24Even in the context of discussing police conduct, the cases use the term pretext in different respects. In some cases, the term is used to refer to police officers' having taken an action for a different reason than they claim, that is, misstating their motivations. See Buckley, 478 Mass. at 866-867 (referring to defendant's contention that he was stopped not because of observed traffic violation but for other reasons as allegation of "pretext"). This meaning of the term does not apply here. In Sullo, Justice Kaplan used pretext in a less loaded sense, not to indicate bad faith, but as synonymous with the term "cover." 26 Mass. App. Ct. at 768. In other words, pretext is used in Sullo to refer to where police have initiated a valid inventorying of items they have seized, but their actions have strayed beyond narrow custodial aims. See Murphy, 63 Mass. App. Ct. at 15-16 (evidence must be suppressed not because officer doing inventorying "harbored an investigatory motive," but because his close examination of items seized exceeded purpose of inventorying). That is precisely what occurred here. Assessing whether the inventorying became pretextual in this sense does not require us to divine the "true" motivations of Reynolds, nor does it invade the judge's fact finding role. Rather, it calls upon us to serve our proper role of examining the judge's ultimate findings to see whether he correctly applied constitutional principles. See Mauricio, 477 Mass. at 591, quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004) ("[w]e review independently the application of constitutional principles to the facts found"). 29

majority opinion effectively delivers. That message is that any

time a police officer has a valid justification for having a car

towed, he has free rein to conduct a sweeping investigatory

search of that car without probable cause, under the guise of an

"inventory search," so long as there is a written inventory

search policy in place and the officer does not exceed the

express bounds of that policy. Such a ruling improperly

relieves the Commonwealth of its burden to prove that an

exception to the probable cause requirement is warranted under

the particular circumstances presented. What's more, it

threatens to immunize inventory searches from any meaningful

judicial oversight.