Com. v. Clermy

• Citation: 656 N.E.2d 1253,421 Mass. 325
• Parties: COMMONWEALTH v. Carlo CLERMY.
• Decision Date: 10 November 1995
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1253

656 N.E.2d 1253

421 Mass. 325

COMMONWEALTH v. Carlo CLERMY.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Oct. 2, 1995.

Decided Nov. 10, 1995.

David P. Sorrenti, Brockton, for defendant.

Mary E. Mullaney, Assistant District Attorney, for Com.

Before LIACOS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

GREANEY, Justice.

After a jury-waived trial in the District Court, the defendant, Carlo Clermy, was found guilty of possession of cocaine, G.L. c. 94C, § 34 (1994 ed.), and possession of cocaine with intent to distribute, G.L. c. 94C, § 32A (1994 ed.). The defendant argues that it was error to deny (1) his motion to suppress cocaine seized from him at the time of arrest; (2) his motion for a required finding of not guilty; and (3) his motion to dismiss the complaint for possession of cocaine as duplicative of the complaint for possession of cocaine with intent to distribute. The Appeals Court upheld the orders denying the defendant's motions to suppress and for a required finding of not guilty. See Commonwealth v. Clermy, 37 Mass.App.Ct. 774, 643 N.E.2d 1059 (1995). The Appeals Court also concluded that there was impermissible duplication in the two convictions and ordered resentencing. We granted the defendant's application for further appellate review. We conclude that the defendant's motion to suppress was properly denied, although our reasoning differs somewhat from that of the trial judge. We agree with the Appeals Court's determination of the other two issues.

1. The judge, who conducted an evidentiary hearing on the defendant's motion to suppress, made written findings of fact and conclusions of law, which, with minor additions from the testimony, can be recounted as follows. The defendant was arrested on an outstanding motor vehicle default warrant by two State police troopers who were operating undercover. The troopers were engaged in work involving narcotics and the apprehension of violent fugitives. The outstanding warrant on the defendant had come to their attention when they arrested the defendant's brother about two weeks before the defendant's arrest. The troopers first observed the defendant sitting on the steps of a boarded-up building which had been condemned by the city of Brockton and known to police as a "crack house". After circling the block and confirming from a photograph in their possession that the defendant was Carlo Clermy, the troopers pulled over and beckoned to the defendant. The defendant, who appeared nervous, agreed that he was Carlo Clermy. The troopers placed him under arrest on the outstanding warrant and conducted a cursory pat frisk which uncovered an electronic beeper (or paging device), and about sixty dollars in cash. The troopers placed the defendant, with his hands cuffed behind his back, in the rear of the automobile. One of the troopers then conducted a second more thorough search of the defendant during which the trooper felt a hard object "down between [the defendant's] legs," in the area of his genitals. The trooper reached inside the defendant's pants and retrieved a three-inch opaque brown plastic bottle for prescription medicine, covered with a white cap. Because the trooper was not able to see inside the bottle, he removed the cap and discovered twenty-five individually wrapped pieces of a hard white material which the trooper believed to be crack cocaine. The defendant was informed that he also would be charged with possession of a controlled substance with intent to distribute.

The judge expressly found that the troopers conducted the search that yielded the prescription bottle out of concern for their safety. The judge described the situation facing the police in the following terms: "Even although the defendant's hands were handcuffed behind his back the officers still considered him a security risk as far as their safety was concerned. Based on their own personal experience, they had several prisoners who were able to get their hands in front of themselves and present a danger to the officers. In addition, [the officers' automobile] was not a standard police cruiser and therefore had no protective screen between the front and rear seats. Furthermore, the officers knew that they were in a very high crime area based on the fact that they had made eight serious drug arrests at [the] address [where the defendant was arrested] in addition to an arrest of a violent fugitive."

Based on his findings, the judge reached the following conclusion: "Under the totality of the circumstances, I find that the officers acted properly in conducting the second search considering the high crime area, the proximity to a known crack house, the officers' personal knowledge of the criminal activity in this area and the fact the unmarked vehicle did not provide the normal security of a marked police cruiser. The safety of the officers dictated that a thorough search of the defendant be made prior to his being transported to the police station for 'booking' on the outstanding warrant plus the new drug charges." ¹

We consider the legality of the troopers' conduct under the familiar standard that the judge's findings of fact are accepted in the absence of a clear error (the findings here are all warranted on the evidence heard by the judge), and we accord deference to the judge's legal conclusions, keeping in mind that issues of constitutional dimension are reserved to the reviewing court for final decision. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). Commonwealth v. Doucette, 391 Mass. 443, 447, 462 N.E.2d 1084 (1984).

The search which uncovered the prescription bottle was constitutionally valid. Since the police had made a valid arrest, they were authorized by G.L. c. 276, § 1 (1994 ed.), in conformity with governing Federal and State constitutional principles, to conduct a contemporaneous search of the defendant for the purpose (as the statute put it) of "removing any weapons that the arrestee might use to resist arrest or effect his escape." See Commonwealth v. Santiago, 410 Mass. 737, 743, 575 N.E.2d 350 (1991). The troopers' initial search of the defendant was very brief and intended to permit the troopers to place the handcuffs on the defendant. Once the defendant was in the back seat of the cruiser, one of the troopers conducted a "more detailed pat frisk to make sure there [were] no weapons down between his legs." As the judge noted, the troopers were entitled to ensure that the defendant was not carrying a weapon. That he was in the vehicle and in handcuffs did not guarantee their safety. The troopers knew from personal experience that arrestees in handcuffs had been able to get their hands in front of themselves, and, because the troopers were in an unmarked cruiser, the defendant would not be separated from them by the usual protective screening. The area where the defendant was arrested was one considered by the troopers to be dangerous. In addition, the troopers reasonably could have believed that the hard object in the defendant's groin area might be a weapon. "[I]t was necessary for the protection of [the officer] and others to take swift measures to discover the true facts and neutralize the threat of harm [before] it materialized." Commonwealth v. Johnson, 413 Mass. 598, 601, 602 N.E.2d 555 (1992), quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). The words "removing any weapons" used in G.L. c. 276, § 1, clearly permit, incident to arrest, a search for and visual examination of a concealed object that might be amenable to use as a weapon.

The judge did not address specifically the contention that, even if the troopers were entitled for reasons of exigency to remove the prescription bottle from the defendant's possession, they were not entitled to open the bottle (a closed container) once it was securely in their possession. ² We agree that concerns for safety could not justify opening the container once the troopers had taken it from the defendant. Even if it is assumed that the prescription bottle might have contained a weapon, "the risk of the defendant successfully repossessing the [bottle] was minimal. We prefer not to rely on the existence of a tenuous or perhaps even imaginary exigency to uphold the search." Commonwealth v. Madera, 402 Mass. 156, 160, 521 N.E.2d 738 (1988).

Although we do not rest our conclusion on a ground on which the judge relied, we reach the same result for different reasons. See Commonwealth v. Bennett, 414 Mass. 269, 271, 607 N.E.2d 408 (1993). We concluded, in the Madera case, that art. 14 does not bar the search of a closed container seized from a defendant who has been lawfully arrested on probable cause when "there is also probable cause to believe that the [container] contains evidence of the crime for which the arrest was made." Id. at 161, 521 N.E.2d 738. See also G.L. c. 276, § 1 (search conducted...