Com. v. Figueroa

• Decision Date: 05 June 1992
• Citation: 592 N.E.2d 1309,412 Mass. 745
• Parties: COMMONWEALTH v. David FIGUEROA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1309

592 N.E.2d 1309

412 Mass. 745

COMMONWEALTH v. David FIGUEROA.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Feb. 4, 1992.

Decided June 5, 1992.

Nona E. Walker, Committee for Public Counsel Services, Scituate, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, David Figueroa, was convicted by a jury in the Superior Court of trafficking in 38.5 grams of heroin. ¹ The heroin was discovered in the defendant's automobile during a roadside inventory search conducted by the Massachusetts State police. Following an evidentiary hearing prior to trial, a judge of the Superior Court denied the defendant's motion to suppress the seized evidence. Following his conviction, the defendant appealed. We transferred the case to this court on our own motion. The defendant argues on appeal that his motion to suppress should have been allowed because the search of his vehicle exceeded the scope of the written inventory policy of the Massachusetts State police and thereby violated his rights under art. 14 of the Massachusetts Declaration of Rights. The defendant also argues that the motion should have been allowed because the heroin was seized from his automobile without a warrant. ² We affirm.

The following facts are drawn from the findings of the motion judge and from the undisputed evidence in the record. At approximately 5 A.M. on August 1, 1989, Trooper Matthew R. Roy of the Massachusetts State police was monitoring traffic by radar on Route 84 near Sturbridge when he observed a white Datsun automobile bearing Massachusetts registration number 462-PGF, travelling in the eastbound lane at a rate substantially in excess of the speed limit. Trooper Roy activated his cruiser's blue lights, pursued the automobile, and caused it to stop on an overpass above Route 131.

The vehicle was occupied by two men: the driver, Harold Lebron, and a passenger, the defendant David Figueroa. Trooper Roy approached the stopped vehicle and asked Lebron for his driver's license and motor vehicle registration. Lebron produced a driver's license that had expired the previous year. The defendant, who stated that he owned the automobile, handed the trooper a motor vehicle registration which matched the license plates on the vehicle but which had been issued to a different automobile.

Trooper Roy returned to his cruiser and conducted a records check of both occupants of the vehicle. The trooper ascertained that neither of the two men held a valid driver's license and that the vehicle was unregistered. He also discovered that four warrants were outstanding for Lebron's arrest. He then radioed for another officer to assist him.

Trooper John E. Hackett responded to Trooper Roy's request. On Trooper Hackett's arrival, Trooper Roy returned to the stopped vehicle, placed Lebron under arrest, and secured him in the cruiser. Meanwhile, Trooper Hackett explained Lebron's arrest to the defendant. Trooper Hackett advised the defendant that it was necessary to tow the defendant's vehicle and that the troopers were required to take an inventory of the vehicle's contents. He further advised the defendant that the troopers would take him to a location where he could obtain a ride home.

After the defendant stepped out from the vehicle, Trooper Hackett commenced the inventory search in the front of the vehicle. During this phase of the search the trooper did not notice anything "of value." The trooper then proceeded to the rear of the vehicle and, from outside of the vehicle, observed that an interior wall panel immediately to the rear of the driver's seat was detached from the wall. The loose panel, which was just below the rear window on the driver's side, created a gap of one to two inches. Trooper Hackett shone his flashlight into this open area and observed a brown paper bag which was wrapped inside a clear plastic or cellophane bag. Based on his training and experience, Trooper Hackett became suspicious that the package contained contraband. He called Trooper Roy to observe what he had located. Trooper Roy, who had been speaking with the defendant, came to the vehicle and shone his flashlight into the open area behind the wall panel. On observing the brown paper bag, Trooper Roy looked toward where the defendant had been standing and discovered that the defendant had fled down an embankment from the overpass and was several hundred yards away on Route 131. Trooper Hackett abandoned his inventory search, seized the package from behind the wall panel, and began to pursue the defendant. Trooper Hackett searched for the defendant unsuccessfully until approximately 7 A.M. ³ Trooper Hackett returned to the State police barracks, where he opened the package he had seized from the defendant's vehicle. The package contained 500 small packets of white powder which subsequent tests revealed to be 38.5 grams of heroin.

1. Scope of inventory search. The defendant's principal argument on appeal is that, by looking into the gap behind the loose wall panel in the defendant's automobile, the troopers exceeded the scope of the Massachusetts State Police Motor Vehicle Inventory Procedure, OPR--26A. ⁴ That procedure provides in part that "[t]he inventory listing of personal items and valuables will extend to all storage areas and compartments that are accessible to the operator and/or passengers." The defendant argues that the area behind the wall panel could not logically be considered a "storage area" or "compartment" and therefore was not the proper focus of an inventory search. The defendant further argues that, by straying from the inventory policy, the troopers violated his rights under art. 14.

The defendant is correct to the extent he argues that art. 14 requires that an inventory search be conducted pursuant to a standardized policy set forth in writing. See Commonwealth v. Garcia, 409 Mass. 675, 569 N.E.2d 385 (1991); Commonwealth v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988). See also Commonwealth v. Rostad, 410 Mass. 618, 574 N.E.2d 381 (1991); Commonwealth v. Ford, 394 Mass. 421, 476 N.E.2d 560 (1985). Such a requirement removes from the individual police officer the discretion to determine the scope of an inventory search and thereby minimizes its intrusiveness. See Commonwealth v. Garcia, supra, 409 Mass. at 681, 569 N.E.2d 385. We disagree, however, with the defendant's argument that, by looking into the area behind the open wall panel in question, the trooper in this case exceeded the scope of the applicable inventory policy. OPR-26A expressly provides that "the inventory listing of personal items and valuables will extend to all storage areas and compartments that are accessible to the operator and/or passengers.... This encompasses all open areas, including the area under the seats, the glove compartment and other places where property is likely to be held" (emphasis supplied). We think it clear that the officers stayed within the confines of this language when looking into the area behind the wall panel because that area was an "open area" at the time the officers conducted their search. We note that this is not a situation where the officers physically uncovered the area in question. Rather, the area was open to their view as they were proceeding with a lawful inventory search of the interior of the vehicle. ⁵ In these circumstances, even if the area were not expressly encompassed by the policy in question, the officers' observation of the area, which came from a lawful vantage point, would be justified under the plain view doctrine. See Commonwealth v. Sergienko, 399 Mass. 291, 294-295, 503 N.E.2d 1282 (1987), and cases cited. ⁶ That the officers employed a flashlight in making their observation does not change our analysis. See Commonwealth v. Sergienko, supra at 295, 503 N.E.2d 1282; Commonwealth v. Cavanaugh, 366 Mass 277, 281, 317 N.E.2d 480 (1974); Commonwealth v. Oreto, 20 Mass.App.Ct. 581, 584-585, 482 N.E.2d 329 (1985).

2. Seizure of the contraband. The defendant also challenges the warrantless seizure of the bag from behind the wall panel. Our conclusion that the State police inventory policy encompassed the area from which the bag was seized does not resolve this question because the motion judge specifically found that Trooper Hackett had abandoned his inventory search prior to seizing the bag. Thus, because the bag was seized without a warrant, the Commonwealth bore the burden of proving that the seizure was justified by one of the other recognized exceptions to the warrant requirement. See Commonwealth v. Ortiz, 376 Mass. 349, 353, 380 N.E.2d 669 (1978). In denying the defendant's motion to suppress, the motion judge apparently accepted the Commonwealth's argument that the seizure was justified because the trooper possessed probable cause to believe the package contained contraband ⁷ and because there were exigent circumstances which made obtaining a warrant impracticable. ⁸ The undisputed findings of the motion judge support this conclusion. ⁹

The motion judge found that, prior to seizing the package in question, Trooper Hackett was apprised of the following facts and circumstances. A brown paper package wrapped in clear cellophane or plastic was partially concealed in a makeshift compartment in the defendant's automobile. Based on his previous experience, including an instance where he had discovered illegal drugs in a similar location during a search of an automobile, Trooper Hackett knew from the nature of the package and its place of concealment that the package contained contraband. After the trooper became suspicious and asked Trooper Roy to observe the package, the defendant suddenly fled the scene. These circumstances were sufficient "to warrant a person of reasonable caution in believing" that the package contained contraband, and thus were sufficient to establish...