Com. v. Garcia

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation569 N.E.2d 385,409 Mass. 675
PartiesCOMMONWEALTH v. Saturnino GARCIA, Jr. (and a companion case 1 ).
Decision Date03 April 1991

Page 385

569 N.E.2d 385
409 Mass. 675

Saturnino GARCIA, Jr.
(and a companion case 1).
Supreme Judicial Court of Massachusetts,
Argued Dec. 5, 1990.
Decided April 3, 1991.

Page 386

[409 Mass. 676] John J. Russell, for Saturnino Garcia, Jr.

James E. McCall, for Albert F. Heredia.

Claudia R. Sullivan, Asst. Dist. Atty., for the Com.

Before [409 Mass. 675] LIACOS, C.J., and ABRAMS, O'CONNOR and GREANEY, JJ.

[409 Mass. 676] ABRAMS, Justice.

The defendants, Saturnino Garcia and Alberto Heredia, appeal from convictions of trafficking in cocaine in violation of G.L. c. 94C, § 32E. Both defendants contend that the trial judge improperly denied their motions to suppress cocaine seized from the trunk of the vehicle which Garcia drove and in which Heredia was a passenger. Heredia also claims error in the judge's denial of a motion to suppress statements he made while in the police station. Garcia claims that the judge should have allowed his motion for a required finding of not guilty. We agree with Garcia that the evidence against him was insufficient to support a conviction. We also conclude that the cocaine was properly admitted in evidence, and that Heredia's statements also were properly admitted. We therefore reverse Garcia's conviction and affirm Heredia's conviction.

We set forth the facts as found by the judge. Garcia was driving a vehicle on Route 84 in Sturbridge at about 1:30 A.M. on January 24, 1989. Heredia was a passenger in the vehicle. A State trooper stopped the vehicle because it was exceeding the speed limit, and asked Garcia for his driver's license and motor vehicle registration. Garcia produced a motor vehicle registration showing the owner of the vehicle as Jose Marte. Garcia was unable to produce a driver's license. Heredia showed the trooper his driver's license. Garcia told the trooper that he was a licensed driver, although he did not have the license on his person. The trooper used his cruiser radio to request a computer check on the status of [409 Mass. 677] Garcia's license. The computer did not indicate that Garcia held a driver's license. Garcia, however, continued to insist that he held a valid license. As a result, the trooper requested that Garcia return with him to the nearby State police barracks so that the question of Garcia's license could be clarified. Garcia agreed. The trooper led the way in his cruiser. Heredia drove the other vehicle and followed the trooper. Heredia parked the vehicle directly in front of the State police barracks. Heredia and Garcia waited in

Page 387

the lobby of the barracks while the trooper ran further checks on the licenses of both Garcia and Heredia. He discovered that no license was in effect for Garcia, and that several warrants were outstanding for the arrest of Heredia. The warrants were for drug-related offenses, and were "nonbailable." The trooper arrested each defendant. At some point, the trooper telephoned directory assistance in Boston in an attempt to locate Jose Marte, the owner of the vehicle. He did not discover Marte's telephone number. He asked another trooper to call a tow company to remove the vehicle, and to begin an inventory of the vehicle. The second trooper took the vehicle's keys and performed an inventory search of the vehicle. In the course of this procedure, he unlocked the trunk of the vehicle and inspected it. There were various items in each of the wheelwells in the trunk. One of these items was a brown paper bag, about six inches by twelve inches. The top of the bag was wrinkled, as if it had been rolled up, but was no longer rolled up. The trooper picked up the bag and observed that the bag contained a hard, brick-shaped substance. He could see that the substance was wrapped in aluminum foil. He unwrapped the foil slightly, and observed an inner wrapping of foil which was heat sealed. One corner of the inner foil was split, and the trooper could see a white substance. The trooper knew from his training and experience that cocaine is often packaged in this manner. He then seized the bag, which later analysis proved to contain cocaine. An inventory form was completed, and the vehicle was towed. Garcia and Heredia were convicted of trafficking in cocaine. We transferred their appeal to this court on our own motion.

[409 Mass. 678] 1. Motion to suppress the cocaine. Both defendants contend that the judge erred in denying their motions to suppress the cocaine seized from the trunk of the vehicle. Heredia argues that the search violated his rights under the Fourth Amendment to the United States Constitution. Garcia argues that his rights under art. 14 of the Massachusetts Declaration of Rights also were violated. The motions to suppress filed by the defendants sought the suppression of the cocaine seized as a result of the inventory search.

A. The impoundment of the vehicle. On appeal, both defendants argue that the inventory search was improper because the police were not justified in impounding the vehicle. 2 We agree that the propriety of the impoundment of the vehicle is a threshold issue in determining the lawfulness of the inventory search. Neither defendant, however, raised this issue at the suppression hearing or at trial. Thus, the judge made no findings of fact concerning the circumstances surrounding the impoundment of the vehicle at the police barracks. 3 Nor are there any findings of fact whether the automobile was lawfully parked where it was first stopped and need not have been driven to the station.

"An issue not fairly raised before the trial judge will not be considered for the first time on appeal. Commonwealth v. Lewis, 346 Mass. 373, 383 [191 N.E.2d 753] (1963), cert. denied, 376 U.S. 933 [84 S.Ct. 704, 11 L.Ed.2d 653] (1964)." Commonwealth v. Marchionda, 385 Mass. 238, [409 Mass. 679] 242, 431 N.E.2d 177 (1982). Commonwealth v. Cote, 386 Mass. 354, 435 N.E.2d 1047 (1982). See United States v. Medina, 887 F.2d 528, 533 (5th Cir.1989); United

Page 388

States v. Acevedo, 842 F.2d 502, 508 (1st Cir.1988); United States v. White, 766 F.2d 22, 25 (1st Cir.1985); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). While we do have the power to consider such issues, we exercise it only in the rare instance of a serious error which creates a substantial risk of a miscarriage of justice. Commonwealth v. Oakes, 407 Mass. 92, 94-95, 551 N.E.2d 910 (1990). Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609, 511 N.E.2d 344 (1987). This is not such a case. The parties failed to develop any evidence on the issue of the propriety of the impoundment of the vehicle, either at the suppression hearing or at trial. Because the defendants failed to raise this issue below, they cannot raise it on appeal.

Heredia also claims that the police impounded the vehicle in order to gain a pretext for an investigative search because there was no probable cause to search the vehicle. Heredia's counsel argued at the suppression hearing that the trooper opened the trunk because he was looking for drugs. The judge, however, found that an inventory search was performed in accordance with established State police procedures. "In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). The fact that police know of an outstanding warrant does not render unlawful any subsequent inventory of a towed vehicle. "[T]aking an inventory of the contents of a [vehicle] about to be towed or impounded is a reasonable procedure; and the 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. Matchett, 386 Mass. 492, 510, 436 N.E.2d 400 (1982), quoting Commonwealth v. Tisserand, 5 Mass.App.Ct. 383, 386-387, 363 N.E.2d 530 (1977).

The facts found by the judge and supported by the evidence at the suppression hearing indicate that the trooper asked Garcia to accompany him to the State police barracks [409 Mass. 680] rather than issuing him a citation on the road because of Garcia's continued insistence that he was licensed. The trooper did not ask the defendants about contraband when he stopped the vehicle or when he arrested them. The trooper called the tow truck almost immediately after he arrested the defendants, and the vehicle was towed shortly thereafter. Written standard procedures required that an inventory be made when a vehicle was towed. A trooper prepared an inventory list of those items which were left with the vehicle, for which the police department would be liable.

The facts of this case distinguish it from the ruling in Commonwealth v. Woodman, 11 Mass.App.Ct. 965, 417 N.E.2d 469 (1981), that an inventory search was unlawful. In Woodman, the defendant had been arrested for assault and battery by means of a dangerous weapon. His vehicle was taken to the police station where it remained for two days. An officer, according to his own testimony, then searched the vehicle in order to perform an inventory as well as to look for a missing knife. The Appeals Court concluded that the knife discovered by the officer must be suppressed because the search was not lawful as a noninvestigative inventory. The fact that the officer was looking for a knife led the Appeals Court to conclude that the inventory search was unlawful. Those facts are not relevant to the issue in this case. The judge's conclusion that the trooper conducted an inventory search according to the requirements of established policy is supported by the evidence.

B. Inventory procedure. The defendants next argue that the trial judge should have suppressed evidence of the cocaine because police were not authorized by written procedures to open a locked trunk in the...

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