Com. v. King, 05-P-1116.

• Decision Date: 15 December 2006
• Docket Number: No. 05-P-1116.,05-P-1116.
• Parties: COMMONWEALTH v. James M. KING (and nine companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

858 N.E.2d 308

67 Mass. App. Ct. 823

COMMONWEALTH v. James M. KING (and nine companion cases¹).

No. 05-P-1116.

Appeals Court of Massachusetts, Suffolk.

Argued June 16, 2006.

Decided December 15, 2006.

COPYRIGHT MATERIAL OMITTED

Timothy M. Pomarole, Assistant District Attorney, for the Commonwealth.

Daniel F. de Abreu for Louis E. Chighisola.

Brad P. Bennion for James M. King.

Present: LAURENCE, GELINAS, & COHEN, JJ.

LAURENCE, J.

Charged principally with possession with intent to distribute various controlled substances within a school zone, the three defendants moved to suppress the drugs and drug paraphernalia discovered by State troopers after stopping the defendants' motor vehicle for a lane change violation. The Commonwealth appeals² from a decision of a judge of the South Boston Division of the Boston Municipal Court Department allowing the defendants' motions, on the ground that the police lacked probable cause to effect the warrantless search and seizure that uncovered the inculpatory materials. The Commonwealth asserts that the motion judge erred because probable cause to search existed following police observation of "a piece of green, leafy vegetable matter" on the driver's seat. We agree, however, with the judge that the Commonwealth produced no credible evidence at the suppression hearing demonstrating probable cause to search, as was its burden under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.

Background. The facts as found by the motion judge—none of which is challenged as clearly erroneous by the Commonwealth—are as follows.³ At approximately 2 P.M. on May 6, 2004, State Trooper Robert Coletti (who was the only Commonwealth witness to testify at the suppression hearing) stopped a motor vehicle occupied by the defendants—James King, Louis Chighisola, and Marc Coriaty—for making a lane change without a proper turn signal on Old Colony Avenue in the South Boston section of Boston. Upon questioning the defendants and running routine computer queries on their names, Coletti discovered that King was the subject of an outstanding arrest warrant and that Chighisola, the driver of the car, had a suspended driver's license.

After Coletti radioed for assistance, several more State troopers arrived on the scene. Coletti placed King in custody in the back seat of his cruiser. Since Chighisola's driver's license was suspended, Coletti ordered him to exit the vehicle and conducted a patfrisk, which revealed nothing.⁴ One of the other State troopers on the scene, Kevin Young, then called Coletti's attention to "a piece of green, leafy vegetable matter" on the driver's seat. Coletti did not himself observe the "green, leafy vegetable matter" directly.⁵

As a result of his being told of the substance on the seat, Coletti removed Coriaty from the vehicle and conducted a search of the passenger compartment, during which he discovered a hidden compartment in the center console. In the ensuing search, the troopers found and seized Oxycontin pills, as well as other illegal drugs and drug paraphernalia. All of the defendants were subsequently placed under arrest. Each defendant was later charged for the crimes of possession with intent to distribute a class B controlled substance, G.L. c. 94C, § 32A(b); possession of a class D controlled substance, G.L. c. 94C, § 34; and possession of controlled substances within 1,000 feet of a school, G.L. c. 94C, § 32J. Chighisola was also charged with operating a motor vehicle with a suspended license, G.L. c. 90, § 23.⁶

Discussion. In reviewing the allowance of a motion to suppress, we accept the motion judge's "subsidiary findings of fact absent clear error `but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). Those conclusions of law, while subjected to independent review, are still "view[ed] with particular respect." Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990), citing Commonwealth v. Bottari, 395 Mass. 777, 780, 482 N.E.2d 321 (1985).

It is well-established that warrantless searches, such as the one at issue here, are presumptively unreasonable under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.⁷ See Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (Coolidge); Commonwealth v. Antobenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). The evidence obtained as a result of a warrantless search is presumed to be inadmissible, unless the Commonwealth meets its burden of proving that the "particular search falls within a narrow class of permissible exceptions." Ibid.

The Commonwealth essentially contends that the instant search was justified under the "plain view" exception to the warrant requirement. That exception "permits police to seize property not described in a warrant provided (1) the officers are lawfully in the place where the seized items are observed, and (2) the `incriminating character [of the object seized] is immediately apparent' (emphasis supplied), and (3) the officers have a lawful right of access to the object." Commonwealth v. Cruz, 53 Mass.App.Ct. 24, 33, 756 N.E.2d 1175 (2001), quoting from Commonwealth v. Santana, 420 Mass. 205, 211, 649 N.E.2d 717 (1995). See Coolidge, supra at 466-468, 91 S.Ct. 2022. Under art. 14 of the Massachusetts Declaration of Rights, it is also required that the police come across the incriminating item inadvertently in order for the plain view exception to apply.⁸ See Commonwealth v. Balicki, 436 Mass. 1, 9-10, 762 N.E.2d 290 (2002).

Notwithstanding the lack of any testimony from Trooper Young,⁹ the Commonwealth argues that the search in the present case falls within the plain view exception as defined in Commonwealth v. Cruz, supra. It asserts that the police properly stopped the motor vehicle after observing a traffic violation, see Commonwealth v. Santana, supra at 207, 649 N.E.2d 717, and properly ordered King and Chighisola out of the vehicle based on Trooper Coletti's reasonable belief that "criminal behavior in addition to the traffic violation was afoot."¹⁰ Commonwealth v. Torres, 433 Mass. 669, 674, 745 N.E.2d 945 (2001). Therefore, the Commonwealth contends, the search met the first criterion of Commonwealth v. Cruz, supra, that the police officers were "lawfully in the place where the seized items [were] observed."¹¹ We are not persuaded by what is a conclusory and speculative argument. The judge's findings of fact do not indicate whether Young observed the "green, leafy vegetable matter" from a vantage point outside the vehicle, or whether he had entered the vehicle before discovering that substance. The Commonwealth asserts that "[b]y all indications, the substance was seen from outside the automobile. Thus, police were in a lawful position to see it." The Commonwealth cannot, however, support this conclusion on the record presented to us.¹²

The Commonwealth nonetheless posits that the search was justified under the plain view exception on the ground that the police had a lawful right of access to the green, leafy vegetable matter¹³ because its incriminating character was immediately apparent.¹⁴ That assertion also finds no basis in the record before us.¹⁵ Under the facts as found by the motion judge, Trooper Young was the only officer on the scene to have observed the "green, leafy vegetable matter" on the driver's seat of the defendants' automobile. As previously noted, Young was not called as a witness at the suppression hearing. Consequently, no testimony was presented regarding whether he reasonably believed—on the basis of his training and experience—that the vegetable matter was marijuana; as also noted, Trooper Coletti's testimony on this point was expressly disbelieved by the judge. The Commonwealth additionally failed to offer any details about the size or shape of the since-vanished "vegetable matter," nor did it suggest that the substance was in any way suspiciously packaged, covered, or enclosed (for example in a plastic bag).¹⁶

We cannot now assume that an undescribed particle of unknown green vegetable matter—that, for all we can glean from the record, might have been a remnant of lettuce from a sandwich—can be equated to illegal contraband without competent supporting evidence not contained in this record. Contrast Commonwealth v. Miller, 366 Mass. 387, 387-389, 318 N.E.2d 909 (1974) (probable cause to search vehicle created when experienced officer observed a "green substance" that he believed to be marijuana in a plastic baggie protruding from the defendant's pocket). Compare Commonwealth v. Garcia, 34 Mass.App.Ct. 645, 650, 614 N.E.2d 1031 (1993) (plain view observation of empty plastic baggie on rear floor of vehicle did not provide probable cause to search interior). See also cases cited in note 12, supra.

The Commonwealth invokes the "collective knowledge" doctrine, or "fellow officer" doctrine, pursuant to which the knowledge of one officer is imputed to others, see Richardson v. Boston, 53 Mass. App.Ct. 201, 206, 758 N.E.2d 629 (2001), in an effort to establish that Trooper Young's observation as communicated to Trooper Coletti was sufficient to justify the search.¹⁷ The Commonwealth's reliance on that doctrine is misplaced. The collective knowledge principle does not extend to allowing an officer to offer hearsay testimony as to what another, nontestifying officer allegedly observed, nor does it permit the Commonwealth to evade its burden of showing that the warrantless search was supported by probable cause. On the limited record presented to us, we have no way of determining how Young discovered the substance, where he was at the time what he believed it to be, or whether his belief could be deemed...