Commonwealth v. Barbosa, 16–P–1030

• Decision Date: 03 January 2018
• Docket Number: No. 16–P–1030,16–P–1030
• Citation: 92 Mass.App.Ct. 587,91 N.E.3d 682
• Parties: COMMONWEALTH v. Aderito BARBOSA.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 587

91 N.E.3d 682

COMMONWEALTH

v.Aderito BARBOSA.

No. 16–P–1030

Appeals Court of Massachusetts, Suffolk..

Argued September 8, 2017

Decided January 3, 2018

Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.

Michael P. Doolin, Dorchester, for the defendant.

Present: Rubin, Neyman, & Henry, JJ.

NEYMAN, J.

After an evidentiary hearing, a Superior Court judge allowed, in part, the defendant's motion to suppress evidence. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to file an interlocutory appeal, and reported the matter to this court. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The sole issue is whether the judge erred in suppressing a statement made by the defendant based on limitations set forth in G. L. c. 276, § 1, and Commonwealth v. Blevines, 438 Mass. 604, 782 N.E.2d 491 (2003), regarding the use of evidence seized incident to an arrest. We reverse.

Background. The parties do not contest the judge's comprehensive findings of fact, which we summarize, supplemented where appropriate by the testimony from the motion hearing.¹ See Commonwealth v. Jones–Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). This case stems from an investigation into the crime of trafficking of persons for sexual servitude, G. L. c. 265, § 50 (human trafficking),² which was prompted by an illicit online advertisement on the Web site Backpage.com (Backpage). On May 7, 2015, as part of that investigation, Detective Ludwik Bartkiewicz, along with State and Federal law enforcement officers, went to the Park Plaza Hotel (hotel) in Boston to locate the person who had posted the advertisement on Backpage.³ Around 10:00 A.M. , the officers met the hotel's head of security on the first floor of the hotel. One of the officers, Agent Tony Freitas, telephoned the number listed in the Backpage advertisement. A woman answered and told him to come to the fifth floor via the service elevator. Agent Freitas stayed behind while the other officers followed her direction by taking the service elevator to the fifth floor. Agent Freitas then telephoned the number again. The woman told him to come to room 540. Agent Freitas relayed this information to Detective Bartkiewicz, who was among the officers on the fifth floor. The officers proceeded to room 540, knocked on the door, identified themselves as law enforcement to the woman who answered, and asked to speak with her. The woman invited them into the room. Upon learning that she was speaking with law enforcement officers, she "became very agitated." She "was visibly crying and shaking." She told the officers, "You guys can't be here. He's coming." Detective Bartkiewicz observed that the room was "sort of disheveled." He also noticed that the woman had a telephone in her hand that was continuously ringing.

Agent Freitas then contacted Detective Bartkiewicz and advised that the defendant, who was the target of the investigation,⁴ was heading upstairs. Detective Bartkiewicz observed the defendant and Agent Freitas step out of the elevator onto the fifth floor. Agent Freitas nodded toward the defendant "to confirm for Bartkiewicz that [the defendant] was the man Freitas had been waiting for." The defendant walked from the elevator toward room 540. After the defendant walked past him, Detective Bartkiewicz stated that he was a police officer and asked to speak with the defendant. The defendant was approximately eight to ten feet from room 540 at this time. Next, the following occurred:

"[The defendant] stopped walking, turned toward Bartkiewicz, and said [,] ‘No.’ [The defendant] then started to put his right hand, the one holding the cell phone, in his pocket. So Bartkiewicz took a few steps forward, told [the defendant] to keep his hands [out of] his pocket, and put his own hand on [the defendant's] right hand, to ensure that [the defendant] kept it in sight. Bartkiewicz then reiterated, ‘[W]e just want to talk to you.[’]

"In response, [the defendant] said[,] ‘No, I don't need to talk to you.’ [The defendant] then put his hands on Bartkiewicz's shoulders, pushed Bartkiewicz out of his way, and started to run back toward the elevators. [The hotel's head of security], who was also in the hallway, blocked [the defendant's] path and pushed [him] into a door. [The defendant] fell, got back up, and ran toward the elevators. Agt. Freitas and Agt. [Peter] Darling grabbed, subdued, and eventually handcuffed [the defendant]. By this point [the defendant] was lying face down on the floor. The officers put [the defendant] in a sitting position.

"Det. Bartkiewicz informed [the defendant] of his Miranda rights.... Bartkiewicz patted [the defendant] down and searched his pockets. [Bartkiewicz] found and removed a hotel room key, a knife, about $500 in cash, and some prepaid credit cards from [the defendant's] pants pockets. Bartkiewicz asked [the defendant] what room the key was for. [The defendant] said it was Room 540.... Bartkiewicz then asked [the defendant] who was in the room. [The defendant] said that he wanted a lawyer."

The judge ruled that Detective Bartkiewicz lawfully placed the defendant under arrest for assault and battery on a police officer, properly searched him for weapons incident to that arrest, and "acted lawfully in frisking [the defendant] and removing the knife from his pocket." The judge concluded that the room key would have properly and inevitably been seized under an inventory search at booking and, thus, should not be suppressed. He further held that the defendant's statement about the room key was voluntary, and "that he made a knowing, intelligent, and voluntary waiver of his Miranda rights."⁵ However, the judge, sua sponte,⁶ suppressed the defendant's statement that the room key found in his pocket was for room 540. The judge concluded that Detective Bartkiewicz "was not entitled to inspect the hotel key, cash, and credit cards as a search incident to arrest" and, in violation of G. L. c. 276, § 1, improperly used the room key "for an investigatory purpose, i.e., asking [the defendant] what room it went to." This interlocutory appeal ensued.

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." ’ " Commonwealth v. Keefner, 461 Mass. 507, 515–516, 961 N.E.2d 1083 (2012) (citation omitted). "We ‘make an independent determination of the correctness of the judge's application of constitutional principles.’ " Commonwealth v. Cassino, 474 Mass. 85, 88, 48 N.E.3d 27 (2016) (citation omitted).

The Commonwealth argues that the judge erred in suppressing the defendant's statement because the initial discovery of the room key attended a proper search incident to arrest for the crime of assault and battery on a police officer, and the room key had immediate evidentiary significance vis-à -vis the crime of human trafficking, which the officers were then investigating. The defendant responds that the judge correctly ruled that, under Blevines, 438 Mass. at 609, 782 N.E.2d 491, the room key had no relationship to the crime for which he was arrested, i.e., assault and battery on a police officer, and thus the judge properly determined that the room key could not be used for an investigatory purpose without violating G. L. c. 276, § 1. Massachusetts law compels reversal of the suppression of the defendant's statement.

As an initial matter, G. L. c. 276, § 1, "does not operate as a bar to the admission of all evidence discovered in the course of a search incident to a lawful arrest other than weapons or evidence of the crime for which the defendant is arrested."⁷

Commonwealth v. Dessources, 74 Mass.App.Ct. 232, 235, 905 N.E.2d 586 (2009). Our appellate courts have concluded that "the limitation on admissibility of evidence expressed in G. L. c. 276, § 1, does not bar the admission of new evidence discovered during a search incident to a lawful arrest ... when that new evidence is immediately apparent as contraband or evidence of other criminality." Dessources, supra at 236–237, 905 N.E.2d 586, citing Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555 (1992). See Commonwealth v. Clermy, 421 Mass. 325, 330–331, 656 N.E.2d 1253 (1995).

In the present case, the parties do not dispute the judge's determination that the officers arrested the defendant for assault and battery on a police officer, and acted lawfully in frisking him. See, e.g., Blevines, supra at 608, 782 N.E.2d 491 ("Following an arrest, the police are justified in searching a defendant. A hard object found, such as keys, may be seized"). See also Clermy, supra at 327–330, 656 N.E.2d 1253 (motion to suppress properly denied where officers arresting defendant on warrant conducted patfrisk that revealed electronic beeper, cash, and, subsequently, pursuant to further frisk, plastic bottle for prescription medicine located between defendant's legs). Indeed, in view of the judge's conclusion that the room key properly and inevitably would have been found and seized,⁸ the defendant acknowledges that the room key "could be removed from the defendant." However, citing Blevines, he claims that, once it was removed, "it could absolutely not be used for investigatory purposes." This contention applies Blevines too broadly.

In Blevines, 438 Mass. at 605, 782 N.E.2d 491, the defendant was arrested for drinking in public. During a postarrest patfrisk of the defendant, a State police trooper recovered a key chain with five keys from the defendant's rear pocket. Ibid. The trooper subsequently gave the keys to a second trooper and told him to "see if any of these fit any of the cars in the parking lot" in order to identify the defendant, whom they believed had provided a false name. Id. at 605, 606, 782 N.E.2d 491. The second trooper approached a motor vehicle parked nearby and inserted...