Commonwealth v. Darosa
| Decision Date | 08 January 2019 |
| Docket Number | No. 16-P-1666,16-P-1666 |
| Citation | 94 Mass.App.Ct. 635,118 N.E.3d 131 |
| Parties | COMMONWEALTH v. Augusto DAROSA. |
| Court | Appeals Court of Massachusetts |
Eric W. Ruben for the defendant.
Johanna S. Black, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Trainor, Rubin, Shin, & McDonough, JJ.1
The defendant appeals from his conviction of possession with intent to distribute marijuana.2 The police recovered the marijuana during a traffic stop, which led to a search of the defendant's vehicle because he did not have a valid driver's license. With probable cause to arrest for the license violation, two detectives searched the front compartment of the vehicle while the defendant, already pat frisked, sat at the rear of the vehicle, guarded by a third detective. The motion judge found the search lawful and denied the defendant's motion to suppress on the rationale that, because the detectives had not yet decided whether to arrest the defendant, they were entitled to conduct a "protective sweep prior to allowing [him] to return to his vehicle." But the evidence did not show, and the Commonwealth did not argue, that the detectives had a reasonable belief that the defendant was armed and dangerous, and the detectives did not decide to arrest him until they discovered contraband during a more thorough search conducted after the arrival of a K-9 unit.3
No recognized exception to the warrant requirement applies in these circumstances. To hold otherwise would confer a police entitlement to search based on probable cause to arrest for any offense, including minor traffic offenses, in contravention of G. L. c. 276, § 1,4 and the United States Supreme Court decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Because the items seized from the defendant's vehicle were fruits of the unlawful search, the motion to suppress should have been allowed. We therefore vacate the judgment and set aside the verdict.5
Factual background. We summarize the facts as found by the judge and as derived from the detectives' testimony at the suppression hearing, which the judge implicitly credited in full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007). Brockton police Detective Brian Donahue was on patrol on Main Street in Brockton around 10:15 P.M. He was in an unmarked vehicle and accompanied by Detective William Carpenter and Detective Sergeant Frank Vardaro. Main Street is a heavily traveled one-way road with two lanes and parking on both sides. The surrounding area is a commercial district, "densely populated" with retail businesses, bars, and nightclubs. It is also an area "with a high instance of criminal activity" including "narcotic activity."
As the detectives traveled on Main Street, a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes. The vehicles were stopped in an area that was heavily trafficked and illuminated by lights from a nearby court house and businesses. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified that it was consistent with a drug sale. In fact, two detectives affirmatively testified that the transfer did not resonate as suspicious based on their training and experience.6
Because the minivan was blocking traffic, Donahue sounded his horn. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling. Donahue then activated the emergency lights on his vehicle and effectuated a traffic stop without incident.
The defendant was the driver and only occupant of the minivan. Upon Donahue's request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver's compartment. When Donahue asked what he was looking for, the defendant replied, "[my] license," prompting Donahue to ask, "[W]hy are you looking for it if you already told me you don't have it with you?" The defendant then stopped looking around and complied with Donahue's request to write down his name and date of birth. Leaving the defendant in the minivan, Donahue returned to his vehicle and conducted a computer query, which revealed that the defendant's license was revoked and that he had a criminal record for narcotics violations.7
Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue agreed that the defendant did not "do anything other than cooperate" during the course of the stop. Likewise, Carpenter agreed that he saw "nothing ... in [the defendant's] manner, mood, gestures, or anything else" to suggest that he was going to pose a "problem." Four officers testified in total, and none indicated that the defendant appeared to be armed and dangerous. Indeed, Donahue acknowledged that he had no evidence that "there would be a weapon in the [minivan]."8
Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by Carpenter, while Donahue and Vardaro searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana and saw and smelled fabric softener sheets, which he knew from experience are often used to mask the odor of drugs. Vardaro also discovered a large package of money under the front passenger seat.
Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine, trained to detect drugs, alerted to a bag in the rear compartment of the minivan. Inside the bag was a large amount of marijuana.9 At this point Donahue placed the defendant under arrest "for the license being revoked."
Judge's decision. The judge issued a three-page memorandum of decision denying the defendant's motion to suppress.10 The decision begins with a statement of the facts, which is drawn directly from the detectives' testimony. The judge then made the following "[f]indings and [r]ulings" regarding the events that occurred prior to the arrival of the K-9 unit:
The defendant moved for reconsideration, and the judge held a nonevidentiary hearing. After the hearing, the judge denied the motion based in part on "recent decisional case law" -- namely, Commonwealth v. Wright, 85 Mass. App. Ct. 380, 10 N.E.3d 167 (2014), in which the issue was not the validity of a search, but whether an officer's expansion of the scope of a routine traffic stop, by calling a K-9 unit, was supported by reasonable suspicion of further criminal activity. Id. at 383-384, 10 N.E.3d 167.
Discussion.11 Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, "subject only to a few specifically established and well-delineated exceptions." Gant, 556 U.S. at 338, 129 S.Ct. 1710, quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Commonwealth v. Craan, 469 Mass. 24, 28, 13 N.E.3d 569 (2014). It is the Commonwealth's burden to show the applicability of one of those exceptions. See Commonwealth v. Perkins, 465 Mass. 600, 603, 989 N.E.2d 854 (2013). Here, the Commonwealth seeks to defend the search on two alternative grounds: (1) by arguing it was a search incident to an arrest; and (2) by asking us to create a new exception for circumstances where, although the officers had probable cause to arrest, they did not do so right away and thus could, theoretically, have allowed the defendant to return to his vehicle.12 In addition, the dissent concludes that the search was a Terry-type13 search for weapons. None of these justifications withstands scrutiny.
1. Search incident to arrest. The Commonwealth's primary argument is that the search was permissible as incident to ...
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...hearing why the search was conducted, [the officer] responded: ‘Because the law says we can do it’ "); Commonwealth v. Darosa, 94 Mass. App. Ct. 635, 638 n.8, 118 N.E.3d 131 (2019) ("When asked then why he searched the minivan, [the detective] replied, ‘I have that right’ "). The question h......
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