Commonwealth v. Davis, SJC-12484

• Decision Date: 14 January 2019
• Docket Number: SJC-12484
• Citation: 481 Mass. 210,114 N.E.3d 556
• Parties: COMMONWEALTH v. Mark J. DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 210

114 N.E.3d 556

COMMONWEALTH

v.Mark J. DAVIS.

SJC-12484

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 7, 2018

Decided January 14, 2019

MarySita Miles for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Michael A. DelSignore & Julie Gaudreau, for National College for DUI Defense, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

On an afternoon in July 2015, a State police officer stopped the defendant for speeding and driving erratically on the Massachusetts Turnpike. After the traffic stop, the officer arrested the defendant for operating a motor vehicle while under the influence of marijuana, G. L. c. 90, § 24 (1) (a ) (1). Subsequently, police officers searched the defendant's automobile and found bags of marijuana, a firearm, and ammunition in the trunk, and oxycodone and cocaine in the locked glove compartment.¹

The defendant moved to suppress the evidence seized from his automobile. A Boston Municipal Court judge conducted an evidentiary hearing and thereafter denied the motion to suppress; she found that the police had probable cause to arrest the defendant for operating a motor vehicle while under the influence of marijuana, and that the search of the vehicle was justified as an inventory search. A jury acquitted the defendant of all charges except unlawful possession of the drugs found within the locked glove compartment. The defendant appealed to the Appeals Court, and we transferred the case to this court on our own motion.

On appeal, the defendant argues that police did not have probable cause to arrest him for operating a motor vehicle while under the influence of marijuana, the search of his automobile was not a lawful inventory search or justified by any other recognized exception to the warrant requirement, and his trial counsel was ineffective for conceding that the defendant possessed the drugs found in the glove compartment.

We conclude that there was no error in the denial of the defendant's motion to suppress, and that the defendant was not deprived of the effective assistance of counsel.

1. Background. We summarize the facts as found by the motion judge, supplemented where appropriate with uncontroverted evidence from the suppression hearing that is not contrary to the judge's findings and rulings. See Commonwealth v. Melo, 472 Mass. 278, 286, 34 N.E.3d 289 (2015). We reserve for later discussion certain facts relevant to specific claims.

On July 28, 2015, at 12:40 P.M. , Major Daniel Risteen was driving eastbound on the Massachusetts Turnpike in an unmarked Ford Taurus cruiser. The defendant, driving a gray Infiniti sedan, sped past Risteen. Risteen observed the defendant drive at speeds between seventy and eighty miles per hour, and follow "dangerously close" to two other vehicles. The defendant failed to slow down at the toll booths at Exit 18, to Brighton or Cambridge; he was driving seventy miles per hour in a zone with a posted speed limit of thirty miles per hour. Using his public address system, Risteen stopped the vehicle immediately after it had passed through the toll booths, approximately fifty or sixty feet after the booths. The defendant, who had been driving in the left hand lane, stopped on the left hand side of the egress from the toll booths.

In addition to the driver, the vehicle was occupied by two passengers. Risteen approached the driver's side door and asked the defendant for his license and registration. He detected a strong odor of burnt marijuana and an odor of fresh marijuana coming from within the vehicle. The defendant also smelled of burnt marijuana. Apologizing for "moving pretty fast," the defendant explained that he and his two friends were traveling from New York, and that one of them had to be in Somerville by 1 P.M.

During this initial interaction, Risteen noticed that the defendant's eyes were "red," "glassy," and "droopy," and that he was "fighting with the eyebrows, trying to keep his eyes open." He had "dry spit" on the sides of his mouth, his tongue was dry, he was "licking his lips" in responding to questions, and "his speech was slow and lethargic." Suspecting that the defendant was impaired, Risteen returned to his vehicle and called for assistance. Trooper Michael Lynch responded to the scene in a marked police cruiser. When Risteen returned to the Infiniti, the defendant admitted to smoking marijuana "a couple of hours ago."

Risteen noted that both passengers also appeared to have smoked marijuana and thought they "looked high." They smelled of marijuana, and they had trouble staying awake during the roadside encounter. The judge found, as Risteen testified, that the passengers' eyes were red and they appeared "sleepy." They were closing their eyes and tilting their heads back as Risteen was talking to them. The passengers both said that they had been smoking marijuana "earlier" that day.

Risteen ordered the defendant to get out of his automobile so that Risteen could "check out" his condition to drive. Based on the officer's testimony, the motion judge found that the defendant exhibited a number of signs of impairment; "his coordination was slow, his head was bowing down, he had a hard time focusing -- [the officer] asked him four times to take his hands out of his pockets, [and] he was not able to follow simple instructions." Risteen decided to arrest the defendant, but believed that it would be "prefer[able]" to have a third officer present, so the officers would not be outnumbered, and called for additional backup.² Once a third officer arrived, Risteen placed the defendant under arrest for operating a motor vehicle while under the influence of marijuana.

After he was arrested and placed in the police cruiser, the defendant asked that one of his passengers be permitted to drive his vehicle. It was Risteen's opinion that "neither one of them could drive, they were both high." Because the officer believed the passengers were impaired and not capable of driving, he did not accede to the defendant's request that one of the passengers be allowed to drive his Infiniti. Rather, the officers impounded the vehicle and called a tow truck to remove it from the turnpike. Risteen told the two passengers to get out of the vehicle, and allowed them to retrieve their personal belongings -- shoes, other clothing, and backpacks -- from it, by indicating which items were theirs. He told them that they were not under arrest and could leave with the tow truck driver. When one of the passengers said that his backpack was in the trunk, Risteen removed it from the trunk, "pat frisked" it for weapons, and then handed it to the passenger.

Prior to the tow, Lynch "started the inventory" of the automobile by searching the trunk. There, he found a loaded handgun, ammunition, and three bags of marijuana sealed inside a plastic food container with a tight-fitting lid. At that point, the defendant already had been arrested, handcuffed, and placed in a police cruiser. Risteen decided to conduct a further search of the automobile at the State police barracks, because the sedan was stopped in a "precarious spot" that was causing traffic to back up at the tolls.

The tow truck delivered the defendant's vehicle to the State police barracks at 1:50 P.M. At some point after the defendant's arrest (it is unclear precisely when), Risteen requested the assistance of a canine "to put a drug dog on the vehicle." The canine handler, Trooper Edward Blackwell, met Risteen and Lynch at the State police barracks and started his search of the vehicle at 2 P.M. The canine sniffed around the outside of the vehicle and eventually alerted to the glove compartment. After attempting to open it, Lynch and Blackwell realized that the glove compartment was locked, and notified Risteen. Risteen obtained the key, which had been in the defendant's pocket, from the booking officer. Blackwell then used the key to open the glove compartment, where he found eleven oxycodone pills and two plastic bags containing a white powder later determined to be cocaine. The officers also found in the trunk a box for the firearm, which contained a gun lock and ammunition.

2. Discussion. a. Probable cause to arrest. A warrantless arrest is lawful under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights if supported by probable cause. Commonwealth v. Santaliz, 413 Mass. 238, 240, 596 N.E.2d 337 (1992). "[P]robable cause exists, where at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense" (citation omitted). Id. at 241, 596 N.E.2d 337. A determination whether probable cause exists concerns the probability that an offense has been committed. See Commonwealth v. Cartright, 478 Mass. 273, 283, 84 N.E.3d 851 (2017), and cases cited. "These [determinations] are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women ], not legal technicians, act" (citation omitted). Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). Under this standard, police are not required to resolve all of their doubts before making an arrest. See Cartright, supra.

In this case, the motion judge found that Risteen was justified in arresting the defendant for operating a motor vehicle while under the influence of marijuana, based upon the officer's observations of the defendant's demeanor, physical appearance, and behavior. The judge determined also that the warrantless search of the defendant's vehicle was permissible under the inventory search exception to the warrant requirement.

The defendant contends that the judge erred in denying his motion to suppress, because the officers at the scene did not have probable cause to arrest him for operating...