Commonwealth v. Ortiz

• Decision Date: 12 February 2018
• Docket Number: SJC–12273
• Citation: 90 N.E.3d 735,478 Mass. 820
• Parties: COMMONWEALTH v. Anthony C. ORTIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 820

90 N.E.3d 735

COMMONWEALTH

v.Anthony C. ORTIZ.

SJC–12273

Supreme Judicial Court of Massachusetts, Hampden..

Argued October 3, 2017.

Decided February 12, 2018.

Cynthia Cullen Payne, Assistant District Attorney (Bethany Lynch, Assistant District Attorney, also present) for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

In this case we must decide whether a driver's consent to allow the police to search for narcotics or firearms "in the vehicle" authorizes a police officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle's air filter. We hold that it does not. A typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk. Because the police here exceeded this scope by searching under the hood and removing the air filter, and because the search was not otherwise supported by probable cause and was not a lawful inventory search, the Superior Court judge's order granting the defendant's motion to suppress is affirmed.

Background. We summarize the facts as found by the motion judge, supplemented by uncontroverted evidence that the judge explicitly or implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C C., 450 Mass. 818, 882 N.E.2d 328 (2008). On January 23, 2015, Officer Jared Hamel and Detective Boyle¹ of the Holyoke police department were on patrol in an unmarked police cruiser when they heard loud music coming from a vehicle. The officers determined that the loud music posed a public safety hazard under a local ordinance that prohibits excessively loud music in a motor vehicle. Officer Hamel activated the cruiser lights and initiated a stop of the vehicle.

As the officers approached the vehicle, Hamel recognized the driver (the defendant) as someone he had earlier pursued in a foot chase during an incident where the defendant was arrested for breaking into an apartment. Hamel also recalled that the defendant had been charged in two separate incidents with attempted murder and with narcotics and firearms offenses. Hamel also recognized one of the two passengers, George Ortiz, because he recalled an incident where Ortiz had been arrested for trafficking in cocaine after the execution of a search warrant.

As a safety precaution, Hamel requested a backup unit to provide assistance over the police radio. Hamel then asked the defendant for his license and registration. The defendant looked at Hamel, and turned for assistance to Ortiz, who spoke in Spanish to the defendant. Hamel recalled from his prior encounters with the defendant that the defendant "only spoke a little English," and understood that Ortiz was translating Hamel's request for the defendant's benefit. The defendant presented to Hamel a Massachusetts identification card that was not a driver's license, which confirmed that the driver was the defendant. Hamel asked the other passengers if either had a driver's license, and neither did.

Hamel asked the defendant in English if there was anything in the vehicle that the police should know about, including narcotics or firearms. The defendant responded, without hesitation and without any translation from Ortiz, "No, you can check." Hamel asked the defendant and the two passengers to leave the vehicle, and placed all three in handcuffs. All were frisked for weapons; none were found, but the two passengers were each found in possession of marijuana.

Shortly thereafter, other police officers arrived on the scene, including an officer in the K–9 unit; the officer's dog walked around the vehicle but did not alert to anything. The officers searched the front and back seat areas of the vehicle, but found no contraband. Hamel then instructed one of the officers to check under the hood of the vehicle. The officers raised the hood, and a few minutes later, after removing the air filter, Boyle found a black bag that contained two firearms. During the course of this search, the defendant was standing to the side of the road; at no point did he voice any objection to the search.

A few minutes later, the registered owner of the vehicle arrived and was allowed to drive the vehicle away. The search was conducted based solely on the defendant's consent; the police did not consider it to be an inventory search and did not believe that they had grounds to search the vehicle without a warrant.

The defendant and the two passengers were arrested and transported to a police station, where a Spanish-speaking police officer assisted in taking the defendant's statement. According to that officer, the defendant understood English but was more comfortable with Spanish. In his statement, the defendant admitted, among other things, that the firearms found in the vehicle belonged to him and that he gave consent to the officers to look in his vehicle.

Indictments were returned by a grand jury, charging the defendant, as a habitual offender, with two counts of illegal possession of a firearm, two counts of unlawful possession of ammunition without an identification card, and one count of receiving stolen property. The defendant moved to suppress the firearms and the statements he made at the police station, claiming that the search was unconstitutional and that the statements must be suppressed as fruits of the unconstitutional search.

After an evidentiary hearing, a judge of the Superior Court allowed the defendant's motion. The judge found that the defendant had given his free and voluntary consent to the search but that, because Hamel had asked the defendant whether he had any narcotics or firearms "in the vehicle," the scope of the consent was limited to a search for narcotics or firearms in the interior of the vehicle and did not include a search "under the hood beneath the air filter." The judge found that a typical reasonable person interpreting the verbal exchange between Hamel and the defendant "would believe that [the] defendant was limiting the scope of the search to the cabin of the vehicle."

The judge also found that the defendant's silence when Hamel expanded the scope of the search by directing the other officers to search "under the hood" was nothing more than the defendant's "mere acquiescence to a claim of lawful authority," and therefore did not expand the scope of his initial consent.

Having found that the search of the air filter under the vehicle's hood was unconstitutional because it exceeded the scope of the defendant's consent, the judge found that the defendant's statements to police were "directly caused by the illegal search of [the] defendant's vehicle," and therefore were "fruits of the poisonous tree" that also must be suppressed.

The Commonwealth applied for interlocutory review, and a single justice of this court allowed the application. The defendant then filed an application for direct appellate review, which we allowed.

Discussion. "In reviewing the allowance of a motion to suppress, we accept the judge's findings of fact absent clear error." Commonwealth v. Porter P., 456 Mass. 254, 256, 923 N.E.2d 36 (2010). Where, as here, we find no clear error in the judge's findings, "[w]e then determine ‘the correctness of the judge's application of constitutional principles to the facts as found.’ " Id., quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

The Commonwealth concedes that the warrantless search of the air filter under the hood of the vehicle is constitutional under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights only if the defendant consented to such a search. When the police rely on consent to justify a warrantless search, "the prosecution ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ " Commonwealth v. Rogers, 444 Mass. 234, 237, 827 N.E.2d 669 (2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Commonwealth must show "consent unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’ " Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976), quoting Bumper, supra at 549, 88 S.Ct. 1788. Here, we accept the judge's findings that the defendant, despite his limited understanding of English, consented to a search of his vehicle. The issue is the scope of that consent.

A search that is based on consent may not exceed the scope of that consent. See Commonwealth v. Cantalupo, 380 Mass. 173, 178, 402 N.E.2d 1040 (1980) ("Because consent can legitimize what would otherwise be an unreasonable and illegal search, a search with consent is reasonable and legal only to the extent that the individual has consented"). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). See Commonwealth v. Gaynor, 443 Mass. 245, 255, 820 N.E.2d 233 (2005).

It bears emphasis that the standard is that of a typical reasonable person, not a typical reasonable police officer. Therefore, the focus is solely on what a typical reasonable person would understand the scope of the consent to be, based on the words spoken and the context in which they are spoken, not on what a police officer may understand as the places in a vehicle where narcotics or firearms may be hidden. Consequently, the fact that a police officer, such as Hamel here, knows from investigative experience that persons sometimes hide firearms and narcotics inside the air filter of a vehicle is...