Commonwealth v. Pagan
| Decision Date | 04 February 2003 |
| Citation | 440 Mass. 62,793 NE 2d 1236 |
| Parties | COMMONWEALTH vs. ANGEL PAGAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
J. Thomas Kerner for the defendant.
Robert C. Thompson, Assistant District Attorney, for the Commonwealth.
The defendant appeals from his conviction of trafficking in cocaine, contending that his motion to suppress evidence was erroneously denied. After a remand to the motion judge for further findings, the Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, held that the challenged search was lawful and affirmed the conviction. Commonwealth v. Pagan, 54 Mass. App. Ct. 1115 (2002). We granted the defendant's application for further appellate review, and we now affirm the conviction.
1. Background. a. Facts. After an evidentiary hearing, the motion judge made the following findings of fact.1 At approximately 11:30 P.M. on April 11, 1999, a resident of an apartment building at 425 West Elm Street in Brockton dialed 911 to alert the Brockton police to a break-in in progress at that address. The caller reported that two Hispanic males, one wearing a bulky jacket and the other carrying a large bag, were trying to break into the building through a front window. Officers Antonio Randolph and James Coady arrived at the scene within minutes, but saw no one in front of the building. They were familiar with the building (a three-story apartment building with four or five apartments on each floor) and its vicinity, and knew that the Brockton police had responded to numerous calls from that area for a variety of offenses, including violent offenses and weapons-related offenses. The officers gained access to the building and headed up the stairway. On the second floor near the stairway, they saw a gym bag, which they thought might be the bag referenced in the caller's description. Officer Randolph then spotted the defendant, a large Hispanic male, seated on the stairway between the second and third floors. The defendant had a backpack on his back.
Officer Randolph ordered the defendant to stand up, whereupon Officer Randolph removed the backpack and handed it to Officer Coady. The backpack was made of soft material, with one main compartment zippered shut. The backpack and its contents weighed approximately six pounds. It was evident that the pack contained heavy objects. The motion judge found that "anyone could tell just by holding the backpack that there was something heavy and hard inside." After handing the pack to Officer Coady, Officer Randolph proceeded to frisk the defendant, and felt no potential weapons on his person. He asked the defendant for some identification, to which the defendant responded that he did not have any, but the defendant volunteered that he was a police officer in Puerto Rico. Officer Randolph again asked the defendant for identification, adding that a police officer should have some identification. The defendant then said that his identification was in the backpack, and pointed at the backpack, which was still held by Officer Coady.
Officer Randolph instructed Officer Coady to open the backpack and find the defendant's identification. Officer Coady opened the zipper to the main compartment and saw a brick-shaped object (approximately eight inches long, four inches wide, and two inches deep) wrapped in duct tape. Based on his military training, Officer Coady's very first impression was that the object might be a bomb. He took it out, and then saw another identically sized and wrapped object underneath. The second brick was removed as well. Based on their training and experience with narcotics, the officers then suspected that the bricks were kilograms of cocaine.2 Officer Randolph instructed Officer Coady to cut into the packaging to confirm that they were drugs. After making a small cut through the packaging, Officer Coady confirmed that the interior was comprised of a solid brick of a white substance that appeared to be cocaine. At the bottom of the backpack was the defendant's wallet and identification. The defendant was placed under arrest for possession of cocaine.3
Back at the police station, the defendant gave a statement in which he admitted that two unidentified Colombians had asked him to pick up a package in White Plains, New York, and deliver it to Boston, promising to pay him $2,000 for each package delivered. He had made the trip with another man, the codefendant, Jose Cepeda. The two had arrived late at night, and had gone to Brockton to stay with Cepeda's sister. The sister was not home, and they had tried to gain access to her apartment through the window. Cepeda had gone to find a telephone in order to locate his sister, and was off on that mission when the police found the defendant waiting on the stairs. Cepeda was apprehended in Boston several hours later.
b. Procedural history. The defendant moved to suppress evidence of the cocaine found in his backpack on the ground that the officers had illegally searched the backpack and slit open the cocaine packaging. He also moved to suppress his later statement on the ground that it was a product of the unlawful search. The motion was denied. The judge ruled that the opening of the backpack would be justified as a limited search for weapons. Given the nature of the reported crime (breaking and entering), the frequency of weapons-related crimes in that area of Brockton, the size and weight of the backpack (which "could easily contain a weapon or a burglary tool that could be used as a weapon"), and the fact that a second burglar was believed to be at large in the vicinity, the judge concluded that the officers would have a legitimate need to open the backpack and ascertain whether there were any weapons inside. While the Commonwealth had relied primarily on the theory that the defendant had given the officers consent to search the pack for identification, the judge's ruling did not adopt that theory. He credited the officers' belief that the defendant had so consented, but assumed (without deciding) that the evidence was not sufficient to support a finding of valid consent. Rather, he denied the motion on the ground that the objective circumstances justified opening the pack as part of a Terry weapons search, and that the discovery of what appeared to be contraband inside the pack gave the officers grounds to inspect under the wrapping of that contraband.4
On appeal, the defendant acknowledged that the police had the requisite reasonable suspicion for a Terry stop, and that the circumstances entitled them to remove the backpack from him and frisk his person for weapons. He contended, however, that the police had no grounds to open or search the backpack itself. Before addressing the weapons search theory relied on by the motion judge, the Appeals Court remanded the matter for further findings on the alternative theory of a consent search. On remand, the judge ruled that the defendant had not voluntarily consented to a search of the backpack, because his "verbal replies and gesture to the backpack" were merely in acquiescence to the officer's demand that he produce identification. See Commonwealth v. Voisine, 414 Mass. 772, 783 (1993), quoting Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976) (). The judge reiterated his analysis that a search of the backpack was justified as a search for weapons during a lawful Terry stop. Considering the matter in light of his supplemental findings, the Appeals Court agreed with the judge's analysis and affirmed the conviction.
2. Discussion. Before this court, the defendant properly concedes the legality of the stop itself, the removal of his backpack, and the frisk of his person, but contends that there was no justification for the officers to open the pack. First, he argues that there was a sufficient police presence to keep the backpack itself under police control, preventing him from accessing a weapon (if any) inside it, and thus no need to search the pack. Second, he argues that, if there were any legitimate concern about his accessing a weapon in the backpack, the police were required to pat frisk the backpack before opening it, and that they could not proceed to open the backpack unless that patfrisk confirmed the presence of a weapon or weapon-like object inside.
With regard to the first argument, some courts and commentators have endorsed the proposition that a Terry weapons search does not extend to containers if the circumstances permit the police to control the container and keep it away from the suspect. See United States v. Lewis, 486 A.2d 729, 733 (D.C.1985); Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998); State v. Landry, 393 So.2d 713, 714 (La. 1981); 4 W.R. LaFave, Search and Seizure § 9.5(e) (3d ed. 1996). We have similarly found, in a case involving an arrest, that the opening of a bag to search for weapons cannot be justified on grounds of exigency where "the police presence was substantial and the risk of the defendant successfully repossessing the bag was minimal." Commonwealth v. Madera, 402 Mass. 156, 160 (1988). However, other courts have allowed containers to be opened as part of a Terry search for weapons, notwithstanding that the police were present in sufficient force to prevent the suspect from retrieving or reaching into the container. See, e.g., United States v. McClinnhan, 660 F.2d 500, 504 (D.C. Cir. 1981); United States v. Vigo, 487 F.2d 295, 298 (2d Cir.1973); State v. Thompson, 3 Kan. App. 2d 426, 431 (1979); Phillips v. Commonwealth, 17 Va. App. 27, 31-32 (1993). As noted but criticized in LaFave, supra, the latter approach appears consistent with the United States Supreme Court's allowance of a vehicle search for suspected weapons as part of a Te...
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