Commonwealth v. Rosario-Santiago

• Decision Date: 02 October 2019
• Docket Number: No. 18-P-1109,18-P-1109
• Citation: 134 N.E.3d 563,96 Mass.App.Ct. 166
• Parties: COMMONWEALTH v. Juan ROSARIO-SANTIAGO.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 166

134 N.E.3d 563

COMMONWEALTH

v.Juan ROSARIO-SANTIAGO.

No. 18-P-1109

Appeals Court of Massachusetts, Worcester..

Argued May 2, 2019

Decided October 2, 2019

Eduardo A. Masferrer, Boston, for the defendant.

Shayna L. Woodard, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Hanlon, & Sacks, JJ.

HANLON, J.

The defendant, Juan Rosario-Santiago, appeals from the denial of his motion to suppress drug and other evidence found in a "mechanical hide" and elsewhere in his motor vehicle and on his person.¹ He argues that the arresting officer lacked probable cause to order him out of the vehicle and to pat frisk him, and that the subsequent inventory search that led to the discovery of most of the evidence at issue "exceeded the bounds of a proper inventory search and did not fall under any other exception to the warrant requirement." We affirm, essentially for the reasons well explained by the judge.

1. Background.² We take our summary of the underlying facts from the judge's findings, supplemented by uncontested testimony at the motion to suppress hearing. On October 9, 2014, at about 5:45 P.M. , Trooper Michael Reynolds of the Massachusetts State Police was patrolling in the area of the Massachusetts Turnpike and Route 495. Reynolds had ten years of experience as a police officer, and had completed 200 hours of training in narcotics investigations.³ He observed a Toyota Camry enter the roadway on Route 495 North and abruptly change lanes. Reynolds followed the Camry and saw it approach the vehicle ahead of it in an aggressive manner. The Camry then followed that vehicle, going at least sixty-five to seventy miles per hour at a distance of less than one car length behind. The trooper determined that this was unsafe because, in his view, any sudden stop by the vehicle in front would have resulted in a rear-end collision; he had witnessed such results "a lot of times" "as a state trooper." He followed the Camry, and observed it move to the center lane and continue in the same manner. Based upon these observations, Reynolds pulled the Camry over and asked the defendant, who was the Camry's sole occupant, for his license and registration; he also explained the reason for the stop.

The defendant produced a New Hampshire driver's license and vehicle registration and Reynolds conducted what he characterized as a "normal conversation" that lasted approximately two minutes. He asked the defendant where he was coming from and the defendant answered, "New York City." When the trooper asked where, more specifically, the defendant responded, "downtown ... [and, eventually,] ... [s]eeing a friend." Reynolds asked what the friend's name was and the defendant first answered, "Dave." When Reynolds asked for more information about Dave, including his last name, after a delay, the defendant said, "Santiago." Throughout the exchange, the trooper noticed an unusual delay in the time that the defendant took to answer the questions. This made him suspicious, and he felt that the defendant was making up the answers. Reynolds also inquired whether the defendant had a criminal history, and the defendant responded "that he had had some trouble with the [F]ederal authorities in New Hampshire regarding drug distribution." Reynolds then went back to his cruiser to verify the defendant's information. As he was doing that, he noticed a "fast-food bag" on the rear passenger floor of the Camry; he could not see what was inside it.

When Reynolds checked the defendant's information, he discovered that the defendant had a valid New Hampshire driver's license but that his right to operate in Massachusetts was suspended. He noticed that the defendant was assigned a Massachusetts license number that began with the letter "A" (assigned for administrative purposes), "as opposed to the letter S, which the normal, active license in Massachusetts has." Reynolds confirmed the status of the defendant's Massachusetts driver's license either through the computer in his cruiser or through information relayed to him by the dispatcher at his home barracks; he learned that the defendant's license or right to operate a motor vehicle was suspended in Massachusetts,⁴ and that he had in fact been charged by the Drug Enforcement Administration (DEA) in the past "with distribution of synthetic narcotics."⁵

While waiting in his cruiser for the information to process, Reynolds observed the defendant in the Camry reach toward the back of the car in a subtle way, ostensibly in the act of yawning. The judge found that Reynolds concluded that the defendant actually "was reaching back for the [fast food] bag in the back seat." At that point, the trooper went back to the defendant's vehicle. Based upon his observations and the information gathered, Reynolds asked the defendant to step out of the vehicle. He pat frisked the defendant and discovered two cell phones and keys,⁶ and placed the defendant in his cruiser.^{7 ,8} Reynolds then, pursuant to the written policy of the Massachusetts State Police, called a tow truck for the Camry. At that point, the judge concluded, "the trooper ultimately had to conclude that there was going to be a charge for operating after [license] suspension."

Before the tow truck arrived, Reynolds was required -- pursuant to the written State Police inventory policy -- to return to the defendant's car and inventory its contents. Reynolds first looked inside the fast food bag. He discovered "a clear plastic heat-sealed packet, which was empty but had been ripped open."⁹ Also in the car was a gym bag containing clothes. Near the front seat, the trooper saw "small black elastic bands.¹⁰ Reynolds also noticed that, in the rear of the center console there was a "crease" in the carpet, which, based on his training and experience, he believed to have been caused by the repeated opening of a "mechanical hide." In addition, Reynolds found a cup of urine in the center console. Based on his training and experience, Reynolds knew that people who engage in drug distribution and, in so doing, drive long distances, often do not want to stop to use rest rooms because this gives them greater risk of exposure.¹¹ There also was an "aftermarket wire" that ran from the dashboard area near the radio, trailing to the back area of the console.

After making these observations, Reynolds formally arrested the defendant, took him out of the cruiser, placed him in handcuffs, and further searched his person, discovering a "wad of money" in the process; he then placed the defendant back into the cruiser and the Camry was towed to the State Police barracks.

Another trooper, Trooper McCammon, assisted in the search of the Camry at the barracks. McCammon was very experienced in detecting mechanical hides in vehicles, and Reynolds considered him an expert in the field. When both troopers examined the undercarriage of the Camry, they "saw a weld mark in the middle of the muffler that looked like it had been altered and lowered." "By applying power to some wires that went to the console, the troopers actually operated the mechanical hide and" discovered that the console rose up from the floor to reveal a compartment.

Inside the console were several "packets of oxycodone pills that were taped up and otherwise secured with the same type of rubber bands as were found in the car."

In denying the motion to suppress, the judge ruled that "[t]he exit order was legal when the officer determined that the defendant's right to operate in Massachusetts was suspended." The judge agreed that what was initially a proper inventory search "here morphed into something beyond inventorying property." However, he concluded, essentially, that by the time that happened, the experienced trooper had probable cause to search for illegal drugs.

The defendant moved for reconsideration, arguing that the inventory search was a pretext and that the trooper in fact was searching for drugs based upon nothing more than a hunch. The judge disagreed and denied the motion to reconsider; he concluded that, even though the trooper may have had suspicions before he began the inventory search, that fact did not detract from the conclusion that the inventory search was proper. In addition, the judge noted that there "was a legitimate safety concern born of the fact that the trooper saw the defendant reaching for the backseat bag (an act that the defendant felt he had to conceal), which provided further justification for the search here."

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" (quotation omitted). Commonwealth v. Ramos, 470 Mass. 740, 742, 25 N.E.3d 849 (2015).

1. Probable cause for arrest. The defendant argues first that there was no probable cause to arrest him for operating after his license or right to operate had been suspended in Massachusetts.¹² He contends that, because he had been issued a license in New Hampshire, he was not operating illegally under the language of G. L. c. 90, § 10,¹³ and, further, that the information Reynolds received from the dispatcher about his license suspension was inherently unreliable.

First, we note that at least the first portion of this argument was not made to the judge. That is, counsel offered evidence that the defendant's Massachusetts license was expired, not suspended. The judge responded, "If his license is suspended in Massachusetts, he's not supposed to be driving in Massachusetts." Counsel responded, "Suspended, yes; not expired. So the document I showed you just said that his license was expired, not suspended." The judge pointed out that the document proffered had been printed in 2016 (two years after the stop) and that "what the trooper [had] at the scene can control, even if it's incorrect."¹⁴

The defendant now argues for the first time that G. L. c. 90, § 10, can be read to...