Commonwealth v. Sheridan

• Decision Date: 27 February 2015
• Docket Number: SJC–11543.
• Citation: 470 Mass. 752,25 N.E.3d 875
• Parties: COMMONWEALTH v. Matthew J. SHERIDAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 752

25 N.E.3d 875

COMMONWEALTH

v.Matthew J. SHERIDAN.

SJC–11543.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 6, 2014.

Decided Feb. 27, 2015.

Paul R. Rudof, Committee for Public Counsel Services, for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK

, J.

In the early morning hours of June 21, 2011, police officers stopped the defendant, Matthew J. Sheridan, for driving a minivan with an unilluminated headlight. During the stop, the officers saw in the vehicle a portion of what an officer identified as “about a [one]-ounce bag” of marijuana, protruding from under a rumpled T-shirt lying on the floor between the vehicle's two front seats. The officers ordered the defendant out of the vehicle, handcuffed him, and conducted a search of the minivan. Lifting the T-shirt, an officer found, in addition to the bag previously partially seen, another one-ounce bag of marijuana, and a third, smaller bag of marijuana. The defendant was arrested and taken to the police station. After he was booked on charges of possession of marijuana with intent to distribute, officers seized and searched his cellular telephone, finding several text messages that they identified as consistent with sales of marijuana.

The defendant moved to suppress the marijuana seized from his vehicle and the text messages found on his telephone. In Massachusetts, “possession of one ounce or less of marihuana [is] only ... a civil offense,” punishable by a “civil penalty of one hundred dollars and forfeiture of the marihuana.” G.L. c. 94C, § 32L

. Because it is not a crime, police observation of one ounce or less of marijuana is insufficient, by itself, to give rise to the probable cause necessary to conduct a search. See Commonwealth v. Daniel, 464 Mass. 746, 752, 985 N.E.2d 843 (2013) (Daniel ). A judge of the District Court nevertheless denied the defendant's motion to suppress. He concluded the police were permitted to enter the minivan to effect the forfeiture of the marijuana that they saw, and that the discovery of the additional marijuana, the defendant's arrest, and the subsequent seizure and search of the defendant's telephone followed from the initial lawful entry into the defendant's vehicle. We conclude that the search of the defendant's vehicle and of the cellular telephone violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Accordingly, the judge's order denying the defendant's motion to suppress must be reversed.

1. Background. a. Facts. We summarize the relevant facts as found by the District Court judge, supplemented by uncontroverted evidence derived from the testimony of witnesses that the judge explicitly or implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007)

, S.C., 450 Mass. 818, 882 N.E.2d 328 (2008).

Sean Glennon, an officer of the Quincy police department, initiated the stop of the defendant's minivan at approximately 2:50 a.m. Glennon approached the driver's side window and requested the defendant's driver's license and registration. Glennon observed that the defendant looked extremely nervous; his hands shook as he fumbled for his driver's license and registration, and, although he readily produced his license, he at first provided an expired registration. He eventually provided a current valid registration.

Scott Walker, a State police trooper who happened to be patrolling the area, also had stopped at the scene shortly after Glennon stopped the defendant's vehicle. As Glennon was conversing with the defendant, Walker approached the vehicle's passenger side window. Walker observed, on the floor between the vehicle's two front seats, the corner of a plastic sandwich bag that appeared to contain marijuana, protruding from under a T-shirt. Walker discreetly indicated to Glennon the apparent presence of marijuana.

Glennon ordered the defendant to step out of the vehicle and performed a patfrisk, during which he found $285 in cash and a cellular telephone. After returning the money and the telephone to the defendant, Glennon asked whether there was “anything illegal in the car.” The defendant answered, “No.” Glennon requested permission to search the vehicle; the defendant declined. Glennon then informed the defendant that Walker had seen a bag of marijuana in the vehicle. The defendant “slumped forward” and a “dejected type of look” crossed his face.

Glennon handcuffed the defendant, whose hands by that point were “shaking uncontrollabl[y],” and began to search the vehicle. Glennon saw a bag he described as “consistent with about a [one]-ounce bag” of marijuana, partially visible under a T-shirt on the floor between the vehicle's front seats. He lifted the T-shirt, and observed two additional bags of marijuana, one approximately equal in size to the first bag, and one smaller. The officers searched the remainder of the minivan, and also requested a narcotics-trained canine to perform a sniff search, but located no additional drugs or contraband and no other evidence of illegal activity. The defendant was transported to the police station, where he was booked on charges of possession with intent to distribute marijuana. During booking, officers again seized the defendant's money and cellular telephone. Glennon viewed text messages stored on the telephone, and saw “several text messages that appeared to be orders to purchase marijuana.”

b. Procedural history. The defendant was charged with possession with the intent to distribute marijuana, in violation of G.L. c. 94C, § 32

, and a civil motor vehicle infraction based on the broken headlight. The defendant filed a motion to suppress all of the physical evidence seized as a result of the search and the arrest, including the marijuana, the telephone, and the text messages found on the telephone. The defendant argued that the officers lacked probable cause to believe that the minivan contained more than one ounce of marijuana, rendering the search impermissible. A District Court judge held an evidentiary hearing on the defendant's motion, at which both Glennon and Walker testified.

The judge denied the motion to suppress. He observed that “[t]he issue of whether the police could ascertain whether the initial bag of marijuana, because it was partially hidden, contained more or less than one [ounce] of material was ... contested ... at the hearing.” The judge concluded, however, that “it is irrelevant whether Glennon or Walker could make such a determination.” Stating that, “while possession of less than [one ounce] of marijuana is not criminal, any quantity is ‘contraband,’ ” the judge determined that “the police are entitled to issue an ‘exit order’ to completely ensure their safety (and for convenience) while they are in a vulnerable position reaching into the vehicle to seiz[e] the drugs.” Furthermore, the judge concluded that, “once the police removed the shirt to seize the initial bundle of marijuana, a second one ounce bag as well as a smaller bag were revealed,” giving rise to probable cause to arrest the defendant for possession of a criminal quantity of marijuana. Finally, the judge concluded that “[t]he seizure of the [tele]phone [was] incident to the arrest,” and that “the information obtained [from the search of the telephone's contents] [was] allowed as inevitable discovery during the investigation of whether the more than one [ounce] of marijuana were possessed with intent to distribute.”

The single justice granted the defendant's application for leave to file an interlocutory appeal to the Appeals Court pursuant to Mass. R.Crim. P. 15(a)(2)

, as appearing in 422 Mass. 1501 (1996), and also allowed the defendant to amend his filing to include a challenge to the search of the cellular telephone. We allowed the defendant's application for direct appellate review.

2. Discussion. a. Standard of review. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law” (quotation omitted). Daniel, 464 Mass. at 748–749, 985 N.E.2d 843

.

b. The search of the vehicle. i. The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Article 14 of the Massachusetts Declaration of Rights similarly protects against “unreasonable searches, and seizures, of [one's] person, [one's] houses, [one's] papers, and all [one's] possessions.” While “[g]enerally, a warrant is required” for a search to be reasonable, “several well-recognized exceptions exist.” Commonwealth v. Cruz, 459 Mass. 459, 473, 945 N.E.2d 899 (2011)

(Cruz ). “Under the automobile exception, a warrantless search of an automobile is permitted when police have ‘probable cause to believe that a motor vehicle on a public way contains contraband or evidence of a crime, and exigent circumstances make obtaining a warrant impracticable.’ ” Id. at 473–474, 945 N.E.2d 899, quoting Commonwealth v. Cast, 407 Mass. 891, 901, 556 N.E.2d 69 (1990). “[W]hen an automobile is stopped in a public place with probable cause, no more exigent circumstances are required ... beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle.” Commonwealth v. Motta, 424 Mass. 117, 124, 676 N.E.2d 795 (1997)

.

In 2008, voters in the Commonwealth approved a ballot initiative entitled “An Act establishing a sensible State marihuana policy.” See St. 2008, c. 387. The initiative established that “possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty ... and forfeiture of the marihuana, but not to any other...