COMMONWEALTH v. JAMES BODDIE (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Superior Court judge's order allowing the defendant's motion to suppress evidence obtained after a motor vehicle stop. The judge allowed the motion on the ground that the driver of the vehicle did not commit a traffic violation warranting the initial stop. We affirm, albeit on different grounds.

Background. We summarize the facts as found by the judge, supplemented with uncontested evidence from the record. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

In the late afternoon of November 20, 2020, State Troopers Andrew DaSilva, Ryan Walczak, and Peter Towle, all members of the State Police gang unit, were patrolling downtown Brockton in an unmarked cruiser. The troopers took note of a car parked at a gas station, ran its license plate, and learned that it was a rental vehicle. “[A]ware that rental vehicles are commonly used throughout the City of Brockton to conduct criminal activities,” the troopers decided to follow the car when it passed them on the street a short while later.

The car proceeded to make a series of turns, which the troopers thought could be a “meaningless ride” to conceal drug activity. At a four-way intersection, the car took a left turn from Spring Street onto North Warren Street. Spring Street is a two-lane, one-way street with a designated left-turn only lane. When the car took the turn, it was in the left-turn only lane, with the troopers' cruiser directly behind it and “no vehicle to its right or closely ahead.”

After making the same turn, the troopers activated their emergency lights and stopped the car, purportedly for failure to stop at a red light ¹ and failure to use a turn signal. Upon approaching the passenger side of the car, Troopers DaSilva and Walczak recognized the front seat passenger as the defendant, based on an intelligence bulletin they had received from the Brockton Police Department around two months earlier.² The defendant's girlfriend, the only other person in the car, was in the driver's seat.

Seeing that the defendant was not wearing a seatbelt, the troopers asked him for identification. As the defendant reached for his wallet, Trooper DaSilva saw a large pocketknife in the defendant's pants pocket and for safety reasons ordered him out of the car. The defendant complied without incident. DaSilva then “advised [the defendant] he was being detained,” handcuffed him, and conducted a pat frisk, which revealed no weapons or contraband.

When DaSilva asked again for identification, the defendant, still handcuffed, stated that it was in his wallet, which he had left on the passenger seat of the car. DaSilva retrieved the wallet, opened it, and saw a twenty dollar bill, folded in “envelope form fashion,” tucked in one of the card slots. From his training and experience, DaSilva recognized the manner in which the bill was folded to be consistent with a method used to “secrete[ ] narcotics.” DaSilva proceeded to remove the bill from the wallet and unfold it, upon which he discovered a white powdery substance inside. DaSilva asked whether it was fentanyl, and the defendant replied that it was “coke” or “powder.”

DaSilva then told the defendant that, if he voluntarily turned over any more drugs that he had, the troopers “would summons him instead of arrest him.” The defendant, whom DaSilva described as “extremely cooperative” and “polite,” replied that he had more drugs on his person and agreed to relinquish them. DaSilva removed the handcuffs at this point, allowing the defendant to reach into his pants to retrieve what appeared to be bags of cocaine. Once the troopers obtained the bags, they allowed the defendant to leave, advising him that he would receive a summons.

Discussion. The defendant moved to suppress on numerous grounds, including that there was no justification for the initial stop of the car or the later search of his wallet. The judge allowed the motion based solely on the stop and did not address the defendant's other arguments. Specifically, the judge concluded that the troopers had no reasonable basis to believe that the driver's failure to signal before turning violated G. L. c. 90, § 14B, which requires the use of a signal before “making any turning movement which would affect the operation of any other vehicle.”³ While the parties dispute the correctness of this ruling, we need not resolve the dispute because we can affirm on one of the other grounds raised by the defendant, namely, that the search of his wallet was unlawful. See Commonwealth v. Pridgett, 481 Mass. 437, 438 n.2 (2019) (appellate court “may affirm the allowance of [a] motion [to suppress] on any lawful ground provided in the record”).

The burden was on the Commonwealth to prove that the search of the wallet fell within an exception to the warrant requirement, see Commonwealth v. Balicki, 436 Mass. 1, 8 (2002), and it failed to meet that burden for at least two reasons. First, even assuming for purposes of analysis that Trooper DaSilva's observation of the pocketknife raised safety concerns that authorized him to retrieve the wallet from the car, the Commonwealth offered no evidence to support his subsequent act of opening the wallet. The opening of the wallet cannot be justified as a protective search because the wallet “could not conceivably have contained a gun, nor could an officer reasonably have considered that it contained a dangerous weapon.” Commonwealth v. Silva, 366 Mass. 402, 410 (1974). See Commonwealth v. Cruz-Rivera, 76 Mass. App. Ct. 14, 19 (2009) (where there was no “evidence that the defendant had a specific history of using tiny weapons ․ it simply was not reasonable to believe that [he] might ․ open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers”). And DaSilva, the Commonwealth's only witness, did not testify to any concern that the wallet might have contained a weapon. Instead, he readily agreed that he “could have” handed the wallet to the defendant but chose to open it himself. That DaSilva later removed the handcuffs to allow the defendant to retrieve the drugs from his pants further shows that he did not consider the defendant a safety threat once the pat frisk uncovered no weapons.⁴

Second, even were we to further assume that DaSilva could permissibly open the wallet to retrieve the defendant's identification, he could not then search the contents of the wallet by removing the twenty dollar bill from the card slot and unfolding it. On this point the Commonwealth appeared to rely on the plain view doctrine, arguing to the judge that DaSilva “observe[d] that folded bill” upon opening the wallet and had “reasonable suspicion that there is ․ criminal activity at this juncture, specifically ․ possession of narcotics.” But probable cause, not merely reasonable suspicion, is required to invoke the “plain view” doctrine. Arizona v. Hicks, 480 U.S. 321, 326 (1987). See Commonwealth v. Amado, 474 Mass. 147, 153 (2016). This means that, if “the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object -- i.e., if its incriminating character [is not] immediately apparent -- the plain-view doctrine cannot justify its seizure” (quotation and citation omitted). Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). See Commonwealth v. Figueroa, 412 Mass. 745, 750 n.9 (1992). Here, because DaSilva had to unfold the bill to determine that it contained drugs, its incriminating character was not immediately apparent. He could not therefore seize the bill or its contents without a warrant. See Dickerson, supra at 379 (seizure of bag of cocaine in defendant's pocket unlawful where “officer determined that the item was contraband only after conducting a further search” by manipulating contents of defendant's pocket); Amado, 474 Mass. at 153 (“a further search [was not] warranted under the 'plain feel' doctrine, because the officer was unable to identify the contraband nature of the object by touch alone”); Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 35 (2001) (because “the officer had to test the cellular telephone to determine that it was 'a counterfeit telephone,'” plain view doctrine did not justify warrantless seizure).

For at least these reasons, the search of the defendant's wallet was unlawful, and the evidence obtained therefrom was correctly suppressed. The defendant's ensuing statements and the drugs recovered from his person were fruits of the unlawful search and, as such, were also correctly suppressed.⁵

Order allowing motion to suppress affirmed.

FOOTNOTES

1.   Based on surveillance videos and testimony from the defendant's investigator, the judge found that the light was in fact green when the car made the left turn. The Commonwealth does not challenge this finding on appeal.

2.   As described by DaSilva, the intelligence bulletin indicated that the defendant had been recently released from the house of correction and had a lengthy criminal record, which included “several narcotic entries as well as firearm.”

3.   As noted, it is uncontested that the driver did not go through a red light.

4.   We note that the Commonwealth did not attempt to justify the opening of the wallet in either its written or oral submissions to the judge. Nor does the Commonwealth address the issue in its appellate brief.

5.   Given our ruling, we need not address the other grounds for suppression raised by the defendant.