The basic facts were as follows. Detective Donahue and other detectives were on patrol in a high crime area when they saw a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. “The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes…. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified [at the hearing on the defendant’s motion to suppress] that it was consistent with a drug sale. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling, as a result of which Donahue effectuated a traffic stop…. The defendant was the driver and only occupant of the minivan. Upon Donahue’s request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver’s compartment. When Donahue asked what he was looking for, the defendant replied, [my] license, prompting Donahue to ask, [W]hy are you looking for it if you already told me you don’t have it with you? The defendant then stopped looking around. Donahue conducted a computer query, which revealed that the defendant’s license was revoked and that he had a criminal record for narcotics violations. Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue [indicated] that the defendant was cooperative throughout the encounter. Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by one of the detectives, while the other two searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana‖ and a colleague discovered a large package of money under the front passenger seat. Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine led the detectives to the rear compartment of the minivan, where they discovered a bag containing a large amount of marijuana. At this point Donahue placed the defendant under arrest for the license being revoked. Subsequently, upon being charged with possession with intent to distribute marijuana, the defendant moved to suppress the items seized from his vehicle. The judge denied the motion on the ground that the officers could have released the defendant and summonsed him to court to answer to the charge at a later date. Accordingly, the defendant could have regain[ed] access to the vehicle. The search of the front [driver] and passenger compartment was an appropriate step for the police as a protective sweep prior to allowing the defendant to return to his vehicle. The defendant was convicted as charged.
On appeal, he challenged the denial of his motion to suppress. In its decision ordering suppression of the seized items, the majority of the Appeals Court panel rejected “[t]he Commonwealth’s primary argument … that the search was permissible as incident to the defendant’s arrest for operating a motor vehicle without a license.” The majority noted that the defendant was not arrested until after the K-9 unit arrived, conducted a more thorough search, and discovered the marijuana in the rear of the minivan. Therefore, the Commonwealth did not meet its burden of showing that the search and the arrest were substantially contemporaneous. Moreover, … the search was not a lawful search incident to arrest under either [Arizona v.] Gant, 556 U.S. 332 (2009), or G.L. c.276, §1…. Gant holds [at 343] that the police can search a vehicle incident to an occupant’s arrest in only two circumstances: when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search such that he might gain access to a weapon, or when it is reasonable to believe [that] evidence relevant to the crime of arrest might be found in the vehicle (citation omitted). Here, the officers could not have expected to find evidence of the crime of arrest, i.e., operating without a license, inside the defendant’s minivan…. Thus, … the Commonwealth had to show that the defendant was within reaching distance of the passenger compartment of the minivan. The Commonwealth did not meet this burden either, as the defendant was seated on the curb toward the rear bumper of the minivan, [closely] guarded by a detective during the search.
The majority of the panel also rejected the Commonwealth’s embrace of the judge’s “rationale … that the search was justified even were [it] not to fit within the search incident to arrest exception” and even absent Terry prerequisites “because if [the officers] were to allow the defendant to contact an acquaintance to drive his minivan, the defendant would most likely have returned to his minivan.” In the majority’s view, “[t]he Commonwealth’s position is untenable and would eviscerate the limitations imposed by Gant, which sought to rein in the previously unbridled discretion of officers to rummage at will among a person’s private effects” based on the person’s commission of an arrestable traffic offense. [Id.,] 556 U.S. at 345.
If you or a loved one is in a situation where the police obtained evidence against you as the result of a warrantless search, you will need an attorney to fight to suppress that evidence. Attorney Daniel Cappetta is an experienced and skilled attorney who has litigated numerous motions to suppress. Call him today for a consultation to determine whether you have a strong motion that should be litigated.