Opinion
23-P-1111
10-10-2024
COMMONWEALTH v. ALEXANDER SOTO.
Dana Goldblatt for the defendant. Carmel A. Motherway, Assistant District Attorney, for the Commonwealth.
Heard: June 6, 2024.
Indictment found and returned in the Superior Court Department on October 1, 2019. A pretrial motion to suppress evidence was heard by Michael K. Callan, J.; a motion to reconsider was considered by him; and a conditional plea of guilty was accepted by James M. Manitsas, J.
Dana Goldblatt for the defendant.
Carmel A. Motherway, Assistant District Attorney, for the Commonwealth.
Present: Blake, Neyman, & Sacks, JJ.
BLAKE, J.
Following his indictment on a charge of trafficking in heroin, the defendant, Alexander Soto, filed a motion to suppress statements he made when confronted by police and evidence found in a backpack. He claimed that the statements were the fruits of a warrantless seizure and search that occurred in violation of art. 14 of the Massachusetts Declaration of Rights and the Fourth and Fourteenth Amendments to the United States Constitution. After an evidentiary hearing, a judge of the Superior Court, in a comprehensive and well-reasoned decision, allowed the motion to suppress certain statements, but denied the motion to suppress evidence found in the backpack. The defendant filed a motion for reconsideration, which the same judge denied. Thereafter, pursuant to Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019), the defendant pleaded guilty to a reduced charge of possession with intent to distribute a class A substance, reserving the right to appeal the partial denial of his motion to suppress. We affirm.
This item was referred to in numerous ways at the hearing including bag, book bag, and backpack. For consistency we will refer to it as a backpack.
Facts.
We recite the facts as found by the judge, none of which the defendant contests. On July 19, 2019, at 7:15 P.M., Westfield Police Officer Brendan Irujo was on routine traffic enforcement patrol in his police cruiser on Elm Street. Around this same time, a tenant living at 97 Elm Street called 911 to report two men breaking and entering into his apartment. The caller provided his name and telephone number and advised the 911 operator that he was not at home, but that he had active surveillance cameras and was watching the men "in real time." The caller described the men by their build and clothing, reported that they were wearing masks, and stated "they got gloves and everything." The caller reported that one of the men was "looking all over [his] cabinets." He informed the dispatch operator that his apartment was number 402, but that the door was not marked with a unit number. Initially he reported that the men were unarmed.
An audio recording of the 911 call was played during the hearing and introduced in evidence.
The caller was told to stay on the line while Officer Irujo was contacted. The caller continued to report what he was seeing on his surveillance cameras in real time to the dispatcher who then repeated it to Officer Irujo. Shortly after dispatch contacted Officer Irujo, the caller stated, "[T]hey got guns." He repeated this statement several times in an excited manner. The caller described one gun as black and noted that one intruder "had a book bag."
By happenstance, Officer Irujo was immediately in front of 97 Elm Street, and "within moments of the call," parked his cruiser, grabbed his rifle, and entered the front door of the apartment building. He was familiar with the building having responded to it many times over his ten-year career. Officer Irujo knew that apartment 402 was on the fourth floor; he took the stairs and reached the apartment within minutes of the dispatch call. Although he was alone, Officer Irujo knew other police officers were due to arrive shortly. He took up a position in the hallway that provided a clear line of sight and tactical cover as he monitored the door to apartment 402. Less than a minute after his arrival on the fourth floor, the door to apartment 402 opened and a man, later identified as the defendant, stepped into the doorway. Officer Irujo immediately ordered the defendant to the ground. The defendant complied; he was not armed, did not have gloves or a mask, and was not carrying a backpack. As Officer Irujo approached the defendant, he looked inside the apartment and saw a second man standing immediately inside the doorway, all within seconds after the apartment door opened. The second individual, who also did not have a mask or a weapon visible, was ordered to the ground, and he complied.
As Officer Irujo was covering the two individuals with his rifle, backup officers arrived within a minute and handcuffed the men. One officer asked what the defendant was "doing here," and he replied that "everything is in the backpack." Officer Irujo at once noticed a backpack "immediately at or within the threshold of apartment 402." The backpack, which was within the defendant's "immediate reach as he exited the apartment[,]" was seized and searched, and heroin was discovered. The judge found that in seizing the backpack, Officer Irujo was "primarily concerned with locating the unaccounted-for handguns observed and reported by [the caller]."
As noted supra, the judge suppressed this statement as obtained in violation of the defendant's Miranda rights, and the Commonwealth did not appeal from that decision. See generally Miranda v. Arizona, 384 U.S. 436 (1966) .
In his motion to suppress, the defendant sought to suppress heroin, cash, and ammunition "seized from the backpack," and a BB gun, butter knife, mask, crowbar, and screwdriver "seized from his person."
Discussion.
The primary issue on appeal is whether the judge properly denied the motion to suppress evidence. Our standard of review is well settled. "[W]e accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Clarke, 461 Mass. 336, 340 (2012), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). We also accept the credibility determinations made by the judge. See Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).
1. The arrest.
The judge ruled that Officer Irujo had probable cause to arrest the defendant, and that the search of the backpack was a lawful search incident to arrest. Because the legality of a search incident to arrest depends on the legality of the arrest, we first address the arrest. See Commonwealth v. Washington, 449 Mass. 476, 481 (2007). "A lawful arrest requires the existence of probable cause to believe that the individual arrested is committing or has committed a criminal offense." Commonwealth v. Jackson, 464 Mass. 758, 761 (2013). The defendant does not suggest that his arrest was unlawful. Nor could he. Here, the defendant and his companion, while armed and masked, and carrying a backpack, broke into apartment 402, all of which was observed in real time by the tenant and relayed to police. "In dealing with probable cause ... we deal with probabilities. These are not technical; they are . . . practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act" (citation omitted). Commonwealth v. Hason, 387 Mass. 169, 174 (1982). Based on the detailed and particularized facts known to police, Officer Irujo had probable cause to arrest the defendant for breaking and entering a building with the intent to commit a felony, as defined by G. L. c. 266, § 18.
2. Search incident to arrest.
We now turn to the seizure and search of the backpack. "Among the exceptions to the warrant requirement is a search incident to a lawful arrest" (citation omitted). Commonwealth v. Perkins, 465 Mass. 600, 605 (2013). Pursuant to G. L. c. 276, § 1,
"[a] search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape."
As the Supreme Judicial Court observed,
"The purpose, long established, of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape."Commonwealth v. Santiago, 410 Mass. 737, 743 (1991).
Here, the crime -- an armed breaking and entering -- was observed and reported in real time; the events were rapidly developing; "[s]econds" elapsed between the report of the crime and Officer Irujo's arrival on the scene, his detection of the suspects, and the realization that there were one or two unaccounted-for guns. We view these facts using an objective standard. See Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) .
The defendant claims that here the search incident to arrest exception to the warrant requirement does not apply because, where the police had stopped and handcuffed him before turning their attention to the backpack, the search "took place beyond the Defendant's reach at the time of the search." However, as the Supreme Judicial Court held in Commonwealth v. Figueroa, 468 Mass. 204, 216 (2014), officers "may secure the arrestee and then safely search the area within his immediate control at the moment of arrest." In so holding, the court recognized that officer safety would be compromised if police were required "to seize all evidence within the arrestee's immediate control before securing the arrestee." Id. at 215. To the extent that the defendant argues that the statement in Figueroa is dicta, we are not persuaded. There, in connection with a homicide investigation, the defendant was handcuffed and removed from a bedroom, and the police searched a duffel bag approximately five to six feet from where the defendant had been found. See id. at 208, 210. The seizure of the duffel bag was directly related to the question whether the police lawfully seized it incident to the defendant's arrest. See _id. at 215. See also Commonwealth v. Rahim, 441 Mass. 273, 284 (2004) (dicta defined as "language which was unnecessary . . . and which passed upon an issue not really presented" [quotations and citation omitted]). That the Figueroa court also concluded that there was a second ground for upholding the search does not transform into dicta its discussion of the search incident to arrest. See Figueroa, supra at 216 n.4. Alternative holdings are still holdings; they are not dicta. See United States v. Potts, 644 F.3d 233, 237 (5th Cir. 2011), cert, denied, 566 Mass. 923 (2012); Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008).
See Commonwealth v. Elizondo, 428 Mass. 322, 324-325 (1998) (search of bathroom lawful search incident to arrest where defendant handcuffed outside bathroom); Commonwealth v. Dickerson, 372 Mass. 783, 786, 792 (1977), overruled on other grounds, Commonwealth v. Paulding, 438 Mass. 1 (2002) (search of backpack at foot of defendant's hospital bed lawful search incident to arrest where defendant suffering from gunshot wounds and outnumbered by police); Commonwealth v. Turner, 14 Mass.App.Ct. 1023, 1024 (1982) (search of pillowcase and bag on floor outside hotel room lawful search incident to arrest even though defendant taken inside adjacent room prior to search). Cf. Commonwealth v. Madera, 402 Mass. 156, 160-161 (1988) (search of gym bag taken from defendant at time of arrest upheld even though "the police presence was substantial and the risk of the defendant successfully repossessing the bag was minimal").
Given the Figueroa court's reliance in part on Federal decisions, see 468 Mass. at 215, we view Figueroa as based at least in part on the Supreme Judicial Court's understanding of the Fourth Amendment. The same is true of Commonwealth v. Netto, 438 Mass. 686, 695-696 (2003), discussed infra.
The defendant's argument also fails to account for the rapidly evolving facts in this case, including that the police came on a scene where there were real time observations of a breaking and entering in progress, where the intruders were armed and carrying a backpack, and where Officer Irujo could reasonably be "primarily concerned with locating the unaccounted-for handguns observed and reported by" the 911 caller. When Officer Irujo first encountered the intruders, neither had a weapon in plain view, and the backpack was located immediately in or at the threshold to the apartment, within the defendant's immediate reach as he left the apartment. The search was not remote in time or place from the arrest, and it was "a natural part of the arrest transaction." Commonwealth v. Turner, 14 Mass.App.Ct. 1023, 1024 (1982). That the defendant was already in handcuffs is of no moment under governing precedent, as
"a police officer's decision how and where to conduct the search is a quick ad hoc judgment, and . . . [a] search incident to arrest may be valid even though a court operating with the benefit of hindsight in an environment well removed from the scene of the arrest doubts that the defendant could have reached the items seized during the search" (quotations and citation omitted).Commonwealth v. Netto, 438 Mass. 686, 694-695 (2003).
We conclude that it was reasonable to infer that the backpack located in the doorway through which the defendant left the apartment was the same backpack that the caller reported seeing in real time during the armed break-in. There was no significant delay between the time of the defendant's arrest and the search. Contrast Commonwealth v. Pierre, 453 Mass. 1010, 1010 (2009) (search of bag too remote where bag taken from defendant, placed in vehicle, towed from location, and searched more than thirty minutes after arrest) . The Supreme Judicial Court has said that to require the police to search such a container before securing the arrestee "would compromise the safety of arresting officers." Figueroa, 468 Mass. at 215. The court also has said that "the pragmatic necessity of not invalidating ... a search the instant the risks pass is well accepted. . . . [Officers] need not reorder the sequence of their conduct during arrest simply to satisfy an artificial rule that would link the validity of the search to the duration of the risks" (citation omitted). Netto, 438 Mass. at 695. For all these reasons, we agree with the judge's conclusion that, applying Figueroa and Netto, the seizure and search of the backpack was a lawful search incident to a lawful arrest.
3. Argument raised in motion for reconsideration.
For the first time in his motion for reconsideration, the defendant cited Arizona v. Gant, 556 U.S. 332 (2009) (Gant), for the proposition that the permissible scope of a search incident to arrest is coextensive with the arrestee's reaching distance at the time of the search, not the time of the arrest. The judge rejected this argument, noting that (1) unlike this case, Gant involved the search of a vehicle incident to arrest, and (2) unlike in Gant, the police here had a basis on which to conclude that evidence of the crime under investigation might be found in the backpack subject to their search. We discern no error in the judge's conclusion; indeed, as we discuss below, we conclude that there were additional reasons why Gant does not control here.
The Commonwealth contends that the defendant waived any argument concerning the application of Gant because he raised it for the first time in his motion for reconsideration and did not appeal from the denial of that motion. Although the better practice would have been to identify, in the rule 12 (b) (6) agreement, the ruling on the motion to reconsider as well as the ruling on the underlying motion, we conclude that the issue concerning the application of Gant was sufficiently raised and preserved for appellate review. Cf. Commonwealth v. Mathis, 76 Mass.App.Ct. 366, 374 (2010).
In denying the motion for reconsideration, the judge noted that Gant "stands for the proposition that a search of a vehicle may be conducted incident to arrest if the area searched is within reach of the defendant at the time of the arrest or the police have a reasonable belief that evidence related to the crime would be present." The judge further stated that "in addition to the reasons articulated in the [prior] memorandum; given the police knowledge of a weapon, masks and a book bag being used in the crime, it was a legitimate and reasonable conclusion that the back pack contained evidence related to the crime. "
In Gant, the defendant was arrested for driving with a suspended license. See Id. at 335. While he was handcuffed and placed in the back of a police cruiser, the police searched his car and found cocaine in a jacket on the back seat. See id. On these facts, the United States Supreme Court held that the search incident to arrest exception to the Fourth Amendment's warrant requirement did not justify the search, because the arrestee was not "unsecured and within reaching distance of the passenger compartment at the time of the search." Id. at 343. Rather, he was outnumbered by police, handcuffed, and in a police cruiser. See Id. at 344. Thus, "police could not reasonably have believed [that the arrestee] could have accessed his car at the time of the search." Id. The Court further held "that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." Id. at 335. Because the police could not reasonably believe evidence of the crime (driving with a suspended license) would be located in the passenger compartment of the car, the search was deemed unlawful. See id. at 344.
In so doing, the Court emphasized Justice Scalia's caution against "purely exploratory searches" as articulated in his concurrence in Thornton v. United States, 541 U.S. 615, 628 (2004). See Gant, 556 U.S. at 335.
Here, the defendant argues that the police could not search the backpack without a warrant because at the time of the search the defendant was handcuffed and under arrest, and the backpack was not located in an automobile. For a variety of reasons, we are not persuaded. First, Gant involved an arrest for a motor vehicle violation and a subsequent exploratory search; the defendant's argument does not account for searches conducted under the circumstances present in this case. See Figueroa, 468 Mass. at 215 (search incident to arrest need not occur before securing arrestee because doing so would "compromise the safety of arresting officers"). Next, Gant did not involve police officers responding to an ongoing armed breaking and entering. Further, Gant did not involve a crime where a gun and backpack were observed in real time during commission of the crime. Additionally, Gant did not involve a subsequent search for unaccounted-for guns that were used in the crime, nor did Gant involve an arrestee who was handcuffed on the ground only feet away from the backpack that was searched. Put differently, the facts of Gant did not present the same degree of concern about safety or destruction of evidence that, under the rationale of Figueroa and Netto, are present in this case.
In support of his argument, the defendant cites several Federal circuit court cases that have applied Gant, including: United States v. Davis, 997 F.3d 191 (4th Cir. 2021); United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019); United States v. Cook, 808 F.3d 1195 (9th Cir. 2015); and United States v. Shakir, 616 F.3d 315 (3d Cir.), cert, denied, 562 U.S. 1116 (2010). In each of these cases, the circuit courts applied Gant outside of the automobile context and held, in part, that the focus of the inquiry is whether, at the time of the search (rather than the time of arrest), the suspect "is unsecured and within reaching distance of" the container sought to be searched. E.g., Davis, supra at 197, quoting Gant, 556 U.S. at 343. In so doing, the circuit courts engaged in a fact-intensive analysis that included whether it was reasonable to believe that the defendant could break free from police and access the bag or container that was searched. See Davis, supra at 198, 200; Knapp, supra at 1168-1169; Cook, supra at 1199-1200; Shakir, supra at 318-321. The circuit courts have differed somewhat in their approaches to this inquiry as reflected by the results they reached. For example, the United States Courts of Appeals for the Ninth Circuit in Cook and the Third Circuit in Shakir affirmed the denial of the defendant's motion to suppress, but the Fourth Circuit in Davis and the Tenth Circuit in Knapp reversed the denial of the motion to suppress.
We acknowledge the differences between the time of arrest test used in Figueroa and Netto on the one hand, and the time of the search test used in Gant as interpreted by some Federal circuit courts on the other. Cf. Commonwealth v. Williams, 104 Mass.App.Ct. 498, 502-503 & n.5 (2024) (acknowledging difference). Notwithstanding that, under Commonwealth v. Vasquez, 456 Mass. 350, 357 (2010), even "on an interpretation of Federal constitutional law ... so long as the [Supreme Judicial Court's] holding has not been abrogated, it is the law the [lower courts] must apply." As a result, the motion judge and we are bound by Figueroa and Netto, and therefore the Federal cases do not change our analysis or the result.
Conclusion.
We affirm so much of the order as denied the motion to suppress evidence.
So ordered.