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16-P-1030                                                 Appeals Court

                  COMMONWEALTH   vs.   ADERITO BARBOSA.


                            No. 16-P-1030.

       Suffolk.        September 8, 2017. - January 3, 2018.

               Present:    Rubin, Neyman, & Henry, JJ.


Practice, Criminal, Motion to suppress. Constitutional Law,
     Search and seizure. Search and Seizure, Search incident to
     lawful arrest.


     Indictments found and returned in the Superior Court
Department on June 30, 2015.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Fernande R.V. Duffly, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
     Michael P. Doolin for the defendant.


     NEYMAN, J.    After an evidentiary hearing, a Superior Court

judge allowed, in part, the defendant's motion to suppress

evidence.   A single justice of the Supreme Judicial Court
                                                                     2


allowed the Commonwealth's application for leave to file an

interlocutory appeal, and reported the matter to this court.

See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501

(1996).   The sole issue is whether the judge erred in

suppressing a statement made by the defendant based on

limitations set forth in G. L. c. 276, § 1, and Commonwealth v.

Blevines, 438 Mass. 604 (2003), regarding the use of evidence

seized incident to an arrest.   We reverse.

     Background.   The parties do not contest the judge's

comprehensive findings of fact, which we summarize, supplemented

where appropriate by the testimony from the motion hearing. 1    See

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).     This

case stems from an investigation into the crime of trafficking

of persons for sexual servitude, G. L. c. 265, § 50 (human

trafficking), 2 which was prompted by an illicit online

advertisement on the Web site Backpage.com (Backpage).      On May

7, 2015, as part of that investigation, Detective Ludwik

Bartkiewicz, along with State and Federal law enforcement


     1 The judge explicitly credited the testimony of Detective
Ludwik Bartkiewicz. Accordingly, we may supplement the judge's
subsidiary findings with uncontroverted and undisputed evidence
from the record. See Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015).

     2 For purposes of this appeal, we adopt the nomenclature
used by the judge and the parties, who characterized the matter
as an investigation into the crime of "human trafficking."
                                                                          3


officers, went to the Park Plaza Hotel (hotel) in Boston to

locate the person who had posted the advertisement on Backpage. 3

Around 10:00 A.M., the officers met the hotel's head of security

on the first floor of the hotel.       One of the officers, Agent

Tony Freitas, telephoned the number listed in the Backpage

advertisement.       A woman answered and told him to come to the

fifth floor via the service elevator.       Agent Freitas stayed

behind while the other officers followed her direction by taking

the service elevator to the fifth floor.       Agent Freitas then

telephoned the number again.       The woman told him to come to room

540.       Agent Freitas relayed this information to Detective

Bartkiewicz, who was among the officers on the fifth floor.         The

officers proceeded to room 540, knocked on the door, identified

themselves as law enforcement to the woman who answered, and

asked to speak with her.       The woman invited them into the room.

Upon learning that she was speaking with law enforcement

officers, she "became very agitated."       She "was visibly crying

and shaking."       She told the officers, "You guys can't be here.

He's coming."       Detective Bartkiewicz observed that the room was

"sort of disheveled."       He also noticed that the woman had a

telephone in her hand that was continuously ringing.


       3
       One of the officers had telephoned the number listed in
the Backpage advertisement and had "made arrangements to meet
the suspected prostitute at the Park Plaza Hotel" on the morning
of May 7, 2015.
                                                                   4


     Agent Freitas then contacted Detective Bartkiewicz and

advised that the defendant, who was the target of the

investigation, 4 was heading upstairs.   Detective Bartkiewicz

observed the defendant and Agent Freitas step out of the

elevator onto the fifth floor.   Agent Freitas nodded toward the

defendant "to confirm for Bartkiewicz that [the defendant] was

the man Freitas had been waiting for."    The defendant walked

from the elevator toward room 540.   After the defendant walked

past him, Detective Bartkiewicz stated that he was a police

officer and asked to speak with the defendant.    The defendant

was approximately eight to ten feet from room 540 at this time.

Next, the following occurred:

     "[The defendant] stopped walking, turned toward
     Bartkiewicz, and said[,] 'No.' [The defendant] then
     started to put his right hand, the one holding the cell
     phone, in his pocket. So Bartkiewicz took a few steps
     forward, told [the defendant] to keep his hands [out of]
     his pocket, and put his own hand on [the defendant's] right
     hand, to ensure that [the defendant] kept it in sight.
     Bartkiewicz then reiterated, '[W]e just want to talk to
     you.[']

     "In response, [the defendant] said[,] 'No, I don't need to
     talk to you.' [The defendant] then put his hands on
     Bartkiewicz's shoulders, pushed Bartkiewicz out of his way,
     and started to run back toward the elevators. [The hotel's
     head of security], who was also in the hallway, blocked
     [the defendant's] path and pushed [him] into a door. [The
     defendant] fell, got back up, and ran toward the elevators.
     Agt. Freitas and Agt. [Peter] Darling grabbed, subdued, and

     4 In his findings of fact, the judge wrote: "[t]he Court
infers that [the defendant] was the real target of this
investigation." This finding was supported by the testimony at
the evidentiary hearing.
                                                                   5


     eventually handcuffed [the defendant]. By this point [the
     defendant] was lying face down on the floor. The officers
     put [the defendant] in a sitting position.

     "Det. Bartkiewicz informed [the defendant] of his Miranda
     rights. . . . Bartkiewicz patted [the defendant] down and
     searched his pockets. [Bartkiewicz] found and removed a
     hotel room key, a knife, about $500 in cash, and some
     prepaid credit cards from [the defendant's] pants pockets.
     Bartkiewicz asked [the defendant] what room the key was
     for. [The defendant] said it was Room 540. . . .
     Bartkiewicz then asked [the defendant] who was in the room.
     [The defendant] said that he wanted a lawyer."

     The judge ruled that Detective Bartkiewicz lawfully placed

the defendant under arrest for assault and battery on a police

officer, properly searched him for weapons incident to that

arrest, and "acted lawfully in frisking [the defendant] and

removing the knife from his pocket."   The judge concluded that

the room key would have properly and inevitably been seized

under an inventory search at booking and, thus, should not be

suppressed.   He further held that the defendant's statement

about the room key was voluntary, and "that he made a knowing,

intelligent, and voluntary waiver of his Miranda rights." 5


     5 The judge ruled that the defendant was not seized in a
constitutional sense when Detective Bartkiewicz identified
himself as a police officer, said that he would like to speak to
the defendant, and took a step toward him. The judge also
determined that the encounter was not converted into a seizure
when Detective Bartkiewicz told the defendant "not to put his
hand in his pocket and emphasized that instruction by touching
[the defendant's] hand." The Commonwealth suggests that a stop
occurred when Detective Bartkiewicz placed his hand on the
defendant's right hand, but contends that the officers had
reasonable suspicion that the defendant was engaged in human
trafficking. The defendant does not challenge the judge's
                                                                       6


However, the judge, sua sponte, 6 suppressed the defendant's

statement that the room key found in his pocket was for room

540.       The judge concluded that Detective Bartkiewicz "was not

entitled to inspect the hotel key, cash, and credit cards as a

search incident to arrest" and, in violation of G. L. c. 276,

§ 1, improperly used the room key "for an investigatory purpose,

i.e., asking [the defendant] what room it went to."       This

interlocutory appeal ensued.

       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."'"       Commonwealth v.

Keefner, 461 Mass. 507, 515-516 (2012) (citation omitted).       "We

'make an independent determination of the correctness of the

judge's application of constitutional principles.'"

Commonwealth v. Cassino, 474 Mass. 85, 88 (2016) (citation

omitted).

       The Commonwealth argues that the judge erred in suppressing

the defendant's statement because the initial discovery of the

room key attended a proper search incident to arrest for the



determination of the precise moment that the stop occurred. In
either case, that determination does not affect the outcome for
the reasons delineated herein.

       6
       The judge noted that he "reache[d] this issue even though
it was not raised by [the defendant]."
                                                                    7


crime of assault and battery on a police officer, and the room

key had immediate evidentiary significance vis-à-vis the crime

of human trafficking, which the officers were then

investigating.    The defendant responds that the judge correctly

ruled that, under Blevines, 438 Mass. at 609, the room key had

no relationship to the crime for which he was arrested, i.e.,

assault and battery on a police officer, and thus the judge

properly determined that the room key could not be used for an

investigatory purpose without violating G. L. c. 276, § 1.

Massachusetts law compels reversal of the suppression of the

defendant's statement.

     As an initial matter, G. L. c. 276, § 1, "does not operate

as a bar to the admission of all evidence discovered in the

course of a search incident to a lawful arrest other than

weapons or evidence of the crime for which the defendant is

arrested." 7   Commonwealth v. Dessources, 74 Mass. App. Ct. 232,

235 (2009).    Our appellate courts have concluded that "the

limitation on admissibility of evidence expressed in G. L.


     7 In pertinent part, G. L. c. 276, § 1, inserted by
St. 1974, c. 508, provides: "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.
Property seized as a result of a search in violation of the
provisions of this paragraph shall not be admissible in evidence
in criminal proceedings."
                                                                     8


c. 276, § 1, does not bar the admission of new evidence

discovered during a search incident to a lawful arrest . . .

when that new evidence is immediately apparent as contraband or

evidence of other criminality."   Dessources, supra at 236-237,

citing Commonwealth v. Johnson, 413 Mass. 598, 602 (1992).     See

Commonwealth v. Clermy, 421 Mass. 325, 330-331 (1995).

     In the present case, the parties do not dispute the judge's

determination that the officers arrested the defendant for

assault and battery on a police officer, and acted lawfully in

frisking him.   See, e.g., Blevines, supra at 608 ("Following an

arrest, the police are justified in searching a defendant.     A

hard object found, such as keys, may be seized").   See also

Clermy, supra at 327-330 (motion to suppress properly denied

where officers arresting defendant on warrant conducted patfrisk

that revealed electronic beeper, cash, and, subsequently,

pursuant to further frisk, plastic bottle for prescription

medicine located between defendant's legs).   Indeed, in view of

the judge's conclusion that the room key properly and inevitably

would have been found and seized, 8 the defendant acknowledges

that the room key "could be removed from the defendant."

However, citing Blevines, he claims that, once it was removed,




     8 As noted supra, the judge ruled that Detective Bartkiewicz
acted lawfully in frisking the defendant, but was not entitled
to "inspect" the room key.
                                                                       9


"it could absolutely not be used for investigatory purposes."

This contention applies Blevines too broadly.

     In Blevines, 438 Mass. at 605, the defendant was arrested

for drinking in public.    During a postarrest patfrisk of the

defendant, a State police trooper recovered a key chain with

five keys from the defendant's rear pocket.     Ibid.    The trooper

subsequently gave the keys to a second trooper and told him to

"see if any of these fit any of the cars in the parking lot" in

order to identify the defendant, whom they believed had provided

a false name.   Id. at 605, 606.   The second trooper approached a

motor vehicle parked nearby and inserted a key into the trunk

lock; the trunk "popped up."    Id. at 606.   After immediately

closing the trunk, the second trooper conducted an "area search"

of the motor vehicle and ultimately "observed a clear plastic

bag containing what appeared to be crack cocaine partially under

the front seat."   Ibid.   "Using the key, the police then opened

the door of the Chevrolet and retrieved the bag."       Ibid.   The

defendant was charged with various drug-related offenses.        The

Supreme Judicial Court held that the defendant's motion to

suppress the evidence found in the motor vehicle should have

been allowed because the troopers had no evidence of independent

criminal activity that could justify their use of the

defendant's car keys for an investigatory purpose.       See id. at

610 ("There was no evidence that the police had any basis for
                                                                    10


suspecting that any contraband, or other evidence of criminal

activity, would be found in the automobile").       More

specifically, "the police had no information suggesting that the

vehicle had any connection to criminal activity" and "lacked the

'founded or reasonable suspicion' they would need to insert the

key."       Id. at 609-610 (citation omitted).

       Conversely, here, the officers had ample evidence of the

defendant's involvement in the separate criminal activity of

human trafficking before they arrested or frisked him.       This

evidence, at a minimum, rose to the level of reasonable

suspicion and, thus, justified the inquiry regarding the room

key.       See Commonwealth v. DeJesus, 439 Mass. 616, 627 n.10

(2003).       Specifically, the evidence showed, inter alia, that the

woman in room 540 was the person who answered the telephone at

the number provided in the Backpage advertisement, 9 instructed

Agent Freitas to come to the fifth floor, and told him to come

to room 540; that the woman in room 540 was crying, shaking, and

agitated; that she told the police that they "can't be here"

because "he's coming"; that while the officers were interacting

with the woman in room 540, the defendant, the target of the

investigation, entered the elevator and headed to the fifth




       9
       The judge credited Detective Bartkiewicz's testimony that
Backpage "is often used to post on-line advertisements for
escorts and prostitutes."
                                                                    11


floor; that the defendant arrived at the fifth floor and

approached within eight to ten feet of room 540; and that the

defendant fled when an officer tried to speak with him.    Viewed

in conjunction with the judge's finding that Detective

Bartkiewicz "has substantial training and experience in

investigating human trafficking crimes," the room key, unlike

the car key in Blevines, had immediate evidentiary significance

vis-à-vis the crime of human trafficking.   The officers could

reasonably have viewed the defendant as the "he" to whom the

woman referenced in fear, and further viewed the room key as

evidence related to the defendant's approach to room 540 and

involvement as her "pimp."   The officers were "not required to

blind themselves to [this] information."    Blevines, 438 Mass. at

609, quoting from Commonwealth v. Sullo, 26 Mass. App. Ct. 766,

770 (1989).   To the contrary, the totality of circumstances

known to the officers demonstrated an obvious connection between

the room key and the crime of human trafficking. 10




     10In addition to the officers' prearrest observations, the
knife, large amount of cash, and prepaid credit cards found on
the defendant bolstered the nexus between the officers'
observations and the likelihood that the defendant was engaged
in human trafficking. See generally United States v. Henry, 827
F.3d 16, 27 (1st Cir.), cert. denied, 137 S. Ct. 374 (2016), and
cases cited. As discussed supra, the officers were "not
required to blind themselves to [this] information." Blevines,
supra at 609, quoting from Commonwealth v. Sullo, 26 Mass. App.
Ct. 766, 770 (1989).
                                                                  12


     In sum, apart from arresting the defendant for assault and

battery on a police officer, the officers also had reasonable

suspicion to believe that he was participating in additional

criminal activity, which justified the inquiry regarding the

room key.   Accordingly, the judge should not have suppressed the

defendant's statement. 11   So much of the order on the defendant's

motion as suppressed his statement regarding the room key is

reversed.   In all other respects, the order is affirmed.

                                     So ordered.




     11As noted supra, the voluntariness of the defendant's
statement is not at issue, as the judge determined that the
defendant "made a knowing, intelligent, and voluntary waiver of
his Miranda rights."
