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SJC-12001

                  COMMONWEALTH   vs.   JARED ABDALLAH.



         Bristol.       February 11, 2016. - July 28, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.1


Constitutional Law, Search and seizure.      Search and Seizure,
     Inventory.



     Indictments found and returned in the Superior Court
Department on June 19 and 20, 2013, and March 6, 2014.

     A pretrial motion to suppress evidence was heard by Raymond
P. Veary, Jr., J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Hines, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.


     Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
     Michael J. Fellows for the defendant.


     DUFFLY, J.     After causing a disturbance, the defendant was

     1
       Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                    2


arrested outside his hotel room in the town of Raynham on an

outstanding warrant for larceny of $250 or less.   Raynham police

took possession of a small backpack (a cloth drawstring bag with

shoulder straps made of rope) that the defendant had been

carrying on his person and transported the bag, along with the

defendant, to the police station, where it was searched pursuant

to the Raynham police department's inventory policy.   The search

of the bag uncovered several thousand dollars in cash, glassine

bags containing what appeared to be cocaine, and several hundred

Percocet pills.   The defendant was indicted on charges of

trafficking in a class B substance (cocaine), G. L. c. 94C,

§   32E (b) (1); trafficking in a class B substance (Percocet),

G. L. c. 94C, § 32E (c) (2); and possession with the intent to

distribute a Class B substance (Percocet), G. L. c. 94C,

§ 32A (a).2   Following an evidentiary hearing, the defendant's

motion to suppress the items found during the search was allowed

by a Superior Court judge.

     A single justice of this court granted the Commonwealth's

application for interlocutory appeal and reported the matter to

the Appeals Court.   We transferred the case to this court on our


     2
       The defendant also was indicted on charges of breaking and
entering in the nighttime with intent to commit a felony, G. L.
c. 266, § 16; breaking and entering in the daytime with intent
to commit a felony, G. L. c. 266, § 18; two counts of larceny
from a building, G. L. c. 266, § 20,; and receiving stolen
property having a value over $250, G. L. c. 266, § 60.
                                                                     3


own motion.    We conclude that, in the circumstances presented

here, there was no error in the allowance of the defendant's

motion to suppress.    Accordingly, we affirm the allowance of the

motion, although for reasons that differ somewhat from those

relied upon by the motion judge.

     Background.    We set forth the facts found by the motion

judge, supplementing those findings with uncontroverted evidence

in the record that was credited by the judge.3   See Commonwealth

v. White, 469 Mass. 96, 97 (2014), citing Commonwealth v. Isaiah

I., 448 Mass. 334, 337 (2007).

     Just before noon on June 1, 2013, three officers of the

Raynham police department responded to a call regarding a

disturbance at a local hotel that allegedly involved the

defendant.    While en route to the hotel, Sergeant David LaPlante

learned from a police dispatcher that the defendant was wanted

on an outstanding warrant for larceny of $250 or less.    When the

officers arrived at the hotel, the desk clerk informed them that

the defendant had refused to leave his hotel room when she

informed him at the posted checkout time that it was time to

check out.


     3
       Sergeant David LaPlante, one of the three arresting
officers, was the sole witness at the hearing on the defendant's
motion to suppress. The motion judge stated that he found "all
of the testimony of Sergeant LaPlante to be credible." The
Commonwealth also introduced the Raynham police department's
detainee processing policy and inventory search policy.
                                                                     4


    As the officers approached the defendant's room, they could

hear a male voice engaged in a conversation.    They knocked on

the door and announced their presence.    When the defendant

opened the door, LaPlante recognized him from prior encounters,

most recently an incident in which the defendant had been the

victim of a stabbing.   As the defendant stepped out of the room,

he was speaking on a cellular telephone that he was holding.

LaPlante told him to drop the telephone, and the defendant

complied.   LaPlante then told the defendant that he was under

arrest, asked him to turn around, and handcuffed him.

    As LaPlante conducted a patfrisk of the defendant to check

for weapons, he saw that the defendant was wearing a small cloth

backpack.   LaPlante removed the defendant's handcuffs and

another officer, Lieutenant Brian Carr, took possession of the

backpack.   LaPlante then again handcuffed the defendant.    The

bag remained in Carr's custody as the officers escorted the

defendant to LaPlante's police cruiser.    The officers informed

the defendant that he would be able to pick up his belongings,

including clothing and personal items that had been left in the

hotel room, at the hotel's front desk after he was released.

The defendant asked the officers to secure a computer and a

video game system that were in his room, and they did so.      The

officers also asked the defendant whether he had an automobile

with him; he informed them that he had parked his grandmother's
                                                                        5


vehicle in the hotel's parking lot.      The officers sought and

obtained permission from the front desk clerk to allow the

vehicle to remain in the lot until someone could pick it up.

       LaPlante placed the defendant in the back seat of the

cruiser.       The defendant's bag, which had remained in Carr's

possession, was handed to LaPlante, who kept it with him in the

front seat.4      After they arrived at the police station, the

defendant was booked pursuant to the Raynham police department's

established booking procedures.       As part of the booking process,

LaPlante opened the bag and removed its contents, which included

several rolls of cash amounting to over $7,000, small plastic

bags containing cocaine, and approximately 500 Percocet pills.

       The defendant moved to suppress all of the items seized,

arguing that the search violated his rights under the Fourth and

Fourteenth Amendments to the United States Constitution, art. 14

of the Massachusetts Declaration of Rights, and G. L. c. 276,

§ 1.       The judge allowed the motion, finding as follows:

            "[B]y the Commonwealth's testimony, [the defendant's
       bag] had no connection at all with the arrest of this
       particular defendant. The defendant was arrested pursuant
       to [an outstanding] warrant . . . for the crime of
       larceny . . . under $250. [O]n that basis, there was no
       probable cause connecting the bag with the arrest. I
       further find under these facts that once the bag was

       4
       When defense counsel asked LaPlante why he did not tell
Carr to leave the bag with the rest of the defendant's property
at the hotel, LaPlante responded, "I don't know -- that was on
his person. I have no idea what was in it, and it's the way
that we always have done it."
                                                                  6


    removed from the defendant, and he was rehandcuffed, that
    bag [did not] offer[], and I have heard no testimony
    suggesting that it offered, any threat to any police
    officer. . . . [T]he only reason that that bag[,] which
    was searched[,] was eventually brought to the booking
    procedure and the station . . . is by police action, not by
    action of this defendant. It was the police that removed
    that bag from the defendant, the police that seized the
    bag, the police that transported the bag back to the police
    station, and the police who searched the bag as part of its
    booking procedure."

Relying on Commonwealth v. Madera, 402 Mass. 156 (1988), the

judge concluded that there was no probable cause to search the

bag as incident to the defendant's arrest on the outstanding

warrant, and therefore the search of the bag that had been on

the defendant's person when he was arrested was unlawful.

    On appeal, the Commonwealth argues, as it did during the

hearing on the motion to suppress, that the search of the

defendant's bag was a permissible inventory search that may be

undertaken not only of an arrested defendant's person, but also

of a defendant's clothing and articles he or she is carrying.

See, e.g., Illinois v. Lafayette, 462 U.S. 640, 643-649 (1983).

According to the Commonwealth, the defendant's bag was

"constructively part of his person" at the time of his arrest,

and the fact that an arresting officer removed it from his

person before placing the bag and the defendant in the police

cruiser does not affect the validity of the inventory search,
                                                                   7


which, the judge found, was conducted in compliance with the

Raynham police department's written inventory policy.5

     The defendant maintains that the items properly were

suppressed because the Commonwealth has not established that the

search was not "a cover or pretext for an investigative search."

See Commonwealth v. Peters, 48 Mass. App. Ct. 15, 21 (1999),

quoting Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 768

(1989).   He argues in essence that, where police had a practical

alternative to seizing the bag and bringing it to the police

station -- the officers could have left it in the custody of the

hotel clerk, who already had agreed to hold the defendant's

other belongings and to allow his grandmother's vehicle to

remain in the parking lot -- the decision to take it to the

police station was an impermissible exercise of discretion that

supports the conclusion that the inventory search was a pretext

for an impermissible investigative search.

     Discussion.   We "may affirm [a motion judge's] ruling on

any grounds supported by the record and the findings of fact."

Commonwealth v. Bartlett, 465 Mass. 112, 117 (2013).

     An inventory search conducted by police officers pursuant

to a police department's written policy is "justified to

     5
       The Commonwealth argues for the first time on appeal, and
without citation to relevant authority, that the police were
"not required to leave the backpack on the defendant during
transportation, where the backpack itself could have contained a
weapon." The argument is waived.
                                                                    8


safeguard the defendant's property, protect the police against

later claims of theft or lost property, and keep weapons and

contraband from the prison population."     Commonwealth v. Vuthy

Seng, 436 Mass. 537, 550-551, cert. denied, 537 U.S. 942 (2002).

Because the police are authorized to conduct an inventory search

without a warrant, "it is the Commonwealth's burden to establish

that the evidence was lawfully obtained."    Commonwealth v.

Eddington, 459 Mass. 102, 108 (2011).   See 3 W.R. LaFave, Search

and Seizure § 5.5(b) (5th ed. 2012) ("A police inventory of some

possession of the arrestee, such as a suitcase, presupposes that

the police had some valid reason for taking custody of that

object, for it is only because of such taking of custody that

the police can be said to have some obligation to safeguard the

contents").

     We have not previously considered whether police officers

are authorized to seize a bag worn by a suspect at the time of

arrest and later search it pursuant to an inventory policy,

where police lack probable cause to seize or search it, and no

other exception to the warrant requirement applies.6    Cf.

Commonwealth v. Craan, 469 Mass. 24, 28 (2014) ("When a search

is conducted without a warrant, the burden is on the

Commonwealth to show that the search 'falls within a narrow

     6
       The Commonwealth does not assert that the police had
probable cause to seize the defendant's bag or that any other
recognized exception to the warrant requirement applies.
                                                                     9


class of permissible exceptions' to the warrant requirement"

[citation omitted]).   In addressing this issue, we must

ascertain whether it was reasonable for the officers in this

case to take possession of, or seize,7 the defendant's bag and

transport it to the police station.    Cf. Commonwealth v.

Oliveira, 474 Mass. 10, 13 (2016).    This inquiry is "fact

driven, with the overriding concern being the guiding touchstone

of '[r]easonableness.'"   See Commonwealth v. Eddington, 459

Mass. at 108, quoting Commonwealth v. Ellerbe, 430 Mass. 769,

776 (2000).

     The defendant argues that, as an alternative to seizing the

bag and transporting it to the police station, the officers

could have left it in the custody of the hotel clerk who had

agreed to secure the rest of his possessions.    We must ascertain

whether this option would have presented any public safety

concerns or a danger of theft that would have rendered it

unreasonable.   See Commonwealth v. Eddington, supra at 108-109.

Because, in these circumstances, there was a third party present

who was willing to take possession of the defendant's

     7
       For purposes of analysis, we conclude that the officers
seized the defendant's bag when LaPlante handed it to Carr to
transport to the police station, rather than leaving it in the
defendant's hotel room or with the hotel clerk. Cf.
Commonwealth v. Oliveira, 474 Mass. 10, 13-16 (2016) (discussing
impoundment of vehicle preceding inventory search as "seizure").
We are not concerned with the initial removal of the bag from
the defendant's person, because that is not the act that made it
available for subsequent inventory search at the police station.
                                                                   10


belongings, we do not think that the police reasonably could

have been concerned about public safety.   Likewise, there is no

indication that the potential risk of theft reasonably could

have led the police to seize the bag.   The officers were aware

that the hotel was securing the rest of the defendant's

belongings, including a computer and a video game system that

the police obtained from the defendant's hotel room and gave to

the hotel clerk to secure.    If not seized by the police, the bag

would not have been accessible to the general public, as it

would have been in the possession of the hotel.    In these

circumstances, the officers could not reasonably have believed

that they needed to seize the bag in order to protect the public

or the contents of the bag.

    Having concluded that public safety concerns or the danger

of theft did not justify the seizure of the bag, we consider

whether, in the totality of the circumstances, it was reasonable

for the police to seize it and transport it to the police

station rather than leave it in the care of hotel personnel.

Cf. Commonwealth v. Oliveira, supra at 13-14.     In conducting

this analysis, we consider it significant that, at the time of

the defendant's arrest, the officers made arrangements with the

hotel to provide safekeeping for all of his other belongings,

including the computer and video game system.   The police also

obtained permission from the hotel clerk for the defendant's
                                                                  11


vehicle to remain in the hotel parking lot until it could be

retrieved by one of the defendant's relatives.   This suggests

that the officers believed it was reasonable to leave the

defendant's personal possessions in the custody of the hotel.

In such circumstances, we cannot conclude that it was reasonable

for the officers to single out the defendant's bag to take to

the police station, and to conduct a search pursuant to the

police department's inventory search policy.   Contrast

Commonwealth v. Ellerbe, 430 Mass. at 774 ("the police had no

practical alternative to towing the vehicle, and thus no

discretion to exercise"); Commonwealth v. Caceres, 413 Mass.

749, 751 (1992) ("We conclude that there was no practical

available alternative to the removal of the vehicle and to an

inventory search of it").

     The Commonwealth points out that the defendant did not ask

the officers to leave his bag with the hotel clerk.   That fact

alone is not dispositive, however, where the officers took

affirmative steps to arrange for the hotel to secure the

defendant's other possessions.8   In the totality of the

circumstances, we conclude that it was unreasonable to seize the


     8
       We observe also that LaPlante stated that he did not leave
the bag with the rest of the defendant's property at the hotel
in part because he had "no idea what was in it." An officer's
curiosity about the contents of a bag carried by an individual
who is being arrested does not, without more, provide a valid
justification to seize that bag at the time of arrest.
                                                                      12


bag.9       Thus, any subsequent search, even pursuant to a generally

lawful inventory search policy, was tainted by the unlawful

seizure.       See Commonwealth v. Blevines, 438 Mass. 604, 610-611

(2003).

                                        Order allowing motion
                                          to suppress affirmed.




        9
       Because of the result we reach, we need not address the
defendant's argument that the inventory search was a pretext to
conduct an investigatory search. See Commonwealth v. Ortiz, 88
Mass. App. Ct. 573, 577 (2015) (inventory policy used as pretext
to conduct investigatory search). See also Gaston v. State, 155
Ga. App. 337, 338 (1980) ("We find under the facts of this case
that the search conducted on the bag was only pretextually an
inventory search, since the facts indisputably show that the
'need' for an inventory of the bag was artificially created to
enable the police officers to conduct a search of the bag
without probable cause").
