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SJC-11543

             COMMONWEALTH   vs.   MATTHEW J. SHERIDAN.



      Norfolk.      November 6, 2014. - February 27, 2015.

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


Controlled Substances. Constitutional Law, Search and seizure,
     Probable cause. Search and Seizure, Motor vehicle,
     Threshold police inquiry, Probable cause, Inevitable
     discovery, Plain view, Search incident to lawful arrest.
     Threshold Police Inquiry. Probable Cause.



     Complaint received and sworn to in the Quincy Division of
the District Court Department on June 21, 2011.

     A pretrial motion to suppress evidence was heard by Robert
P. Ziemian, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Gants, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.


     Paul R. Rudof, Committee for Public Counsel Services, for
the defendant.
     Pamela Alford, Assistant District Attorney, for the
Commonwealth.
                                                                     2

    LENK, J.   In the early morning hours of June 21, 2011,

police officers stopped the defendant, Matthew J. Sheridan, for

driving a minivan with an unilluminated headlight.     During the

stop, the officers saw in the vehicle a portion of what an

officer identified as "about a [one]-ounce bag" of marijuana,

protruding from under a rumpled T-shirt lying on the floor

between the vehicle's two front seats.    The officers ordered the

defendant out of the vehicle, handcuffed him, and conducted a

search of the minivan.    Lifting the T-shirt, an officer found,

in addition to the bag previously partially seen, another one-

ounce bag of marijuana, and a third, smaller bag of marijuana.

The defendant was arrested and taken to the police station.

After he was booked on charges of possession of marijuana with

intent to distribute, officers seized and searched his cellular

telephone, finding several text messages that they identified as

consistent with sales of marijuana.

    The defendant moved to suppress the marijuana seized from

his vehicle and the text messages found on his telephone.     In

Massachusetts, "possession of one ounce or less of marihuana

[is] only . . . a civil offense," punishable by a "civil penalty

of one hundred dollars and forfeiture of the marihuana."

G. L. c. 94C, § 32L.     Because it is not a crime, police
                                                                     3

observation of one ounce or less of marijuana is insufficient,

by itself, to give rise to the probable cause necessary to

conduct a search.   See Commonwealth v. Daniel, 464 Mass. 746,

752 (2013) (Daniel).    A judge of the District Court nevertheless

denied the defendant's motion to suppress.      He concluded the

police were permitted to enter the minivan to effect the

forfeiture of the marijuana that they saw, and that the

discovery of the additional marijuana, the defendant's arrest,

and the subsequent seizure and search of the defendant's

telephone followed from the initial lawful entry into the

defendant's vehicle.     We conclude that the search of the

defendant's vehicle and of the cellular telephone violated his

rights under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights.   Accordingly, the judge's order denying the defendant's

motion to suppress must be reversed.

    1.    Background.   a.   Facts.   We summarize the relevant

facts as found by the District Court judge, supplemented by

uncontroverted evidence derived from the testimony of witnesses

that the judge explicitly or implicitly credited.      See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008).
                                                                   4

    Sean Glennon, an officer of the Quincy police department,

initiated the stop of the defendant's minivan at approximately

2:50 A.M.   Glennon approached the driver's side window and

requested the defendant's driver's license and registration.

Glennon observed that the defendant looked extremely nervous;

his hands shook as he fumbled for his driver's license and

registration, and, although he readily produced his license, he

at first provided an expired registration.    He eventually

provided a current valid registration.

    Scott Walker, a State police trooper who happened to be

patrolling the area, also had stopped at the scene shortly after

Glennon stopped the defendant's vehicle.     As Glennon was

conversing with the defendant, Walker approached the vehicle's

passenger side window.    Walker observed, on the floor between

the vehicle's two front seats, the corner of a plastic sandwich

bag that appeared to contain marijuana, protruding from under a

T-shirt.    Walker discreetly indicated to Glennon the apparent

presence of marijuana.

    Glennon ordered the defendant to step out of the vehicle

and performed a patfrisk, during which he found $285 in cash and

a cellular telephone.    After returning the money and the

telephone to the defendant, Glennon asked whether there was
                                                                   5

"anything illegal in the car."   The defendant answered, "No."

Glennon requested permission to search the vehicle; the

defendant declined.   Glennon then informed the defendant that

Walker had seen a bag of marijuana in the vehicle.   The

defendant "slumped forward" and a "dejected type of look"

crossed his face.

    Glennon handcuffed the defendant, whose hands by that point

were "shaking uncontrollabl[y]," and began to search the

vehicle.   Glennon saw a bag he described as "consistent with

about a [one]-ounce bag" of marijuana, partially visible under a

T-shirt on the floor between the vehicle's front seats.     He

lifted the T-shirt, and observed two additional bags of

marijuana, one approximately equal in size to the first bag, and

one smaller.   The officers searched the remainder of the

minivan, and also requested a narcotics-trained canine to

perform a sniff search, but located no additional drugs or

contraband and no other evidence of illegal activity.    The

defendant was transported to the police station, where he was

booked on charges of possession with intent to distribute

marijuana.   During booking, officers again seized the

defendant's money and cellular telephone.   Glennon viewed text

messages stored on the telephone, and saw "several text messages
                                                                     6

that appeared to be orders to purchase marijuana."

    b.   Procedural history.     The defendant was charged with

possession with the intent to distribute marijuana, in violation

of G. L. c. 94C, § 32, and a civil motor vehicle infraction

based on the broken headlight.     The defendant filed a motion to

suppress all of the physical evidence seized as a result of the

search and the arrest, including the marijuana, the telephone,

and the text messages found on the telephone.    The defendant

argued that the officers lacked probable cause to believe that

the minivan contained more than one ounce of marijuana,

rendering the search impermissible.    A District Court judge held

an evidentiary hearing on the defendant's motion, at which both

Glennon and Walker testified.

    The judge denied the motion to suppress.     He observed that

"[t]he issue of whether the police could ascertain whether the

initial bag of marijuana, because it was partially hidden,

contained more or less than one [ounce] of material was . . .

contested . . . at the hearing."    The judge concluded, however,

that "it is irrelevant whether Glennon or Walker could make such

a determination."   Stating that, "while possession of less than

[one ounce] of marijuana is not criminal, any quantity is

'contraband,'" the judge determined that "the police are
                                                                    7

entitled to issue an 'exit order' to completely ensure their

safety (and for convenience) while they are in a vulnerable

position reaching into the vehicle to seiz[e] the drugs."

Furthermore, the judge concluded that, "once the police removed

the shirt to seize the initial bundle of marijuana, a second one

ounce bag as well as a smaller bag were revealed," giving rise

to probable cause to arrest the defendant for possession of a

criminal quantity of marijuana.   Finally, the judge concluded

that "[t]he seizure of the [tele]phone [was] incident to the

arrest," and that "the information obtained [from the search of

the telephone's contents] [was] allowed as inevitable discovery

during the investigation of whether the more than one [ounce] of

marijuana were possessed with intent to distribute."

    The single justice granted the defendant's application for

leave to file an interlocutory appeal to the Appeals Court

pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422

Mass. 1501 (1996), and also allowed the defendant to amend his

filing to include a challenge to the search of the cellular

telephone.   We allowed the defendant's application for direct

appellate review.

    2.   Discussion.   a.   Standard of review.   "In reviewing a

ruling on a motion to suppress, we accept the judge's subsidiary
                                                                      8

findings of fact absent clear error but conduct an independent

review of [the judge's] ultimate findings and conclusions of

law" (quotation omitted).    Daniel, 464 Mass. at 748-749.

    b.   The search of the vehicle.   i.   The Fourth Amendment to

the United States Constitution protects the "right of the people

to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures."    Article 14 of the

Massachusetts Declaration of Rights similarly protects against

"unreasonable searches, and seizures, of [one's] person, [one's]

houses, [one's] papers, and all [one's] possessions."     While

"[g]enerally, a warrant is required" for a search to be

reasonable, "several well-recognized exceptions exist."

Commonwealth v. Cruz, 459 Mass. 459, 473 (2011) (Cruz).      "Under

the automobile exception, a warrantless search of an automobile

is permitted when police have 'probable cause to believe that a

motor vehicle on a public way contains contraband or evidence of

a crime, and exigent circumstances make obtaining a warrant

impracticable.'"   Id. at 473-474, quoting Commonwealth v. Cast,

407 Mass. 891, 901 (1990).   "[W]hen an automobile is stopped in

a public place with probable cause, no more exigent

circumstances are required . . . beyond the inherent mobility of

an automobile itself to justify a warrantless search of the
                                                                     9

vehicle."    Commonwealth v. Motta, 424 Mass. 117, 124 (1997).

    In 2008, voters in the Commonwealth approved a ballot

initiative entitled "An Act establishing a sensible State

marihuana policy."    See St. 2008, c. 387.   The initiative

established that "possession of one ounce or less of marihuana

shall only be a civil offense, subjecting an offender who is

eighteen years of age or older to a civil penalty . . . and

forfeiture of the marihuana, but not to any other form of

criminal or civil punishment or disqualification."     G. L.

c. 94C, § 32L.

    In Cruz, 459 Mass. at 462, we first confronted the

decriminalization initiative's impact on the automobile

exception.    There police officers, while conducting an otherwise

permissible vehicle stop, smelled "a 'faint odor' of burnt

marijuana."   Id.   Before the enactment of the decriminalization

initiative, we had held "that the odor of burnt marijuana is

sufficient to believe that there is contraband in the car."      Id.

at 474, citing Commonwealth v. Garden, 451 Mass. 43, 47 (2008).

The validity of a warrantless search, however, is determined

according to the same standard used by a magistrate in deciding

to issue a search warrant.    Cruz, supra at 475, citing Whiteley

v. Warden, 401 U.S. 560, 566 (1971).   In Massachusetts, the
                                                                     10

standard for the issuance of a search warrant demands probable

cause to believe that a crime is being committed.      Cruz, supra

at 475-476.    Because the ballot initiative transformed the

possession of one ounce or less of marijuana into a civil

infraction, not a crime, we concluded in Cruz that a warrantless

search of a vehicle is permissible only if police can establish

"probable cause to believe that a criminal amount of contraband

was present in the car."     Id. at 476 (emphasis in original).

    Similarly, in Daniel, supra at 749, police smelled "the

odor of freshly burnt marijuana" while conducting a traffic

stop.   When an officer asked whether the vehicle's occupants had

any marijuana, a passenger gave the officer two small bags,

collectively containing less than one ounce of marijuana.      Id.

The officer then ordered the occupants out of the vehicle and

searched it.   Id. at 750.   During the search, he found an

unlicensed firearm in the glove compartment.     Id.

    We held that the officer lacked probable cause to search

the vehicle.   Id. at 751-752.    Possession of the quantity of

marijuana contained in the two small bags "constituted a civil

infraction, not a criminal offense," id. at 751, and the

vehicle's occupants "surrendered [the] bags . . . at the request

of the officer."    Id.   Consequently, "[a]bsent articulable facts
                                                                   11

supporting a belief that either occupant of the vehicle

possessed a criminal amount of marijuana, the search was not

justified by the need to search for contraband."   Id. at 752.

    Cruz and Daniel control the outcome of this case.       Glennon

testified that the bag that was partially visible under the T-

shirt was "consistent with about a [one]-ounce bag" of

marijuana.   Because the ballot initiative decriminalized

"possession of one ounce or less" of marijuana, G. L. c. 94C,

§ 32L, the officer saw evidence of a civil infraction, not a

criminal offense.   Absent articulable facts supporting a belief

that the vehicle contained an additional, criminal quantity of

marijuana, the officers lacked probable cause to believe that a

crime was being committed, and the search was impermissible.

    ii.    The Commonwealth offers two reasons in support of its

argument that the officers had probable cause to believe that a

criminal amount of marijuana was present in the vehicle.

    The Commonwealth's first argument hinges on the word

"about."   The Commonwealth contends that, because "'[a]bout' an

ounce would include amounts both more and less than an ounce,"

and because possession of more than an ounce of marijuana would

constitute a criminal offense, the officers had probable cause

to search the vehicle.
                                                                   12

    The standard for probable cause demands that the officers

know "enough facts and circumstances 'to warrant a person of

reasonable caution in believing'" the vehicle contained a

criminal quantity of marijuana.   Commonwealth v. Welch, 420

Mass. 646, 650 (1995), quoting Commonwealth v. Cast, 407 Mass.

at 895.   Here Glennon testified that, based on his training and

experience, he identified the amount of marijuana contained in

the bag as "about . . . [one]-ounce," a noncriminal quantity.

The Commonwealth identifies no facts or circumstances within the

officers' knowledge that would have led a reasonable person to

believe that Glennon underestimated the amount of marijuana

contained in the bag.   That belief would be particularly

unwarranted because the officers could only see a small portion

of the bag, the remainder being covered by the T-shirt.     The

imprecision in Glennon's estimate at best gives rise only to

speculation that the quantity exceeded one ounce.   It does not

establish probable cause.

    Next, the Commonwealth contends that, even if the

observation of the marijuana alone were not sufficient to give

rise to probable cause, the defendant's nervousness upon being

stopped tipped the scales to probable cause.   In Cruz, 459 Mass.

at 467, the Commonwealth similarly contended that the odor of
                                                                    13

burnt marijuana, when coupled with "the stop's location, a high

crime neighborhood; the defendant's nervous demeanor; and the

occupants' sharing of a cigar" allegedly used to cover the odor

of marijuana were sufficient to establish probable cause.

Likewise, in Daniel, 464 Mass. at 749, an officer testified

that, when he approached the stopped vehicle, he observed the

defendant "sitting in the passenger seat" with "his head down

and his shoulders . . . 'rocking back and forth.'"    The officer

in Daniel, supra at 750, also testified that he regarded the

defendant's conduct in emptying his pockets and placing the

contents on the dashboard as "significant . . . because it was

not common," and that it suggested to him that the defendant was

"trying to conceal something."    In both cases, we determined

that manifestations of allegedly nervous or furtive behavior, in

conjunction with indications that the defendants possessed some

amount of marijuana, were not sufficient to establish probable

cause to believe that the defendants possessed a criminal

quantity.   "It is common," we observed, "and not necessarily

indicative of criminality, to appear nervous during even a

mundane encounter with police."    Cruz, 459 Mass. at 468.

Because the Commonwealth identifies no additional factors

supporting probable cause beyond the defendant's apparent
                                                                  14

nervousness and the noncriminal quantity of marijuana that the

officers observed, we reach the same conclusion here.

    iii.   The decriminalization initiative transformed

possession of one ounce or less of marijuana into a civil

offense, subjecting the possessor to "a civil penalty" and

"forfeiture of the marihuana."   G. L. c. 94C, § 32L.    The

District Court judge determined that the police officers were

permitted to order the defendant out of his vehicle, and then to

enter the vehicle themselves to effect this forfeiture.    The

Commonwealth echoes this argument on appeal, asserting that

"[t]he limited entry was reasonable as it effected the

forfeiture as envisioned by G. L. c. 94C, § 32L."

    In evaluating this argument, it is important to distinguish

an officer's power to seize the marijuana from the officer's

power to make an entry into the vehicle to effect that seizure.

We agree with the District Court judge's determination that any

quantity of marijuana is "contraband" and is subject to seizure.

We disagree, however, with the judge's conclusion that, to

effect that seizure, the officers were entitled to make an entry

into the vehicle that -- lacking probable cause -- they

otherwise would be prohibited from making.

    The Commonwealth contends that the seizure of the marijuana
                                                                  15

was proper because it was in "plain view."    "Under our plain

view doctrine, a police officer may seize objects in plain view

where four requirements are met: (1) the officer is 'lawfully in

a position to view the object'; (2) the officer has 'a lawful

right of access to the object'; (3) with respect to 'contraband,

weapons, or other items illegally possessed, where the

incriminating character of the object is immediately apparent'

or, with respect to 'other types of evidence . . . where the

particular evidence is plausibly related to criminal activity of

which the police are already aware'; and (4) the officer

'come[s] across the object inadvertently.'"    Commonwealth v.

White, 469 Mass. 96, 102 (2014), quoting Commonwealth v. Sliech–

Brodeur, 457 Mass. 300, 306–307 (2010).   There is no dispute

here that the first and fourth requirements are met:     the

officers were lawfully in a position to observe the bag of

marijuana, since the bag was visible from outside the vehicle

where the officers were positioned in effecting a permissible,

routine traffic stop; and the officers came across the marijuana

inadvertently, since there is no contention that the officers

effected the traffic stop to search for marijuana.

    The Commonwealth, however, cannot satisfy the doctrine's

second requirement, which demands that the officer have "a
                                                                   16

lawful right of access to the object."    Commonwealth v. White,

supra.   In typical plain view cases, officers see and seize an

object while conducting a permissible search, pursuant either to

a warrant, see Commonwealth v. Sliech-Brodeur, supra at 306, or

to an exception to the warrant requirement, see Commonwealth v.

White, supra; Commonwealth v. Stack, 49 Mass. App. Ct. 227, 234-

235 (2000).   In those cases, police officers are already in the

process of conducting a permissible search of a certain location

(i.e. a vehicle, a house), and the plain view doctrine operates

to allow officers to seize an object to which, by virtue of the

search, they already have access.   In other cases, police

officers see, in plain view from a lawful vantage point outside

a vehicle, an item that itself gives rise to "probable cause to

believe that they would find 'the instrumentality of a crime or

evidence pertaining to a crime' in the vehicle."   Commonwealth

v. Johnson, 461 Mass. 44, 49 (2011), quoting Commonwealth v.

Antobenedetto, 366 Mass. 51, 55 (1974).   Because the observation

gives rise to probable cause to conduct a search, the subsequent

entry into the vehicle and seizure of the item is permissible.

Commonwealth v. Johnson, supra at 50.

    Here, although the officers could see the marijuana from

their lawful vantage point outside the minivan, they did not
                                                                     17

have a "lawful right to access" it from that vantage point.     To

seize the marijuana, the police officers had to enter the

minivan.   Because the observation of a noncriminal quantity of

marijuana alone did not give rise to probable cause that the

vehicle contained evidence of a crime, the validity of the

officers' seizure of the marijuana turns on the existence of

some other basis, besides probable cause, to justify the

officers' entry into the vehicle.

    The Commonwealth characterizes the entry into the minivan

as a "limited intrusion," and likens it to the intrusion

involved in a police officer's request for license and

registration documentation during a routine motor vehicle stop.

The analogy is inapposite.   In the context of traffic stops, we

have never held that officers may routinely enter vehicles to

acquire driver's license and registration documents, in the same

way that the officers entered the defendant's vehicle here to

seize the marijuana.   On the contrary, we have stated that,

"[g]enerally, the officer may simply direct the driver to

retrieve his identification from the vehicle."   Commonwealth v.

Lopes, 455 Mass. 147, 160 (2009).   Only when the officers have

"a reasonable basis to believe that [the vehicle's occupants

are] armed and dangerous" are police officers permitted to order
                                                                     18

the occupants out of the vehicle and then conduct a limited

search for the purposes of recovering the identification and

registration documents.    Id.   Cf. Commonwealth v. Pagan, 440

Mass. 62, 68 (2003) (police officers permitted to search

"container that they reasonably fear may contain a weapon"

before returning it to defendant to locate his identification

documentation); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526,

528-529 (1995) (concluding that, where circumstances of search

"justifie[d] heightened precautions for the officers' own

safety[,] . . . the officers could properly have entered the

passenger compartment, including the glove compartment, to

retrieve the registration themselves").

    Indeed, our jurisprudence has diverged from the United

States Supreme Court's Fourth Amendment jurisprudence in that we

have held that art. 14 prohibits automatic exit orders during

routine traffic stops.    Compare Commonwealth v. Gonsalves, 429

Mass. 658, 662-663 (1999), with Pennsylvania v. Mimms, 434 U.S.

106, 109-110 (1977).   Instead, we have concluded that a police

officer must "have a reasonable suspicion of danger before

compelling a driver to leave his motor vehicle."      Commonwealth

v. Gonsalves, supra at 662.      Here the District Court judge

acknowledged that, "except for the extreme nervousness of the
                                                                   19

defendant, there [were] not present any other factors that would

indicate a dangerous situation may exist."   The judge never

found that the officers' exit order and the patfrisk of the

defendant that followed were based on any reasonable

apprehension of danger.   Rather, the record indicates that these

events were precipitated solely by the officers' observation of

what they believed to be a noncriminal portion of marijuana.

Under these circumstances, the exit order and the patfrisk were

impermissible, and the officers' entry into the vehicle to seize

the marijuana cannot be justified under the logic that enables

police officers to enter a vehicle to recover license and

registration documentation in situations where the officer

reasonably believes that the driver is armed and dangerous.

    Finally, the Commonwealth suggests that the officers' entry

into the minivan was permissible under the logic that allows

warrantless administrative inspections to enforce certain

regulatory schemes.   Such searches, however, are typically

confined to "commercial premises" that are "utilized in the

context of a 'closely regulated' industry," where "an

individual's expectation of privacy" is "particularly

attenuated."   Commonwealth v. Tart, 408 Mass. 249, 253-254

(1990).   Where warrantless administrative searches for evidence
                                                                  20

of suspected regulatory violations have been upheld, moreover,

typically "there is no possibility of criminal action and thus

no necessity to comply with the more stringent standards of

criminal probable cause" (quotations and citations omitted).

Commonwealth v. Frodyma, 386 Mass. 434, 442 (1982).

Administrative searches are permissible because they are

"conducted as part of a general regulatory scheme in furtherance

of an administrative purpose, rather than as part of a criminal

investigation to secure evidence of crime."   United States v.

Davis, 482 F.2d 893, 908 (9th Cir. 1973), overruled on other

grounds, United States v. Aukai, 497 F.3d 955 (9th Cir. 2007)

(en banc).   They are not permissible, by contrast, where they

serve as a "tool for law enforcement."   United States v.

$124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th Cir. 1989).

    The facts of this case aptly demonstrate how the type of

intrusion that occurred here could become a tool for law

enforcement to search for evidence of criminal activity despite

the absence of probable cause.   Contrary to the Commonwealth's

characterization, the search went beyond a "limited intrusion"

for the "sole purpose of seizing marijuana in [the officers']

plain view."   Upon entering the vehicle, the officers did not

merely seize the one bag of marijuana that was partially in
                                                                   21

plain view under the T-shirt.   Instead, they lifted the T-shirt,

discovering and then seizing two additional bags.   The judge

made no factual finding that the officers had to lift the T-

shirt to seize the bag, rather than simply grasping the portion

of the bag that was partially visible.   And although the

District Court judge found that, "in addition to the visible

one-ounce bag of marijuana, other objects lay underneath the

same t-shirt," the judge never found, and nothing in the

officers' testimony supports a finding, that the officers had

reason to believe that these other objects were other bags of

marijuana, rather than innocuous, noncontraband items.

     For these reasons, we reject the Commonwealth's contention

that the officers here were permitted to effect a "limited

intrusion" into the defendant's vehicle to seize the marijuana.

The officers observed a noncriminal quantity of marijuana from a

lawful vantage point, and might well have informed the defendant

that the possession of that marijuana constituted a civil

offense, subjecting the possessor to a fine, and that the

marijuana was subject to forfeiture.   They could have requested

that the defendant turn the marijuana over to them.1   They could


     1
       We leave to another day an examination of the consequences
if the defendant had declined to turn over the marijuana on
                                                                 22

also have issued a civil citation, see G. L. c. 94C, § 32N, and

pursued the forfeiture of the marijuana, see G. L. c. 94C, § 47.

They did not do so.   Instead, they entered the vehicle and

conducted a search that went beyond even what would be necessary

to seize the bag that they had seen.   Because they lacked

probable cause to believe that the van contained evidence of a

crime, we conclude that their entry into the minivan was

impermissible.

    c.     The search of the cellular telephone.   Our

determination that the search of the defendant's vehicle was

impermissible resolves any question whether the subsequent

search of the defendant's cellular telephone was permissible.

The District Court judge concluded that the additional bags of

marijuana that the officers discovered as a result of their

entry into the minivan gave rise to probable cause to arrest the

defendant; that the seizure of the cellular telephone was

permissible as a seizure incident to the defendant's arrest; and

that, once the telephone was seized, the search of the text

messages contained on the telephone was permissible under the

inevitable discovery doctrine.   In the District Court judge's

analysis, then, the validity of the search of the cellular

request.
                                                                   23

telephone ultimately turned on the validity of the officers'

entry into the minivan.   Because we have determined that the

officers' entry into the minivan was impermissible, the thread

leading to the search of the text messages is unwound, and the

text messages must be suppressed.   See, e.g., Commonwealth v.

Pietrass, 392 Mass. 892, 900 (1984).

    If there were any doubt about that result, the United

States Supreme Court has set it to rest.   After the District

Court judge issued his decision in this case, the United States

Supreme Court decided Riley v. California, 134 S. Ct. 2473

(2014).   There, the Court held that "the search incident to

arrest exception does not apply to cell phones."    Id. at 2494.

For both of those reasons, the text messages obtained as a

result of the search of the defendant's cellular telephone must

be suppressed.

    3.    Conclusion.   The decision denying the defendant's

motion to suppress evidence obtained as a result of the searches

of his vehicle and of the defendant's cellular telephone is

reversed.   The matter is remanded to the District Court for

further proceedings consistent with this opinion.

                                     So ordered.
