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SJC-11497

            COMMONWEALTH    vs.   WILLIAM T. WHITE, JR.



         Middlesex.        March 4, 2014. - July 11, 2014.

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


Search and Seizure, Arrest, Container, Inventory, Plain
     view, Protective frisk, Search incident to lawful arrest.
     Constitutional Law, Search and seizure, Arrest.
     Controlled Substances. Practice, Criminal, Motion to
     suppress, Warrant.



     Complaint received and sworn to in the Cambridge Division
of the District Court Department on April 13, 2007.

     A pretrial motion to suppress evidence was heard by
Severlin B. Singleton, III, J., and the case was heard by
Michele B. Hogan, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Edward R. Molari for the defendant.
     Crystal Lee Lyons, Assistant District Attorney, for the
Commonwealth.


     GANTS, J.   The issues presented in this case concern the

lawful scope of a search incident to arrest, an inventory
                                                                     2


search, and a seizure under the plain view doctrine where a

defendant is arrested on outstanding arrest warrants.    Because

we conclude that, in the circumstances of this case, the police

exceeded the lawful scope of a search under each of these

exceptions to the warrant requirement, we reverse the denial of

the defendant's motion to suppress, vacate the defendant's

conviction, and remand the case for a new trial.

     Background.   We summarize the facts as found by the motion

judge, supplementing those findings with evidence in the record

that is uncontroverted and that was implicitly credited by the

judge.    See Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008).

     On the morning of April 13, 2007, Officers Steven Bikofsky

and Brian Hussey of the Cambridge police department, while on

patrol in a marked cruiser, learned that the registered owner of

a motor vehicle they observed had two outstanding arrest

warrants, one for violation of a protective order under G. L.

c. 209A and another for a drug offense.    They stopped the motor

vehicle by pulling behind it and activating the cruiser's blue

lights.   Officer Bikofsky approached the motor vehicle on foot

and asked the driver for his driver's license.    After confirming

that the driver (the defendant) was the registered owner,

Officer Bikofsky ordered him out of the vehicle, handcuffed him,

and placed him under arrest on the outstanding warrants.
                                                                    3


     Officer Bikofsky then pat frisked the defendant's outer

clothing.   The officer felt a small, hard object in the

defendant's front pants pocket that he believed to be a

prescription pill container.   He asked the defendant what it

was, and the defendant replied that it was his blood pressure

medication.   The officer removed the pill container from the

defendant's pocket and saw that the defendant's name was on the

container's label and that there was one pill inside.   He then

continued the patfrisk of the defendant and felt a similar

object, which he removed from the defendant's pocket.   This was

a black opaque plastic "One Touch" container that the officer

knew normally would contain small, thin strips for use with a

blood sugar testing kit.   But when the officer shook the

container, the sound was more consistent with the presence of

pills than the presence of these strips.   The officer opened the

container and saw several pills inside, which the defendant said

were also for his blood pressure.   The officer was unfamiliar

with these pills, but because they appeared dissimilar to those

in the prescription container, he decided to retain them for

further investigation.

     Before transporting the defendant to the station for

booking, Officer Bikofsky asked the defendant if he wanted his

vehicle towed to the station or secured where it was parked.

The defendant said that he wanted his vehicle secured and left
                                                                     4


where it was parked.    Officer Hussey then entered the vehicle to

retrieve the keys from the ignition so that he could lock the

doors to the vehicle.   While doing so, he saw in plain view on

the front passenger seat another prescription pill container

with no label and pills inside that were identical to the pills

in the "One Touch" container.

     After returning to the police station, Officer Bikofsky

accessed a medical information Web site on the Internet in an

attempt to identify the pills in the "One Touch" and unlabeled

containers.   He succeeded in identifying them as ten-milligram

methadone pills by matching the color, shape, and number

imprinted on the pills with the image of a ten-milligram

methadone pill on the Web site.    Because the defendant did not

have a valid prescription for the methadone pills, he was

charged with illegal possession of a class B substance, in

violation of G. L. c. 94C, § 34.

     The defendant moved to suppress all the evidence seized as

a result of his arrest on the outstanding warrants.    A judge of

the District Court denied the motion.    The defendant then waived

his right to a jury trial and was found guilty by another judge

of the illegal possession of methadone after a "stipulated
                                                                       5


facts" trial on April 28, 2008, in which the defendant admitted

to having possessed the pills without a prescription. 1

     A panel of the Appeals Court affirmed the denial of the

motion to suppress in an unpublished decision pursuant to its

rule 1:28. 2    Commonwealth v. White, 83 Mass. App. Ct. 1127

(2013).   The panel concluded that Officer Bikofsky properly

discovered the "One Touch" container during a search of the

defendant's person incident to arrest, because it was a hard

object "that merited further investigation."     The panel ruled

that it was proper for him to open the container when he shook

it and heard sounds more consistent with pills than with thin

strips, and that he had reasonable grounds to seize the pills in

accordance with G. L. c. 276, § 1, "as evidence plausibly

related to" the drug offense that was the underlying offense in

one of the two outstanding warrants on which the defendant was

arrested.      The panel also concluded that Officer Hussey lawfully

entered the defendant's vehicle to retrieve the keys and secure

it, saw the unlabeled container in plain view, and was entitled

to seize the pills because they, too, were plausibly related to


     1
       The defendant was sentenced to six months in a house of
correction, suspended, and one year of probation, with special
conditions.
     2
       The defendant filed a notice of appeal on May 13, 2008,
but the case was not docketed in the Appeals Court until April
9, 2012. The record is silent regarding the reason for this
unusual delay.
                                                                   6


the drug offense described in the outstanding warrant.    The

panel concluded that, where the pills were seized for these

reasons, Officer Bikofsky did not need a search warrant to

conduct a "close visual examination and [I]nternet comparison of

these pills." 3

     Discussion.   In United States v. Robinson, 414 U.S. 218,

234-236 (1973), the United States Supreme Court concluded that a

search incident to arrest for weapons, contraband, or evidence

is reasonable under the Fourth Amendment to the United States

Constitution, regardless of whether the contraband or evidence

is related to the crime of arrest. 4   The next year, through an

amendment to G. L. c. 276, § 1, St. 1974, c. 508, "the

Legislature adopted a statutory exclusionary rule concerning

evidence seized during a search incident to an arrest [that]

requires the exclusion of evidence that the Supreme Court of the


     3
      The panel of the Appeals Court rejected the Commonwealth's
argument that Officer Stephen Bikofsky's investigative
comparison of these pills with photographs of pills on the
Internet was part of a proper inventory search.
     4
       In United States v. Robinson, 414 U.S. 218, 220-222
(1973), a police officer arrested the defendant for operating a
motor vehicle after revocation of his operator's permit, and
conducted a search incident to arrest. During the course of the
search, the police officer felt an unknown object in the breast
pocket of the defendant's heavy jacket, and pulled out the
object, which turned out to be a "crumpled up cigarette
package." Id. at 223. The police officer then opened the
cigarette package, revealing fourteen capsules containing white
powder that appeared to be (and later proved to be) heroin. Id.
                                                                    7


United States would not exclude in its implementation of the

prohibition against unreasonable searches and seizures" under

the Fourth Amendment.   Commonwealth v. Toole, 389 Mass. 159, 161

(1983).   Under the amended G. L. c. 276, § 1, the police are

authorized to conduct a search incident to arrest "only (1) for

the purpose of seizing evidence of the crime for which the

arrest has been made in order to prevent its destruction or

concealment or (2) for the purpose of removing any weapon the

person arrested might use to resist arrest or to escape." 5

Commonwealth v. Blevines, 438 Mass. 604, 607 (2003), quoting

Commonwealth v. Wilson, 389 Mass. 115, 118 (1983).   See Wilson,

supra (by amending G. L. c. 276, § 1, "the Legislature signaled

its disapproval of the general rule that evidence of another

crime found during a search incident to arrest may be admitted

in evidence against the arrested person").

     Here, the defendant was arrested on outstanding arrest

warrants for violation of a protective order under G. L. c. 209A

     5
       By St. 1974, c. 508, the following paragraph was added 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. 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


and for a drug offense.   Therefore, the crimes for which the

defendant was arrested were allegedly committed at an unknown

time in the past, not at or shortly before the time of arrest.

Officer Bikofsky reasonably could not have conducted a search

incident to arrest for the purpose of seizing contraband or

evidence related to the prior crimes of arrest, because there

was no reason to believe that any such contraband or evidence

would have any connection to those prior crimes. 6

Consequently, the lawful scope of his search incident to arrest

was limited to a search for weapons that the defendant might use

to resist arrest or escape, or objects that might be used as a

weapon.   See Commonwealth v. Clermy, 421 Mass. 325, 328-329

(1995) (where defendant arrested on outstanding motor vehicle

default warrant, search incident to arrest limited to search for

weapons).   It was reasonable for the officer to pat frisk the

defendant for possible weapons and, where he felt a hard object,


     6
       We reject the conclusion of the Appeals Court panel that
Officer Bikofsky was authorized to search for drugs under G. L.
c. 276, § 1, because one of the outstanding warrants was for an
earlier drug offense, especially where the evidentiary record is
silent as to the date of this offense, the nature of the
offense, and the type of drug at issue. The Commonwealth, in
opposing the defendant's motion to suppress, described the
outstanding warrant on the drug offense as "a post dispositional
default warrant" on a 1992 case for possession of a class A
substance. Drugs seized at the time of arrest would not
generally be evidence of the defendant's possession, sale, or
distribution of drugs at the time of the earlier drug offense,
and would certainly not be evidence where the arrest warrant, as
here, was for a postdispositional default.
                                                                   9


to examine the object to assure himself that it could not be

used as a weapon and did not contain a weapon, such as a razor

blade.   See Blevines, 438 Mass. at 608 (officer justified in

retrieving as potential weapon "hard object" [keys] discovered

during patfrisk).   After he shook the "One Touch" container, he

recognized that it contained only pills and did not contain

anything that could be used as a weapon.   Once it was plain the

container held no weapon, the officer was not authorized under

G. L. c. 276, § 1, to open the container because its contents

reasonably could not be contraband or other evidence "of the

crime for which the arrest" was made.   See Blevines, 438 Mass.

at 608 (because keys found on defendant during search incident

to arrest "bore no relationship to the crime of drinking in

public, the offense for which the defendant was arrested[,]

. . . the police could not seize the keys as evidence related to

that offense" and were not permitted to use keys "for purposes

of investigation").

     The "One Touch" container, however, lawfully could be

opened in accordance with the inventory policy of the Cambridge

police department, where that policy was admitted in evidence at

the suppression hearing and provides that, at booking, "[a]ny

container or article found on the arrestee's person . . . will

be opened and its contents inventoried."   See Commonwealth v.

Vuthy Seng, 436 Mass. 537, 550, cert. denied, 537 U.S. 942
                                                                    10


(2002) ("It is clear that, before a person is placed in a cell,

the police, without a warrant, but pursuant to standard written

procedures, may inventory and retain in custody all items on the

person, including even those within a container"); Commonwealth

v. Bishop, 402 Mass. 449, 451 (1988) (inventory search lawful

under art. 14 of Massachusetts Declaration of Rights where

conducted pursuant to standard, written police procedures).

Inventory searches "are justified to 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."    Vuthy Seng, supra at 550-551.   "Such inventory

searches are intended to be 'noninvestigatory.'"     Vuthy Seng,

supra at 551, citing Commonwealth v. Alvarado, 420 Mass. 542,

553 (1995).    "Noninvestigatory" means that a police officer,

when looking, for instance, at a bank card seized during an

inventory search, may see what is "obvious" from the card, such

as the bank name and logo on the front of the card, but may not

examine the card "closely enough to comprehend (and record) the

multi-digit account numbers that were written on the back of the

card" where "no valid inventory purpose would be served by

recording the detailed information."    Vuthy Seng, supra at 551-

552.   See Commonwealth v. Sullo, 26 Mass. App. Ct. 766, 770

(1989) ("What the police may not do is hunt for information by

sifting and reading materials taken from an arrestee which do
                                                                    11


not so declare themselves").    Here, Officer Bikofsky, who was

not the booking officer, examined the seized pills from the

container solely for an investigative rather than an inventory

purpose by using the number imprinted on the pills to identify

them on an Internet Web site.    The investigative use of these

pills transformed a lawful inventory seizure of the pills into

an unlawful investigatory search of the pills.    Vuthy Seng,

supra at 554.   A search warrant was required to examine the

pills for investigative purposes.    Id. (police not permitted to

"investigate the information in the wallet without obtaining a

search warrant").   Therefore, the judge erred in denying the

motion to suppress the pills found in the "One Touch" container.

     The pills in the unlabeled pill container found in the

defendant's vehicle also should have been suppressed even though

Officer Hussey lawfully entered the vehicle to retrieve the keys

from the ignition in order to secure the vehicle, and the

unlabeled container was found in plain view on the front

passenger seat.   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
                                                                    12


of evidence ('mere 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. Sliech-Brodeur, 457 Mass. 300,

306-307 (2010) (noting that first three requirements are

mandated by Fourth Amendment to United States Constitution and

fourth by art. 14 of Massachusetts Declaration of Rights).

Here, the first, second, and fourth requirements were met, but

not the third:     it was not "immediately apparent" that the pills

in the unlabeled prescription pill container were contraband

until Officer Bikofsky conducted his Internet search, and the

pills could not "plausibly" have been evidence related to known

criminal activity where the defendant had been arrested on

outstanding arrest warrants.    Because the warrantless seizure of

the pills in this container was not authorized under the plain

view doctrine, the judge erred in denying the motion to suppress

these pills as well.

     Conclusion.    We reverse the denial of the motion to

suppress, vacate the defendant's conviction, and remand the case

to the District Court for a new trial.

                                      So ordered.
