NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-927                                               Appeals Court

               COMMONWEALTH     vs.   JUAN ELADIO ORTIZ.


                              No. 14-P-927.

           Suffolk.     June 1, 2015. - October 26, 2015.

           Present:   Sullivan, Maldonado, & Massing, JJ.


Controlled Substances. Practice, Criminal, Motion to suppress.
     Search and Seizure, Motor vehicle, Inventory, Container.
     Constitutional Law, Search and seizure.



     Indictments found and returned in the Superior Court
Department on March 27, 2013.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J., and a motion for reconsideration was considered
by him.

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


     David D. McGowan, Assistant District Attorney, for the
Commonwealth.
     Eduardo Antonio Masferrer for the defendant.


    MALDONADO, J.     The Commonwealth brings this interlocutory

appeal challenging the suppression, after an evidentiary
                                                                    2


hearing, of cocaine and of any postarrest statements.   The

Commonwealth contends that because a State trooper lawfully

stopped and arrested the defendant for failing to signal before

switching lanes and for driving with a suspended Massachusetts

license, the trooper's postarrest warrantless inventory search

of the contents of the defendant's vehicle, specifically a

backpack that was in the vehicle, was proper and, therefore, it

was error for the judge to allow the motion to suppress.    The

motion judge concluded that the trooper undertook the inventory

search, after stopping and arresting the defendant, as a pretext

to conduct a search for investigative purposes.   We affirm the

judge's well-reasoned order of suppression.

    Facts.   We summarize the judge's findings.   See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007);

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

defendant, Juan Eladio Ortiz, became the subject of surveillance

in a Drug Enforcement Agency task force (DEA) investigation into

cocaine trafficking.   In the course of their investigation, the

DEA agents discovered that the defendant's Massachusetts

driver's license and right to operate a motor vehicle in

Massachusetts had been suspended, rendering the defendant

subject to arrest at any point when he drove a motor vehicle in

Massachusetts.
                                                                   3


     The agents waited until the morning of February 28, 2013,

when -- according to an undisclosed source -- the defendant

would be transporting a kilogram of cocaine, to set in motion a

plan for the defendant's arrest.    In anticipation of the

defendant driving a motor vehicle through the town of Norwood

and eventually into Boston, they contacted Massachusetts State

police Trooper Dennis Lynch, and with the expectation that

impoundment and an inventory search of the defendant's motor

vehicle would follow, they asked Trooper Lynch to arrange for a

trooper to be positioned between Norwood and Boston to be

available to make a lawful stop of the defendant on any observed

motor vehicle infraction and an arrest for driving in

Massachusetts on a suspended license.    Trooper Lynch assigned

the task to Trooper Matthew Hannigan, the handler of a canine-

unit dog trained in the detection of narcotics.

     At some later point that day, when the DEA agents observed

the defendant leave a residence in Norwood carrying a black

backpack over his right shoulder and drive off in a minivan,1

they followed the defendant's vehicle and contacted Trooper

Lynch to have the defendant stopped and arrested.    Lynch radioed

Trooper Hannigan and instructed him to effectuate the




     1
         The van had a Florida license plate.
                                                                    4


defendant's stop and arrest and the inventory search of the

vehicle that would follow.

     The DEA task force alerted the State police of the

defendant's whereabouts, and Trooper Hannigan found and followed

the defendant onto the Veteran of Foreign Wars (VFW) Parkway.

The trooper had his narcotics-sniffing dog with him.     When the

defendant changed lanes on VFW Parkway without signaling,

Hannigan pulled the defendant over and, after obtaining the

defendant's driving documentation,2 placed the defendant under

arrest.    The judge found that but for these explicit

instructions, Hannigan "would not have stopped [the defendant]

for changing lanes . . ." and "that in other circumstances he

would not arrest someone for operating a motor vehicle with a

suspended license."3

     Following the stop and arrest, Hannigan radioed for

assistance, and when the second cruiser arrived, Hannigan

impounded the vehicle and conducted a warrantless inventory



     2
         The defendant had a valid Florida driver's license.
     3
       The judge's findings were supported by the testimony at
the motion hearing. For example, Hannigan was asked during
cross-examination whether "in the case where you weren't told
that there was a kilo of drugs in the car, could you envision
yourself maybe not arresting somebody who's moved out of state,
has an out-of-state license, has an out-of-state car because
they say they weren't aware that their right to drive had been
suspended in Massachusetts?" He responded, "Yes, I could see
myself summonsing him."
                                                                  5


search of its contents pursuant to a State police inventory

policy.4

     Hannigan located the black backpack on the back seat of the

minivan.   He opened it and discovered a package of what he

believed to be cocaine.   Hannigan returned the package to the

interior of the minivan and brought the drug-sniffing canine to

it; the dog alerted to the presence of cocaine.

     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 [the

judge's] ultimate findings and conclusions of law."'"

Commonwealth v. Jessup, 471 Mass. 121, 129 (2015), quoting from

Commonwealth v. Scott, 440 Mass. 642, 646 (2004).   The

Commonwealth contends that because the defendant was lawfully

stopped5 and arrested on motor vehicle infractions, the trooper's

application of an inventory search policy to impound and search

the vehicle was not a pretext and, therefore, his search of the




     4
       There is no dispute as to the validity of the inventory
policy.
     5
       See G. L. c. 90, § 14B (failure to signal a change of
lanes a civil infraction); Commonwealth v. Williams, 46 Mass.
App. Ct. 181, 182 (1999). As the motion judge noted, the
constitutional reasonableness of traffic stops "does not depend
on the actual motivations of the individual officer involved."
Whren v. United States, 517 U.S. 806, 813 (1996). Commonwealth
v. Avellar, 70 Mass. App. Ct. 608, 610 & n.4, 613 (2007).
                                                                    6


contents of the vehicle did not warrant suppression.   We

disagree.

     Even if otherwise valid, an inventory search must be

"conducted for some legitimate police purpose other than a

search for evidence."   Commonwealth v. Benoit, 382 Mass. 210,

219 (1981).   See Commonwealth v. White, 469 Mass. 96, 102 (2014)

("The investigative use of these pills transformed a lawful

inventory seizure of the pills into an unlawful investigatory

search of the pills"); Commonwealth v. Woodman, 11 Mass. App.

Ct. 965, 966 (1981).

    "The distinction between an inventory search and an

investigatory search is found in the objective of each.     The

objective of an investigatory search is to gather evidence,

whereas an inventory search is conducted for the purposes of

'safeguarding the car or its contents, protecting the police

against unfounded charges of misappropriation, protecting the

public against the possibility that the car might contain

weapons or other dangerous instrumentalities that might fall

into the hands of vandals, or a combination of such reasons.'"

Commonwealth v. Baptiste, 65 Mass. App. Ct. 511, 516 (2006),

quoting from Commonwealth v. Muckle, 61 Mass. App. Ct. 678, 682-

683 (2004).   "[T]he fact that the searching officer may have

harbored a suspicion that evidence of criminal activity might be

uncovered as a result of the search should not vitiate his
                                                                    7


obligation to conduct the inventory."   Commonwealth v.

Tisserand, 5 Mass. App. Ct. 383, 386-387 (1977).   However, "an

inventory search [will] not be upheld if . . . there [is] a

'suggestion . . . that this standard procedure' [is] a pretext

concealing an investigatory police motive . . . ."   Ibid.,

quoting from South Dakota v. Opperman, 428 U.S. 364, 376 (1976).

     Here, DEA agents suspected the defendant of transporting

cocaine and prearranged for the defendant's arrest on minor

motor vehicle infractions.   Trooper Hannigan was directed to

make a valid motor vehicle stop and then arrest the defendant

for the sole purpose of impounding and searching the defendant's

vehicle and its contents pursuant to State police inventory

policy.   The motion judge credited Trooper Hannigan's testimony

that he would not have stopped the defendant simply for failing

to signal, nor would he have exercised his discretion to arrest

the defendant had it not been for the directive that he make an

arrest so as to employ the inventory policy to search the

backpack for drugs.6   See G. L. c. 90, § 21, as appearing in St.

1985, c. 794, § 1, providing that an officer "may arrest" a




     6
       The judge found, "Hannigan pulled over Ortiz because he
intended, as directed, to arrest Ortiz for driving without a
license, impound the minivan, and then search the vehicle for
the kilo of cocaine that Hannigan had been told could be found
inside in a black backpack."
                                                                     8


person who operates a motor vehicle after his license has been

suspended.7

     The conduct of the police is assessed by an objective

standard.     When viewed objectively, the search here was an

investigative search and not an inventory search.     Accordingly,

we see no error in the judge's finding that the inventory search

here was simply a pretext for using the inventory policy to

conduct an investigatory search of the backpack for evidence of

drug activity without a warrant.     Viewed in this context the

warrantless search of the backpack was unconstitutional.8

Compare Commonwealth v. Benoit, 382 Mass. at 219 ("The record

clearly reveals that the only purpose for the [search of the

suitcase] . . . was to seize evidence").



     7
       We need not decide today whether a driver whose
Massachusetts license has been suspended is prohibited from
driving in Massachusetts if validly licensed elsewhere. See
G. L. c. 90, § 10, second par., first sentence, as appearing in
St. 1966, c. 144, § 4 (allowing one with a previously suspended
or revoked license to operate motor vehicles if "a new license
. . . has . . . been issued to him"). Compare Commonwealth v.
Murphy, 68 Mass. App. Ct. 152, 153-154 (2007) (proper to dismiss
an indictment under G. L. c. 90, § 23, when the defendant driver
had been issued a hardship license, which qualified as a new
license under that statute).
     8
       The exceptions to the requirement for a warrant to search
(such as the automobile exception) are interpreted narrowly, as
they raise the risk of subverting the constitutional requirement
for a warrant and the danger posed by general warrants. See
Commonwealth v. Moynihan, 376 Mass. 468, 472-474 (1978), citing
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
                                                                   9


     This finding by the judge is further supported by the fact

that Trooper Lynch specifically assigned the task of stopping

and arresting the defendant to Trooper Hannigan, who stopped the

defendant with his narcotics-sniffing dog in tow.   See

Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995) ("The

Commonwealth's contention that the search of the [vehicle] was

an inventory search is also defeated by the fact that the police

enlisted the assistance of a canine in conducting the search.

The canine was trained for, and used in this instance for, the

detection of controlled substances.   Thus, it is clear that the

search of the [vehicle] was of an investigatory nature and was

not an inventory search").9


     9
       The Commonwealth makes two additional arguments, which we
conclude lack merit. First, the Commonwealth assented to the
motion hearing proceeding and, therefore, is foreclosed at this
juncture from raising challenges to the particularity of the
defendant's affidavit under Mass.R.Crim.P. 13, as appearing in
442 Mass. 1516 (2004). See Commonwealth v. Mubdi, 456 Mass.
385, 390-391 & n.6 (2010). We also reject the Commonwealth's
assertion that the defendant lacked a reasonable expectation of
privacy in both the vehicle and the backpack. Relying on police
testimony that the defendant carried the backpack on his
shoulder into the car, we conclude the judge properly found the
defendant possessed a reasonable expectation of privacy in the
backpack. The defendant has not cross-appealed; therefore,
there is no challenge to the portion of the judge's order that
denies the suppression of any items other than those discovered
in the backpack. Accordingly, we need not decide whether the
defendant lacked a reasonable expectation of privacy in the
rental vehicle. See and compare, e.g., United States v.
Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993), cert denied, 510
U.S. 1207 (1994) (reasonable expectation of privacy in bag left
in another person's car); United States v. Edwards, 632 F.3d
633, 641-642 (10th Cir. 2001) (defendant had standing to
                                                               10


    Accordingly, we conclude that the judge did not err in

ordering suppression under the circumstances presented here.

                                   Order allowing in part
                                     motion to suppress evidence
                                     affirmed.

                                   Order denying motion for
                                     reconsideration
                                     affirmed.




challenge search of closed personal luggage in trunk of car even
though he had no authorization to drive car).
