Commonwealth v. Cruz-Rivera

Following a trial without a jury, the defendant, Wilbert Cruz-Rivera, was convicted of possessing cocaine with intent to distribute, G. L. c. 94C, § 32A(a), and a drug violation near a school or park, G. L. c. 94C, § 32J.1 His appeal is based on the denial of his motion to suppress the drugs that formed the basis for the charges and on other alleged errors. We reach none of the other errors, for we conclude that the search leading *15to discovery of the drugs was improper and therefore reverse the defendant’s conviction.

Background. Following an evidentiary hearing on the defendant’s motion to suppress, the motion judge found that on July 1, 2007, at around 10:20 p.m., Salem police Officers Gaudet and Berube were on a routine patrol in a marked police cruiser. Suddenly, a black Mercedes automobile pulled in front of them from a side street, almost striking the cruiser. Believing that the driver of the Mercedes was operating in an unsafe manner, Officer Berube activated his blue overhead lights and pulled the Mercedes over.

As the officers alighted and approached the Mercedes, they saw the defendant, who was the vehicle’s sole occupant, quickly lean to the right, move toward the center console, and bend down to the floor in front of the driver’s seat. The officers were concerned that the defendant was reaching for or discarding a weapon.

Officer Berube approached the driver’s side door and told the defendant to step out of the car. The defendant complied and a patfrisk ensued. While Officer Berube was conducting the pat-frisk, however, the defendant moved his right hand from the hood of the car to his right side several times, ignoring Officer Berube’s efforts to place both of his hands on the car’s hood. As a consequence, Officer Berube, with Officer Gaudet’s assistance, handcuffed him so that they could complete their limited search.

As Officer Gaudet got close to the defendant to assist in the handcuffing, he recognized him from a photograph he had seen at the police station and recalled that the defendant had been arrested for a drug and firearm offense. The judge found that the drug and firearm offense had occurred “some months earlier,” although it had in fact occurred in 2004. Officer Gaudet had also seen a 2005 Lowell police department flyer indicating that the defendant was wanted for questioning in connection with a drive-by shooting in which the defendant’s car had allegedly been used.2 Officer Gaudet told Officer Berube what he remem*16bered about the defendant and, as a result, both officers had concerns for their safety while in the defendant’s presence. Nevertheless, that concern did not cause Officer Gaudet, at least, to depart from procedures he routinely followed even in the absence of particularized information about the person he had stopped.

The officers’ patffisk yielded nothing. Having no basis to continue their investigation, they intended to allow the defendant to leave. Before permitting him to return to his car, however, Officer Berube entered the car to search in the areas where he had seen the defendant reaching, i.e., beneath the front seat and in the center console area. He found nothing beneath the seat and saw no weapon when he opened the center console. In the console, however, Officer Berube saw, among other things, a narrow, closed, opaque vitamin pill bottle, four and one-half inches tall and one and three-fourths inches wide, no contents of which were visible through the exterior. Without shaking the bottle or otherwise attempting to determine from an exterior observation or other manipulation whether it contained a dangerous object, Officer Berube opened the bottle and discovered twelve glassine bags containing the cocaine the defendant was charged with possessing.3

In concluding that Officer Berube was justified in opening the container, the judge found that “[b]oth officers [had] received training indicating a proliferation of smaller weapons that are easily concealed in small containers. Such weapons include razors, knives, and pen-sized single-shot guns.”4 While acknowledging *17that the propriety of opening the bottle presented a close question, and that it was “perhaps a relative longshot that the pill container contained a small knife or a one-shot revolver,” the judge opined that “the police were justified in absolutely ruling out the chance that in response to lingering doubts ‘the answer might be a bullet.’ ” He also found that “there were no less intrusive means by which the officers reasonably could have ascertained the contents of the bottle.”

*18Discussion. In reviewing a ruling on a motion to suppress, “[w]e accept the judge’s subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

After the officers observed the defendant driving erratically, they lawfully stopped him to investigate. The defendant has not challenged the officers’ order that he get out of his car, so we assume without independent examination that the order was proper. Likewise the defendant mounts no challenge to the pat-frisk the officers conducted while he was outside the car, so we also assume that that, too, was proper.

However, even a patfrisk that is “valid in its inception” may be “excessive in its scope.” Commonwealth v. Silva, 366 Mass. 402, 407 (1974). A patfrisk may legitimately extend into the interior of an automobile, but police are “confined to what is minimally necessary to learn whether the suspect is armed and to disarm him once the weapon is discovered.” Commonwealth v. Stack, 49 Mass. App. Ct. 227, 234 (2000), quoting from Commonwealth v. Robbins, 407 Mass. 147, 151 (1990). “The sole justification [for such a search] is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29 (1968). In all events, the search must be “limited in scope to a protective end.” Commonwealth v. Silva, supra at 408.

In this case, the patfrisk of the defendant uncovered no weapons, the officers did not arrest the defendant, and they intended to release him. Under those circumstances, “[i]t can be argued with some persuasiveness that the defendant could hardly be viewed as a potential assailant after he . . . returned to his vehicle and knew that he had not been detained by the police.” Id. at 409. Contrast Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 571-572 (2002).

But even if one assumes that the police did properly search the car’s interior, they exceeded constitutional limits when Officer Berube opened the small pill bottle he found in the vehicle’s center console. While it is true that Officer Berube and Officer Gaudet both had been informed in various ways about the exist*19ence of very small weapons, such as single-shot pen-sized guns, knives, or razors, a limited search of an automobile in which the police are about to allow the operator to drive off cannot be justified solely by police knowledge that small weapons exist and conceivably can be stored in small containers. Instead, such a search, if proper at all, must be “reasonably designed” to uncover threatening weapons, a concept that requires consideration of all the circumstances, including the likelihood that a weapon of some kind may be present and the threat the weapon may pose under the circumstances. For example, the high likelihood that the trunk of every car contains a jack handle, dangerous when used as a club, does not justify the routine search of the trunk of every car the police detain.5

Contrary to the motion judge’s findings, there was no evidence that pill-bottle-sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons. On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

In light of the foregoing, therefore, the search of the pill *20bottle was impermissible and the defendant’s motion to suppress the contents of the bottle should have been allowed. Because the illegally seized evidence obviously played a central role in the defendant’s conviction, the judgments are vacated, and the findings are set aside.

So ordered.