Commonwealth v. Ortiz , 478 Mass. 820 ( 2018 )

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SJC-12273
COMMONWEALTH vs. ANTHONY C. ORTIZ.
Hampden. October 3, 2017. - February 12, 2018.
Present (Sitting at Greenfield): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
Constitutional Law, Search and seizure. Search and Seizure,
Motor vehicle, Consent, Fruits of illegal search. Consent.
Evidence, Result of illegal search.
Indictments found and returned in the Superior Court
Department on March 25, 2015.
A pretrial motion to suppress evidence was heard by Edward
J. McDonough, 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 granted an
application for direct appellate review.
Cynthia Cullen Payne, Assistant District Attorney (Bethany
Lynch, Assistant District Attorney, also present) for the
Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
2
GANTS, C.J. In this case we must decide whether a driver's
consent to allow the police to search for narcotics or firearms
"in the vehicle" authorizes a police officer to search under the
hood of the vehicle and, as part of that search, to remove the
vehicle's air filter. We hold that it does not. A typical
reasonable person would understand the scope of such consent to
be limited to a search of the interior of the vehicle, including
the trunk. Because the police here exceeded this scope by
searching under the hood and removing the air filter, and
because the search was not otherwise supported by probable cause
and was not a lawful inventory search, the Superior Court
judge's order granting the defendant's motion to suppress is
affirmed.
Background. We summarize the facts as found by the motion
judge, supplemented by uncontroverted evidence that the judge
explicitly or implicitly credited. See Commonwealth v. Isaiah
I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On
January 23, 2015, Officer Jared Hamel and Detective Boyle1 of the
Holyoke police department were on patrol in an unmarked police
cruiser when they heard loud music coming from a vehicle. The
officers determined that the loud music posed a public safety
hazard under a local ordinance that prohibits excessively loud
1
The record does not reflect Detective Boyle's first name.
3
music in a motor vehicle. Officer Hamel activated the cruiser
lights and initiated a stop of the vehicle.
As the officers approached the vehicle, Hamel recognized
the driver (the defendant) as someone he had earlier pursued in
a foot chase during an incident where the defendant was arrested
for breaking into an apartment. Hamel also recalled that the
defendant had been charged in two separate incidents with
attempted murder and with narcotics and firearms offenses.
Hamel also recognized one of the two passengers, George Ortiz,
because he recalled an incident where Ortiz had been arrested
for trafficking in cocaine after the execution of a search
warrant.
As a safety precaution, Hamel requested a backup unit to
provide assistance over the police radio. Hamel then asked the
defendant for his license and registration. The defendant
looked at Hamel, and turned for assistance to Ortiz, who spoke
in Spanish to the defendant. Hamel recalled from his prior
encounters with the defendant that the defendant "only spoke a
little English," and understood that Ortiz was translating
Hamel's request for the defendant's benefit. The defendant
presented to Hamel a Massachusetts identification card that was
not a driver's license, which confirmed that the driver was the
defendant. Hamel asked the other passengers if either had a
driver's license, and neither did.
4
Hamel asked the defendant in English if there was anything
in the vehicle that the police should know about, including
narcotics or firearms. The defendant responded, without
hesitation and without any translation from Ortiz, "No, you can
check." Hamel asked the defendant and the two passengers to
leave the vehicle, and placed all three in handcuffs. All were
frisked for weapons; none were found, but the two passengers
were each found in possession of marijuana.
Shortly thereafter, other police officers arrived on the
scene, including an officer in the K-9 unit; the officer's dog
walked around the vehicle but did not alert to anything. The
officers searched the front and back seat areas of the vehicle,
but found no contraband. Hamel then instructed one of the
officers to check under the hood of the vehicle. The officers
raised the hood, and a few minutes later, after removing the air
filter, Boyle found a black bag that contained two firearms.
During the course of this search, the defendant was standing to
the side of the road; at no point did he voice any objection to
the search.
A few minutes later, the registered owner of the vehicle
arrived and was allowed to drive the vehicle away. The search
was conducted based solely on the defendant's consent; the
police did not consider it to be an inventory search and did not
5
believe that they had grounds to search the vehicle without a
warrant.
The defendant and the two passengers were arrested and
transported to a police station, where a Spanish-speaking police
officer assisted in taking the defendant's statement. According
to that officer, the defendant understood English but was more
comfortable with Spanish. In his statement, the defendant
admitted, among other things, that the firearms found in the
vehicle belonged to him and that he gave consent to the officers
to look in his vehicle.
Indictments were returned by a grand jury, charging the
defendant, as a habitual offender, with two counts of illegal
possession of a firearm, two counts of unlawful possession of
ammunition without an identification card, and one count of
receiving stolen property. The defendant moved to suppress the
firearms and the statements he made at the police station,
claiming that the search was unconstitutional and that the
statements must be suppressed as fruits of the unconstitutional
search.
After an evidentiary hearing, a judge of the Superior Court
allowed the defendant's motion. The judge found that the
defendant had given his free and voluntary consent to the search
but that, because Hamel had asked the defendant whether he had
any narcotics or firearms "in the vehicle," the scope of the
6
consent was limited to a search for narcotics or firearms in the
interior of the vehicle and did not include a search "under the
hood beneath the air filter." The judge found that a typical
reasonable person interpreting the verbal exchange between Hamel
and the defendant "would believe that [the] defendant was
limiting the scope of the search to the cabin of the vehicle."
The judge also found that the defendant's silence when
Hamel expanded the scope of the search by directing the other
officers to search "under the hood" was nothing more than the
defendant's "mere acquiescence to a claim of lawful authority,"
and therefore did not expand the scope of his initial consent.
Having found that the search of the air filter under the
vehicle's hood was unconstitutional because it exceeded the
scope of the defendant's consent, the judge found that the
defendant's statements to police were "directly caused by the
illegal search of [the] defendant's vehicle," and therefore were
"fruits of the poisonous tree" that also must be suppressed.
The Commonwealth applied for interlocutory review, and a
single justice of this court allowed the application. The
defendant then filed an application for direct appellate review,
which we allowed.
Discussion. "In reviewing the allowance of a motion to
suppress, we accept the judge's findings of fact absent clear
error." Commonwealth v. Porter P., 456 Mass. 254, 256 (2010).
7
Where, as here, we find no clear error in the judge's findings,
"[w]e then determine 'the correctness of the judge's application
of constitutional principles to the facts as found.'" Id.,
quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The Commonwealth concedes that the warrantless search of
the air filter under the hood of the vehicle is constitutional
under the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights only if the
defendant consented to such a search. When the police rely on
consent to justify a warrantless search, "the prosecution 'has
the burden of proving that the consent was, in fact, freely and
voluntarily given.'" Commonwealth v. Rogers, 444 Mass. 234, 237
(2005), quoting Bumper v. North Carolina, 391 U.S. 543, 548
(1968). The Commonwealth must show "consent unfettered by
coercion, express or implied, and also something more than mere
'acquiescence to a claim of lawful authority.'" Commonwealth v.
Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976),
quoting Bumper, supra at 549. Here, we accept the judge's
findings that the defendant, despite his limited understanding
of English, consented to a search of his vehicle. The issue is
the scope of that consent.
A search that is based on consent may not exceed the scope
of that consent. See Commonwealth v. Cantalupo, 380 Mass. 173,
178 (1980) ("Because consent can legitimize what would otherwise
8
be an unreasonable and illegal search, a search with consent is
reasonable and legal only to the extent that the individual has
consented"). "The standard for measuring the scope of a
suspect's consent under the Fourth Amendment is that of
'objective' reasonableness -- what would the typical reasonable
person have understood by the exchange between the officer and
the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). See
Commonwealth v. Gaynor, 443 Mass. 245, 255 (2005).
It bears emphasis that the standard is that of a typical
reasonable person, not a typical reasonable police officer.
Therefore, the focus is solely on what a typical reasonable
person would understand the scope of the consent to be, based on
the words spoken and the context in which they are spoken, not
on what a police officer may understand as the places in a
vehicle where narcotics or firearms may be hidden.
Consequently, the fact that a police officer, such as Hamel
here, knows from investigative experience that persons sometimes
hide firearms and narcotics inside the air filter of a vehicle
is irrelevant to a reasonable person's understanding of the
scope of the driver's consent.
In State v. Troxell, 78 S.W.3d 866 (Tenn. 2002), the
Tennessee Supreme Court confronted similar facts. There, the
police officer asked the driver whether he had "any weapons in
the vehicle" (emphasis in original). Id. at 872. The driver
9
responded, "[N]o, nothing." Id. The officer asked, "Okay if we
take a look?" and the driver answered, "Yeah, go ahead." Id. at
869. As the court noted, "The verbal exchange therefore
expressly indicated that the officer intended to search only for
'weapons' that were 'in the vehicle,' and there was nothing to
indicate that the search would encompass more than just the
vehicle's interior." Id. at 872. The court, "applying a common
sense interpretation to [that] . . . exchange," found that "it
was objectively reasonable to conclude that the consent to
search included only the interior of the vehicle and any
containers that may have contained weapons." Id.
Here, similarly, the exchange between Hamel and the
defendant indicated that the defendant's consent was limited to
a search of the interior of the vehicle. Hamel asked the
defendant if there was anything in the vehicle that the police
should know about, including narcotics and firearms, to which
the defendant responded, "No, you can check." These words
limited the scope of the defendant's consent to a search for
narcotics and firearms inside the vehicle, that is, the
passenger compartment and trunk, and containers within those
areas where narcotics and firearms could reasonably be found.
See Jimeno, 500 U.S. at 251.2
2
The dissent points to several Federal and State court
decisions where police were authorized, based on the defendant's
10
The most generous understanding of the defendant's consent
in this case is that it was ambiguous whether it included the
engine area under the hood and whether it authorized the police
to remove the air filter. But the police are not allowed to
take advantage of such ambiguity when they have the ability to
resolve it with clarifying questions.
We have held that the voluntariness of consent to a search
must be unambiguous; "[t]he Commonwealth must provide us with
more than an ambiguous set of facts that leaves us guessing
about the meaning of [the] interaction and, ultimately, the
[consenting person's] words or actions." Commonwealth v. Carr,
consent, to search under the hood of the vehicle. Post at note
1. But the words, context, and circumstances of the consent in
this case distinguish it from those cases. For instance, in all
but one of those cases, consent was given in response to a
general request to search; unlike in this case, there were no
words indicating that the scope of the search would be limited
to items "in the vehicle." In United States v. McSween, 53 F.3d
684, 685 (5th Cir.), cert. denied, 516 U.S. 874 (1995), the
police officer asked if the defendant had "any objection to his
searching the vehicle," to which the defendant replied that he
did not. And in State v. Lopez, 219 N.C. App. 139, 142 (2012),
the police officer asked, "[D]o you mind if I search the
vehicle?" See also Pincherli v. State, 295 Ga. App. 408, 409,
413 (2008) (police officers' "request for consent was a general
one" to search vehicle); Hoskins vs. State, Tex. Ct. App., Nos.
07-03-0053-CR & 07-03-0054-CR (Dec. 23, 2003) ("[N]either
[officer's] request nor [defendant's] consent limited the scope
of the search," where police officer asked for consent to search
vehicle). In the one cited case where the United States Border
Patrol agent asked, "May I look inside the truck?," the court
noted that, "[b]efore the hood was opened the [defendant] gave
permission for an agent to look in the back of the truck and
even went so far as to aid in the search." United States v.
Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied,
439 U.S. 936 (1978).
11
458 Mass. 295, 299 (2010), quoting Rogers, 444 Mass. at 238.
"If either the officer's request or the [person's] response is
so ambiguous that we are unable to discern whether the [person]
voluntarily consented to [the search], our inquiry will be over
and the [search] must be deemed unlawful." Carr, supra, quoting
Rogers, supra at 238-239. It makes little sense to insist on
clarity when determining the voluntariness of consent, but not
when determining the scope of that consent. As a matter of
logic and constitutional fairness, the requirement of reasonable
clarity must also apply to the scope of consent.
Our constitutional jurisprudence with respect to consent
searches is already quite protective of law enforcement. To
establish that the consent to a search is valid, the
Commonwealth need not prove that the consenting person knew that
he or she had a right to refuse consent, or that the person was
informed of that right. See Schneckloth v. Bustamonte, 412 U.S.
218, 226-227 (1973); Walker, 370 Mass. at 555. See also Rogers,
444 Mass. at 246. It suffices that the consent was given
voluntarily and was "unfettered by coercion"; knowledge or
ignorance of the right to refuse is simply one factor to be
considered under the totality of the circumstances. Walker,
supra. We need not consider here whether it is fair that
consent to the search of a vehicle can be valid even where it is
not knowing. But it is fair to conclude that the scope of that
12
search should not extend into the realm of the ambiguous,
especially when the police can easily resolve that ambiguity
with a clarifying question. See, e.g., United States v. Coburn,
876 F.2d 372, 373-374 (5th Cir. 1989) (after obtaining consent
to search truck, United States Border Patrol agent specifically
asked for consent to search gasoline tank).
In Commonwealth v. Clarke, 461 Mass. 336, 351-352 (2012),
where we considered whether a defendant had invoked his right to
silence after being advised of his Miranda rights, we declared,
"When law enforcement officials reasonably do not know whether a
suspect wants to invoke the right to remain silent, there can be
no dispute that it is a 'good police practice' for them to stop
questioning on any other subject and ask the suspect to make his
choice clear." We noted that this "'intuitively sensible
course' . . . has the benefit both of ensuring protection of the
right if invoked and of minimizing the chance of suppression of
subsequent statements at trial if not." Id. at 352, quoting
Davis v. United States, 512 U.S. 452, 473 (1994) (Souter, J.,
concurring in the judgment). "Far from creating any 'wholly
irrational obstacles' to police investigation, . . . the process
of asking, in a brief and even-handed fashion, simple clarifying
questions does not burden the police." Clarke, supra, quoting
Michigan v. Mosley, 423 U.S. 96, 102 (1975).
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We apply this same reasoning to a consent search like this
one, where the defendant gave consent to the police to search in
his vehicle, but did not with reasonable clarity give the police
consent to search beneath the hood or to dismantle the air
filter as part of that search. Under the Fourth Amendment and
art. 14, unless it is reasonably clear that the consent to
search extends beyond the interior of the vehicle, the police
must obtain explicit consent before a vehicular search may
extend beneath the hood.
Moreover, where such consent is not reasonably clear at the
outset, the defendant's silence when the police open the hood
cannot be an adequate substitute for consent. The motion judge
correctly found that the defendant's silence, while he was in
handcuffs and had been removed to the side of the street, was
nothing more than "mere 'acquiescence to a claim of lawful
authority.'" Walker, 370 Mass. at 555, quoting Bumper, 391 U.S.
at 549. Nor, for that same reason, can his failure to revoke
his consent be construed as consent to expand the scope of the
search beyond the scope to which he had initially consented.
See 4 W.R. LaFave, Search and Seizure § 8.1(c), at 23 (5th ed.
2012) ("[A] defendant's failure to object should not be treated
as expanding a more limited consent, especially when the
circumstances suggest some other possible reason for [the]
defendant's silence"). See also United States v. Neely, 564
14
F.3d 346, 350-351 (4th Cir. 2009) (where defendant consented to
search of trunk, failure to object did not expand scope to
include passenger compartment); United States v. Wald, 216 F.3d
1222, 1228-1229 (10th Cir. 2000) (where defendant consented to
search of passenger compartment, failure to object did not
expand scope to include trunk).
Conclusion. To the extent that it exceeded the scope of
the defendant's consent, the search here of the air filter under
the hood was unconstitutional. We therefore affirm the motion
judge's order allowing the defendant's motion to suppress the
weapons found in the air filter and the defendant's subsequent
statements at the police station related to his possession of
those weapons.
So ordered.
CYPHER, J. (dissenting, with whom Gaziano and Kafker, JJ.,
join). I respectfully dissent. Under our constitutional
framework for evaluating the scope of an individual's consent to
a search, we ask, "[W]hat would the typical reasonable person
have understood by the exchange between the officer and the
suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). This
requires that we consider the particular facts and circumstances
surrounding the exchange, including the "expressed object" of
the search, id., and whether the individual exercised his or her
right to limit the scope of the search to particular areas.
Commonwealth v. Gaynor, 443 Mass. 245, 256 (2005). Applying
these principles to the facts of this case, I disagree with the
court that the defendant's consent was limited to the interior
and trunk of the vehicle. In my view, the defendant's
unqualified and unambiguous general consent to search for "any
narcotics or firearms in the vehicle," coupled with the
defendant's failure to object as the search moved from the
interior of the vehicle to beneath its hood, would indicate to
"the typical reasonable person" that the defendant had
authorized the entire search at issue, including the officers'
limited search beneath the hood and under the air filter of the
engine.1
1
Numerous Federal and State courts have reached the same or
similar conclusions on this issue. See United States v.
2
I find the principal case relied on by the court, State v.
Troxell, 78 S.W.3d 866 (Tenn. 2002), distinguishable on both the
law and the facts. As the court points out, the precise
language used during the verbal exchange between the defendant
and officer in each case was the same: there, as here, the
defendant granted the police permission to search for contraband
"in the vehicle." Id. at 869. Applying "a common sense
interpretation to the verbal exchange," the Troxell court
concluded that "in the vehicle" referred "only [to] the interior
of the vehicle," id. at 872, that is, the passenger compartment.
(The defendant in that case argued that his consent "was limited
in scope to the interior compartment of the pickup truck." Id.)
The court in this case goes one step further than Troxell,
interpreting the very same language to refer not only to the
McSween, 53 F.3d 684, 688-689 (5th Cir.), cert. denied, 516 U.S.
874 (1995) (suspect's general consent to search vehicle, coupled
with his failure to object to breadth of search, authorized
police to search under vehicle's hood); United States v. Sierra-
Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied, 439 U.S.
936 (1978) (search beneath hood within scope of suspect's
general consent); Pincherli v. State, 295 Ga. App. 408, 412-413
(2008) (same); State v. Lopez, 219 N.C. App. 139, 142, 148-149
(2012) (general consent to "search the vehicle" for weapons or
drugs "included under the hood and in the air filter
compartment"); Hoskins vs. State, Nos. 07-03-0053-CR & 07-03-
0054-CR (Tex. App. Dec. 23, 2003) (search beneath hood within
scope of suspect's general consent). Cf. People v. Kats, 2012
IL App (3d) 100683, ¶¶ 28-30 (consent to search "vehicle and its
contents for contraband" authorized search behind vehicle's door
panel); State v. Powell, 294 N.J. Super. 557, 562-563 (1996)
(general consent to search authorized removal of side panel of
vehicle's door).
3
passenger compartment but also the trunk of the vehicle. I do
not see a meaningful difference in this context between a
vehicle's trunk and its engine: both are beyond the passenger
compartment and must be opened separately.
I also believe the Troxell court's narrow focus on the
colloquial use of the term "in" ignores the important fact that
these were not casual exchanges between two civilians, but
inquiries about the possible possession of illegal contraband
between one civilian and a police officer, which an objective
bystander would doubtless take into account when interpreting
the exchange. See Jimeno, 500 U.S. at 251 ("[W]hat would the
typical reasonable person have understood by the exchange
between the officer and the suspect?" [emphasis added]).
Moreover, the court in Troxell, 78 S.W.3d at 872, noted
that it was "worth emphasizing" additional facts about the
encounter beyond the particular language used: the officer
requested the defendant's consent only after he had completed
his investigation into the traffic offense that prompted the
stop to begin with; more significantly, even, the court pointed
out that the officers relied on the defendant's general consent
to conduct "an extensive, nearly [twenty-]minute search of the
interior of the vehicle and its contents and conducted a sweep
of the vehicle by using a drug detection dog. Despite finding
no evidence of weapons or drugs, [the officer] . . . continued
4
the detention of the defendant by then crawling under an
examining the underside and gas tank of the vehicle." Id. at
872-873. As the facts of the case reveal, the officer then
"instructed the defendant to drive to a service station so the
gas tank could be removed." Id. at 869. Only then did the
officers discover drugs in the vehicle.
Cases in this area indicate that, apart from the specific
language used by a defendant when authorizing a search, the
command of the Fourth Amendment to the United States
Constitution that a search be "reasonable" also mandates that
police may not rely on generalized consent to conduct a
forcible, destructive, or unnecessarily prolonged search. See,
e.g., Jimeno, 500 U.S. at 251-252 ("It is very likely
unreasonable to think that a suspect, by consenting to the
search of his trunk [of a vehicle], has agreed to the breaking
open of a locked briefcase within the trunk"); United States v.
Strickland, 902 F.2d 937, 941-942 (11th Cir. 1990) (consent to
search of vehicle's trunk for contraband did not include
slashing open of spare tire). When a consented-to search of a
vehicle turns into a protracted, fruitless search for drugs,
followed by a request from the police that the driver bring the
vehicle to a body shop for the physical dismantling of its
parts, that search runs counter to this principle, and it is
therefore "unreasonable" within the meaning of the Fourth
5
Amendment. Those are not the facts of this case, however.
Here, the stop of the defendant lasted approximately twenty to
twenty-five minutes from start to finish, only "a few minutes"
were spent beneath the hood of the vehicle, and there is no
indication that the police used tools or damaged the vehicle in
any way.
I further disagree with the court that the scope of the
defendant's consent was in any way ambiguous. The exchange
between the police and the defendant left no doubt as to the
areas and objects of the intended search: an officer asked the
defendant if there were "any narcotics or firearms in the
vehicle." The defendant replied, immediately and without
hesitation, "No, you can check." His "words placed no
limitations on the scope of the search to which he was
consenting." Commonwealth v. Cantalupo, 380 Mass. 173, 179
(1980). Accordingly, the officers were authorized to search the
vehicle for "narcotics [and] firearms" wherever they might
reasonably be found "in the vehicle." Jimeno, 500 U.S. at 251.
This included the limited search beneath the hood and under the
air filter -- a space that this court has acknowledged may
conceal contraband. Cf. Commonwealth v. Bakoian, 412 Mass. 295,
305 (1992) (search beneath hood and under air filter valid
component of probable cause-based search of vehicle for
6
narcotics, during which police are authorized to search any part
of vehicle that "may conceal" drugs [citation omitted]).
Finally, to the extent the defendant's general consent left
any ambiguity over its proper scope (although I find none), the
defendant's failure to object as the officers moved from the
interior of the vehicle to beneath its hood is only further
evidence that he similarly authorized that portion of the
search. See, e.g., United States v. Jones, 356 F.3d 529, 534
(4th Cir.), cert. denied, 541 U.S. 952 (2004) ("a suspect's
failure to object [or withdraw his consent] when an officer
exceeds limits allegedly set by the suspect is a strong
indicator that the search was within the proper bounds of the
consent search"). To be clear, I do not interpret the
defendant's silence "as expanding a more limited consent," 4
W.R. LaFave, Search and Seizure § 8.1(c) (5th ed. 2012).
Rather, I view the original scope of his generalized,
unqualified response to have included beneath the hood, and I
interpret his silence as the police searched that area of the
vehicle as but additional evidence that it fell within the
defendant's permission. The motion judge, and now the court,
discount this important point, that "[a]lthough it is a
suspect's right to limit the scope of a search to which he
consents, . . . the defendant did not avail himself of that
right." Gaynor, 443 Mass. at 256. I am not convinced that the
7
fact that the defendant was in handcuffs during the search
automatically converts his silence into "mere acquiescence to a
claim of lawful authority," as the motion judge and the court
characterize it. Just as a defendant may freely and voluntarily
consent to a search despite being under arrest, Commonwealth v.
Franco, 419 Mass. 635, 642 (1995), so too may a defendant's
other actions (or inaction) while in handcuffs factor into our
analysis of the scope of a consent-based search.