Commonwealth v. Barbosa
Commonwealth v. Barbosa
Opinion
*587
After an evidentiary hearing, a Superior Court judge allowed, in part, the defendant's motion to suppress evidence. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to file an interlocutory appeal, and reported the matter to this court. See Mass.R.Crim.P. 15(a)(2), as appearing in
*588
Background
. The parties do not contest the judge's comprehensive findings of fact, which we summarize, supplemented where appropriate by the testimony from the motion hearing.
1
See
Commonwealth
v.
Jones-Pannell
,
Agent Freitas then contacted Detective Bartkiewicz and advised *589 that the defendant, who was the target of the investigation, 4 was heading upstairs. Detective Bartkiewicz observed the defendant and Agent Freitas step out of the elevator onto the fifth floor. Agent Freitas nodded toward the defendant "to confirm for Bartkiewicz that [the defendant] was the man Freitas had been waiting for." The defendant walked from the elevator toward room 540. After the defendant walked past him, Detective Bartkiewicz stated that he was a police officer and asked to speak with the defendant. The defendant was approximately eight to ten feet from room 540 at this time. Next, the following occurred:
"[The defendant] stopped walking, turned toward Bartkiewicz, and said [,] 'No.' [The defendant] then started to put his right hand, the one holding the cell phone, in his pocket. So Bartkiewicz took a few steps forward, told [the defendant] to keep his hands [out of] his pocket, and put his own hand on [the defendant's] right hand, to ensure that [the defendant] kept it in sight. Bartkiewicz then reiterated, '[W]e just want to talk to you.[']
"In response, [the defendant] said[,] 'No, I don't need to talk to you.' [The defendant] then put his hands on Bartkiewicz's shoulders, pushed Bartkiewicz out of his way, and started to run back toward the elevators. [The hotel's head of security], who was also in the hallway, blocked [the defendant's] path and pushed [him] into a door. [The defendant] fell, got back up, and ran toward the elevators. Agt. Freitas and Agt. [Peter] Darling grabbed, subdued, and eventually handcuffed [the defendant]. By this point [the defendant] was lying face down on the floor. The officers put [the defendant] in a sitting position.
"Det. Bartkiewicz informed [the defendant] of his Miranda rights.... Bartkiewicz patted [the defendant] down and searched his pockets. [Bartkiewicz] found and removed a hotel room key, a knife, about $500 in cash, and some prepaid credit cards from [the defendant's] pants pockets. Bartkiewicz asked [the defendant] what room the key was for. [The defendant] said it was Room 540.... Bartkiewicz then asked [the defendant] who was in the room. [The defendant] said that he wanted a lawyer."
*590 The judge ruled that Detective Bartkiewicz lawfully placed the defendant under arrest for assault and battery on a police officer, properly searched him for weapons incident to that arrest, and "acted lawfully in frisking [the defendant] and removing the knife from his pocket." The judge concluded that the room key would have properly and inevitably been seized under an inventory search at booking and, thus, should not be suppressed. He further *685 held that the defendant's statement about the room key was voluntary, and "that he made a knowing, intelligent, and voluntary waiver of his Miranda rights." 5 However, the judge, sua sponte, 6 suppressed the defendant's statement that the room key found in his pocket was for room 540. The judge concluded that Detective Bartkiewicz "was not entitled to inspect the hotel key, cash, and credit cards as a search incident to arrest" and, in violation of G. L. c. 276, § 1, improperly used the room key "for an investigatory purpose, i.e., asking [the defendant] what room it went to." This interlocutory appeal ensued.
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 his ultimate findings and conclusions of law." ' "
Commonwealth
v.
Keefner
,
The Commonwealth argues that the judge erred in suppressing the defendant's statement because the initial discovery of the room key attended a proper search incident to arrest for the crime of assault and battery on a police officer, and the room key had
*591
immediate evidentiary significance vis-à -vis the crime of human trafficking, which the officers were then investigating. The defendant responds that the judge correctly ruled that, under
Blevines
,
As an initial matter, G. L. c. 276, § 1, "does not operate as a bar to the admission of all evidence discovered in the course of a search incident to a lawful arrest other than weapons or evidence of the crime for which the defendant is arrested." 7
*686
Commonwealth
v.
Dessources
,
In the present case, the parties do not dispute the judge's determination that the officers arrested the defendant for assault and battery on a police officer, and acted lawfully in frisking him. See, e.g.,
Blevines
,
supra
at 608,
In
Blevines
,
Conversely, here, the officers had ample evidence of the defendant's involvement in the separate criminal activity of human trafficking before they arrested or frisked
*687
him. This evidence, at a minimum, rose to the level of reasonable suspicion and, thus, justified the inquiry regarding the room key. See
Commonwealth
v.
DeJesus
,
In sum, apart from arresting the defendant for assault and battery on a police officer, the officers also had reasonable suspicion to believe that he was participating in additional criminal activity, which justified the inquiry regarding the room key. Accordingly, the judge should not have suppressed the defendant's statement. 11 So much of the order on the defendant's motion as suppressed his statement regarding the room key is reversed. In *594 all other respects, the order is affirmed.
So ordered .
The judge explicitly credited the testimony of Detective Ludwik Bartkiewicz. Accordingly, we may supplement the judge's subsidiary findings with uncontroverted and undisputed evidence from the record. See
Commonwealth
v.
Jones-Pannell
,
For purposes of this appeal, we adopt the nomenclature used by the judge and the parties, who characterized the matter as an investigation into the crime of "human trafficking."
One of the officers had telephoned the number listed in the Backpage advertisement and had "made arrangements to meet the suspected prostitute at the Park Plaza Hotel" on the morning of May 7, 2015.
In his findings of fact, the judge wrote: "[t]he Court infers that [the defendant] was the real target of this investigation." This finding was supported by the testimony at the evidentiary hearing.
The judge ruled that the defendant was not seized in a constitutional sense when Detective Bartkiewicz identified himself as a police officer, said that he would like to speak to the defendant, and took a step toward him. The judge also determined that the encounter was not converted into a seizure when Detective Bartkiewicz told the defendant "not to put his hand in his pocket and emphasized that instruction by touching [the defendant's] hand." The Commonwealth suggests that a stop occurred when Detective Bartkiewicz placed his hand on the defendant's right hand, but contends that the officers had reasonable suspicion that the defendant was engaged in human trafficking. The defendant does not challenge the judge's determination of the precise moment that the stop occurred. In either case, that determination does not affect the outcome for the reasons delineated herein.
The judge noted that he "reache[d] this issue even though it was not raised by [the defendant]."
In pertinent part, G. L. c. 276, § 1, inserted by St. 1974, c. 508, provides: "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."
As noted supra , the judge ruled that Detective Bartkiewicz acted lawfully in frisking the defendant, but was not entitled to "inspect" the room key.
The judge credited Detective Bartkiewicz's testimony that Backpage "is often used to post on-line advertisements for escorts and prostitutes."
In addition to the officers' prearrest observations, the knife, large amount of cash, and prepaid credit cards found on the defendant bolstered the nexus between the officers' observations and the likelihood that the defendant was engaged in human trafficking. See generally
United States
v.
Henry
,
As noted supra , the voluntariness of the defendant's statement is not at issue, as the judge determined that the defendant "made a knowing, intelligent, and voluntary waiver of his Miranda rights."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.