Commonwealth v. Davis
Commonwealth v. Davis
Opinion of the Court
**211On an afternoon in July 2015, a State police officer stopped the defendant for speeding and driving erratically on the Massachusetts Turnpike. After the traffic stop, the officer arrested the defendant for operating a motor vehicle while under the *560influence of marijuana, G. L. c. 90, § 24 (1) (a ) (1). Subsequently, police officers searched the defendant's automobile and found bags of marijuana, a firearm, and ammunition in the trunk, and oxycodone and cocaine in the locked glove compartment.
The defendant moved to suppress the evidence seized from his automobile. A Boston Municipal Court judge conducted an evidentiary hearing and thereafter denied the motion to suppress; she found that the police had probable cause to arrest the defendant for operating a motor vehicle while under the influence of marijuana, and that the search of the vehicle was justified as an inventory search. A jury acquitted the defendant of all charges except unlawful possession of the drugs found within the locked glove compartment. The defendant appealed to the Appeals Court, and we transferred the case to this court on our own motion.
On appeal, the defendant argues that police did not have probable cause to arrest him for operating a motor vehicle while **212under the influence of marijuana, the search of his automobile was not a lawful inventory search or justified by any other recognized exception to the warrant requirement, and his trial counsel was ineffective for conceding that the defendant possessed the drugs found in the glove compartment.
We conclude that there was no error in the denial of the defendant's motion to suppress, and that the defendant was not deprived of the effective assistance of counsel.
1. Background. We summarize the facts as found by the motion judge, supplemented where appropriate with uncontroverted evidence from the suppression hearing that is not contrary to the judge's findings and rulings. See Commonwealth v. Melo,
On July 28, 2015, at 12:40 P.M. , Major Daniel Risteen was driving eastbound on the Massachusetts Turnpike in an unmarked Ford Taurus cruiser. The defendant, driving a gray Infiniti sedan, sped past Risteen. Risteen observed the defendant drive at speeds between seventy and eighty miles per hour, and follow "dangerously close" to two other vehicles. The defendant failed to slow down at the toll booths at Exit 18, to Brighton or Cambridge; he was driving seventy miles per hour in a zone with a posted speed limit of thirty miles per hour. Using his public address system, Risteen stopped the vehicle immediately after it had passed through the toll booths, approximately fifty or sixty feet after the booths. The defendant, who had been driving in the left hand *561lane, stopped on the left hand side of the egress from the toll booths.
In addition to the driver, the vehicle was occupied by two passengers. Risteen approached the driver's side door and asked the defendant for his license and registration. He detected a strong odor of burnt marijuana and an odor of fresh marijuana coming from within the vehicle. The defendant also smelled of burnt marijuana. Apologizing for "moving pretty fast," the defendant explained that he and his two friends were traveling from New York, and that one of them had to be in Somerville by 1 P.M.
During this initial interaction, Risteen noticed that the defendant's eyes were "red," "glassy," and "droopy," and that he was "fighting with the eyebrows, trying to keep his eyes open." He had "dry spit" on the sides of his mouth, his tongue was dry, he was "licking his lips" in responding to questions, and "his speech was slow and lethargic." Suspecting that the defendant was **213impaired, Risteen returned to his vehicle and called for assistance. Trooper Michael Lynch responded to the scene in a marked police cruiser. When Risteen returned to the Infiniti, the defendant admitted to smoking marijuana "a couple of hours ago."
Risteen noted that both passengers also appeared to have smoked marijuana and thought they "looked high." They smelled of marijuana, and they had trouble staying awake during the roadside encounter. The judge found, as Risteen testified, that the passengers' eyes were red and they appeared "sleepy." They were closing their eyes and tilting their heads back as Risteen was talking to them. The passengers both said that they had been smoking marijuana "earlier" that day.
Risteen ordered the defendant to get out of his automobile so that Risteen could "check out" his condition to drive. Based on the officer's testimony, the motion judge found that the defendant exhibited a number of signs of impairment; "his coordination was slow, his head was bowing down, he had a hard time focusing -- [the officer] asked him four times to take his hands out of his pockets, [and] he was not able to follow simple instructions." Risteen decided to arrest the defendant, but believed that it would be "prefer[able]" to have a third officer present, so the officers would not be outnumbered, and called for additional backup.
After he was arrested and placed in the police cruiser, the defendant asked that one of his passengers be permitted to drive his vehicle. It was Risteen's opinion that "neither one of them could drive, they were both high." Because the officer believed the passengers were impaired and not capable of driving, he did not accede to the defendant's request that one of the passengers be allowed to drive his Infiniti. Rather, the officers impounded the vehicle and called a tow truck to remove it from the turnpike. Risteen told the two passengers to get out of the vehicle, and allowed them to retrieve their personal belongings -- shoes, other clothing, and backpacks -- from it, by indicating which items were theirs. He told them that they were not under arrest and could **214leave with the tow truck driver. When one of the passengers *562said that his backpack was in the trunk, Risteen removed it from the trunk, "pat frisked" it for weapons, and then handed it to the passenger.
Prior to the tow, Lynch "started the inventory" of the automobile by searching the trunk. There, he found a loaded handgun, ammunition, and three bags of marijuana sealed inside a plastic food container with a tight-fitting lid. At that point, the defendant already had been arrested, handcuffed, and placed in a police cruiser. Risteen decided to conduct a further search of the automobile at the State police barracks, because the sedan was stopped in a "precarious spot" that was causing traffic to back up at the tolls.
The tow truck delivered the defendant's vehicle to the State police barracks at 1:50 P.M. At some point after the defendant's arrest (it is unclear precisely when), Risteen requested the assistance of a canine "to put a drug dog on the vehicle." The canine handler, Trooper Edward Blackwell, met Risteen and Lynch at the State police barracks and started his search of the vehicle at 2 P.M. The canine sniffed around the outside of the vehicle and eventually alerted to the glove compartment. After attempting to open it, Lynch and Blackwell realized that the glove compartment was locked, and notified Risteen. Risteen obtained the key, which had been in the defendant's pocket, from the booking officer. Blackwell then used the key to open the glove compartment, where he found eleven oxycodone pills and two plastic bags containing a white powder later determined to be cocaine. The officers also found in the trunk a box for the firearm, which contained a gun lock and ammunition.
2. Discussion. a. Probable cause to arrest. A warrantless arrest is lawful under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights if supported by probable cause. Commonwealth v. Santaliz,
In this case, the motion judge found that Risteen was justified in arresting the defendant for operating a motor vehicle while under the influence of marijuana, based upon the officer's observations of the defendant's demeanor, physical appearance, and behavior. The judge determined also that the warrantless search of the defendant's vehicle was permissible under the inventory search exception to the warrant requirement.
The defendant contends that the judge erred in denying his motion to suppress, because the officers at the scene did not have probable cause to arrest him for operating a motor vehicle while under the influence of marijuana and, as a result, all of the evidence gathered after the unlawful arrest must be suppressed. In the defendant's view, the facts known at the time of his arrest gave rise only to a suspicion that *563he had consumed marijuana sometime prior to the traffic stop, and, absent evidence of impairment, there was no crime, just the civil infractions of speeding and tailgating. See Commonwealth v. Rodriguez,
We agree with the motion judge that, based upon evidence that the defendant's consumption of marijuana had impaired his ability to drive safely, the officers were justified in arresting the defendant for operating a motor vehicle while impaired.
"While using marijuana is no longer a crime in Massachusetts," operating a motor vehicle while under the influence of marijuana remains a criminal offense.
We acknowledge that it is often difficult to detect marijuana impairment, because the effects of marijuana consumption "vary greatly amongst individuals," Gerhardt,
The defendant's argument rests largely on the officer's testimony at the hearing on the motion to suppress that, while he observed the defendant speeding, at times *564driving at speeds of eighty miles per hour, and driving dangerously close to the bumpers of two other vehicles, he did not observe the defendant swerving over marked lines, driving erratically, or appearing not to be in control of the vehicle. Indeed, the officer testified that, before he reached the driver's side door, he had been considering a number of reasons why the operator would have been driving in that manner, only one of which involved driving while intoxicated. Nonetheless, upon **217approaching the driver's side door of the Infiniti, Risteen detected the odor of burnt and unburnt marijuana emanating from the vehicle, and the odor of burnt marijuana coming from the defendant's person. Among other things, the defendant had red and glassy eyes, he was struggling to keep his eyes open and his head upright, "his coordination was slow," he had difficulty "focusing," and he also had difficulty in following the officer's "simple directions." The defendant told the officer that he had smoked marijuana earlier that day, before he left to drive to Somerville. Given this, the judge was warranted in finding that police had probable cause to believe that the defendant had operated a motor vehicle while impaired. Contrast Daniel,
b. Warrantless search of the automobile. A warrantless search is "per se" unreasonable under the Fourth Amendment. See Commonwealth v. Perkins,
The motion judge determined that the officers were authorized to conduct the search of the defendant's vehicle as an inventory search pursuant to the State police inventory search policy. She found that the officers adhered to the written inventory policy, and that the impoundment of the vehicle and its subsequent search were justified because "the vehicle was located on the side of the road after the toll booth and both passengers appeared to be under the influence of drugs and not able to drive."
On appeal, as he did at the hearing on the motion to suppress, the defendant challenges the search of his vehicle at the State police barracks on two grounds. First, he asserts that the judge erred in finding that both passengers were unable to drive the vehicle safely from the turnpike toll booth. See Commonwealth v. Caceres,
An inventory search serves three separate legitimate purposes, none *565of which is investigatory. See Commonwealth v. Eddington,
The motion judge concluded, and we agree, that the police had reasonable grounds to impound the defendant's automobile. See Commonwealth v. Hoose,
**219The officers' testimony at the hearing, which the judge credited, supports a reasonable conclusion that the passengers were "not able to drive." The passengers told the officers that they had been smoking marijuana "all day," were in a vehicle that smelled of burnt marijuana, and had difficulty in staying awake during the traffic stop. A determination that the passengers were not in a condition to operate the vehicle safely is fact-driven, "with the overriding concern being the guiding touchstone of '[r]easonableness' " (citation omitted). See Eddington,
That the officers had reasonable grounds to impound the vehicle, however, does not end the analysis. Based on Risteen's decision to "put a drug dog on the vehicle," the defendant argues that the inventory search of his automobile was a pretext to search the vehicle for investigative purpose, and that the judge erred in determining that it was a valid inventory search. See Oliveira,
Unlike other types of searches, an inventory search is administrative, and the decision to conduct an inventory search *566must not be for investigatory purposes; the decision must be objectively reasonable, and the search must be conducted according to standard written procedures. See Commonwealth v. Matchett,
Here, the Commonwealth failed to establish that the decision to "put a drug dog" on the vehicle was made for a noninvestigatory purpose. See Oliveira,
It may be that Risteen decided to call for a canine to search the vehicle prior to the initial roadside search, or that the discovery of marijuana in the trunk prompted the request. Because the Commonwealth had the burden of establishing that the police conducted a lawful inventory search, yet did not present any evidence to demonstrate that there was a legitimate need to "put a drug dog" on the defendant's vehicle, we cannot affirm the judge's ruling on this basis.
c. Automobile exception to the warrant requirement. Although we conclude that the motion judge's decision to deny the motion to suppress, on the grounds discussed, was not proper, we consider other reasons, advanced by the Commonwealth, that might support the judge's determination. See Commonwealth v. Va Meng Joe,
Due to the inherent mobility of an automobile, and the owner's reduced expectation of privacy when stopped on a public road, police are permitted to search a vehicle based upon probable cause to believe that it contains evidence of a crime. Commonwealth v. Motta,
The defendant argues that the Commonwealth did not establish probable cause to believe that evidence relating to either the offense of operating a motor vehicle while under the influence of marijuana or possession of the loaded handgun would be found in the glove compartment. He argues, in addition, that the automobile exception does not apply where the officers had ample opportunity to secure a warrant to search the impounded vehicle. See Commonwealth v. Agosto,
The Commonwealth contends that the officers' search of the glove compartment was permissible in order to search for (unspecified) evidence of separate crimes: operating a motor vehicle while under the influence of marijuana, and "based on the discovery of the loaded Smith and Wesson .380 and three bags of marijuana [found] during the inventory at the scene." See Johnson,
We conclude that the officers had adequate grounds to secure the vehicle and thereafter promptly to search the glove compartment for evidence related to the offense of operating the vehicle while under the influence of marijuana. See Ross,
Finally, we reject the defendant's contention that the police unreasonably delayed the search. The tow truck arrived at the State police barracks at 1:50 P.M. Blackwell promptly initiated the search of the vehicle at 2 P.M. See Eggleston,
d. Ineffective assistance of counsel. In addition to his challenge to the denial of the motion to suppress, the defendant raises, for the first time on appeal, a claim of ineffective assistance of counsel.
The preferred method for raising claims of ineffective assistance of trial counsel is through a motion for a new trial. Commonwealth v. Zinser,
Here, trial counsel made an obviously strategic decision to concede that his client possessed the drugs found in a locked glove compartment, and advised the judge of this during a hearing on motions in limine immediately prior to voir dire of the venire. In his opening statement, counsel said, "I'm just going to be completely upfront with you right now, those drugs were [the defendant's] drugs. You can go ahead and find him guilty of those drugs, no question. They were in his car in a locked glove box. He had the key to the glove box, his drugs." Trial counsel then stated, by way of contrast, that the Commonwealth would be unable to prove the remaining (more serious) charges of operating a motor vehicle while under the influence of marijuana and possession of an unlawful firearm. "I am going to suggest to you that the Commonwealth's evidence on those charges are [sic ] going to be insufficient. And like I said, compare it to the drugs found in the glove box. Go ahead and find him guilty of the drugs in the glove box. Those are his. But the rest of it rests on assumptions and speculation that I am going to ask you not to engage in and at the end to find him not guilty of the remaining charges."
Later, in his closing argument, counsel again conceded that the defendant possessed *569the items in the glove compartment, but asked the jury to consider that the Commonwealth's substitute chemist had not established that the substances were oxycodone and cocaine. Again, counsel urged the jury to compare the evidence from the glove compartment to the Commonwealth's proof that the defendant possessed the firearm and ammunition recovered from the trunk. He argued, "[I]t is simply insufficient for the police to have found something in the trunk of the car where there were three people inside and where two people, after [the defendant] was removed, went in and took their property out.... So compare that to what they found in the glove box. These are under lock and key. [The defendant] has the key. He's the gatekeeper. No one's getting in without his key. He possess the things in the glove box. That does not prove anything about the gun."
On this record, the defendant's claim of ineffective assistance is not indisputable. The Commonwealth established that the vehicle was registered to the defendant, and that the defendant had **224the key to the glove compartment in his front pocket when he was arrested. It does not appear that trial counsel had any other viable theory of defense, and appellate counsel does not offer a viable alternative. At trial, counsel skillfully utilized this inculpatory evidence to highlight the Commonwealth's inability to prove the other charges. This strategy appeared to be successful; the jury acquitted the defendant of the firearms charges and of operating a motor vehicle while under the influence.
3. Conclusion. The order denying the motion to suppress is affirmed. The judgments are also affirmed.
So ordered.
The Commonwealth charged the defendant with six criminal offenses: operating a motor vehicle while under the influence of drugs (marijuana), in violation of G. L. c. 90, § 24 (1) (a )(1) ; unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a ) ; unlawful possession of ammunition, in violation of G. L. c. 269, § 10 (h ) (1) ; possession with intent to distribute a class B substance (oxycodone), in violation of G. L. c. 94C, § 32A (b ), as a subsequent offense; possession with intent to distribute a class B substance (cocaine) as a subsequent offense, in violation of G. L. c. 94C, § 32A (b ) ; and possession with intent to distribute a class D substance (marijuana), in violation of G. L. c. 94C, § 32C (a ). The defendant also was charged with two civil motor vehicle infractions: speeding on the Massachusetts Turnpike, in violation of 700 Code Mass. Regs. § 7.08(6)(a) (2013) (now § 7.09[6][a] ); and following too closely, in violation of 700 Code Mass. Regs. § 7.08(15) (2013) (now § 7.09[15] ). Before trial, the prosecutor reduced the charges of possession with intent to distribute oxycodone and cocaine to simple possession of those substances, and dismissed the charge of possession with intent to distribute marijuana.
Risteen did not conduct formal "field sobriety" tests of the defendant, as he knew from experience that "standardized field sobriety" tests are "not too good of an indicator regarding marijuana intake"; rather, he relied on his thirty years of training and experience with the State police, which included extensive specialized training in narcotics and sixteen years in a specialized unit.
At the time of the events at issue here, possession of one ounce or less of marijuana had been decriminalized, but remained a civil infraction. See St. 2017, c. 55.
See note 2, supra.
The search of the defendant's vehicle for evidence relating to a violation of G. L. c. 90, § 24 (1) (a )(1), stands in stark contrast to the impermissible searches conducted in Commonwealth v. Overmyer,
The defendant did not indicate, at trial, his "intransigent and unambiguous objection" to his counsel's strategic decision to admit the defendant's possession of the items in the glove compartment. Accordingly, there is no structural error as discussed in McCoy v. Louisiana, --- U.S. ----,
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