The Appeals Court reversed the denial of the defendant’s motion to suppress items seized pursuant to a warrantless search of his motor vehicle in Commonwealth v. Darosa.
The basic facts were as follows. Detective Donahue and other detectives were on patrol in a high crime area when they saw a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. “The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes…. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified [at the hearing on the defendant’s motion to suppress] that it was consistent with a drug sale. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling, as a result of which Donahue effectuated a traffic stop…. The defendant was the driver and only occupant of the minivan. Upon Donahue’s request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver’s compartment. When Donahue asked what he was looking for, the defendant replied, [my] license, prompting Donahue to ask, [W]hy are you looking for it if you already told me you don’t have it with you? The defendant then stopped looking around. Donahue conducted a computer query, which revealed that the defendant’s license was revoked and that he had a criminal record for narcotics violations. Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue [indicated] that the defendant was cooperative throughout the encounter. Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by one of the detectives, while the other two searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana‖ and a colleague discovered a large package of money under the front passenger seat. Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine led the detectives to the rear compartment of the minivan, where they discovered a bag containing a large amount of marijuana. At this point Donahue placed the defendant under arrest for the license being revoked. Subsequently, upon being charged with possession with intent to distribute marijuana, the defendant moved to suppress the items seized from his vehicle. The judge denied the motion on the ground that the officers could have released the defendant and summonsed him to court to answer to the charge at a later date. Accordingly, the defendant could have regain[ed] access to the vehicle. The search of the front [driver] and passenger compartment was an appropriate step for the police as a protective sweep prior to allowing the defendant to return to his vehicle. The defendant was convicted as charged. Continue reading →