Opinion
SUCR2013-10289
01-27-2014
COMMONWEALTH v. JUAN ORTIZ.
FINDINGS, MEMORANDUM, AND ORDER ALLOWING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE IN PART
KENNETH W. SALINGER, Justice.
Defendant Juan Ortiz asks the Court to suppress a kilogram of cocaine found by police inside a small backpack that Ortiz was transporting in a rented minivan. The police searched the backpack after they stopped Ortiz's vehicle and arrested Ortiz for driving after his license was suspended. Ortiz also asks the court to suppress three cell phones and $307 found on his person when he was arrested. Ortiz may challenge the search of the backpack even though he was not an authorized driver of the rented minivan and thus may not be able to challenge the rest of the vehicle search. Ortiz argues that the traffic stop, his arrest, and the subsequent inventory search of his vehicle were all pretexts for a warrantless investigatory search by police officers expecting to find a kilogram of cocaine hidden in Ortiz's backpack. The Court concludes that it must suppress the cocaine found in the backpack but not the cell phones and cash found on Ortiz.
The Court finds that police believed that Ortiz was transporting a kilogram of cocaine in the backpack and that they made the traffic stop and arrest and searched the minivan for the sole purpose of finding and conducting a warrantless investigatory search of the backpack. The stop and arrest were nonetheless lawful because the police had an objectively valid reason to stop Ortiz for a traffic violation and probable cause to arrest him for driving illegally. The subjective intent of an arresting officer has no bearing on whether a search may be conducted incident to arrest. The search of Ortiz and seizure of his cell phones and cash were thus lawful.
In contrast, the police's investigatory purpose makes the search and seizure of the backpack illegal. A warrantless inventory undertaken by the police as a pretext for a purely investigatory search is unconstitutional. Since the sole reason the police stopped and searched the minivan was to find Ortiz's backpack and seize the cocaine hidden inside, the search of the backpack cannot be justified as part of a mere inventory search of the minivan. The Commonwealth makes no claim and did not prove that the police had probable cause to believe that the minivan contained cocaine. Thus the search does not fall within the automobile exception to the constitutional requirement of a search warrant. And the Commonwealth rightly concedes that the search of the backpack cannot be justified as a search incident to arrest. The doctrine of " inevitable discovery" does not apply under these circumstances. That doctrine cannot cure an illegal warrantless search on the basis that if police had delayed their search and applied for a warrant they would inevitably have obtained one. Finally, any statements that Ortiz made to police officials as a result of the illegal seizure of the cocaine must also be suppressed.
1.
Findings of Fact. The Court heard testimony by Canton Police Detective Paul Gallagher and State Trooper Matthew Hannigan during an evidentiary hearing held on January 15, 2014. The Court finds that Det. Gallagher and Trooper Hannigan were credible and credits their testimony to the extent that it is consistent with and reflected in express findings stated in this memorandum. The Court also received several documents into evidence. The Court makes the following findings of fact based on this evidence and reasonable inferences it has drawn from the evidence.
a.
Cocaine Trafficking Investigation. On February 4, 2013, Ortiz became a subject of an ongoing investigation into cocaine trafficking by a Drug Enforcement Administration task force. On that day a motor vehicle driven by someone other than Ortiz was stopped and seized by police. Police found $37, 900 in cash hidden in the vehicle. Ortiz went to the Dedham police station and asked about the seized vehicle. When asked, he denied having any knowledge of the cash found inside. Ortiz left driving a gray minivan with Florida license plates.
Detective Gallagher and other DEA task force members began to investigate and conduct surveillance of Ortiz shortly after he left the Dedham police station. They quickly learned that Ortiz's Massachusetts driver's license and his right to operate a motor vehicle in Massachusetts had been suspended in November 2012 for failure to pay a fine or fines. They also learned that the Florida minivan was a rental vehicle and that Ortiz was not an authorized driver of that vehicle. This minivan— which Ortiz was also driving when he later was stopped and arrested— was rented in Fort Lauderdale, Florida, from Payless Car Rental. Payless rented the vehicle to someone identified as Julissa Peralta, who was the only person authorized by Payless to drive the minivan. Ortiz presented no evidence that Peralta or Payless had given him permission to drive the minivan. Nor did Ortiz try to show that he was the " Julissa Peralta" who had rented the minivan.
Over the next several weeks police officers observed Ortiz driving the minivan several times but did not stop him. The DEA task force members knew that any time they saw Ortiz driving in Massachusetts they could have him arrested for operating a motor vehicle after his right to do so had been suspended by the Registrar of Motor Vehicles. But they waited to have Ortiz arrested on that ground until they could have Ortiz stopped while he was transporting cocaine.
The DEA task force obtained information from an undisclosed source that on February 28, 2013, Ortiz would be transporting a kilogram of cocaine. The Commonwealth presented no evidence regarding the source of that information, the basis for the source's knowledge, the veracity of the source, or whether law enforcement officials had corroborated any of the source's information. No police officer ever sought or obtained an arrest warrant for Ortiz or a search warrant authorizing a search of Ortiz, his vehicle, or any bags or property under his control.
On the morning of February 28, Detective Gallagher contacted Massachusetts State Police Trooper Dennis Lynch and asked him to arrange for a state trooper to be positioned between Norwood and Boston and available to stop Ortiz on Gallagher's command, arrest Ortiz for operating a motor vehicle after his right to do so in Massachusetts had been suspended, and then search the minivan to locate the cocaine being transported by Ortiz. Detective Gallagher chose this time to have Ortiz arrested for driving after his Massachusetts license and right to operate had been suspended so that they would be able to use the occasion of Oritz's arrest to impound his vehicle and search his backpack for cocaine.
At around 10 a.m. on February Trooper Lynch contacted Trooper Matthew Hannigan, who was on patrol with his drug certified police dog Zander to position himself and be ready to stop and arrest Ortiz. Zander is certified in detecting odors of cocaine, heroin, marijuana, and methamphetamines.
Detective Gallagher was undercover in an unmarked cruiser and civilian clothes that day. He saw Ortiz driving the Florida minivan and followed Ortiz to an apartment complex in Norwood. At some point Gallagher was joined by Randolph Police Detective Paul Smyth, who was also assigned to the DEA task force.
Gallagher and Smyth saw Ortiz leave the Norwood apartment with a small black backpack over his right shoulder. They saw Ortiz get into the Florida minivan with the backpack and begin to drive toward Boston. Gallagher and Smyth followed in their unmarked cruiser. Gallagher promptly contacted Trooper Lynch by radio and asked the state police to stop Ortiz's vehicle. While waiting for a state police cruiser to join them, Gallagher twice saw Ortiz change lanes without using a directional or hand signal.
b.
Arrest of Ortiz and Investigatory Search. Trooper Lynch radioed Trooper Hannigan and instructed him to locate and stop the Florida minivan. As requested by Gallaher, Lynch told Hannigan that this was part of a drug investigation by a DEA task force, that the right of the minivan driver to operate a motor vehicle in Massachusetts had been suspended and thus Hannigan would be able to arrest the driver on that ground, that the operator was believed to be transporting a kilogram of cocaine inside a small backpack, that Hannigan should pull the vehicle over as soon as he saw its driver violate a traffic law, and that Hannigan should then arrest Ortiz, impound and search the vehicle, find the backpack, and open it and seize the cocaine hidden inside.
Trooper Hannigan caught up with Ortiz just before 12:30 p.m. After trailing Ortiz for a few minutes he saw the minivan change lanes on the VFW Parkway without signaling. Hannigan then activated his lights and siren. Ortiz promptly stopped on the right side of the busy roadway.
Hannigan pulled over Ortiz because he intended, as directed, to arrest Ortiz for driving without a license, impound the minivan, and then search the vehicle for the kilo of cocaine that Hannigan had been told could be found in inside in a black backpack. Hannigan generally does not pull people over for changing lanes without signaling. He stopped Ortiz because he was ordered to do so as part of an ongoing drug investigation, not because he was trying to enforce the traffic law that requires drivers to signal before changing lanes. After stopping the vehicle Hannigan asked Ortiz for his driver's license and registration. Ortiz handed over his Florida license and rental paperwork for the minivan. Hannigan took both back to his cruiser. He confirmed on his mobile computer and also with the dispatcher that Ortiz's right to operate a motor vehicle in Massachusetts had been suspended. Hannigan then told dispatch that he was going to place Ortiz under arrest. The Court credits Hannigan's testimony that in other circumstances he would not arrest someone for operating a motor vehicle with a suspended license, and that he arrested Ortiz only because he had been ordered to do so as part of an ongoing drug investigation.
Hannigan could not transport Ortiz in his own cruiser because Hannigan's dog was in the rear seat. Hannigan requested another cruiser to transport Ortiz and a truck to tow the minivan. The second cruiser arrived in a few minutes.
Hannigan ordered Ortiz to exit from the minivan, placed Ortiz under arrest, handcuffed him, put Ortiz in the rear seat of the second cruiser, and read Ortiz his Miranda warnings from a card. Ortiz told Hannigan he was " shocked" to learn that his right to operate a motor vehicle in Massachusetts had been suspended.
Trooper Hannigan then inventoried the contents of the minivan before it was towed, in accord with a written state police policy that requires, among other things, that impounded vehicles be inventories before they are towed if possible and that during a vehicle inventory all closed but unlocked containers shall be opened and their contents shall be inventoried. Hannigan did so after Ortiz had already been handcuffed and placed in the rear of a state police cruiser.
Hannigan saw Ortiz's black backpack in the backseat area. Hannigan opened the backpack and found inside it a package that he believed to contain cocaine, based on his training and experience and on the information conveyed to him before he stopped Ortiz. Hannigan removed the package from the backpack and placed it on or in the center console of the minivan. Hannigan then allowed K9 Zander to sniff the outside and inside of the minivan. Zander alerted on the console, where Hannigan had just placed the package he removed from Ortiz's backpack. Hannigan issued a citation to Ortiz for the civil infraction of failing to signal before changing lanes and the crimes of operating a motor vehicle after Ortiz's right to do so in Massachusetts had been suspended and trafficking a Class B substance.
In light of the facts found by the Court above, the Court further finds that Trooper Hannigan stopped and arrested Ortiz and searched the minivan for the sole purpose of conducting an investigatory search for and of Ortiz's backpack in order to seize the kilogram of cocaine that the DEA task force had learned would be inside. The inventory search of the Florida minivan was a pretext for conducting a warrantless investigatory search of the backpack for evidence of cocaine trafficking.
2.
Right to Challenge Search of Backpack. The Commonwealth argues that Ortiz cannot challenge the search of the backpack because he was not an authorized driver of the rental vehicle. The Court disagrees. Since possessing the cocaine hidden inside the backpack is an element of the crime charged, Ortiz has automatic standing to challenge the search and need not show that " he has a subjective or objectively reasonable expectation of privacy in the place where the drugs ... were found." Commonwealth v. Mubdi, 456 Mass. 385, 392-392 & n.7 (2010).
The Commonwealth is trying to have it both ways. On the one hand, the government has charged Ortiz with trafficking in cocaine. The indictment specifies that Ortiz is charged with " unlawfully, knowingly, and intentionally bringing into the Commonwealth and possessing with intent to distribute a net weight of two hundred grams or more of a mixture containing cocaine." Thus, the gravamen of the indictment is that Ortiz had actual or constructive possession of the cocaine within the backpack and that he intended to sell or aid and abet the sale of that cocaine. On the other hand, the Commonwealth argues that Ortiz cannot challenge the search of the backpack because he has not presented evidence sufficient to establish the possessory element of the charge against him, and thus for purposes of the motion to suppress the Court should find that Ortiz did not have actual or constructive possession of the backpack.
Under Massachusetts law, the " automatic standing" rule puts an end to this dilemma where a defendant is charged with a crime for which possession is an essential element. See Mubdi, 456 Mass. at 392-393 & n.7 (applying automatic standing rule); Commonwealth v. Amendola, 406 Mass. 592, 596-601 (1990) (adopting " automatic standing rule ... as a matter of State constitutional law"). Since possession of cocaine is an essential element of the trafficking charge against Ortiz, he has automatic standing to challenge a search of the backpack. See Commonwealth v. Frazier, 410 Mass. 235, 244-245 (1991). And since " someone had a reasonable expectation of privacy" in the backpack that Ortiz had placed in the minivan, the opening of the backpack " was a search in the constitutional sense." Mubdi, 456 Mass. at 393 (emphasis in original).
It may be that Ortiz had no reasonable expectation of privacy in the minivan and lacks standing to challenge the vehicle search as a whole because he was not authorized by the rental company to drive the minivan and he presented no evidence that the person who rented the vehicle had given him permission to drive. See Commonwealth v.. Lawson, 79 Mass.App.Ct. 322, 326 & n.4 (2011).
Ortiz nonetheless had a reasonable expectation of privacy in and standing to challenge the search of the backpack. See United States v. Edwards, 632 F.3d 633, 641-642 (10th Cir.2001) (defendant with no authorization to drive rental car had standing to challenge search of closed luggage in trunk, even though he lacked standing to challenge search of entire vehicle). Under Lawson 's interpretation of Mubdi, Ortiz may be in a position akin to a motor vehicle passenger who has no " proprietary or possessory interest in the vehicle" and therefore lacks standing to challenge a search of the vehicle. Cf. Commonwealth v. King, 389 Mass. 233, 240 (1983). But passengers have a reasonable expectation of privacy in closed bags and other closed containers that they bring into the vehicle, and thus have standing to challenge the admissibility of evidence taken from their bag or other container. Id. at 240-241. Similarly, Ortiz has standing to challenge the search of the backpack he put into the minivan, even if he had no reasonable expectation of privacy with respect to any items left in plain view in the vehicle. Cf. United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir.1993), cert. denied, 510 U.S. 1207 (1994) (owner of shoulder bag located in another's car had legitimate expectation of privacy with respect to contents of the bag); United States v. Welch, 4 F.3d 761, 764 (9th Cir.1993) (defendant had reasonable expectation of privacy in purse left in a rental car).
No reasonable person would think that if they were to drive a vehicle rented by their spouse or good friend, even without permission, they would thereby forfeit any right to keep the contents of their purse or other bag private from police. " A search implicating the Fourth Amendment [to the United States Constitution] occurs ‘ when an expectation of privacy that society is prepared to consider reasonable is infringed’ and a seizure of property for purposes of the Fourth Amendment occurs when ‘ there is some meaningful interference with an individual's possessory interests in that property.’ " Commonwealth v. Connolly, 454 Mass. 808, 819 (2009), quoting United States v. Karo, 468 U.S. 705, 712 (1984), and United States v. Jacobsen, 466 U.S. 109, 113 (1984). " The measure of the defendant's expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable." Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). Under the circumstances of this case, Ortiz retained a reasonable expectation of privacy in the backpack even though he was driving a rented minivan without authorization from the rental company.
Ortiz also has standing to challenge the search of his person. Ortiz was searched after he was ordered out of the vehicle and placed under arrest. Someone who drives a rental vehicle without authorization does not forfeit their reasonable expectation of privacy in cell phones and other items they carry on their person.
3.
Claim of Pretextual Stop and Arrest. Trooper Hannigan had reasonable suspicion to stop Ortiz for changing lanes without signaling and probable cause to arrest Ortiz for driving after his right to operate a motor vehicle in Massachusetts had been suspended. Hannigan's observation of Ortiz changing lanes without signaling, in violation of Massachusetts traffic laws, warranted a stop of the vehicle. Commonwealth v. Williams, 46 Mass.App.Ct. 181, 182 review denied, 429 Mass. 1109 (1999); see also G.L. c. 90, § 14B (signal required before any turning movement that would affect operation of other vehicles). Similarly, Ortiz was subject to arrest because Hannigan had probable cause to believe that Ortiz was operating a motor vehicle after his right to do so in Massachusetts had been suspended. See G.L. c. 90, § 21 (authorizing warrantless arrest for driving after right to operate is suspended) § 23 (making it a crime to drive after right to operate is suspended).
Since the arrest of Ortiz for driving after his right to operate a motor vehicle was lawful, the police could conduct a warrantless search of Ortiz incident to that arrest and seize any cell phones, cash, or other items found on his person. See, e.g., Commonwealth v. Berry, 463 Mass. 800, 806 (2012).
The fact that Trooper Hannigan stopped and arrested Ortiz for the purpose of conducting an investigatory search of the backpack is of no constitutional moment with respect to the vehicle stop and arrest. " [T]he constitutional reasonableness of traffic stops" does not depend " on the actual motivations of the individual officers involved." Whren v. United States, 517 U.S. 806, 813 (1996). That Hannigan's subjective motive for stopping Ortiz was to seek evidence of cocaine trafficking is therefore " irrelevant:" " all that need be shown is that [the police] had a reasonable suspicion that the driver of the [vehicle] had violated G.L. c. 90, § 14B" by failing to signal when he made a turn or changed lanes. Commonwealth v. Avellar, 70 Mass.App.Ct. 608, 613 (2007). Similarly, arresting a driver based on probable cause that their license had been revoked, and searching the driver incident to that arrest, is lawful even if the officer's subjective motivation was to search the driver's person for illegal drugs. United States v. Robinson, 414 U.S. 218, 221 n.1 (1973). The same is true under Massachusetts law. See Commonwealth v. Santana, 420 Mass. 205, 209 (1995) (if arrest is based on probable cause and thus authorized by law, subjective motivation by officer of intent to search for drugs is irrelevant).
Ortiz's reliance on United States v. Lefkowitz, 285 U.S. 452 (1932), is misplaced, as the portion of the decision cited by Ortiz is no longer good law. In 1932 the Supreme Court held that " [a]n arrest may not be used as a pretext to search for evidence." Lefkowitz, 285 U.S. at 467. But this view has been rejected by subsequent Supreme Court decisions holding that a warrantless search may be conducted pursuant to a lawful arrest based on probable cause, even if the subjective motivation for the arrest was to conduct a search incident to that arrest. See Arizona v. Gant, 556 U.S. 332, 350 (2009) (noting abrogation of Lefkowitz ).
4.
Warrantless Search of Backpack. Although Ortiz was lawfully stopped and arrested, and the police could therefore impound his vehicle, the warrantless search of his backpack was unconstitutional under the circumstances of this case. " Warrantless searches are presumptively unreasonable, under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, subject only to ‘ a few specifically established and well-delineated exceptions.’ " Commonwealth v. Gouse, 461 Mass. 787, 792 (2012), quoting Commonwealth v. Cast, 407 Mass. 891, 901 (1990). As explained below, neither the inventory search exception, nor the automobile exception, nor the search incident to arrest exception apply here.
a.
Pretextual Inventory Search.
Normally police may conduct a warrantless inventory search of a vehicle where they have lawfully arrested the driver based on probable cause, the vehicle must reasonably be impounded because it is stopped in a no parking area on a busy public roadway, the driver was not accompanied by some other person who could lawfully drive the vehicle away, and the search is conducted in accord with a written inventory search policy that leaves no discretion as to how the search is to be conducted. See, e.g., Commonwealth v. Eddington, 459 Mass. 102, 108-111 (2011); Commonwealth v. Daley, 423 Mass. 747, 750-751 (1996). But the fact that a motor vehicle has been lawfully impounded does not necessarily mean that a subsequent warrantless search of the vehicle qualifies as a lawful inventory search. See Commonwealth v. Hason, 387 Mass. 169, 177-178 (1982) (holding that vehicle impoundment was lawful but remanding for findings as to whether inventory was pretextual or otherwise unlawful); Commonwealth v. Dunn, 34 Mass.App.Ct. 702, 706-707 (1993) (same).
Police officers who want to search a closed but unlocked backpack for the sole purpose of finding illegal drugs may not circumvent the constitutional requirement of probable cause by waiting until the person transporting the backpack brings it with them as they drive a motor vehicle, arresting the driver on some other grounds, and then conducting an inventory search of the vehicle. See United States v. Taylor, 636 F.3d 461, 465 (8th Cir.2011) (where officer was asked to initiate traffic stop and arrest driver in order to search for drugs believed to be in the vehicle, and officer testified that she would not have made stop or arrest and would not have searched vehicle if not for belief that vehicle was being used to transport illegal drugs, search fell outside inventory search exception to warrant requirement); Edwards, 632 F.3d at 644 (10th Cir.) (search of rental vehicle undertaken for purpose of finding evidence of bank robbery fell outside inventory search exception to warrant requirement). As noted above, a search of a person incident to their arrest on probable cause that they have committed a crime is lawful even if the person would not have been arrested but for the police's intent to search them. See, e.g., Robinson, 414 U.S. at 221 n.1; Santana, 420 Mass. at 209. In contrast, a warrantless inventory search of a stopped motor vehicle is unlawful, under the Fourth Amendment and art. 14, if the real purpose is to make an investigatory search for contraband. See, e.g., Whren at 812 (in " the context of [an] inventory search or administrative inspection[, ] ... an officer's motive" can " invalidate[ ] objectively justifiable behavior under the Fourth Amendment").
The inventory search exception to the search warrant requirement has important limits that were exceeded in this case. Inventory searches of impounded vehicles " must ... be carefully circumscribed by law because, as an exception to the ordinary constitutional requirements, they may be conducted without warrant or probable cause." Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). To be valid, a warrantless inventory search of a vehicle " must follow a standard or routine procedure adopted and recognized by the police force; it may not extend beyond the custodial necessities which are its sole justification; and it may not be allowed to become a cover or pretext for an investigative search. " Id. (emphasis added). " Inventory searches are intended to be noninvestigatory and are for the purpose of protecting property which may be within the vehicle." Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995). " The inventory search exception to the search warrant requirement is strictly limited to the purposes underlying that exception." Commonwealth v. Murphy, 63 Mass.App.Ct. 11, 17 (2005). It is a " narrow exception" that may " not [be] used to justify ... a warrantless investigative foray." Colorado v. Bertine, 479 U.S. 367, 381 (1987).
Where " the only purpose" of a search is " to seize evidence, " a warrant or probable cause plus exigent circumstances is required: the search cannot be justified as an inventory search for which no probable cause is necessary. Commonwealth v. Benoit, 382 Mass. 210, 219 (1981); accord Whren, 517 U.S. at 811-12. " An inventory search conducted as a pretext for a general investigatory search violates the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights." Commonwealth v. Horton, 63 Mass.App.Ct. 571, 576 (2005); accord, e.g., Santana, 465 Mass. at 295 (" An inventory search may not be a pretext for an investigatory search.").
Given Trooper Hannigan's testimony that he would not have stopped Ortiz for changing lanes without signaling and probably would not have arrested him for driving with an expired license if other law enforcement officials did not believe that Ortiz was transporting cocaine in his backpack, and Hannigan's further testimony that he was instructed to stop and arrest Ortiz and to search his minivan to find the backpack and seize the kilogram of cocaine hidden inside, the Court finds that " the inventory was merely a pretext for an investigatory search." Taylor, 636 F.3d at 465 (reaching same conclusion on similar facts). The cocaine taken from the backpack must therefore be suppressed as evidence against Ortiz. Id .; Commonwealth v. Sullo, 26 Mass.App.Ct. 766, 772-773 (1989) (where evidence is seized from a vehicle during an inventory that was undertaken as a pretext for a targeted investigatory search, the evidence was seized illegally and is inadmissible at trial).
Whren is not to the contrary; the Commonwealth's reliance on that decision is misplaced. In Whren, a police officer made a lawful traffic stop, stepped " up to the driver's window, [and] immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands." 517 U.S. at 808-809. The Supreme Court held that the stop was lawful because the officer had probable cause, or at least reasonable suspicion, to believe that the driver had violated a traffic law. See 517 U.S. at 817. It never addressed the validity of the subsequent search. But the record made clear that after the officer saw crack cocaine in the driver's hands he or she had probable cause to believe that there was contraband and evidence of a crime in the vehicle, and thus could conduct a warrantless search under the automobile exception to the warrant requirement. See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). Whren did not involve an inventory search.
In this case the police could lawfully have impounded the minivan after arresting Ortiz, towed it to secure location, and then— if they had probable cause to believe that the backpack contained cocaine— applied for a search warrant instead of conducting a pretextual inventory search. The impoundment of the vehicle under these circumstances was lawful. Eddington, 459 Mass. at 108-111; Daley, 423 Mass. at 750-751. But " [t]he validity of an impoundment is not dispositive of the validity of an inventory search." Taylor, 636 F.3d at 465. The police may only conduct an inventory search of a lawfully seized vehicle " if there is no suggestion that the procedure was a pretext concealing an investigatory police motive" and if the other requirements for an inventory search have been met. Hason, 387 Mass. at 179, quoting Commonwealth v. Matchett, 386 Mass. 492, 509-510 (1982). Thus, the police could not conduct a warrantless investigatory search of Ortiz's backpack to find the kilogram of cocaine they believed Ortiz was transporting under the guise that they were conducting an inventory search.
Of course, if the DEA Task Force had information from a confidential source that was strong enough to provide probable cause for obtaining a search warrant after impounding the vehicle, then the Commonwealth could and would have justified the search of Ortiz's backpack under the automobile exception to the warrant requirement. Police may search a motor vehicle without a warrant if they have probable cause to believe that the vehicle " contains contraband or evidence of a crime" and it appears that the vehicle is " capable of being moved." Gouse, 461 Mass. at 792, quoting Commonwealth v. Bostock, 450 Mass. 616, 624 (2008). " [W]hen an automobile is stopped in a public place with probable cause" to believe that it contains contraband or evidence of a crime, " no more exigent circumstances are required by art. 14 beyond the inherent mobility of an automobile itself to justify a warrantless search of the vehicle." Commonwealth v. Motta, 424 Mass. 117, 124 (1997). The same is true under the Fourth Amendment. Id .; accord Labron, 518 U.S. at 940.
The Commonwealth has not met its burden of proving that the police had " probable cause to believe that the automobile contained contraband" or other evidence of a crime. See Commonwealth v. Daniel, 464 Mass. 746, 750 (2013), quoting Commonwealth v. Santiago, 410 Mass. 737, 744 (1991). The mere fact that someone told police that Ortiz would be transporting a kilo of cocaine does not establish that there is probable cause to justify a warrantless search of his vehicle, in the absence of evidence establishing that the unidentified informant had some reasonable basis for that knowledge and confirming that the information is credible or that the informant is reliable, or corroborating some part of the informant's information. Commonwealth v. Reddington, 395 Mass. 315 (1985); see generally Commonwealth v. Upton, 394 Mass. 363, 374-376 (1985). Since the Commonwealth has not proved that the police had probable cause to believe that Ortiz was transporting cocaine the search of the minivan was not permissible under the automobile exception.
The apparent lack of probable cause to believe that Ortiz was transporting a kilogram of cocaine underscores why the pretextual inventory search of his backpack is unconstitutional. The Fourth Amendment and art. 14 are designed to protect the right of law-abiding citizens to be free from unreasonable searches and seizures. The rule that police may conduct a warrantless search of an automobile where there is probable cause to believe that it contains contraband or evidence of a crime, but not where the police have some lesser degree of suspicion that the automobile contains such evidence or contraband, " safeguard [s] citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime" while giving police officers " fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176 (1949). It strikes " the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Id.
Police officers cannot circumvent the constitutional requirement that they have probable cause to search a motor vehicle by arranging for a lawful traffic stop and arrest of a driver for the sole purpose of conducting an investigatory search of the vehicle or luggage inside to locate evidence of a crime. Such a search falls outside the scope of the inventory exception to the constitutional requirement of probable cause. The search of Ortiz's backpack was thus unlawful.
b.
Search Incident to Arrest Exception.
The Commonwealth rightly concedes that the arrest of Ortiz cannot justify the search of his backpack. " A search conducted incident to an arrest may be made only for the purposes of seizing ... evidence of the crime for which the arrest has been made" or " removing any weapons that the arrestee might use to resist arrest or effect his escape." G.L. c. 276, § 1. Neither of these grounds is present in this case.
Since Ortiz was arrested for driving after his right to operate a motor vehicle had been suspended, Trooper Hannigan's search of the closed backpack inside the minivan for cocaine was not and could not be a search for evidence of the crime for which Ortiz was initially placed under arrest. See Arizona v. Gant, 556 U.S. at 343-344 (where defendant is arrested for driving with a suspended license, and not for a drug offense, vehicle could not be searched incident to arrest for evidence of crime); Commonwealth v. Pacheco, 51 Mass.App.Ct. 736, 741-742 (2001) (where vehicle was lawfully stopped for expired inspection sticker, and passenger was lawfully arrested on outstanding default warrants, police could not search vehicle incident to arrest because there was no reason to believe that vehicle would contain " evidence of the crime for which the arrest has been made" (quoting Commonwealth v. Elizondo, 428 Mass. 322, 323 (1998)).
The search of the backpack also cannot be justified as a search for weapons. A search of a closed container inside a stopped motor vehicle incident to the arrest of the driver may only be justified as a search for weapons " when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; " the search is not justified on this ground once the arrestee has been handcuffed and locked in a police vehicle. Arizona v. Gant, 556 U.S. at 343; accord Commonwealth v. Cassidy, 32 Mass.App.Ct. 160, 163 (1992). Here, Ortiz had been handcuffed and locked in a state police cruiser before Trooper Hannigan searched the minivan to find the backpack containing cocaine.
c.
Inevitable Discovery.
The cocaine in Ortiz's backpack is not admissible under the " inevitable discovery" doctrine. See Benoit, 382 Mass. at 219. " [T]he ‘ inevitable discovery’ rule [cannot] cure an illegal warrantless search on the basis that it was inevitable that a warrant would be obtained." Id. Where, as here, police officers deliberately accelerate discovery of evidence by conducting a warrantless search, and the search is later determined to be unlawful, the evidence must be excluded notwithstanding an argument that the police had independent grounds to obtain a search warrant and if they had later done so they would have found the evidence. Commonwealth v. O'Connor, 406 Mass. 112, 118 (1989). In any case, as noted above, the Commonwealth has presented no evidence that it had legally sufficient probable cause to believe that Ortiz was transporting cocaine.
The Commonwealth argues that if Hannigan had not searched the vehicle by the side of the road then the state police would still have impounded the vehicle and thus be entitled to conduct an inventory search. But that is only half right. The Commonwealth's " argument that the inventory was [or would be] valid because the impoundment was valid conflates two separate issues. " The validity of an impoundment is not dispositive of the validity of an inventory search." Taylor, 636 F.3d at 465; accord Hason, 387 Mass. at 177-178. The Court agrees that under the circumstances of this case the police could lawfully impound and tow Ortiz's vehicle and hold it while seeking a search warrant. As explained above, however, the Court finds that the police searched the minivan for the sole purpose of finding the cocaine in the backpack and thus that they undertook the inventory as an unlawful pretext for an investigatory search of the backpack. That would still be true if the search had been delayed until the minivan was towed to another location.
d.
Statements Resulting from Search of Backpack.
Ortiz has also moved to suppress " any statements made by him as fruits of the unlawful seizure." Ortiz has not identified any such statements. Nor did either side present any evidence that Ortiz made any incriminating statements after and because Trooper Hannigan searched the black backpack and found the kilogram of cocaine. But, since the search of the backpack and seizure of the cocaine was illegal, any statements that Ortiz made to police as a result of that seizure must also be suppressed. See, e.g., Commonwealth v. Bishop, 402 Mass. 449, 452 (1988).
ORDER
Defendant's motion to suppress is ALLOWED IN PART to the extent Defendant seeks to suppress as evidence against him the kilogram of cocaine taken from the backpack that was inside the vehicle that Defendant was driving when he was arrested on February 28, 2013, and to suppress any statements that Defendant made after that seizure. The motion is DENIED to the extent that it seeks to suppress as evidence three cell phones, $307 in cash, or any other evidence found on Defendant's person or in the motor vehicle outside of the backpack.