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22-P-389 Appeals Court

COMMONWEALTH vs. EDDIE TORRES.

No. 22-P-389.

Franklin. November 7, 2022. – March 6, 2023.

Present: Massing, Singh, & Hershfang, JJ.

Controlled Substances. Search and Seizure, Motor vehicle, Plain 

view, Probable cause. Probable Cause. Constitutional Law, 

Probable cause, Search and seizure. Practice, Criminal, 

Motion to suppress.

Indictments found and returned in the Superior Court 

Department on December 20, 2019. 

A pretrial motion to suppress evidence was heard by Francis 

E. Flannery, J. 

An application for leave to prosecute an interlocutory 

appeal was allowed by Delila Argaez Wendlandt, J., in the 

Supreme Judicial Court for the county of Suffolk, and the appeal 

was reported by her to the Appeals Court.

Cynthia M. Von Flatern, Assistant District Attorney, for the 

Commonwealth.

Esther J. Horwich for the defendant.

SINGH, J. The question presented by this appeal is whether 

a State trooper's plain view observation of a used "crack" pipe 
2

in a motor vehicle provides probable cause for a warrantless 

search of the entire vehicle for contraband drugs. Concluding 

that it does, we reverse the order of the Superior Court judge

suppressing evidence of drugs found in a vehicle in which the 

defendant was traveling as a back seat passenger.1 

Background. "We present the facts as found by the motion 

judge, supplemented by uncontroverted facts from the record that 

have been 'explicitly or implicitly credited' by the motion 

judge."2 Commonwealth v. Torres-Pagan, 484 Mass. 34, 35 (2020), 

quoting Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 

(2015).

In the early morning hours of September 5, 2019, 

Massachusetts State Police Troopers Michael Leslie and Benjamin 

Poirier were traveling north on Interstate 91 near Bernardston

in a marked police cruiser. At about 3:23 A.M., they observed a 

sedan cross over the rumble strip near exit 50A (then known as

1 The defendant is charged with trafficking in ten grams or 

more of fentanyl, G. L. c. 94C, § 32E (c 1/2); trafficking in 

thirty-six grams or more, but less than one hundred grams, of 

cocaine, G. L. c. 94C, § 32E (b) (2); and conspiracy to violate 

drug laws, G. L. c. 94C, § 40. Following an evidentiary 

hearing, a Superior Court judge allowed the defendant's pretrial 

motion to suppress the narcotics. A single justice of the 

Supreme Judicial Court allowed the Commonwealth's application 

for interlocutory appeal and referred the matter to this court.

2 The judge explicitly found the testimony of both troopers,

who testified on behalf of the Commonwealth at the suppression 

hearing, to be "entirely credible."
3

exit 28A) into a prohibited travel area. When they ran a check 

of the vehicle's license plate number, the troopers learned that 

the registered owner of the vehicle had a suspended Vermont 

driver's license. The troopers maneuvered their cruiser behind 

the vehicle and activated the cruiser's blue lights to initiate 

a traffic stop; the vehicle pulled over without incident. As 

they were coming to a stop in the breakdown lane, Trooper Leslie 

observed the defendant, a back seat passenger, through the 

vehicle's rear window: the defendant sat up, as if he had just 

been lying down, looked out the back window toward the cruiser,

and then ducked down again. Trooper Leslie recognized him.

Trooper Leslie approached the vehicle on the driver's side, 

while Trooper Poirier approached on the passenger's side. The 

vehicle contained three occupants: the driver, the front seat 

passenger, and the defendant. When he approached the vehicle, 

Trooper Poirier observed that the defendant was not wearing a 

seatbelt, prompting the trooper to ask the defendant for his 

identification. The defendant refused this request.

Meanwhile, after identifying the driver as the registered 

owner of the vehicle, Trooper Leslie ordered him out of the 

vehicle to arrest him for driving with a suspended license. As 
4

the driver stepped out, Trooper Leslie observed a "used crack 

pipe" on the floor board near the driver's left leg.3

Trooper Leslie proceeded to handcuff the driver and place

him in the back seat of a cruiser. After providing the driver 

with his Miranda rights, Trooper Leslie asked him for the 

defendant's name. The driver responded that the defendant's 

name was "Troy." Trooper Leslie had dealt with the defendant 

before, and although he could not recall the defendant's name at 

the time, he knew that the provided name was false.4 Trooper 

Leslie next asked the driver if there was anything illegal or of 

substantial value in the vehicle; the driver stated that there 

were no drugs in the vehicle.

Following Trooper Leslie's discovery of the used crack 

pipe, the defendant and front seat passenger were removed from 

the vehicle and detained so the vehicle could be searched. 

3 Trooper Leslie testified that the crack pipe was "a glass 

hollow tube with burnt Brillo on the end, and [it was] charred 

like a black char around the end." Based on his training and 

experience, Trooper Leslie was familiar with the appearance of 

crack pipes and knew how they were used. He also had previously 

seized crack pipes and crack cocaine during his tenure in law 

enforcement.

4 The judge found that "by this point[, Trooper Leslie] 

recalled the defendant from a prior drug arrest." The defendant 

contends that the evidence was to the contrary, i.e., that 

Trooper Leslie did not recall the context of his earlier 

interaction with the defendant until after the defendant was 

already detained. We need not decide whether the judge's 

finding as to this point is clearly erroneous, because we do not 

consider it in our calculus.
5

During the search, the troopers discovered a large quantity of 

heroin, cocaine, and fentanyl in the area where the defendant 

had been sitting in the back seat.

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" (citation omitted). 

Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 171

(2019). "The Commonwealth bears the burden of demonstrating 

that the actions of the police officers were within 

constitutional limits." Commonwealth v. Meneus, 476 Mass. 231, 

234 (2017).

"Under both the Fourth Amendment to the United States 

Constitution and art. 14 of the Massachusetts Declaration of 

Rights, warrantless searches 'are per se unreasonable -- subject 

only to a few specifically established and well-delineated 

exceptions'" (citation omitted). Commonwealth v. Dame, 473 

Mass. 524, 536, cert. denied, 580 U.S. 857 (2016). One of those 

is the automobile exception. Id. "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. Davis, 481 Mass. 210, 220 

(2019). The question we therefore consider here is "whether the 
6

police, prior to the commencement of [the] warrantless search, 

had probable cause to believe that they would find the 

instrumentality of a crime or evidence pertaining to a crime in 

the vehicle" (citation omitted). Id.

"Probable cause exists when 'the facts and circumstances 

within the officer's knowledge at the time of making the search 

. . . were sufficient to warrant a prudent [person] in 

believing' that a location contained evidence or contraband" 

(citation omitted). Commonwealth v. Gouse, 461 Mass. 787, 792 

(2012). "In dealing with probable cause, . . . as the very name 

implies, we deal with probabilities. These are not technical; 

they are the factual and practical considerations of everyday 

life on which reasonable and prudent men, not legal technicians, 

act" (citation omitted). Id. at 794. The probable cause

inquiry is "not a high bar" (citation omitted), Commonwealth v. 

Guastucci, 486 Mass. 22, 26 (2020), and "does not require a 

showing that evidence more likely than not will be found" 

(citation omitted), Commonwealth v. Diaz-Arias, 98 Mass. App. 

Ct. 504, 508 (2020).

The Commonwealth argues that the defendant's motion to 

suppress should have been denied because Trooper Leslie's 

observation of a used crack pipe on the floor board of the 

vehicle established probable cause to search for further

evidence of a crime. The defendant counters that both the 
7

seizure of the crack pipe and the subsequent warrantless search 

of the vehicle were unlawful because possession of a crack pipe 

is not illegal, and its presence did not justify a search for 

contraband. We address each issue in turn.

1. Seizure of the crack pipe. "Under [the plain view] 

doctrine, if police are lawfully in a position from which they 

view an object, if its incriminating character is immediately 

apparent, and if the officers have a lawful right of access to 

the object, they may seize it without a warrant." Commonwealth

v. Perkins, 465 Mass. 600, 603-604 (2013), quoting Minnesota v. 

Dickerson, 508 U.S. 366, 375 (1993). The plain view doctrine 

applies under art. 14 of the Massachusetts Declaration of Rights 

where police come across the object inadvertently. Perkins, 

supra at 604.

Here, Trooper Leslie inadvertently observed the crack pipe 

in plain view as the driver stepped out of the vehicle following 

a lawful exit order. Based on his training and experience, 

Trooper Leslie believed that the crack pipe, which was charred 

and had burnt Brillo on the end, had been used. While the 

possession of drug paraphernalia such as a crack pipe is not, in 

and of itself, a crime,5 see G. L. c. 94C, § 32I, a reasonable 

5 The parties do not dispute that a crack pipe fits within 

the definition of "drug paraphernalia" under G. L. c. 94C, § 1.
8

officer could infer that the used crack pipe was intended to be, 

and had been, used to smoke crack cocaine,6 any amount of which 

is illegal to possess. See G. L. c. 94C, §§ 31, 34. It was 

apparent then that the pipe was an instrumentality of crime. 

See Commonwealth v. Tyree, 455 Mass. 676, 694 (2010) ("In the 

case of contraband and fruits and instrumentalities of crime, 

the nexus to criminal activity is obvious" [citation omitted]).

It follows, as found by the motion judge, that "there was 

probable cause to associate [the pipe] with criminal activity"

and its seizure was justified. See Commonwealth v. Garcia, 34 

Mass. App. Ct. 645, 650 (1993) ("If there is some characteristic 

of the particular baggie observed in plain view that indicates 

that it is being used for an unlawful purpose, that fact alone 

may be enough to justify seizure").

2. Search of the vehicle. We next consider whether 

Trooper Leslie's discovery of the used crack pipe on the 

6 On appeal, the defendant suggests that the crack pipe 

could have been used to smoke legal substances. This argument 

was not raised below, nor was there any evidence adduced at the 

suppression hearing that the item seized had any lawful purpose. 

Indeed, the judge made a finding, crediting the trooper's

testimony (based on his training and experience), that the 

seized item was a used crack pipe. In any event, "[i]nnocent 

explanations . . . do not vitiate the existence of probable 

cause where there is a reasonable probability that criminal 

activity is afoot." Commonwealth v. Wallace, 22 Mass. App. Ct. 

247, 250 (1986). See Diaz-Arias, 98 Mass. App. Ct. at 510 

("While one might imagine an innocent explanation for the 

observed behavior, one does not have to indulge the innocent 

explanations in evaluating probable cause").
9

floorboard in the driver's area furnished probable cause to 

search the vehicle for additional evidence or contraband.

An officer's mere observation of a benign object often 

associated with drug use or distribution generally will not 

supply probable cause to search. See Garcia, 34 Mass. App. Ct. 

at 650-652. A crack pipe, however, falls squarely outside this 

class of objects, as it is primarily used for an illegal 

purpose: smoking crack cocaine.7 This distinguishes it from 

other items that have lawful applications but may also be -- or 

used in close connection with -- contraband in other 

circumstances. Cf. Commonwealth v. Landry, 438 Mass. 206, 210-

211 (2002) (hypodermic needle); Commonwealth v. Couture, 407 

Mass. 178, 180-181, cert. denied, 498 U.S. 951 (1990) (handgun);

Commonwealth v. Toole, 389 Mass. 159, 163 (1983) (empty gun 

holster and ammunition); Garcia, supra (glassine baggie).

The defendant argues, as the motion judge found here, that 

because there was no additional evidence suggesting that drugs

were in the vehicle, such as "some perceptible amount of crack 

7 We have recognized that "although something may, in fact, 

be perfectly innocent or legal it may, depending on the 

circumstances, still establish reasonable suspicion or probable 

cause to believe that a crime has been, will be, or is being 

committed." Commonwealth v. Locke, 89 Mass. App. Ct. 497, 505 

n.11 (2016).
10

cocaine"8 or signs of recent use, the presence of the used crack 

pipe did not give rise to probable cause. In support of this 

claim, the defendant points us to decisions from Massachusetts 

and other jurisdictions where at least one of these factors was

present. But "[t]he issue is not the comparative strength of 

the evidence [to other like cases], but whether the evidence 

here was sufficient to support a finding of probable cause." 

Commonwealth v. Gentile, 437 Mass. 569, 576 (2002). We conclude 

that it was.

Here, prior to the search of the vehicle, Trooper Leslie 

and Trooper Poirier had probable cause to believe that a crime 

had been committed (possession of crack cocaine) and that 

evidence of that crime would be found in the vehicle. The most 

reasonable inference on this record is that the crack pipe had 

been used to smoke crack cocaine. The crack pipe's location in 

the vehicle, on the floor board near the foot of the driver and 

registered owner, also established a sufficient nexus between

8 The judge determined that the evidence did not permit him 

to make an inference that the crack pipe contained any 

contraband drugs. Although there was no explicit testimony 

concerning the presence or absence of drugs or drug residue on 

the pipe, the judge credited the description of it as "used" 

with "burnt Brillo" and "black char" at one end. Because our 

analysis does not turn on it, we need not decide whether the 

evidence permitted an inference that the used crack pipe 

contained at least a trace amount of crack residue. See Black's 

Law Dictionary 1503 (10th ed. 2014) ("residue" is "[s]omething 

that is left over after a part is removed or disposed of").
11

the vehicle and this suspected criminal activity. See 

Commonwealth v. Ierardi, 17 Mass. App. Ct. 297, 300 (1983) 

("When the police discovered cartridges in the pocket of the 

defendant's trousers, immediately after his removal from the car 

which he owned and had been driving, they could reasonably 

believe that a search of the car would reveal a gun"). Cf. 

Commonwealth v. Alvarado, 420 Mass. 542, 555 (1995) (no nexus 

between cocaine found on passenger's person and automobile 

itself). Given a used crack pipe's inherent connection to 

criminal activity, Trooper Leslie's observation of the used 

crack pipe in plain view on the floor of the vehicle raised a 

fair probability that crack cocaine would be found therein. Cf. 

Toole, 389 Mass. at 163-164 (empty holster and ammunition did 

not establish probable cause that illegal gun was in vehicle).

We disagree with the motion judge's conclusion that an 

officer's observation of certain drug paraphernalia, absent some 

visible amount of contraband drugs or signs of recent 

consumption, cannot supply probable cause to search a vehicle 

for illegal drugs. While at least one of these factors is often 

present in cases like the one at bar, there is no per se rule 

requiring such evidence under our jurisprudence on probable 

cause. Rather, our case law suggests that the absence of an 

observable amount of contraband drugs is not determinative. See

Gentile, 437 Mass. at 576 (defendant's admission to smoking 
12

marijuana previous day and statement that truck contained "pot 

pipe" furnished probable cause to search truck for evidence of

marijuana possession). Nor is the absence of evidence 

indicating recent use, as demonstrated by our decision in 

Commonwealth v. Dolby, 50 Mass. App. Ct. 545, 550-551 (2000).

In Dolby, we held that an officer's plain view observation 

of a "bong" containing marijuana residue, within a motor 

vehicle, established probable cause to search the vehicle for 

additional contraband. Dolby, 50 Mass. App. Ct. at 550-551. 

There was no indication in that case that the bong was recently 

used. The only material distinguishing factor between the facts 

in Dolby and the instant case is the observable drug residue 

within the paraphernalia. See id. at 546-547. In assessing 

whether there is a reasonable belief that a vehicle contains 

evidence of a crime, the inference to be drawn from the presence 

of a crack pipe containing visible crack residue is essentially 

the same as a crack pipe without such residue that shows other 

clear signs of prior use. See id. at 550 (noting significance 

of residue in chamber as "indicating prior use").

Moreover, to require particular evidence to be present to 

establish probable cause in these circumstances would ignore the 

fact that "no two cases are precisely alike," see Commonwealth

v. Rivera, 27 Mass. App. Ct. 41, 44 (1989), and that probable 

cause "is 'a fluid concept' that is 'not readily, or even 
13

usefully, reduced to a neat set of legal rules,'"9 District of 

Columbia v. Wesby, 138 S. Ct. 577, 586 (2018), quoting Illinois

v. Gates, 462 U.S. 213, 232 (1983). Indeed, the "'ultimate 

touchstone' of both the Fourth Amendment [to the United States 

Constitution] and art. 14 [of the Massachusetts Declaration of 

Rights] is reasonableness" (citation omitted). Commonwealth v. 

Overmyer, 469 Mass. 16, 20 (2014). While "[i]t is unreasonable 

for the police to spend time conducting warrantless searches for 

contraband when no specific facts suggest criminality," that is 

not what took place here (citation omitted). Id. Rather, the 

discovery of the used crack pipe in the vehicle was evidence

that a crime had likely occurred.10

Applying the reasonable inferences drawn from Trooper 

Leslie's plain view observation of a used crack pipe to the 

flexible, commonsense probable cause standard, we conclude that 

a reasonable officer would be warranted in believing that 

contraband would be found inside the vehicle. Because the 

9 The Supreme Judicial Court has resisted the imposition of 

a categorical rule stating that one piece of evidence is 

essential to a finding of probable cause in a particular 

context. See Commonwealth v. Kennedy, 426 Mass. 703, 710-711 

(1998).

10 Further specific facts suggesting criminality include the 

defendant popping up in the back seat to look at the police and 

then ducking back down, the defendant refusing to provide 

identification, and the driver giving a false name for the 

defendant.
14

warrantless search of the vehicle was supported by probable 

cause, the defendant's motion to suppress should have been 

denied.

Order allowing motion to

 suppress reversed.