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18-P-1109 Appeals Court

COMMONWEALTH vs. JUAN ROSARIO-SANTIAGO.

No. 18-P-1109.

Worcester. May 2, 2019. - October 2, 2019.

Present: Milkey, Hanlon, & Sacks, JJ.

Controlled Substances. Practice, Criminal, Motion to suppress.

Search and Seizure, Probable cause, Reasonable suspicion, 

Search incident to lawful arrest, Protective frisk,

Inventory, Impoundment of vehicle. Constitutional Law, 

Search and seizure, Probable cause, Reasonable suspicion.

License. Motor Vehicle, License to operate.

Indictment found and returned in the Superior Court 

Department on January 16, 2015.

A pretrial motion to suppress evidence was heard by David

Ricciardone, J., and a motion for reconsideration was heard by 

him.

An application for leave to prosecute an interlocutory 

appeal was allowed by David A. Lowy, J., in the Supreme Judicial 

Court for the county of Suffolk, and the appeal was reported by 

him to the Appeals Court.

Eduardo A. Masferrer for the defendant.

Shayna L. Woodard, Assistant District Attorney, for the 

Commonwealth.
2

HANLON, J. The defendant, Juan Rosario-Santiago, appeals 

from the denial of his motion to suppress drug and other 

evidence found in a "mechanical hide" and elsewhere in his motor 

vehicle and on his person.1 He argues that the arresting officer 

lacked probable cause to order him out of the vehicle and to pat 

frisk him, and that the subsequent inventory search that led to 

the discovery of most of the evidence at issue "exceeded the 

bounds of a proper inventory search and did not fall under any 

other exception to the warrant requirement." We affirm,

essentially for the reasons well explained by the judge.

1. Background.2 We take our summary of the underlying 

facts from the judge's findings, supplemented by uncontested 

testimony at the motion to suppress hearing. On October 9, 

2014, at about 5:45 P.M., Trooper Michael Reynolds of the 

Massachusetts State Police was patrolling in the area of the 

Massachusetts Turnpike and Route 495. Reynolds had ten years of 

experience as a police officer, and had completed 200 hours of 

 

1 On February 2, 2018, the defendant filed an application 

for an interlocutory appeal. The motion was allowed and the 

case was entered in this court on August 1, 2018.

2 This case has been thoroughly litigated. There was an 

evidentiary hearing on the motion to suppress and, afterward, 

the judge dictated detailed findings of fact which we summarize 

below. Thereafter, defense counsel filed a motion to 

reconsider. The judge heard from both counsel and reviewed 

written submissions; he denied the motion in a written ruling.
3

training in narcotics investigations.3 He observed a Toyota 

Camry enter the roadway on Route 495 North and abruptly change 

lanes. Reynolds followed the Camry and saw it approach the 

vehicle ahead of it in an aggressive manner. The Camry then 

followed that vehicle, going at least sixty-five to seventy 

miles per hour at a distance of less than one car length behind. 

The trooper determined that this was unsafe because, in his 

view, any sudden stop by the vehicle in front would have 

resulted in a rear-end collision; he had witnessed such results 

"a lot of times" "as a state trooper." He followed the Camry,

and observed it move to the center lane and continue in the same 

manner. Based upon these observations, Reynolds pulled the 

Camry over and asked the defendant, who was the Camry's sole 

occupant, for his license and registration; he also explained 

the reason for the stop. 

The defendant produced a New Hampshire driver's license and 

vehicle registration and Reynolds conducted what he 

characterized as a "normal conversation" that lasted 

approximately two minutes. He asked the defendant where he was 

coming from and the defendant answered, "New York City." When 

 

3 Reynolds's training included "the issuance and execution 

of search warrants, dealing with confidential informants, 

identifying drugs, and also finding concealed mechanical hides 

in motor vehicles." 
4

the trooper asked where, more specifically, the defendant 

responded, "downtown . . . [and, eventually,] . . . [s]eeing a 

friend." Reynolds asked what the friend's name was and the 

defendant first answered, "Dave." When Reynolds asked for more 

information about Dave, including his last name, after a delay, 

the defendant said, "Santiago." Throughout the exchange, the 

trooper noticed an unusual delay in the time that the defendant

took to answer the questions. This made him suspicious, and he 

felt that the defendant was making up the answers. Reynolds 

also inquired whether the defendant had a criminal history, and 

the defendant responded "that he had had some trouble with the 

[F]ederal authorities in New Hampshire regarding drug 

distribution." Reynolds then went back to his cruiser to verify 

the defendant's information. As he was doing that, he noticed a 

"fast-food bag" on the rear passenger floor of the Camry; he

could not see what was inside it.

When Reynolds checked the defendant's information, he 

discovered that the defendant had a valid New Hampshire driver's 

license but that his right to operate in Massachusetts was 

suspended. He noticed that the defendant was assigned a 

Massachusetts license number that began with the letter "A"

(assigned for administrative purposes), "as opposed to the 

letter S, which the normal, active license in Massachusetts 

has." Reynolds confirmed the status of the defendant's 
5

Massachusetts driver's license either through the computer in 

his cruiser or through information relayed to him by the 

dispatcher at his home barracks; he learned that the defendant's 

license or right to operate a motor vehicle was suspended in 

Massachusetts,4 and that he had in fact been charged by the Drug 

Enforcement Administration (DEA) in the past "with distribution 

of synthetic narcotics."5

While waiting in his cruiser for the information to 

process, Reynolds observed the defendant in the Camry reach 

toward the back of the car in a subtle way, ostensibly in the 

act of yawning. The judge found that Reynolds concluded that 

the defendant actually "was reaching back for the [fast food]

bag in the back seat." At that point, the trooper went back to 

the defendant's vehicle. Based upon his observations and the 

 

4 It is not entirely clear from the record whether the 

defendant in fact had a driver's license in Massachusetts that 

had been suspended or whether his right to operate in 

Massachusetts had been suspended.

5 Reynolds testified that when he "ran" the defendant's 

information in his cruiser, he learned that the defendant had an 

"administrative number," indicating some issue with the status 

of the Massachusetts license. The judge asked him, "So did you 

take the next step and determine that the license was actually 

suspended in Massachusetts?" Reynolds responded, "Correct." On 

cross-examination, Reynolds clarified that he was sure that the 

dispatcher informed him that the defendant's Massachusetts 

license was suspended. In his exchange with the police 

dispatcher, Reynolds also learned of the defendant's Federal 

criminal record.
6

information gathered, Reynolds asked the defendant to step out 

of the vehicle. He pat frisked the defendant and discovered two 

cell phones and keys,6 and placed the defendant in his cruiser.7,8

Reynolds then, pursuant to the written policy of the 

Massachusetts State Police, called a tow truck for the Camry.

At that point, the judge concluded, "the trooper ultimately had 

to conclude that there was going to be a charge for operating 

after [license] suspension." 

Before the tow truck arrived, Reynolds was required --

pursuant to the written State Police inventory policy -- to 

return to the defendant's car and inventory its contents. 

Reynolds first looked inside the fast food bag. He discovered

"a clear plastic heat-sealed packet, which was empty but had 

been ripped open."9 Also in the car was a gym bag containing 

 

6 Reynolds observed two sets of keys, one on the defendant's 

person and another in the ignition. Based upon Reynolds's 

training and experience, he knew that vehicles used by drug 

couriers to transport drugs often only have the key to the 

vehicle in the ignition, and not the driver's house keys, for 

example, because the vehicles are passed from individual to 

individual throughout the drug courier organization. 

7 When Reynolds asked the defendant "what he was reaching 

for," the defendant replied that "he wasn't reaching for 

anything." 

8 The judge concluded that the defendant was not free to 

leave at this point. 

9 Reynolds believed this type of packaging indicated drug 

distribution because it would conceal the scent of drugs. The 

heat-sealed bag was on top of the fast food wrappers within the 
7

clothes. Near the front seat, the trooper saw "small black 

elastic bands.10 Reynolds also noticed that, in the rear of the 

center console there was a "crease" in the carpet, which, based 

on his training and experience, he believed to have been caused 

by the repeated opening of a "mechanical hide." In addition, 

Reynolds found a cup of urine in the center console. Based on 

his training and experience, Reynolds knew that people who 

engage in drug distribution and, in so doing, drive long 

distances, often do not want to stop to use rest rooms because 

this gives them greater risk of exposure.11 There also was an 

"aftermarket wire" that ran from the dashboard area near the 

radio, trailing to the back area of the console. 

After making these observations, Reynolds formally arrested 

the defendant, took him out of the cruiser, placed him in 

handcuffs, and further searched his person, discovering a "wad 

of money" in the process; he then placed the defendant back into 

 

fast food bag. Reynolds asked the defendant about the heatsealed bag and the reason that it was in the vehicle, and the 

defendant told him he used it to wrap his sandwich. Reynolds 

testified that "to [his] knowledge, there's no reason to heatseal a sandwich." 

10 Reynolds believed these elastic bands could have been 

used to wrap money or drugs. 

11 Reynolds explained, "So by urinating in a cup, they don't 

have to stop on the side of the road and risk being stopped by 

the police or going to a park and ride or a rest stop area where 

the police often patrol and can more easily notice."
8

the cruiser and the Camry was towed to the State Police 

barracks. 

Another trooper, Trooper McCammon, assisted in the search

of the Camry at the barracks. McCammon was very experienced in 

detecting mechanical hides in vehicles, and Reynolds considered 

him an expert in the field. When both troopers examined the 

undercarriage of the Camry, they "saw a weld mark in the middle 

of the muffler that looked like it had been altered and 

lowered." "By applying power to some wires that went to the 

console, the troopers actually operated the mechanical hide and"

discovered that the console rose up from the floor to reveal a 

compartment. Inside the console were several "packets of 

oxycodone pills that were taped up and otherwise secured with 

the same type of rubber bands as were found in the car."

In denying the motion to suppress, the judge ruled that 

"[t]he exit order was legal when the officer determined that the 

defendant's right to operate in Massachusetts was suspended." 

The judge agreed that what was initially a proper inventory 

search "here morphed into something beyond inventorying 

property." However, he concluded, essentially, that by the time 

that happened, the experienced trooper had probable cause to 

search for illegal drugs. 

The defendant moved for reconsideration, arguing that the 

inventory search was a pretext and that the trooper in fact was 
9

searching for drugs based upon nothing more than a hunch. The 

judge disagreed and denied the motion to reconsider; he 

concluded that, even though the trooper may have had suspicions 

before he began the inventory search, that fact did not detract 

from the conclusion that the inventory search was proper. In 

addition, the judge noted that there "was a legitimate safety 

concern born of the fact that the trooper saw the defendant 

reaching for the backseat bag (an act that the defendant felt he 

had to conceal), which provided further justification for the 

search here."

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" (quotation omitted).

Commonwealth v. Ramos, 470 Mass. 740, 742 (2015).

1. Probable cause for arrest. The defendant argues first 

that there was no probable cause to arrest him for operating 

after his license or right to operate had been suspended in 

Massachusetts.12 He contends that, because he had been issued a 

 

12 The defendant does not contest the legality of the 

initial stop, which he conceded at the motion to suppress 

hearing. See Commonwealth v. Buckley, 478 Mass. 861, 865-866

(2018) ("a stop is reasonable under art. 14 [of the 

Massachusetts Declaration of Rights] as long as there is a legal 

justification for it. We have long held that an observed 

traffic violation is one such justification. See Commonwealth

v. Bacon, 381 Mass. 642, 644 [1980] ['Where the police have 
10

license in New Hampshire, he was not operating illegally under 

the language of G. L. c. 90, § 10,13 and, further, that the 

information Reynolds received from the dispatcher about his 

license suspension was inherently unreliable.

First, we note that at least the first portion of this 

argument was not made to the judge. That is, counsel offered 

evidence that the defendant's Massachusetts license was expired, 

not suspended. The judge responded, "If his license is 

suspended in Massachusetts, he's not supposed to be driving in 

Massachusetts." Counsel responded, "Suspended, yes; not 

expired. So the document I showed you just said that his 

license was expired, not suspended." The judge pointed out that 

the document proffered had been printed in 2016 (two years after 

the stop) and that "what the trooper [had] at the scene can 

control, even if it's incorrect."14

 

observed a traffic violation, they are warranted in stopping a 

vehicle']").

13 General Laws c. 90, § 10, provides that "no person shall 

operate on the ways of the Commonwealth any motor vehicle, 

whether registered in this Commonwealth or elsewhere, if the 

registrar shall have suspended or revoked any license to operate 

motor vehicles issued to him under this chapter, or shall have 

suspended his right to operate such vehicles, and such license 

or right has not been restored or a new license to operate motor 

vehicles has not been issued to him." 

14 Defense counsel also explicitly agreed that the trooper 

believed that, at all times relevant, the defendant's right to 

operate in Massachusetts was in fact suspended.
11

The defendant now argues for the first time that G. L. 

c. 90, § 10, can be read to permit a driver whose license is 

suspended in Massachusetts to operate a vehicle lawfully in 

Massachusetts if he subsequently acquires a valid license in 

another State. That argument is waived as it was not made to 

the judge; in addition, there is no information in this record 

about when the defendant acquired his New Hampshire license --

that is, whether it was before or after his license or right to 

operate in Massachusetts was suspended. In any event, even were 

we to consider the argument, we are not persuaded. Such a 

result would appear contrary to the purpose of the law -- to 

prohibit those whose licenses have been suspended in 

Massachusetts to operate in Massachusetts without taking any 

action in Massachusetts to address the issue giving rise to the 

suspension. The defendant cites no authority, apart from his 

strained reading of the statute itself, for this newly raised

argument.15 Finally, as the judge observed, the issue here is

what the trooper knew at the time that he made the decision to 

arrest the defendant. See Commonwealth v. Wilkerson, 436 Mass. 

137, 140 (2002) ("Probable cause to arrest is not vitiated when 

 

15 In Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 577 n.7

(2015), this court explicitly did not decide "whether a driver 

whose Massachusetts license has been suspended is prohibited 

from driving in Massachusetts if validly licensed elsewhere."
12

the basis on which the police officer acted is shown after the 

fact to have been erroneous, because the existence of probable 

cause is determined 'at the moment of arrest,' not in light of 

subsequent events"). 

The defendant did argue to the judge that the information 

the trooper received from the dispatcher was not reliable. For 

authority he cited the same cases he cites to us -- Commonwealth

v. Cheek, 413 Mass. 492 (1992), and Commonwealth v. Pinto, 476 

Mass. 361 (2017). Neither case assists him. In Cheek, the 

officers stopped the defendant on the basis of a radio broadcast 

describing a stabbing with a very general description of a 

suspect. 413 Mass. at 493. When the officers could not

understand the defendant's answer to their question about his 

name, they frisked him and recovered a firearm and, later, a 

quantity of marijuana. Id. at 493-494. The court concluded 

that "[t]he facts in [this] case fall short of constituting 

sufficient articulable facts on which the officers could have 

based a reasonable suspicion that the defendant had committed a 

crime." Id. at 497. In particular, the court stressed, 

"[w]here the police rely on a police radio call to conduct an 

investigatory stop, under both Federal and State law, the 

Commonwealth must present evidence at the hearing on the motion 

to suppress on the factual basis for the police radio call in 

order to establish its indicia of reliability." Id. at 494-495. 
13

In the present case, the trooper did not, in fact, rely on 

a radio call from an anonymous source giving a general 

description of a suspect in an uncorroborated report of a 

stabbing. Instead, he reasonably relied on a report from the

police dispatcher of information obtained either from the 

Registry of Motor Vehicles (RMV) or from State Police records

after making a stop for a motor vehicle offense that he 

personally had observed. See Commonwealth v. Ramos, 88 Mass. 

App. Ct. 68, 71 (2015) ("the RMV records that formed the basis 

of [the officer]'s reasonable suspicion have sufficient indicia 

of reliability on which to predicate a traffic stop. See 

Wilkerson, 436 Mass. at 141-142. Indeed, RMV records are 

generally considered reliable. See ibid.").

In Pinto, the officers stopped the defendant's car after 

hearing a radio broadcast telling them to look for a described 

motor vehicle based upon a report of "an alleged domestic 

assault and battery." 476 Mass. at 362. In suppressing 

evidence seized as a result of the stop, the court noted that 

the Commonwealth had shown no basis to conclude that the person 

who had supplied the information conveyed in the radio broadcast 

either was reliable or had some basis of knowledge about the 

facts reported. Id. at 364-365. That case, too, is very 

different from the case before us. In both Cheek and Pinto, all 

the impetus for the defendants' encounters with the police came 
14

from an anonymous source. Here, it is agreed that the stop was 

proper; the trooper then sought further information about the 

defendant's license status that he reasonably believed was 

maintained by and available to the police dispatcher.

The other cases cited by the defendant for this argument 

require little discussion. In Commonwealth v. Royal, 89 Mass. 

App. Ct. 168, 169, 170-173 (2016), this court concluded that the 

evidence at trial was insufficient to prove beyond a reasonable 

doubt that the defendant had operated a motor vehicle after his 

license had been suspended, because the officer's testimony 

about RMV records was inadmissible hearsay. Likewise, in 

Commonwealth v. Oyewole, 470 Mass. 1015, 1015-1016 (2014), the 

court concluded that the Commonwealth failed to prove its case 

at trial because there was no evidence that the defendant had 

been notified that his license had been suspended. Neither of 

these cases is at all helpful in deciding the case before us, 

where the issue is the reliability of hearsay in determining 

probable cause. In sum, we conclude that, once Reynolds

received information from the State Police dispatcher that the 

defendant's license or right to operate had been suspended in 

Massachusetts, he had probable cause to arrest the defendant for 

that offense. 

2. Exit order and patfrisk. The rest of the case flows 

naturally from that conclusion. Because there was probable 
15

cause to arrest the defendant, the trooper was authorized to 

order him to get out of the car. See Commonwealth v. Greenwood, 

78 Mass. App. Ct. 611, 616 (2011) ("Where police officers have a 

reasonable, articulable suspicion that a person in a vehicle has 

committed, is committing, or is about to commit a crime, they 

may . . . issue an exit order"). This is so, even if the 

officer has not yet decided whether to arrest the defendant. 

Cf. Commonwealth v. Blais, 428 Mass. 294, 296-297 (1998) ("The 

officer's actual belief as to the legal basis for his authority, 

however, is irrelevant, so long as the circumstances justified 

the action he took. See Whren v. United States, 517 U.S. 806, 

813 [1996], quoting Scott v. United States, 436 U.S. 128, 138

[1978] ['the fact that the officer does not have the state of 

mind which is hypothecated by the reasons which provide the 

legal justification for the officer's action does not invalidate 

the action taken as long as the circumstances, viewed 

objectively, justify that action']; Commonwealth v. Smigliano, 

427 Mass. 490, 493 [1998]").

As to the patfrisk, "[a] search incident to a custodial 

arrest is well established as an exception to the warrant 

requirement under both the Fourth Amendment [to the United 

States Constitution] and art. 14 [of the Massachusetts 

Declaration of Rights]. See United States v. Edwards, 415 U.S. 

800, 802 (1974), and cases cited; Commonwealth v. Santiago, 410 
16

Mass. 737, 742-743 (1991), and cases cited. Under both Fourth 

Amendment and art. 14 jurisprudence, the purpose of the search 

incident to arrest exception is twofold: (1) to prevent the 

destruction or concealing of evidence of the crime for which the 

police have probable cause to arrest; and (2) to strip the 

arrestee of weapons that could be used to resist arrest or 

facilitate escape. See Chimel v. California, 395 U.S. 752, 762-

763 (1969); Santiago, supra at 743." Commonwealth v. Mauricio, 

477 Mass. 588, 592 (2017). Moreover, "[t]he fact that a search 

preceded a formal arrest is not important, 'as long as probable 

cause [to arrest] existed independent of the results of the 

search.'" Commonwealth v. Johnson, 413 Mass. 598, 602 (1992), 

quoting Santiago, supra at 742. See Commonwealth v. Sweezey, 50 

Mass. App. Ct. 48, 53 (2000), quoting Commonwealth v. Mantinez, 

44 Mass. App. Ct. 513, 517-518 (1998) ("Probable cause for an 

arrest, even if not acted upon by a formal arrest, brings with 

it the 'search incident to arrest' exception to the warrant 

requirement for a search").16 

3. Towing the car. Given the license suspension, whether 

or not the trooper in fact intended to arrest the defendant 

 

16 However, "the search and the arrest 'must be roughly 

contemporaneous.' Commonwealth v. Washington, 449 Mass. 476, 

481 (2007)." Commonwealth v. Craan, 469 Mass. 24, 29 (2014). 

The defendant does not argue that that requirement was violated 

here.
17

rather than summons him later, he could not reasonably permit 

the defendant to drive the car away. Nor could he leave the car 

on the side of Route 495 at approximately 6 P.M. in the evening. 

Therefore, it is clear that the trooper was obliged to have the 

vehicle towed from the side of the highway, pursuant to the 

written tow policy of the State Police, which was admitted in 

evidence.17 See Commonwealth v. Davis, 481 Mass. 210, 218 

(2019), where the court agreed that the police had reasonable 

grounds to impound (and tow) the defendant's vehicle that was 

"stopped on the left hand side of a toll exit on the 

Massachusetts Turnpike, in the middle of the day." 

4. Inventory search. The inventory search also was 

proper. In these circumstances, such searches serve legitimate 

interests, including "protecting the arrestee's property, 

protecting the police from false claims of theft, and public 

safety." Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 374 

(2009). "Although a well-established exception to the warrant 

requirement, an inventory search must hew closely to written 

police procedures and may not conceal an investigatory motive. 

See South Dakota v. Opperman, 428 U.S. 364, 376 (1976); 

 

17 "Officers are authorized to remove (or cause to be 

removed) any vehicle found upon a road/state highway when . . .

[t]he operator of the vehicle is arrested and the vehicle would 

be left unattended on a public way." Department of State Police 

General Order TRF-09 (December 10, 2007).
18

Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The 

lawfulness of an inventory search turns on the threshold 

propriety of the vehicle's impoundment, and the Commonwealth 

bears the burden of proving the constitutionality of both. See 

Commonwealth v. Eddington, 459 Mass. 102, 108 (2011); 

Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000)." 

Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017). 

As required, the trooper's inventory followed the written 

policy of the State Police, which also was admitted in 

evidence.18 As this court noted in Commonwealth v. Silva, 61 

Mass. App. Ct. 28, 35 (2004), "[i]n considering whether the 

government has met [its] burden of proof [as to the legality of 

the search], the written inventory policy is the best evidence."

 

18 "Any vehicle ordered towed . . . shall be inventoried and 

properly documented . . . . The Department shall inventory any 

vehicle ordered towed, removed, or impounded . . . pursuant to a 

lawful arrest when the vehicle would be left unattended . . . . 

The standard inventory procedure shall consist of a detailed 

inspection of the interior and exterior of the vehicle for 

damaged and missing parts, as well as to locate and record the 

contents of the vehicle. The following areas shall be 

inventoried: The interior of the vehicle; [t]he glove 

compartment and trunk (unless they are locked and there is no 

key available); and [t]he exterior of the vehicle for missing or 

damaged parts. The inventory listing of personal items and 

valuables shall extend to all storage areas and compartments 

that are accessible to the operator or occupants. . . . All 

closed but unlocked containers shall be opened, and each article 

inventoried individually" (emphasis added). Department of State 

Police General Order TRF-10 (April 23, 2009).
19

The defendant contends, however, that the purpose of the 

inventory was investigative, not administrative (i.e., not to 

obtain an inventory), because the trooper first opened a paper 

fast food bag in the rear of the vehicle and also opened a paper 

cup (found to contain urine) because he had seen people "put 

stuff inside a cup before," including, specifically, drugs. 

This argument fails for several reasons. First, the policy 

clearly instructs the trooper to open all closed but unlocked 

containers; this would include both a bag, even one that looked 

like trash, and a paper cup. The fact that he did those things 

first, rather than open the glove compartment, cannot be 

dispositive; the policy required that he do them at some point 

during the inventory. Nor did the judge find (or the defendant 

argue) that the trooper spent any longer looking into the bag 

and the cup than was necessary to determine their contents.

Second, the fact that the trooper might also have had 

suspicions that the defendant was involved in drug trafficking 

does not invalidate the validity of the inventory search, 

otherwise justified and properly conducted. See Commonwealth v. 

Horton, 63 Mass. App. Ct. 571, 577 (2005) ("Even the fact that 

the police might have suspected that the inventory search could 

turn up more weapons does not make it an impermissible pretext 

search. See Commonwealth v. Garcia, 409 Mass. 675, 679 [1991], 

and cases cited").
20

The facts in Commonwealth v. Ortiz, 88 Mass. App. Ct. 573 

(2015), on which the defendant heavily relies, are very 

different. In Ortiz, the motion judge found that the defendant 

was targeted in advance; he was the subject of a DEA

investigation into drug trafficking. Id. at 574. The DEA 

agents had learned that the defendant's license to operate had 

been suspended and later, when they also had information that he 

would be transporting a kilogram of cocaine, they contacted the 

State Police and asked to have a uniformed trooper stop and 

arrest "the defendant as a pretext to conduct a search for 

investigative purposes," i.e., " with the expectation that 

impoundment and an inventory search of the defendant's motor 

vehicle would follow." Id. at 574. 

"The judge found that but for these explicit instructions, 

[the arresting trooper] 'would not have stopped [the defendant] 

for changing lanes' and 'that in other circumstances he would 

not arrest someone for operating a motor vehicle with a 

suspended license.'" Id. at 575. This court affirmed the 

motion judge's decision to suppress the drugs seized during the 

search. We recognized that " '[t]he fact that the searching 

officer may have harbored a suspicion that evidence of criminal 

activity might be uncovered as a result of the search should not 

vitiate his obligation to conduct the inventory.' Commonwealth

v. Tisserand, 5 Mass. App. Ct. 383, 386-387 (1977). However, 
21

'an inventory search [will] not be upheld if . . . there [is] a 

"suggestion . . . that this standard procedure" [is] a pretext 

concealing an investigatory police motive.' Ibid., quoting from 

South Dakota v. Opperman, 428 U.S. 364, 376 (1976)." Ortiz, 88 

Mass. App. Ct. at 576.

In the present case, by contrast, the judge concluded 

explicitly that the search was not pretextual. "We entrust 

credibility determinations to the motion judge, Commonwealth v. 

Yesilciman, 406 Mass. 736, 743 (1990), and discern no error in 

[his] finding that the inventory search was not a pretext." 

Ehiabhi, 478 Mass. at 166. See Davis, 481 Mass. at 218

("Commonwealth v. Hoose, 467 Mass. 395, 399-400 [2014] [court 

defers to motion judge's subsidiary findings of fact absent 

clear error]"). 

5. Probable cause to search: automobile exception. The 

judge determined, appropriately in our view, that when the 

trooper looked underneath the dashboard to see if he could 

observe a wire leading to a hidden compartment, the vehicle 

search "morphed into something beyond inventorying property." 

The judge found that the trooper's decision to do so was 

supported by the following information, which the trooper knew

at that point:

"the defendant was driving fast and erratic; he seemed 

to be making up answers as he went along in response 

to early, routine questions; the defendant . . . had 
22

surreptitiously reached [toward] the bag in the back 

seat and then denied it; there was an open heat-sealed 

baggie in the fast food bag . . .; the defendant had 

evidently urinated in a cup rather than stop; and 

there [were] . . . elastics of the type used to bind 

cash and drugs. All of these things spelled 'hidden 

compartment' to the experienced trooper even though 

any one of the factors may not have spelled illegal 

activity." 

In addition, the trooper had noticed wear marks in the Camry's 

carpet that, he knew, based upon his training, were consistent 

with a hidden compartment, or "hide." These marks were in plain 

view. See Commonwealth v. Santana, 420 Mass. 205, 211 (1995) 

("'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.' Minnesota v. Dickerson, 508 U.S. 366, 375 [1993]"). 

See also Commonwealth v. Goncalves, 62 Mass. App. Ct. 153, 157 

(2004). 

Given everything he knew, the trooper had probable cause at 

that point to search the car for drugs and other evidence of 

drug trafficking (including a wire leading to a hide), an 

automobile search that clearly fell within a recognized 

exception to the warrant requirement. See Davis, 481 Mass. at

220 ("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 
23

probable cause to believe that it contains evidence of a 

crime"). In Davis, the court determined that the introduction 

of a drug sniffing dog converted the inventory search into an 

investigatory one, id. at 219-220; however, the search of the 

glove compartment was upheld because the officer had probable 

cause to believe that it contained evidence of a crime. Id. at 

221-222. So, too, here, armed with probable cause to search for 

drug evidence, the troopers properly searched the car, including

for a wire leading to the hidden compartment and then the 

compartment itself.

Again, the cases cited by the defendant are distinguishable 

and therefore do not assist him. In Mauricio, 477 Mass. at 595-

596, the court upheld an inventory search of the defendant's 

backpack, ruling that a ring discovered in that search was 

properly seized. It was only the further search of the digital 

images on a camera that the court deemed unreasonable because 

the purpose of that search was admittedly investigatory, that 

is, to discover the "true owner" of the camera, which the police 

officers believed to have been stolen.

Commonwealth v. White, 469 Mass. 96, 100-102 (2014),

involved a search incident to an arrest on an outstanding 

warrant and the seizure of a container of pills from the 

defendant's person. The court concluded that although the 

container could be opened pursuant to the police department's 
24

inventory policy, id. at 101, the incriminating nature of the 

pills was not immediately apparent and was, in fact, only 

discovered through a subsequent computer search "in an attempt 

to identify the pills," id. at 98, which "transformed a lawful 

inventory seizure of the pills into an unlawful investigatory 

search of the pills." Id. at 102.

Nor does Commonwealth v. Vuthy Seng, 436 Mass. 537, cert. 

denied, 527 U.S. 942 (2002), compel a different result. In

Vuthy Seng, when the defendant was booked, his property was 

inventoried and a bank card was removed from his wallet. Id. at 

548. The officers not only noted the information on the front 

of the card, but recorded the account numbers on the back. Id. 

at 548-549. The court distinguished between the two 

observations, and explained the distinction: "Applying the 

principles distinguishing an inventory from an investigative 

search to the facts before us, the information on the front of 

the bank card, that it is a Shawmut bank card, declares its 

nature to anyone at sight. The account numbers written on the 

back of the card are not as obvious and would not be recalled 

simply from a permissible inventory viewing. 'What the police 

may not do is hunt for information by sifting and reading 

materials taken from an arrestee which do not so declare 

themselves.' [Commonwealth v. Sullo, 26 Mass. App. Ct. 766,]

770 [(1989)]. Nor would there be any need for the police to 
25

record the account numbers on an inventory list, given that this 

particular card was of no value. . . . Recording this 

information would not serve any of the generally accepted 

objectives of an inventory search preceding incarceration." Id.

at 553-554. In the present case, because the incriminating 

nature of the wear marks in the carpet was immediately apparent 

to the trooper, given his expertise and his other observations, 

it is proper to include that observation in our calculus about 

whether there was probable cause to conduct a further search.

Finally, in Commonwealth v. Muckle, 61 Mass. App. Ct. 678, 

683 (2004), we found the search unreasonable because the 

inventory policy at issue "requiring that the passenger area of 

a vehicle be 'thoroughly examined' and all personal property be 

removed and secured at the police station" did not provide 

specifically that containers be opened. In so doing, we said, 

"[w]hile we recognize that valuables may be secreted virtually 

anywhere, a bag of trash is not a customary storage area for 

valuables. Even were we to accept the premise that because a 

bag of refuse might contain valuables it should permissibly be 

inventoried along with other items, a bag of refuse that must be 

'opened' for its contents to be visible is like any other 

unlocked closed container. . . . What is important is whether 

the item constitutes a closed container capable of holding 

personal property of value. Even broadly read, the Bridgewater 
26

police department's inventory policy fails to require the police 

to open closed containers" (emphasis added). Id. at 683-684.

In the present case, of course, the State Police policy 

explicitly did require the opening of a closed but unlocked 

container and, as we observed in Muckle, "[w]e emphasize that we 

are not concerned with whether, consonant with Federal and State 

constitutional requirements, police may open closed but unlocked 

containers in conducting an inventory search. Clearly, police 

may do so, provided the written inventory policy requires them 

to do so" (emphasis added). 61 Mass. App. Ct. at 684. 

We conclude that the motion to suppress was properly 

denied.

Order denying motion to

 suppress affirmed.

Order denying motion to

 reconsider affirmed.
MILKEY, J. (dissenting). During the evening rush hour on 

Route 495, Trooper Michael Reynolds pulled the defendant over 

for driving too closely to the car in front of him (a practice 

commonly known as "tailgating"). Fresh off a training on the 

concealment of illegal drugs in cars, Reynolds embraced the 

opportunity to put his newly-honed skills to work.1 What began 

as the most routine of traffic stops, progressed into a fullscale investigatory search of the defendant's car. Through 

Reynolds's enterprising efforts, the State Police eventually 

discovered underneath the car's center console a well-hidden 

compartment in which an unspecified number of oxycodone pills 

were secreted. Because I believe the escalation of the routine 

traffic stop here crossed constitutional bounds, I respectfully 

dissent.

From the outset, I want to highlight that I agree with most 

of the majority's subsidiary holdings, including that the stop, 

exit order, and patfrisk here all were valid, that the 

defendant's car had to be towed, and that an inventorying of the 

car's contents was warranted. For the reasons that follow, 

however, I believe that the judge erred as a matter of law in 

determining the point at which an investigatory search of the 

 

1 Reynolds attended that training the day before the traffic 

stop. He previously had received extensive other training in 

narcotics enforcement, and for many years had been engaged in 

such enforcement as a local police officer.
2

car began. Because there was not probable cause at that earlier 

point in time, I would reverse the order denying the motion to 

suppress.

Background.2 Immediately after he approached the 

defendant's stopped car, Reynolds made the customary request 

that the defendant present his license and registration. The 

defendant obliged by producing the requested documents, both of 

which had been issued by the State of New Hampshire (where the 

defendant currently resided). Before returning to his cruiser 

to "run" these documents, Reynolds proceeded to ask the 

defendant a series of questions. Although this questioning 

lasted only approximately two minutes, the questions themselves 

were markedly pointed, and -- as Reynolds acknowledged -- they 

were designed "to verify that everything is normal." 

Specifically, Reynolds serially posed the following queries to 

the defendant: where was he coming from, where specifically in 

New York City (the Bronx) was that, what was he doing there, 

what was the name of the friend he was visiting, what was the 

last name of that friend, how long had he been there, what was 

the specific purpose of the trip, and where was he now traveling

to. According to Reynolds, although the defendant was 

 

2 The factual recitation that follows is drawn from the 

judge's findings, supplemented by uncontested testimony that the 

judge explicitly or implicitly credited. See Commonwealth v. 

Lopez, 458 Mass. 383, 384-385 (2010).
3

"relatively calm" in responding to these questions, his demeanor 

seemed "slightly confrontational," with "an edge," and 

"agitated."3 Reynolds considered the defendant's individual 

responses "nondescript" and delayed.4 This aroused his 

suspicion. Adding to that suspicion was the fact that the 

defendant had admitted to having come from New York City, which 

Reynolds viewed as a "source city" for narcotics. 

Because "things seem[ed] off," Reynolds proceeded to ask 

the defendant if he ever had been in trouble with the police. 

The defendant responded that he previously "had been charged 

with trafficking in pills" in New Hampshire, but had "been in 

little to no trouble in the state of Massachusetts." At that 

point, Reynolds "went back to [his] cruiser to run [the 

defendant's license and registration] and to further corroborate 

or investigate his criminal history that he spoke of." On his 

way to the cruiser he performed a quick visual scan of the 

defendant's car, spotting a discarded fast food bag on the floor 

of the rear seat. 

 

3 In explaining that the defendant seemed "agitated," 

Reynolds alluded to the fact that the defendant appeared to be 

recording their conversation on his cell phone. 

4 Reynolds acknowledged that the defendant spoke with an 

accent, but believed that he had a sufficient command of English 

that this was not the cause of his delayed responses.
4

Back at his cruiser, Reynolds confirmed through a 

dispatcher that the license that the defendant provided was 

valid, and that the defendant did in fact have a criminal record 

that included a charge by the Drug Enforcement Administration 

(DEA) for "distribution of synthetic narcotics." However, 

according to Reynolds's account of what an unidentified 

dispatcher told him, the defendant's right to drive in 

Massachusetts was currently under suspension, which Reynolds 

understood to be the result of the defendant's having not paid 

traffic tickets incurred in Massachusetts.5 See G. L. c. 90C, 

§ 3(6) (requiring that operators who do not pay traffic tickets 

have their licenses or right to operate in Massachusetts 

"suspended by operation of law and without further notice"). As 

Reynolds ran the defendant's information, he observed the 

defendant appear to yawn and then reach back toward the rear 

seat of the car. 

Once back at the defendant's car, Reynolds ordered the 

defendant out of the car and pat frisked him. Through the 

 

5 In his initial testimony, Reynolds could not recall 

whether he learned this information from a dispatcher or had 

logged onto the computerized recordkeeping system himself. 

However, he later clarified that he was sure it was a dispatcher 

who told him this information. In delivering his oral findings 

from the bench, the judge initially stated that Reynolds learned 

the information from one of these two methods. After defense 

counsel reminded the judge of Reynolds's later clarifying 

testimony, the judge stated, "All right. I'll adopt that 

finding."
5

patfrisk, Reynolds found two cell phones on the defendant's 

person and a set of keys in his pocket (separate from the key in 

the ignition). Reynolds asked the defendant about his seeming 

to reach into the rear seat, which the defendant denied doing. 

At that point, Reynolds had not yet decided whether he was going 

to arrest the defendant for driving while his right to operate 

on Massachusetts roads was under suspension. However, Reynolds 

understood that in any event, the defendant could not drive his 

vehicle from the scene because of the suspension. Reynolds 

proceeded to detain the defendant in the back seat of his 

cruiser while he searched the defendant's car. 

In conducting that search, Reynolds examined first the rear 

seat area toward which he believed he had seen the defendant 

reach. He went through the discarded fast food bag that he 

previously had spotted on the floor there. In Reynolds's view, 

drug traffickers "don't want to stop anywhere for long periods 

of time," and patronage of fast food restaurants by those on 

highways itself was an "indicator" of drug trafficking. Inside 

the bag, Reynolds found -- amongst "other wrappers in there from 

fast food, items . . . like from the French fries or 

cheeseburger or whatever" -- an empty plastic bag bearing a 

Ziploc brand logo. According to Reynolds, this was a "heatsealed" bag of the sort used "for packaging up food and freezing 
6

it and stuff like that."6 Reynolds nonetheless found the 

presence of the empty bag significant, because he knew from his 

training and experience that drug dealers sometimes stored drugs 

in such bags in an effort to prevent "narcotics detection 

canines" from picking up the scent. Reynolds asked the 

defendant about the discarded plastic bag, and the defendant 

responded that he had used it to store his sandwich. Reynolds 

found this explanation implausible, because -- in his words --

"to my knowledge, there's no reason to heat-seal a sandwich." 

On the rear seat, Reynolds also found a gym bag with clothes in 

it that apparently had no inculpatory import. 

Turning to the front area of the car, Reynolds found a 

number of small rubber bands on the front passenger seat floor 

that he concluded were "consistent with those used for packaging 

up money, sometimes drugs." He also spotted a fast food cup 

that had a lid on it. According to Reynolds, he decided to look 

inside the cup in order to see if narcotics were hidden inside 

it. He discovered instead that the cup contained urine. 

Reynolds viewed this as a further indicator that the defendant 

 

6 In fact, a photograph admitted in evidence reveals 

lettering on the bag that denotes it as a "Ziploc vacuum sealer" 

bag, not a heat-sealed one. Although Reynolds may have 

misspoken in referring to it as a heat-sealed bag, his larger 

point that the bag is of a sort designed to prevent its contents 

from being exposed to air stands.
7

was engaged in a concerted effort to minimize having to stop 

along his journey back from a "source city." 

While searching the front of the defendant's car, Reynolds 

paid particular attention to the center console area because he 

knew from his training that this area is "a common place for 

hidden compartments to be." Proceeding in this fashion, he 

discovered that the edge of the carpeting where it met the rear 

of the center console appeared to be worn. This was something 

he specifically had been taught to look for, because such wear 

marks could be a sign that the center console had been moved in 

and out over time to gain access to a concealed "hide" in that 

area. Reynolds then began to conduct a search for after-market 

wiring, another potential indicator of a drug hide. This 

involved looking up underneath the dashboard area, as well as 

lifting up and "peek[ing]" under the plastic that ran along the 

floorboard of the console. Finding the presence of such wiring, 

Reynolds decided to arrest the defendant for driving while his 

right to operate on Massachusetts roads was suspended. 

In order to continue his search of the defendant's car, 

Reynolds had it towed to State police barracks instead of the 

tow yard. To assist him in that search, Reynolds called in 

another trooper who had even more experience than he did in the 

discovery of drug hides. Together, the troopers examined the 

underside of the car, where they discovered that the muffler had 
8

been altered in a manner that would have allowed room for a 

secret compartment to be placed under the center console. They 

eventually found such a compartment that could be accessed 

through a hydraulic system. The troopers were able to apply 

power to override the complicated hide system, which raised up 

the center console and revealed an after-market box beneath it 

containing oxycodone pills. 

Based on this discovery, the defendant was indicted for 

trafficking in between thirty-six and one hundred grams of 

"opium or any derivative thereof." G. L. c. 94C, § 32E (c). 

The fate of the separate charge for which the defendant 

initially was arrested (operating a motor vehicle in 

Massachusetts while his right to do so was under suspension) is 

not clear. There is nothing in the record to suggest that the 

defendant ever was cited for tailgating, the original infraction 

for which he had been stopped.

 Discussion. As the judge properly concluded, Reynolds's

search of the defendant's car plainly exceeded the spatial 

bounds of the State Police inventory search policy once he began 

hunting for after-market wiring. The judge concluded, however, 

that at that point, probable cause had been established by 

Reynolds's finding numerous indicia he had been trained to look 

for. For purposes of my analysis, I assume arguendo that the 

sum total of the observations Reynolds had made by the time he 
9

began looking up under the dashboard -- however innocent each 

alone might be -- amounted to probable cause. Commonwealth v. 

Santaliz, 413 Mass. 238, 242 (1992) (innocent details "disclosed 

to the eyes of an experienced narcotics investigator" can add up 

to probable cause of illegal narcotics activity). However, for 

the reasons explained below, I believe an investigatory search 

began at an earlier point in time when probable cause did not 

yet exist.

With Reynolds personally having observed the defendant 

driving too closely to the car in front of him, the initial 

traffic stop itself plainly was valid. Commonwealth v. Buckley, 

478 Mass. 861, 865-866 (2018), citing Commonwealth v. Bacon, 381 

Mass. 642, 644 (1980). However, virtually from the moment 

Reynolds first encountered the defendant face-to-face, his focus 

was on investigating potential drug trafficking, not on 

completing an ordinary traffic stop. I do not mean to suggest 

that an officer who has stopped a car for a civil traffic 

infraction must immediately run the license and registration 

presented to him; although that might be the more prudent 

practice, a traffic officer's engaging in some amount of 

conversation before doing so is not constitutionally proscribed. 

But here, Reynolds developed an almost immediate hunch that the 

defendant might be involved in nefarious activity, and --

without reasonable suspicion -- he employed his pointed 
10

questioning of the defendant toward building a case.7 In my 

view, such questioning, while relatively brief, was unwarranted. 

See Commonwealth v. Cordero, 477 Mass. 237, 241-247 (2017) 

(addressing permissible bounds of routine traffic stop and under 

what circumstances such stop may be extended).8 

Of course, unlike Cordero, this is not a case where a 

driver was long detained after the traffic stop was complete. 

In Cordero, the officer's check of the driver's license and 

registration revealed no infirmities, whereas here, Reynolds was 

told by a dispatcher that the defendant's right to operate on 

Massachusetts roads currently was under suspension. 477 Mass.

at 242-243. Although the Commonwealth presented no 

documentation corroborating that such a suspension in fact was 

in effect,9 I accept arguendo the majority's conclusion that it 

 

7 Nothing in this dissent should be read as suggesting that 

I believe Reynolds was acting in bad faith. It is evident that 

he was trying to fulfill his mission of uncovering criminal 

activity, and he showed great initiative and skill in doing so.

8 In Cordero, a trooper's suspicions were aroused in very 

similar circumstances: the driver was from what the trooper 

considered a "source city," he was providing seemingly evasive 

answers to the trooper's questions, and he had a record that 

included drug-related crimes. 477 Mass. at 239, 244-246. 

Nevertheless, the court concluded that such factors did not 

constitute reasonable suspicion necessary to detain the 

defendant.

9 The evidentiary record on this point is murky at best. 

The defendant himself provided some Registry of Motor Vehicle 

records, which the judge admitted in evidence. Those records 

showed that the defendant once had a Massachusetts license that 
11

was reasonable for Reynolds to rely on what the police 

dispatcher had told him and that his reasonable belief was 

sufficient for present purposes. Compare Commonwealth v. 

Wilkerson, 436 Mass. 137, 140-141 (2002) (probable cause to 

arrest not vitiated by fact that police were relying on 

erroneous information obtained from Registry of Motor Vehicles 

records that defendant's license had been revoked), with 

Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 694-700 

(2014) (firearm found on defendant when he was arrested 

suppressed where police mistakenly believed there was 

outstanding arrest warrant and police would have learned that 

this was mistaken had they followed department policy). 

I agree with the majority that the actions Reynolds took 

after being told of the suspension were, in large measure, 

warranted. Like the majority, I do not accept the defendant's 

argument that his acquiring an out-of-state license allowed him 

to drive in Massachusetts even if his right to drive on 

 

expired in 2009, and that he subsequently incurred two traffic 

tickets (one for speeding and one for excessive window tinting). 

The records do not note whether he paid the assessed fines or 

whether his right to drive had been suspended as a result of 

nonpayment of them. As Reynolds himself acknowledged, the fact 

that a driver like the defendant had been assigned an "A" 

license number does not by itself mean that there had been a 

suspension of his license or right to drive on Massachusetts 

roads. There is nothing in the record to suggest that Reynolds 

ever asked the defendant whether his right to drive on 

Massachusetts roads was under suspension.
12

Massachusetts roads had been suspended.10 Having learned of the 

suspension, Reynolds could not let the defendant drive the car 

regardless of whether he arrested the defendant for already 

having done so.11 In addition, there being no alternative driver 

present, Reynolds was justified in concluding that the car 

needed to be towed from the side of the busy highway. With the 

car needing to be towed, Reynolds was further justified in 

ordering the defendant to get out of the car, see Commonwealth

v. Cruz, 459 Mass. 459, 466-467 (2011) (discussing when exit 

orders are permissible), and I agree with the majority that 

where Reynolds had seen the defendant reach toward the rear 

 

10 That said, the defendant's argument that the language of 

the statute provides support for that curious result is stronger 

than the majority credits. See G. L. c. 90, § 10 (criminalizing 

operation of motor vehicle in Massachusetts if driver's license 

or right to operate in Massachusetts has been suspended "and 

such license or right has not been restored or a new license to 

operate motor vehicles has not been issued to him"). 

11 As noted, Reynolds believed the defendant's right to 

drive in Massachusetts was suspended for being delinquent in 

paying traffic tickets. See G. L. c. 90C, § 3(6). I do not 

question the validity of such a means of trying to ensure that 

assessed fines are paid (although I recognize that this may 

result in disproportionate impacts on people of limited economic 

means). However, it still bears noting that any suspension here 

appears to have been a result of that collection mechanism, not 

because the defendant had been adjudicated a menace on the 

roads. Moreover, I note that whether the defendant had actual 

notice that his right to drive had been suspended is not 

addressed by the current record.
13

seat, a patfrisk also was justified for officer safety. See 

Commonwealth v. Stampley, 437 Mass. 323, 325-329 (2002).12

Most significantly, I agree with the majority that, in 

advance of the tow, an inventorying of the defendant's car was 

warranted pursuant to the written State Police inventory search 

policy in order to safeguard any belongings inside. See 

Commonwealth v. Abdallah, 475 Mass. 47, 51 (2016), quoting 

Commonwealth v. Vuthy Seng, 436 Mass. 537, 550-551, cert. 

denied, 537 U.S. 942 (2002) ("An inventory search conducted by 

police officers pursuant to a police department's written policy 

is 'justified to safeguard the defendant's property, protect the 

police against later claims of theft or lost property, and keep 

weapons and contraband from the prison population'"). However, 

the fact that an inventorying of the car's contents was 

warranted does not end the inquiry.

The inventory search policy applicable here is decidedly 

expansive in scope. For example, that policy requires an 

inventorying of "[t]he interior of the vehicle," it encompasses 

"[a]ll open areas, including the floor areas, the area in and 

around the instrument panel and the rear deck above the rear 

 

12 But see Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 

687 (2001) (observation made during traffic stop that occupant 

of car "appeared to place something on the seat is neither 

indicative of criminality nor a ground for reasonable 

apprehension").
14

passenger seat, the open area under the seats, the glove 

compartment and trunk,[13] and other places where property is 

likely to be kept," and it requires that "[a]ll closed but 

unlocked containers shall be opened, and each article [inside] 

inventoried individually." Department of State Police General 

Order TRF-10 (April 23, 2009). In light of this breadth, it is 

unsurprising that the judge concluded that Reynolds did not 

exceed the spatial bounds of that policy until he started to 

hunt for after-market wiring outside the physical confines of 

the passenger compartment. That assessment appears correct. 

However, it does not thereby follow that -- in the shorthand 

employed by the judge -- "the inventory policy allowed the 

trooper to search throughout the vehicle." Put differently, the 

fact that an officer purporting to conduct an inventorying of a 

car's contents may not have violated the express terms of a 

broadly-crafted administrative inventory search policy does not 

mean that constitutional norms have been satisfied as to how 

that search actually was conducted.14

 

13 The glove compartment and trunk need not be inventoried 

if they are locked and no key is available. 

14 In my view, the term "inventory search" is a misnomer 

that beckons for abuse. It wrongly suggests that the 

inventorying of a car's contents should be thought of as being 

just like other types of searches, just with a different legal 

justification. Although I recognize that appellate courts 

commonly use the phrase "inventory search," I have avoided using 
15

First principles bear remembering. Warrantless searches of 

private property are presumptively unconstitutional under both 

the Federal and State Constitutions. Commonwealth v. 

Antobenedetto, 366 Mass. 51, 57 (1974). Although the cases have 

long recognized that search warrants generally need not be 

obtained for searches of motor vehicles,15 the police still may 

not conduct investigatory searches of them absent probable cause 

to believe that the vehicle contains evidence of a crime. 

Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997). 

Exceptions allowing for noninvestigatory searches are to be 

narrowly construed, and where such an exception is claimed, "the 

burden rests with the Commonwealth to demonstrate that the 

search 'was conducted for some legitimate police purpose other 

than a search for evidence.'" Buckley, 478 Mass. at 872, 

quoting Commonwealth v. Benoit, 382 Mass. 210, 219 (1981), S.C.,

389 Mass. 411 (1983). In this context, that is, where the 

Commonwealth is seeking to justify a search without probable 

 

it here to the extent feasible, employing instead the term 

"inventorying."

15 Such an exception is based on the inherent mobility of 

motor vehicles. Under the cases, this "automobile exception" 

applies even where the vehicle has been impounded, so long as 

the search takes place relatively soon after the impoundment has 

incurred. Compare Commonwealth v. Bongarzone, 390 Mass. 326, 

350-351 (1983) (no warrant needed where car was searched "less 

than two hours" after impoundment), with Commonwealth v. Agosto, 

428 Mass. 31, 34-35 (1998) (warrant required for additional 

searches conducted "over a span of twenty-one days").
16

cause, "consideration of an officer's 'purpose' for conducting 

the search is relevant to an assessment of the lawfulness of the 

search itself." Buckley, 478 Mass. at 872 & n.15.16

The cases establish that where the police searched a 

defendant's possessions absent probable cause, it is not enough 

for the Commonwealth to prove that an inventorying of those 

possessions was warranted. That is because "[t]he 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), citing 

Vuthy Seng, 436 Mass. at 554 n.16. This principle is well 

illustrated by our seminal decision in Commonwealth v. Sullo, 26 

Mass. App. Ct. 766 (1989).17 In that case, the police arrested 

the defendant for outstanding warrants related to traffic 

violations. Id. at 767. At booking, the arresting officer 

discovered large amounts of cash in the defendant's pockets, 

together with multiple business cards and a folded piece of 

 

16 As the Buckley court explained, although the validity of 

a traffic stop itself is assessed without attention to "the 

actual motivations of the officer involved" (quotation and 

citation omitted), this principle does not apply to assessing 

whether a purported noninvestigatory search arising out of that 

stop amounted to a search for evidence, thereby requiring 

probable cause. Buckley, 478 Mass. at 872 n.15.

17 The Supreme Judicial Court repeatedly has cited to Sullo

and relied on its reasoning, including recently. See 

Commonwealth v. Mauricio, 477 Mass. 588, 595-596 (2017).
17

paper. Id. With his interest piqued by the cash, the officer 

closely examined the cards and paper, which were annotated with 

initials, figures, and mathematical symbols. Id. at 767, 772. 

The arresting officer discerned the paper to be a "cuff sheet" 

related to illegal gambling, and the defendant was charged with 

a gaming violation. Id. at 767, 768. The Commonwealth defended 

its examination of the cards and papers "as a legitimate part of 

an inventory search" of the defendant's person. Id. at 768. 

Apparently on that basis, a District Court judge denied the 

defendant's motion to suppress that evidence.

In an opinion authored by Justice Kaplan, we reversed. Id. 

at 772. We emphasized that an inventory search "is carefully 

circumscribed by law because, as an exception to the ordinary 

constitutional requirements, the search may be conducted without 

warrant or probable cause." Id. at 768. To pass muster, 

however, an inventory search must satisfy three criteria:

"First, the search must follow a standard or routine procedure 

adopted and recognized by the police force. Second, it may not 

extend beyond the custodial necessities which are its sole 

justification. Third, it may not become a cover or pretext for 

an investigative search." Id. We also observed that "[i]n 

making an inventory -- taking from the person, noting what is 

received, and placing it in safekeeping -- the police are to act 

more or less mechanically, according to a set routine, for to 
18

allow then a range of discretion in going about a warrantless 

search would be to invite conduct which by design or otherwise 

would subvert constitutional requirements." Id. at 772. 

Applying those principles, we concluded that the officer in 

Sullo was not mechanically cataloguing the contents taken for 

safekeeping, but instead was following the lead provided by the 

large amounts of cash found in the defendant's pockets. Id. 

Accordingly, we held that "[t]he Commonwealth ha[d] not carried 

its burden of establishing that this was a lawful inventory 

search." Id. Significantly, in reaching such conclusions, we 

expressly relied in part on the judge's description of how the 

officer's suspicions animated his follow up perusal of the 

defendant's property. Id.

In the three decades since Sullo was published, the Supreme 

Judicial Court has adopted and consistently applied the same 

principles. In Vuthy Seng, the court directly addressed the 

extent to which police could obtain evidence through 

scrutinizing an item being inventoried, specifically, a bank 

card found on the defendant's person. 436 Mass. at 550-555. 

The court concluded that the police could use the bank logo 

appearing on the front of the card, because "police need not 

'blind themselves' to obvious facts," that is, to information 

that "declares its nature to anyone at sight." Id. at 551-552 & 

n.12, 553, quoting Sullo, 26 Mass. App. Ct. at 770. However, 
19

the court concluded that the account numbers appearing on the 

bank card must be suppressed where that information was "not as 

obvious and would not be recalled simply from a permissible 

inventory viewing." Vuthy Seng, supra at 553. Vuthy Seng thus 

firmly establishes that observations made during the 

inventorying of a defendant's possessions cannot be justified as 

the product of an inventory search where such evidence was 

gleaned from applying a level of scrutiny that exceeded 

custodial ends.

In Commonwealth v. Blevines, 438 Mass. 604, 608-610 (2003), 

the court ruled that -- although the police properly seized keys 

from a defendant's pocket that potentially could be used as 

weapons -- "detailed scrutiny of the keys" amounted to an 

investigatory search that required probable cause and a 

warrant.18 Similarly, in Commonwealth v. White, 469 Mass. 96, 

102 (2014), the court concluded that once the police closely 

examined pills that lawfully had been seized from a defendant 

and used "the number imprinted on the pills to identify them,"

such use "transformed a lawful inventory seizure of the pills 

into an unlawful investigatory search of the pills." Finally, 

the court recently held that although police properly took 

 

18 Accord Murphy, 63 Mass. App. Ct. at 14-16 (detailed 

observation of keys properly seized from defendant "improperly 

transformed an inventory search of [defendant's] person into an 

investigatory search").
20

possession of a digital camera found in a backpack during an 

inventory search, they could not examine the contents of the 

camera without a warrant. Commonwealth v. Mauricio, 477 Mass. 

588, 595-596 (2017), citing Vuthy Seng, 436 Mass. at 550-553; 

Sullo, 26 Mass. App. Ct. at 770. The court reasoned that the 

police's examination of the contents of the camera was not "a 

benign inventory of the contents of the backpack," but instead 

was "investigatory in nature." Mauricio, supra.

Taken together, the line of cases dating to Sullo stands 

for the following overarching point: where police validly have 

initiated the inventorying of objects taken into their custody 

for safekeeping, once their examination of such objects goes 

beyond "mechanical" cataloguing, the search becomes 

"investigatory in nature" and therefore must be justified as 

such. The cases also stand for a subtle but important 

procedural point. It remains the Commonwealth's burden to 

demonstrate that the inventory search exception applies to the 

discovery of the specific evidence at issue; the burden does not 

shift to the defendant just because the items in question 

properly had been seized and needed to be inventoried. See 

Vuthy Seng, 436 Mass. at 554 (explaining that although police 

may be justified in inventorying items, Commonwealth must still 

"present . . . evidence to carry its burden to establish that 

this was a lawful inventory search").
21

Of course, the boundaries drawn by such cases sometimes may 

be difficult to locate in practice. This is because the mere 

"fact that the searching officer may have harbored a suspicion 

that evidence of criminal activity might be uncovered as a 

result of [an inventory] search should not vitiate his 

obligation to conduct the inventory" (quotation and citation 

omitted). Commonwealth v. Garcia, 409 Mass. 675, 679 (1991). 

Moreover -- as Sullo itself touched on -- police conducting a 

valid inventorying need not ignore obvious incriminating 

evidence lying in plain view. 26 Mass. App. Ct. at 770. 

However, turning back to the case before us, I do not think it 

is difficult to determine on which side Reynolds's search of the 

defendant's car falls. In my view, the conclusion is 

inescapable that Reynolds was not engaged in a mechanical 

cataloguing of the car's contents. Notably, Reynolds did not 

testify that he filled out an inventory form, nor was any 

documentary evidence offered that he did so. In fact, other 

than his agreeing with the prosecutor's prompting that he had 

conducted an "inventory" search, Reynolds himself made no 

mention whatsoever of his cataloguing the car's contents. This 

is unsurprising given that -- as Reynolds effectively admitted 

-- he was searching the car to look for evidence to follow up on 

his suspicions that the defendant might be engaged in drug 

trafficking. In other words, this is not a case where a police 
22

officer who benignly was inventorying a car's contents 

inadvertently happened across "obvious" or "overtly 

incriminating" evidence lying in plain view. Vuthy Seng, 436 

Mass. at 551 & n.12, 554. To conclude otherwise on this record 

is to indulge in a fiction that the Constitution does not 

countenance.

My view of this case flows both from the objective facts of 

how Reynolds conducted the search, and from Reynolds's own 

characterization of his thought processes. This can be shown, 

for example, with respect to Reynolds's key discovery of the 

wear mark on the carpeting at the edge of the center console. 

By Reynolds's own admission, he discovered that wear mark 

because his training had taught him to look for it as an 

indicator that there may be a secret compartment hidden there. 

The type and level of scrutiny that Reynolds applied to the 

center console and carpeting is comparable to that applied to 

the bank card in Vuthy Seng, 436 Mass. at 551-554, the keys in 

Blevines, 438 Mass. at 608-610, or "the markings on the backs of 

the cards" in Sullo, 26 Mass. App. Ct. at 772.19 Reynolds's

 

19 The police photographs of the interior of the car reveal 

at most a barely visible discoloration along the edge of the 

carpeting. This is far from evidence that "declares its nature 

to anyone at sight." Vuthy Seng, 436 Mass. at 553. Of course, 

it may well be that such a sign was more immediately apparent to 

someone specifically looking for it with a well-trained eye. 

However, the fact that the police utilized such mission-oriented 

expertise undermines the Commonwealth's claim that the officer 
23

close examination had nothing to do with cataloguing the car's 

contents; rather, it was "investigatory in nature" and therefore 

needed to be supported by probable cause.

The discovery of the wear mark next to the center console 

provided the keystone on which the judge's finding of probable 

cause rests. Regardless of whether the judge was correct that 

Reynolds had probable cause to believe that the car contained 

illegal drugs after he discovered the wear mark, I believe it is 

plain that he did not have probable cause before that. Although 

Reynolds at that point may have had reasonable suspicion based 

on the various indicia he had collected in following up on his 

hunch -- the empty plastic bag, the rubber bands, the urine, the 

defendant's coming from a "source city," and so forth -- he did 

not have probable cause to believe that narcotics were hidden in 

the car. See Commonwealth v. Alvarado, 420 Mass. 542, 546, 550

(1995) (discovery of cocaine found in coffee maker inside box on 

floor of back seat of stopped car suppressed where search "was 

 

was not conducting an investigatory search. The Supreme 

Judicial Court recently observed that "[t]he use of a drug 

detection dog to conduct what is supposedly a search to 

safeguard property -- and not a search for drugs -- raises a red 

flag." Commonwealth v. Davis, 481 Mass. 210, 219 (2019). 

Similar concerns are raised when the drug detection expert 

employed to do putative inventorying has two legs instead of 

four. Again, I do not question Reynolds's good faith; he ably 

was executing his job as he was trained to do. But it is up to 

the courts to determine whether his actions crossed the 

constitutional line designed to protect citizens from undue 

government intrusion.
24

of an investigatory nature" but not supported by probable cause, 

even though car's driver and passenger were from known "source 

city," cocaine was found on passenger who was "very nervous," 

and police observed driver of car reach his hand "near, or 

perhaps in, the coffee maker box just prior to his arrest"). 

See also Cordero, 477 Mass. at 243-247 (not even reasonable 

suspicion established where driver stopped for routine civil 

infraction was from "source city," had record of drug-related 

crimes, and had given evasive answers to trooper's questions). 

See generally Commonwealth v. Hason, 387 Mass. 169, 175 (1982), 

quoting Commonwealth v. Bond, 375 Mass. 201, 210 (1978) (to 

establish probable cause, although police need not make "a prima 

facie case of the commission of a crime, let alone a case beyond 

a reasonable doubt," "[w]hat ha[s] to be shown [i]s more than a 

suspicion of criminal involvement, something definite and 

substantial").

Given my views, I do not believe it is necessary to decide 

whether the plastic bag and the urine also were discovered 

through what amounted to an investigatory search. For 

completeness, however, I note my view that they were. The 

discarded, fast food bag and other detritus on the floor of the 

rear seat were of no apparent interest to someone cataloguing 

valuables in the car. See Commonwealth v. Muckle, 61 Mass. App. 

Ct. 678, 683 (2004) (observing -- in reference to crumpled fast 
25

food bag that police searched during inventorying of car's 

contents -- that "[w]hile we recognize that valuables may be 

secreted virtually anywhere, a bag of trash is not a customary 

storage area for valuables").20 Even if safety concerns 

justified Reynolds in checking the discarded fast food bag as 

the majority suggests,21 the undisputed facts belie that this was 

Reynolds's intent. It would have taken but a glance to 

determine that there was no weapon in there. The fact that 

after checking the fast food bag, Reynolds then scrutinized the 

empty, torn plastic bag found inside to see what type it was and 

 

20 In Muckle, we held that evidence found inside the bag had 

to be suppressed. 61 Mass. App. Ct. at 685. That holding 

turned on the absence from the police department's written 

inventory search policy of an authorization of police to open 

closed containers (an absence not present in the case before 

us). Id. at 684. However, while compliance with a written 

inventory search policy may be a necessary prerequisite to an 

inventory search, the provisions of such a policy cannot 

override other constitutional requirements. See Sullo, 26 Mass. 

App. Ct. at 768 (listing compliance with "a standard or routine 

procedure adopted and recognized by the police force" as only 

one of three criteria that valid inventory search must satisfy).

21 A search of the trash in the rear seat could not be 

justified as a protective "frisk" of the car, because the 

defendant had already been removed from the car and was not 

going to be allowed back in to drive it. See Commonwealth v. 

Manha, 479 Mass. 44, 50 (2018) (protective sweep of vehicle 

"must be confined to the area from which the suspect might gain 

possession of a weapon, either because he is still within the 

vehicle or because he is likely to return to the vehicle at the 

conclusion of the officer's inquiry" [quotation omitted]). I 

state no view on whether a search of the bag for weapons was 

warranted for protection of whatever caretakers were slated to 

take possession of the impounded car.
26

proceeded to question the defendant about it demonstrated that 

his interest in the plastic bag was wholly investigatory, not 

custodial. With regard to the cup found to contain urine, 

Reynolds himself acknowledged that he opened the cup for the 

specific purpose of seeing whether drugs were secreted inside 

it, not to see if the cup was being used as a container to store 

valuables. See Alvarado, 420 Mass. at 553-554 (even though 

relevant inventory search policy stated that "[a]ll closed but 

unlocked containers should be opened," opening of coffee maker's 

water well held to be "of an investigatory nature" and therefore 

not part of valid inventory search).22

My concerns about Reynolds's sweeping search of the 

defendant's car are exacerbated by the fact that his suspicions 

were built in great part on the defendant's answers to questions 

that he had no business asking in the context of a routine 

traffic stop. See Cordero, 477 Mass. at 241-242. This is not 

to say that Cordero itself requires reversal; in light of the 

fact that Reynolds did not improperly detain the defendant after 

the traffic stop was, or should have been, completed, the 

holding of Cordero plainly does not apply. However, Cordero is 

 

22 Alvarado establishes that just because an item found in a 

car can, for some purposes, be considered an unlocked 

"container," it does not mean that police necessarily are 

justified in looking inside it as part of an inventorying of the 

car's contents. 420 Mass. at 553-554.
27

based on concerns about police improperly using routine traffic 

stops to conduct criminal investigations based on hunches that 

some of the people they have stopped might be guilty of 

unrelated offenses. See id. Those underlying concerns are 

equally present here.23 

Finally, I address the majority's suggestion that we are 

bound by the judge's conclusion that the inventory search here 

was not done as a "pretext." The judge drew that conclusion in 

the context of distinguishing this case from Commonwealth v. 

Ortiz, 88 Mass. App. Ct. 573, 576-578 (2015). His assessment 

that -- unlike in Ortiz -- Reynolds did not stop the defendant 

in order to search his car is well supported by the record. Nor 

was Reynolds's decision that the contents of the car should be 

inventoried pretextual in this sense. The problem here is not 

that Reynolds was acting in bad faith; indeed, throughout his 

testimony, Reynolds was laudably forthcoming about both his 

investigatory actions and what motivated them. Rather, the 

problem is that once he went beyond a mechanical cataloguing of 

the car's contents, he exceeded the "sole justification" for 

exempting the search from the constitutional requirement of 

 

23 It bears remembering that because of "explicit bias 

(i.e., racial profiling), unconscious bias, or a combination of 

both" (footnote omitted), "pretextual [traffic] stops 

disproportionately affect people of color," even where the 

driver was not stopped merely for "driving while black." 

Buckley, 478 Mass. at 876, 878 & n.4 (Budd, J., concurring).
28

probable cause. Sullo, 26 Mass. App. Ct. at 768. At that 

point, any efforts to invoke the label of an inventory search 

became a "cover" for what amounted to an investigatory search, 

which needed to be justified as such.24 Id.

Conclusion. In my view, the Commonwealth was unable to 

meet its burden of proving that its discovery of the wellsecreted drug hide here was valid, and the motion to suppress 

therefore should have been allowed. Beyond the outcome of this 

case, however, I am concerned about the message that the 

 

24 Even in the context of discussing police conduct, the 

cases use the term pretext in different respects. In some 

cases, the term is used to refer to police officers' having 

taken an action for a different reason than they claim, that is, 

misstating their motivations. See Buckley, 478 Mass. at 866-867 

(referring to defendant's contention that he was stopped not 

because of observed traffic violation but for other reasons as 

allegation of "pretext"). This meaning of the term does not 

apply here. In Sullo, Justice Kaplan used pretext in a less 

loaded sense, not to indicate bad faith, but as synonymous with 

the term "cover." 26 Mass. App. Ct. at 768. In other words, 

pretext is used in Sullo to refer to where police have initiated 

a valid inventorying of items they have seized, but their 

actions have strayed beyond narrow custodial aims. See Murphy, 

63 Mass. App. Ct. at 15-16 (evidence must be suppressed not 

because officer doing inventorying "harbored an investigatory 

motive," but because his close examination of items seized 

exceeded purpose of inventorying). That is precisely what 

occurred here. Assessing whether the inventorying became 

pretextual in this sense does not require us to divine the 

"true" motivations of Reynolds, nor does it invade the judge's 

fact finding role. Rather, it calls upon us to serve our proper 

role of examining the judge's ultimate findings to see whether 

he correctly applied constitutional principles. See Mauricio, 

477 Mass. at 591, quoting Commonwealth v. Wilson, 441 Mass. 390, 

393 (2004) ("[w]e review independently the application of 

constitutional principles to the facts found").
29

majority opinion effectively delivers. That message is that any 

time a police officer has a valid justification for having a car 

towed, he has free rein to conduct a sweeping investigatory 

search of that car without probable cause, under the guise of an 

"inventory search," so long as there is a written inventory 

search policy in place and the officer does not exceed the 

express bounds of that policy. Such a ruling improperly 

relieves the Commonwealth of its burden to prove that an 

exception to the probable cause requirement is warranted under 

the particular circumstances presented. What's more, it 

threatens to immunize inventory searches from any meaningful 

judicial oversight.