Opinion
No. 12–P–596.
2013-04-29
COMMONWEALTH v. William T. WHITE, Jr.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having reviewed the motion judge's factual findings issued in response to our memorandum and order of remand, we affirm the defendant's conviction of illegal possession of a class B substance. The judge's findings establish that Cambridge police Officer Steven Bikofsky stopped the defendant's motor vehicle because a record query disclosed two outstanding arrest warrants for the registered owner. Before exiting his cruiser to speak with the defendant, Bikofsky confirmed that one of the outstanding warrants was for a drug offense.
The defendant's G.L. c. 276, § 1, challenge
to the discovery and seizure of (1) pills in the black opaque “One Touch” diabetic testing kit container and (2) similar pills in the unlabeled translucent pill bottle on the front seat fails for the reason, if no other, that the crime of arrest was a drug offense.
The defendant did not challenge the stop of the vehicle, his arrest, or the initial search of his person incident to arrest.
See Commonwealth v. Madera, 402 Mass. 156, 159 (1988) ( G.L. c. 276, § 1, not treated as regulating admissibility of evidence of crime for which the defendant was lawfully arrested found during search incident to that arrest). 1. The pills in the “One Touch” container. Bikofsky properly discovered and retrieved the “One Touch” container during the search of the defendant's person incident to arrest because it was a hard object that merited further investigation. See Commonwealth v. Clermy, 421 Mass. 325, 329 (1995); Commonwealth v. Blevines, 438 Mass. 604, 608 (2003). Because he heard sounds consistent with pills and inconsistent with the thin strips normally inside such a container, Bikofsky had a reasonable basis to open the container and look inside for evidence of the crime of arrest. See Commonwealth v. Madera, supra at 160–161; Commonwealth v. Clermy, supra at 330–331. Despite the defendant's assertion that the pills in the “One Touch” container, like others found earlier in a labeled pill bottle, were for his blood pressure, Bikofsky was warranted in retaining those pills for further investigation. The pills were dissimilar in appearance to those found earlier and were unfamiliar to Bikofsky, who had training and experience in drug investigations. Given the circumstances, including the irregular manner of storing pills in the “One Touch” container, their evident dissimilarity to the blood pressure pills, and the defendant's outstanding warrant for a drug offense, the police had reasonable grounds to seize the pills as evidence plausibly related to criminal activity of which the police were already aware and to investigate further. See Commonwealth v. Accaputo, 380 Mass. 435, 450–451 (1980); Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 308–309 (2010). Moreover, nothing in G.L. c. 276, § 1, prohibits the Commonwealth from seizing and using as evidence items discovered in the course of a search incident to a lawful arrest for a drug offense that reasonably appear to be related to that kind of criminal activity. See Commonwealth v. Madera, 402 Mass. at 159;Commonwealth v. Dessources, 74 Mass.App.Ct. 232, 235–236 (2009).
In these circumstances, we view the pills seized as “evidence of the crime for which the arrest has been made” within the meaning of G.L. c. 276, § 1, because they were plausibly related to criminal activity of which the police were already aware and for which the defendant was being arrested. See Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 309 (2010). We need not address whether absent a warrant for a drug offense, the circumstances would provide adequate basis to seize the unlabeled pills and confirm their nature before later returning them to the arrestee. See Commonwealth v. Accaputo, 380 Mass. 435, 450–451 (1980). Nor need we decide whether the facts would suffice to make it apparent that the pills were “contraband” within the meaning of G.L. c. 276, § 1. See Commonwealth v. Clermy, 421 Mass. 325, 330–331 (1995); Commonwealth v. Dessources, 74 Mass.App.Ct. 232, 236 (2009) (section one does not prohibit police from seizing and using as evidence items that are plainly contraband or evidence of criminality for which objectively police have probable cause to arrest).
2. The pills on the front seat. The judge's factual findings establish that Officer Brian Hussey entered the vehicle at the defendant's behest to retrieve the keys and secure the vehicle in place, rather than have it towed from the scene. When Hussey entered the vehicle to remove the keys from the ignition, he observed in plain view on the front seat another unlabeled pill bottle containing pills similar in appearance to those in the “One Touch” container. The same reasons that justified seizure of the pills in the “One Touch” container justified seizure of the pills in the unlabeled bottle on the front seat.
3. The internet search and visual comparison. Once at the station, Bikofsky conducted an internet search on “WebMd” and, by visual comparison, matched the color, shape and number imprinted on the pills seized to ten milligram methadone pills. We reject the Commonwealth's assertion that the close visual examination and internet comparison of these pills was part of a proper inventory search. At that point, the examination was investigative in nature, not custodial. See Commonwealth v. Vuthy Seng, 436 Mass. 537, 553–555 (2002). Nevertheless, we discern no impediment under the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, or G.L. c. 276, § 1, to Bikofsky's visual analysis and comparison of the pills seized. Given the grounds that justified the initial seizure of the pills, no further constitutional justification was required to confirm their nature by the minimal intrusion of a visual comparison. See Commonwealth v. Alvarez, 422 Mass. 198, 208, 210 (1996); Commonwealth v. Dora, 57 Mass.App.Ct. 141, 147–148 (2003). Just as a search warrant is not required to conduct a chemical analysis of controlled substances seized as evidence, no warrant is required for a less intrusive visual comparison such as occurred here. See Commonwealth v. Varney, 391 Mass. 34, 39 (1984) (“We are unprepared to trivialize the concept of ‘privacy’ by incorporating in it an alleged right to protect from inspection by government agents that which is lawfully obtained and appears to be contraband”).
In sum, the pills were lawfully discovered and seized incident to the defendant's arrest, the discovery and seizure did not run afoul of G.L. c. 276, § 1, and Bikofsky's ultimate determination that the pills were indeed contraband required no preliminary finding of probable cause or authorization by search warrant.
Judgment affirmed.