Preview:

Commonwealth v. Perkins Opinion Summary: Defendants were two passengers and a driver in a vehicle pulled over by a police officer for a traffic offense. The defendant passengers left the scene despite the officer's order for them to return to the automobile. The defendant driver was arrested for driving without a valid license. Subsequently two police officers searched the vehicle and found a firearm and drugs. Defendants were charged with various drug and firearm offenses. Defendants moved to suppress the evidence seized from the vehicle. The superior court allowed the motions, concluding that the warrantless search of the vehicle was not justified under any exception to the warrant requirement. The Supreme Court affirmed, holding (1) because the firearm was not in plain view, the search could not be justified as a search incident to arrest; and (2) because the defendant passengers did not abandon the contents of the vehicle when they left the scene, the search of the vehicle constituted an unlawful warrantless search.
COMMONWEALTH vs. Fabian PERKINS (and nineteen companion cases [FN1]).
SJC-11160.
Worcester. - Worcester. February 7, 2013. - June 14, 2013.
Search and Seizure, Arrest, Automobile, Expectation of privacy, Plain view, Probable cause, Search incident to lawful
arrest. Constitutional Law, Search and seizure. Probable Cause. Practice, Criminal, Suppression of evidence by
prosecutor. Firearms. Motor Vehicle, Firearms. Controlled Substances.

INDICTMENTS found and returned in the Superior Court Department on June 25, 2008.

Pretrial motions to suppress evidence were heard by Tina S. Page, J. The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Stephen J. Carley, Assistant District Attorney (Michelle R. King, Assistant District Attorney, with him) for the
Commonwealth.

Vincent F. Ricciardi, Jr., for Fabian Perkins.

Brad P. Bennion for Tareek Hendricks.

J. Gregory Batten for Elijah Cherry.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
LENK, J.
Late on a May evening in 2008, a Worcester police officer pulled over an automobile for a traffic offense. Once the automobile came to a stop, defendants Tareek Hendricks and Elijah Cherry, both passengers in the vehicle, left the automobile and walked toward an adjacent apartment building. The officer ordered them to return to the automobile, but they disregarded the order and hastily left the scene. Defendant Fabian Perkins, the driver of the automobile, was found to possess a learner's permit but not a valid driver's license. He was arrested for driving without a valid license. Subsequently, the arresting officer, and another officer who had arrived at the scene, searched the automobile and found a firearm, marijuana, and a substance believed to be "crack" cocaine. Each of the defendants was charged with various drug and firearm offenses.
Prior to trial, the defendants moved to suppress the evidence seized from the automobile. After an evidentiary hearing, a Superior Court judge allowed the defendants' motions to suppress, ruling that the warrantless search of the automobile was not justified under any exception to the warrant requirement. The Commonwealth's motion to reconsider was denied. The Commonwealth appealed, and we transferred the case to this court on our own motion.
Because there was no error in the judge's finding that the firearm was not in plain view, because the search cannot be justified as a search incident to arrest, and because the Commonwealth failed to establish that Hendricks and Cherry abandoned the contents of the automobile when they left the scene, we agree with the judge's conclusion that the search of the automobile constituted an unlawful warrantless search requiring suppression of the evidence seized. Accordingly, we affirm.
1. Background. "In reviewing a ruling 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.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The motion judge found the following facts.
On May 18, 2008, at approximately 10:30 P. M., Officer George Lavin of the Worcester police department saw an automobile drive through an intersection without stopping at a stop sign. Lavin activated the lights on his cruiser, and followed behind the automobile. The automobile traveled between fifty to one hundred yards, less than one block, before stopping in the parking lot of a multi-unit residential building. [FN2] The parking lot was well lit. Lavin parked approximately ten feet behind the automobile and called for backup. He saw two male passengers, Hendricks and Cherry, leave the automobile and walk toward the building. Lavin ordered both men to get back into the automobile. One of the men began running toward the building, while the other hastened his pace.
Perkins, the driver of the automobile, remained seated and identified himself to Lavin. Lavin ordered Perkins out of the automobile and pat frisked him. Lavin asked Perkins for identification and for the names of the passengers who had left the scene. Perkins said that he did not know the passengers. He produced a learner's permit, which required him to have a licensed driver with him while operating an automobile. See G.L. c. 90,

Download sjc-11160.pdf

Massachusetts Law