Recently in COMMONWEALTH vs. JOHN STARKWEATHER 79 Mass. App. Ct. 791 (2011) the appeals court stated that a Superior Court judge properly denied a criminal defendant’s motion to suppress evidence discovered during a search of two automobiles parked in a driveway, between which the defendant was standing at the time he was arrested. The search was validly conducted incident to the defendant’s arrest, in that there was probable cause to believe that evidence relative to the crime for which the defendant was arrested (rape) would be contained in the two vehicles; and where, even if the search was not justified as a search incident to arrest, the inevitable discovery exception to the exclusionary rule would apply. The case is a good illustration of which cases the “Gant” case applies to in searches incident to arrest, as well as how a mishandled interview can almost lose everything.
In dealing with the Suppression motions the court stated “The defendant filed motions to suppress directed at certain statements the defendant made during a police interview, a gun and clothing seized from his house, and items that were within the red Jeep and a truck parked in the defendant’s driveway on the night of his arrest outside the house. The particular items at issue, which were seized from the vehicles, are a clump of hair and a pair of handcuffs, which were observed within the truck by the police and later were seized pursuant to a warrant, after the vehicles were taken to the police station.
The suppression motions were the subject of an evidentiary hearing. The motion judge suppressed the defendant’s statements during the police interview, finding that there was a failure by the police to abide by the defendant’s request to end questioning. The judge also suppressed a gun and clothing found in the defendant’s house, on the basis that the police entry into the house, which was with the wife’s consent, was tainted by the improper questioning and information obtained during the defendant’s police interview. The judge denied the motion to suppress with respect to the hair and handcuffs seized in the vehicles. We turn to this last suppression ruling, which the defendant now challenges on appeal.
The subsidiary findings of fact by the motion judge, which the defendant does not challenge, in summary form, are as follows. Late in the evening of November 3, 2004, commencing at about 11:00 P.M., police dispatches issued concerning a sexual assault and the use of a firearm, which had occurred earlier that evening. The dispatches referenced a red Jeep “SUV” automobile, stated a license plate number, and identified the suspect as the defendant Starkweather, residing at a particular address in Barre.
Officer Ury and Officer Holgerson separately drove to the Starkweather home address and arrived at approximately 11:20 P.M. Officer Ury observed a man in the driveway, standing between two parked vehicles: a red Jeep and a pickup truck. Officer Ury testified that the man was going from the Jeep to the truck, and the driver’s side doors of both were open. It appeared that he was moving things between the two vehicles. The man in the driveway identified himself as John Starkweather. The officers approached, with guns drawn, and arrested the defendant.
Officer Ury handcuffed the defendant, gave Miranda warnings, and placed the defendant inside the police cruiser. Moments later, with the aid of flashlights, the two officers reached into the passenger compartments of the Jeep and the truck, to see if there was a gun therein, as the victim had described. No gun was seen, but the officers did see a pair of handcuffs on the truck’s gear box. Nothing was removed, and both vehicles were impounded and towed to the Gardner police garage, where a search was conducted pursuant to a warrant.
In his appeal, the defendant argues that the motion judge erred, as matter of law, in ruling that the vehicle searches were constitutionally permissible, as incident to the defendant’s arrest, and that, notwithstanding a warrant’s subsequently being obtained after the initial flashlight view and reach into the vehicles’ interiors, a taint remained which was not cured by the later issued warrant. We disagree on two legal fronts. We conclude that the warrant exception for a search incident to arrest applies, and that the evidence would inevitably have been discovered.
First, we agree with the motion judge that this was a valid search of the defendant’s Jeep and truck incident to his arrest because there was probable cause that evidence relative to the offenses at issue would be contained in the two vehicles. Such a warrantless probable cause search of a vehicle is a longstanding and firmly rooted exception to the warrant requirement. See Weeks v. United States, 232 U.S. 383, 392 (1914) (search of person when legally arrested to discover and seize the fruits or evidence of the crime long recognized).
The defendant, citing Arizona v. Gant, 129 S. Ct. 1710 (2009) (Gant), contends, however, that after he was arrested, handcuffed, and placed in the cruiser, he could not gain access to or exercise control over the passenger compartments of either vehicle, and, that, accordingly, under the Gant case, the search of his vehicles as incident to his arrest was not constitutionally justified under the United States Constitution. That is not what Gant held. In Gant, the United States Supreme Court held that, “after the arrestee has been secured and cannot access the interior of the vehicle,” 129 S. Ct. at 1714, the search-within-reach distance rule of Chimel v. California, 395 U.S. 752, 763 (1969) (Chimel), no longer applies, and there is no other constitutional justification for a warrantless search of the entire vehicle interior or containers therein. However, of import, and contrary to the defendant’s contention, the Gant case did not disturb the constitutional search and seizure law, which allows for a warrantless vehicle search where there is probable cause that the subject vehicle may contain evidence of the crime for which the arrest is made. Gant, 129 S. Ct. at 1721. Moreover, as Gant recognizes, such a probable cause vehicle search right continues even after the arrestee is taken away from the vehicle and is secured. On these points of search and seizure law, the Supreme Court in Gant held that the “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Gant, 129 S. Ct. at 1719, quoting from Thornton v. United States, 541 U.S. 615, 632 (2004) (Thornton) (Scalia, J., concurring in judgment). “If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821 . . . (1982), authorizes a search of any area of the vehicle in which the evidence might be found.” Gant, 129 S. Ct. at 1721. See Commonwealth v. Young, 78 Mass. App. Ct. 548 , 550 n.3, 554- 555 & nn.7 & 8 (2011).
In this case, the defendant’s arrest was precisely for the crime that was the predicate for the search. See G. L. c. 276, § 1. The defendant was arrested for having committed a felony sexual assault offense, which the arresting officers, acting with probable cause, could reasonably believe occurred that same evening. Based on the radio dispatches, the officers could reasonably believe that the suspect might be armed, and that the Jeep where the rape took place and the truck — to which the defendant appeared to be moving things — probably would harbor evidence relevant to the crime.
Second, even if the search was not justified as incident to arrest, the doctrine of inevitable discovery would apply. The information in the search warrant affidavit was sufficient to justify issuance of the warrant, even apart from the original flashlight sighting of the handcuffs and the hair in the truck. (The defendant, prior to his arrest, appeared to be moving things between the red Jeep, where the assault had taken place, and the truck, both of which were parked in the driveway at the time of the arrest.) “[I]f the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice.” Nix v. Williams, 467 U.S. 431, 447 (1984). “Under art. 14 of the Massachusetts Declaration of Rights, the Commonwealth satisfies the inevitable discovery exception to the exclusionary rule if it proves by a preponderance of the evidence that ‘discovery by lawful means was certain as a practical matter.’ ” Commonwealth v. Linton, 456 Mass. 534 , 558 (2010), quoting from Commonwealth v. O’Connor, 406 Mass. 112, 117 (1989).
Attorney Ronald A. Sellon