COMMONWEALTH vs. THOMAS S. CASSIDY, JR.

GREENBERG, J. The defendant appeals from his conviction by a jury on the charge of unlawful possession of marihuana (G. L. c. 94C, Section 34). [Note 1] He assigns as error a Superior Court

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judge's denial of his motion to suppress a pipe, from which marihuana residue was obtained, seized during the course of a warrantless search of his automobile. Our decision on this issue is dispositive, and we therefore do not address the defendant's second claim of error.

The motion judge made no findings of fact. The sole witness at the hearing was the arresting officer, Gerald Beaupre of the Douglas police department, and we assume the judge found his testimony credible. See Commonwealth v. Harding, 27 Mass. App. Ct. 430, 431 (1989). Since the officer's uncontroverted testimony supplied the only factual basis for the judge's conclusions of law -- which are open to us on review -- we may "analyze[] the record to see if the findings implicit in the judge's ruling are supported." Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981). The basic question to consider is whether the search was justified under the second paragraph of G. L. c. 276, Section 1 (1990 ed.), set forth in the margin, [Note 2] a statute which governs the scope of a police officer's authority to conduct "searches incident to arrest." We are aware that Section 1 does not require exclusion of evidence if the Commonwealth can demonstrate an independent constitutionally permissible basis for the search other than being incident to a lawful arrest. See Commonwealth v. Toole, 389 Mass. 159, 162 & n.6 (1983). However, in the circumstances of this case, other grounds for justifying the search are either waived or unsupported in the record. [Note 3]

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Testimony at the suppression hearing revealed the following. Around 5:00 P.M. on August 10, 1989, Officer Beaupre was on routine patrol near the Whittons Reservoir dam. He drove by a Chevrolet Chevette parked in a "no trespassing" area. By the time he turned back to reconnoiter the situation, the vehicle was gone. An hour later, Officer Beaupre spied the same vehicle parked in another posted "no trespassing" area, and he stopped the car as it attempted to drive away. The defendant was the operator and was accompanied by a male passenger, whom the officer estimated to be about eleven years old. Officer Beaupre perused the defendant's valid license and registration and noted that the defendant "was not of the Douglas area." The officer testified that the "young male seemed a little fidgety" and "it appeared that [the defendant] may have been living out of his motor vehicle."

After the defendant provided an inadequate explanation regarding his destination and purpose, Officer Beaupre contacted his police dispatcher for a National Crime Information Center computer check on both occupants of the vehicle. In short order, Officer Beaupre learned that the boy was listed by the Woonsocket, Rhode Island, police department as a missing person. He detained the defendant and separately questioned the passenger: "I asked him if he was free to leave [the vehicle] and he told me no, he was not."

The defendant was placed under arrest for kidnapping, pat-frisked for weapons (none was found), and placed in the cruiser of another officer, who had arrived as a back-up. Officer Beaupre apparently never asked, nor did the boy volunteer, whether the defendant had ever brandished a weapon during the course of their time together. Both officers then conducted a roadside search of the vehicle pursuant to their departmental policy, and had the car towed away. Among

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other items, the officers found two backpacks and a utility knife on the floor in the rear passenger compartment. From one backpack, not completely closed by a flap on the top, Officer Beaupre retrieved a kitchen knife and a closed brown paper bag; this he opened and removed the smoking pipe in question.

1. The record does not support a contention that the search was permissible to "remov[e] any weapons that the arrestee might use to resist arrest or effect his escape." G. L. c. 276, Section 1. Prior to conducting the search, Officer Beaupre had arrested the defendant, handcuffed him, and placed him in the rear of the back-up officer's cruiser. Once these steps had been taken, "there was no longer a basis for concern that the defendant would use anything in his car to resist arrest or to escape." Commonwealth v. Rose, 25 Mass. App. Ct. 905, 906 (1987). See Commonwealth v. Lucido, 18 Mass. App. Ct. 941, 942 (1984).

In a similar vein, the Commonwealth cannot maintain that the search was a valid protective search under Terry v. Ohio, 392 U.S. 1 (1968), and Michigan v. Long, 463 U.S. 1032 (1983), an inquiry which is distinct from the limitations imposed by Section 1. See Lucido, supra at 942. See also G. L. c. 276, Section 1 ("[n]othing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law"). The only passenger was the boy himself: he was secured in Officer Beaupre's cruiser and could not possibly have used a weapon from the defendant's car to threaten the safety of either officer. Contrast Commonwealth v. Brillante, 399 Mass. 152, 155 (1987); Commonwealth v. Lucido, 18 Mass. App. Ct. at 942.

2. We also reject the argument that the search was lawful "for the purposes of seizing . . . evidence of the crime for which the arrest ha[d] been made. . . ." G. L. c. 276, Section 1. [Note 4]

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The Commonwealth relies principally on Commonwealth v. Beasley, 13 Mass. App. Ct. 62, 64 (1982), for this contention.

In Beasley, however, police officers, while conversing with the defendant outside his vehicle, observed drugs inside his car while peering in with a flashlight (which is not a "search," see Commonwealth v. Skea, 18 Mass. App. Ct. 685, 688 [1984]). An officer entered the vehicle to conduct a more thorough search and observed some fireworks, for possession of which he arrested the defendant. A search of the glove compartment subsequent to the arrest produced an envelope with money. The defendant challenged this seizure; we upheld the glove compartment search because it was "directed to obtaining other evidence of the crime for which the defendant had been arrested." Beasley at 64. See G. L. c. 276, Section 1.

Neither the record nor common sense sustains an argument that there was a connection here between the contents of the paper bag and the kidnapping. See Commonwealth v. Toole, 389 Mass. 159, 162-164 (1983) (impermissible to search, pursuant to Section 1, the cab of a truck for other evidence when the crime charged was simple assault); Commonwealth v. Rose, 25 Mass. App. Ct. at 906 (search of a zipped bag for evidence of driving while under the influence of alcohol held impermissible under Section 1). In these circumstances we hold that the search of a closed paper bag exceeded the police officer's authority under Section 1 to search for evidence of kidnapping, especially where Officer Beaupre testified that (1) he had not established prior to commencing the search that the defendant had used a weapon which might plausibly have been concealed in the bag; and (2) that he had not felt the outside of the closed bag to evaluate if it contained a weapon or other instrumentality related to kidnapping. [Note 5] Id. at 906. Compare Toole, supra at 162. Contrast Commonwealth

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v. Harding, 27 Mass. App. Ct. at 438 (holding Section 1 does not preclude searching an arrested burglary suspect's car for still unrecovered items derived from the thefts when defendant was arrested while driving vehicle and admitted he lived out of the vehicle). We also weigh in the balance the fact that the alleged victim was a boy, and it is at least not readily apparent to us that the defendant would have needed a weapon to overpower him.

Because the Commonwealth failed to demonstrate any constitutionally acceptable justification for the warrantless search of the contents of the paper bag, the motion judge improperly denied the defendant's motion to suppress.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.