MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted on charges of trafficking in an amount of thirty-six grams or more of cocaine, in violation of G. L. c. 94C, § 32E (b) (2), and possession with intent to distribute cocaine, second subsequent offense, in violation of G. L. c. 94C, § 32A (c). The cocaine was found on the defendants person following his arrest for possession of a knife having a blade in excess of two and one-half inches in violation of New Bedford City Ordinance § 17-8 (ordinance). The defendant filed a motion to suppress the cocaine contending that the police conducted an unlawful search when they opened the knife to determine the length of the blade. After a judge of the Superior Court denied the motion, the defendant pleaded guilty to the lesser included offense of trafficking in an amount more than eighteen grams and less than thirty-six grams, in violation of G. L. c. 94C, § 32E (b).
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The plea was conditioned on the defendants right to appeal the denial of his motion to suppress. See Mass. R. Crim. P. 12, as appearing in 470 Mass. 1501 (2015). For the reasons that follow, we affirm the order denying the suppression motion.
Background. Following an evidentiary hearing, the motion judge made the following findings of fact. At approximately 1 p.m. on September 8, 2017, two detectives from the New Bedford police department, Detective Kory Kubik and Detective Jared Lizotte, were conducting a traffic stop on North Front Street, a one-way street in New Bedford. Detective Kubik saw a person, later identified as the defendant, traveling down the street on a moped in the wrong direction. The defendant was not wearing a helmet. As the defendant drew closer, Detective Kubik recognized him. The defendant had been arrested on drug charges two weeks earlier and was a “validated” member of the Latin Kings, a violent street gang. Detective Kubik signaled the defendant to stop, and the defendant pulled over just after passing Detective Kubik. As the defendant passed by, Detective Kubik saw a knife protruding from the rear pocket of his pants. Detective Kubik removed the knife and ordered the defendant to get off the moped. Detective Kubik then opened the knife and saw that the blade was about three to three and one-half inches in length. Detective Kubik arrested the defendant for possessing a knife with a blade longer than two and one-half inches in violation of the city ordinance and placed him in handcuffs.
While the defendant was being arrested, he called out to his girlfriend,
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who was standing nearby and asked her to take his personal items. Detectives Kubik and Lizotte removed various items from the defendants pockets and gave them to the woman. In doing so, they discovered small baggies
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containing suspected cocaine. The judge also found that “[h]ad the officers not searched the defendant at the scene so as to give the woman his personal items, they would have conducted a similar search of the defendant during booking.”
On the basis of these findings, the judge concluded that the stop of the defendant was within the bounds of the law because the police observed a traffic violation. The judge further concluded that the exit order, the removal of the knife clipped to the defendants rear pocket, and the opening of the knife to examine the blade were justified based on safety concerns. Once Detective Kubik determined that the blade of the knife was over two and one-half inches, he had probable cause to arrest the defendant pursuant to the ordinance. Because the subsequent search of the defendants person was initiated at the defendants request, the judge concluded that the defendants rights were not violated. The judge further concluded that because the cocaine would have been discovered during a routine search during the booking process at the police station, “the case falls squarely within the inevitable discovery rule.”
Discussion. When we review an order on a motion to suppress evidence, we accept the motion judges subsidiary findings of fact absent clear error and review independently his ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
The defendant does not challenge the stop, the exit order, or the removal of the knife from his back pocket. The focus of his argument is on the opening of the knife. He claims that once the police had the knife in their possession, it was not necessary or reasonable to open it to protect the safety of the officers and, therefore, the opening of the knife to determine the length of the blade constituted an unlawful search. Because his arrest for violation of the ordinance and subsequent search of his person incident to that arrest was a direct result of the illegal search, the defendant claims that his motion to suppress should have been allowed.
As an initial matter, we are not persuaded by the defendants claim that Detective Kubik conducted a search when he opened the knife. In our view, an examination of the knife fell within the scope of the lawful patfrisk. A patfrisk must be “confined to what is minimally necessary to learn whether the suspect is armed and to disarm him should weapons be discovered.” Commonwealth v. Wilson, 441 Mass. 390, 396 (2004). In the circumstances presented, we discern nothing unreasonable in opening the knife to determine the extent to which it presented a danger or constituted a dangerous weapon as defined by G. L. c. 269, § 10 (b). See, e.g., Commonwealth v. Sanders, 90 Mass. App. Ct. 660, 663 (2016). In any event, even if we were to conclude that Detective Kubik conducted a warrantless search when he opened the knife, he had probable cause to do so based on his initial examination that revealed it was “probable” that the blade exceeded two and one-half inches. At the evidentiary hearing on the defendants motion to suppress, Detective Kubik testified:
“[J]ust judging by the length of the clip I -- the clip wouldnt run longer than the length of the knife so I knew it had to be approximately two-and-a-half inches․ [T]he clip would never be longer than the length of the knife itself and the clip was just about -- Id say about three inches.”
This observation, namely that the clip was about three inches, was sufficient to establish probable cause.
The defendant also argues that he should have been permitted to give his personal items to his girlfriend without any intervention on the part of the police. We reject this argument for the reasons articulated by the motion judge. The police acted properly in removing the items from the defendants pockets themselves. Moreover, as the judge correctly observed, a search of the defendants person would have been conducted -- lawfully -- at the station during the booking process. See Commonwealth v. OConnor, 406 Mass. 112, 117-118 (1989) (where “defendant was certainly going to be taken to the police station, [and] according to established police procedure, ․ his possessions would have been searched and the contraband would have been found, ․ the discovery was inevitable in every practical sense”).
In sum, the evidence supports the denial of the defendants motion to suppress.
Order denying motion to suppress affirmed.
FOOTNOTES
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. As part of the plea negotiations, the Commonwealth filed a nolle prosequi on the second subsequent offense portion of the indictment.
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. Although the judge did not identify the woman as the defendants girlfriend, one of the officers at the scene testified that the defendant called to his girlfriend to take his items.
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. There was conflicting testimony at the suppression hearing regarding how the cocaine was packaged, but nothing turns on these discrepancies and the defendant does not dispute that cocaine was discovered.