MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Luis Lopez, was charged with several firearm offenses and with possession of cocaine after the police, who initially approached Lopezs vehicle at the side of the road for community caretaking purposes, searched the vehicle and found contraband in the trunk. The defendant filed a motion to suppress, arguing that the police exceeded the scope of the community caretaking function when they took his drivers license and handcuffed him, and that his illegal detention vitiated his putative consent to the search. After a District Court judge denied the motion to suppress, a single justice of the Supreme Judicial Court granted the defendant leave to pursue this interlocutory appeal. We reverse the order denying the motion to suppress.
Background. We summarize the facts as found by the motion judge, supplemented with the uncontroverted testimony of the Commonwealths sole witness, State police Trooper Michael Sullivan, which the judge explicitly credited in its entirety. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
Sullivan was on patrol in a marked cruiser around 10:50 p.m. when he saw two vehicles pulled over on the side of Route 24 in Randolph. Two men, one identified as “Mr. Ortiz” and the defendant, were pouring gasoline from a can into the tank of the front vehicle. Sullivan parked behind the two vehicles and activated the cruisers emergency lights to alert oncoming traffic. When he approached the men and asked if they needed assistance, Ortiz said that he had run out of gasoline and that his friend, the defendant, had brought him some.
Sullivan noticed that both vehicles had a passenger and asked who had been driving. Ortiz gave inconsistent responses, at one point saying that he had been driving both vehicles and at another point saying that he had been a passenger in both vehicles. Following one of Ortizs responses, the passenger in the front vehicle screamed that Ortiz was a liar. The defendant told Sullivan that he had been driving the rear vehicle. He appeared nervous, would not look at Sullivan while speaking, and kept putting his hands in his pockets after being told not to.
Sullivan requested drivers licenses from both Ortiz and the defendant. The defendant complied, but Ortiz said he did not have a license and instead produced his Massachusetts identification card. Sullivan then asked both men to sit on the highways guardrail while he checked their identifications and ability to drive. But instead of promptly doing so, he went to speak with the two passengers. At some point, Sullivan radioed to request assistance from another trooper.
As Sullivan approached the passenger in the defendants car, another vehicle suddenly drove up to the scene, Ortiz jumped in, and it quickly sped away. The defendant remained seated on the guardrail. Sullivans backup, Trooper Hazelton, arrived seconds later,
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and immediately placed the defendant in handcuffs and secured him in Hazeltons cruiser to make sure that “he wasnt going to also take off.” Sullivan then proceeded to question the passenger in the defendants vehicle, Adieu Charles. As Sullivan approached, he smelled burnt marijuana and saw a partially smoked marijuana “blunt” in the ashtray in the center console. He ordered Charles out of the vehicle, handcuffed him, and conducted a patfrisk.
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After feeling a hard metal object around Charless groin area, Sullivan secured him in the back of his cruiser.
Following Sullivans interactions with Charles and a search of Mr. Ortizs vehicle, which, according to Sullivan, took “probably ten minutes,” Sullivan asked the defendant to complete a set of field sobriety tests to determine whether he was impaired to operate the vehicle. The defendant agreed and successfully completed the tests over the course of five to seven minutes. Having concluded that the defendant was not impaired to operate, Sullivan then asked the defendant “if he would mind if [Sullivan] performed a consent search of the defendants vehicle.” The defendant assented. When the troopers opened the trunk, they found a loaded firearm, an extended magazine, several baggies containing powder and pills, and a digital scale.
Discussion. “When reviewing a ruling on a motion to suppress evidence, we accept the judges subsidiary findings of fact absent clear error.” Commonwealth v. Mateo-German, 453 Mass. 838, 841 (2009). However, “we independently review the correctness of the judges application of constitutional principles to the facts as found.” Id. at 842.
The Commonwealth argues that the detention of the defendant -- first on the highway guardrail, then handcuffed in the back of a police cruiser, and finally while performing a series of field sobriety tests -- was appropriate under the community caretaking function and did not constitute a seizure requiring reasonable suspicion. See Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002). It further argues that the defendant voluntarily consented to the search of the vehicles trunk. See Commonwealth v. Buckley, 478 Mass. 861, 875 (2018). However, the Commonwealth does not contend that the police at any time had reasonable suspicion, let alone probable cause, to believe that the defendant had committed a crime.
The defendant agrees that the encounter began as an appropriate community caretaking inquiry. See Mateo-German, 453 Mass. at 842 (“In carrying out the community caretaking function, a police officer may, among other things, check on a stopped motor vehicle in the breakdown lane of a highway”). However, “[a] noncoercive inquiry initiated for a community caretaking purpose may ripen into a seizure requiring constitutional justification.” Id. The police cease to carry out their community caretaking function when their actions are directed toward the “detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id., quoting Evans, 436 Mass. at 372. They effectuate a seizure when a “suspect would not reasonably believe that he is free to leave.” Mateo-German, supra.
Although Sullivans request to examine the defendants drivers license may have fallen under the community caretaking function, Sullivan exceeded that function perhaps as soon as when he retained the defendants drivers license to check its validity. See Commonwealth v. Sargsyan, 99 Mass. App. Ct. 114, 118 & n.7 (2021) (holding that officers request “to view” defendants license and registration did not constitute a seizure but suggesting that retaining the license or returning to cruiser to check its status would be).
Even if we assume that Sullivan could validly retain the defendants license to complete a community caretaking function, the restrictions on the defendants liberty were both longer and more intrusive than necessary to complete that task. See Commonwealth v. Knowles, 451 Mass. 91, 95 (2008) (intrusion must be “reasonable and consistent with [community caretaking] purpose”). The validity of the defendants license could have readily been ascertained, especially after Hazelton arrived to assist Sullivan. Instead, the officers handcuffed the defendant and detained him in the back of a cruiser for ten minutes while they questioned his passenger and searched Ortizs vehicle. The substantial restriction on the defendants freedom of movement departed from community caretaking and transformed the encounter into an investigative seizure “requiring constitutional justification,” Mateo-German, 453 Mass. at 842, which the officers lacked.
When Sullivan reengaged with the defendant, he began a new investigation into whether the defendant was under the influence of an intoxicating substance. Detaining the defendant to conduct field sobriety tests, however, is a seizure that must be justified by “reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that the motorist is operating while under the influence of drugs or alcohol.” Commonwealth v. Eckert, 431 Mass. 591, 596–597 (2000) (encounter that began as well-being check ripened into search or seizure requiring constitutional justification when trooper asked defendant to perform field sobriety tests). The Commonwealth does not contend that Sullivan had reasonable suspicion that the defendant had been operating under the influence. And unlike in Commonwealth v. Murdough, 428 Mass. 760, 761 (1999), the defendant gave the officers no reason to believe that he could not operate his vehicle safely.
The motion judge found that after this lengthy, unconstitutional detention, the defendant “knowingly, intelligently and voluntarily” consented to the search of his vehicle. Notwithstanding the defendants ostensible consent, the search was still invalid. “[A] consent obtained during an illegal detention is ineffective to justify an otherwise invalid search.” Commonwealth v. Torres, 424 Mass. 153, 163 (1997). “The record does not show sufficient attenuation of ․ the illegal seizure of [the] defendant to warrant a finding that [his] consent was an act of free will, unaffected by the taint of the illegality.” Commonwealth v. Loughlin, 385 Mass. 60, 63 (1982).
Order denying motion to suppress reversed.
FOOTNOTES
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. The motion judge erroneously found that Hazelton arrived two to three minutes after Ortiz left. In fact, according to Sullivans testimony, Hazelton arrived “within seconds” of Ortizs sudden departure, but two to three minutes after Sullivan had asked the defendant to sit on the guardrail.
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. The judge found that Sullivan pat frisked Charles before handcuffing him, but Sullivan unequivocally testified that he handcuffed Charles before the patfrisk.