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15-P-947                                             Appeals Court

           COMMONWEALTH     vs.   JASON A. GARCIA-GERMAN.


                             No. 15-P-947.

      Plymouth.       October 13, 2016. - December 20, 2016.

                Present:   Cypher, Cohen, & Green, JJ.


Search and Seizure, Motor vehicle, Probable cause,
     Administrative inspection. Probable Cause. Constitutional
     Law, Search and seizure, Probable cause.



     Complaint received and sworn to in the Plymouth Division of
the District Court Department on September 2, 2014.

     A pretrial motion to suppress evidence was heard by Brian
F. Gilligan, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the matter was
reported by him to the Appeals Court.


     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
     Darla J. Mondou for the defendant.


    GREEN, J.     The Commonwealth appeals from an order by a

judge of the District Court allowing the defendant's motion to
                                                                   2


suppress evidence seized during a warrantless search of his

vehicle while it was parked in a parking lot outside the

Plymouth County correctional facility (facility).1   We conclude

that the motion judge correctly ruled that the search was not

justified by probable cause, and reject the Commonwealth's

alternative suggestion that the presence of the vehicle on

correctional facility grounds, in these circumstances, furnished

"special needs" to justify an exception to the warrant

requirement, as a permissible administrative search.

     Background.   We summarize the facts found by the motion

judge, which we supplement, for the purpose of furnishing

context, with uncontroverted evidence the motion judge

implicitly credited.   See Commonwealth v. Isaiah I., 448 Mass.

334, 337 (2007), S.C., 450 Mass. 818 (2008).

     At approximately 7:30 P.M. on Friday evening, August 29,

2014, Officer James Creed of the Plymouth County sheriff's

department was on patrol in the parking lot of the facility,

when he saw two motor vehicles -- a gray BMW and a gray Volvo --

enter the visitor's lot.   Two Hispanic males, the defendant and

a companion, emerged from the BMW, and a white male, later

identified as an attorney, emerged from the Volvo.   All three

men entered the bail lobby of the facility.    At the time of

     1
       A single justice of the Supreme Judicial Court granted
leave to pursue this interlocutory appeal, pursuant to
Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).
                                                                   3


their arrival, visiting hours at the facility had ended; the

three men had come to the facility for the purpose of posting

bail for a person being held there.

     Officer Creed proceeded to the parked vehicles, walked

around each of them, and conducted a visual inspection.   He saw

a prescription pill bottle, face down, in the map pocket on the

driver's side of the BMW.   Using his flashlight to improve

illumination, he saw a small quantity of white pills and a small

plastic bag containing blue pills within the pill bottle.     He

then requested registration information for the BMW.2

     Officer Creed proceeded to the bail lobby of the facility,

where he talked to the defendant and instructed him to accompany

Creed back to the BMW.   When the two reached the BMW, Creed

instructed the defendant to unlock the vehicle to allow an

inspection of its interior; the defendant complied with Creed's

instruction.3   After the defendant unlocked the vehicle, Creed

opened the prescription pill bottle and inspected its contents;

the white pills appeared to him to be an antibiotic, and the

     2
       Officer Creed testified that he did not request
information for the Volvo, as his observations of its interior
elicited nothing suspicious.
     3
       The officer did not request the defendant's consent, and
the Commonwealth does not suggest that the defendant's
compliance with the officer's instruction constituted consent.
See Commonwealth v. Rogers, 444 Mass. 234, 237 (2005) (to
establish consent, Commonwealth must show "something more than
mere 'acquiescence to a claim of lawful authority'" [citation
omitted]).
                                                                      4


blue pills appeared to him, based on his training and

experience, to be oxycodone.    Creed also discovered a quantity

of heroin, wrapped in plastic, inside the center console between

the driver's and the front passenger's seats.    He then requested

canine assistance; with the assistance of a canine, he

subsequently discovered about $700 in cash in a small storage

area under the radio.

     At the entrance to the parking lot of the facility is a

guard shack.4   Adjacent to the guard shack a sign is posted,

advising as follows:    "Warning:   all vehicles beyond this point

are subject to search."5    Other than the warning delivered by the

posted sign, the record includes no evidence of a written policy

authorizing or regulating routine or random searches of vehicles

entering the parking lot.

     Discussion.   a.   Probable cause.   The Commonwealth contends

that Officer Creed's observation of a prescription pill bottle

containing both white and blue pills, the latter in a separate

     4
       We note that, although the photographs of the parking lot
admitted as exhibits at the motion hearing were not included in
the record appendix or otherwise transmitted to this court, the
hearing transcript makes clear that the parking lot is enclosed
by a fence, so that only persons and vehicles passing through
the entrance at the guard shack would have the opportunity to
bring items into the parking lot.
     5
       A photograph of the warning sign apparently was admitted
in evidence as an exhibit at the motion hearing, but it (along
with the other hearing exhibits, see note 4, supra) was not
included in the record appendix or otherwise transmitted to this
court.
                                                                    5


plastic bag, furnished probable cause to believe that the pill

bottle contained illegal narcotics, thereby justifying a

warrantless search of the vehicle.   Like the motion judge, we

disagree.

     At the time Officer Creed instructed the defendant to

unlock the BMW to allow access to the vehicle interior, the sole

factor suggesting the presence of contraband in the vehicle was

Creed's observation of a prescription pill bottle containing two

different colors of pills.6   However, the illegal character of

the blue pills was not apparent to the officer; it was not until

he gained access to the interior of the vehicle, opened the

bottle, and examined the contents more closely that he formed a

belief that the blue pills were oxycodone.7   See Commonwealth v.


     6
       The Commonwealth suggests that additional support for
probable cause may be drawn from the officer's testimony that he
also observed two cellular telephones in the vehicle, a fact the
motion judge did not mention in his findings. We need not
speculate whether his failure to enter a finding on the topic
reflected a disbelief of the officer's testimony, because we
consider the presence of cellular telephones in the vehicle to
be immaterial to the question of probable cause. Although
multiple cellular telephones, combined with other accoutrements
of the drug trade, have contributed to proof of criminal
activity in certain circumstances, see, e.g., Commonwealth v.
Suarez, 59 Mass. App. Ct. 111, 115-116 (2003), the observation
of two cellular telephones in a vehicle recently occupied by two
individuals adds nothing of consequence to the calculus of
probable cause in the present case.
     7
       We note as well that Officer Creed's observation of the
blue pills would not, in these circumstances, have furnished
probable cause of criminality even if he had recognized them as
oxycodone; the label of the prescription bottle was not visible
                                                                   6


White, 469 Mass. 96, 102 (2014) (plain view observation of

unlabeled prescription pill bottle did not justify warrantless

seizure, as character of its contents as contraband was not

"immediately apparent" from observation alone [citation

omitted]).   See also Commonwealth v. Garcia, 34 Mass. App. Ct.

645, 651 (1993) (observation of "empty baggie" capable of both

lawful and unlawful use does not furnish probable cause to

justify warrantless search or seizure).

     b.   Administrative (or special needs) search.   In the

alternative, the Commonwealth suggests that entry into and

search of the vehicle was justified as an administrative or

special needs search.   As framed by the Commonwealth, the

justifiable concern of facility officials for the possibility

that weapons or contraband could be brought onto facility

grounds and made available to prisoners, as reflected in G. L.

c. 127, § 33,8 and the fact that, as provided in G. L. c. 127,



to him, and he could not plausibly have ascertained from his
vantage point peering through the window of the locked vehicle
whether the pills were a medication validly prescribed to the
defendant or another occupant of the vehicle.
     8
       General Laws c. 127, § 33, as amended by St. 1979, c. 485,
§ 22, states as follows:

     "The superintendents of all institutions under the
     jurisdiction of the department of correction and the
     superintendents and keepers of jails and houses of
     correction shall cause all necessary means to be used to
     maintain order in the institutions under their supervision,
     enforce obedience, suppress insurrection and prevent
                                                                   7


§ 36,9 no one has the right to visit a penal institution without

the permission of the superintendent or jail keeper, combine to

justify routine searches of persons and vehicles that enter onto

the facility grounds.   Based on that justification, the

Commonwealth's argument continues, the sign posted at the

parking lot entrance, warning that all vehicles are subject to

search, operates to divest all persons driving a vehicle into

the facility parking lot of any reasonable expectation of

privacy in their vehicle.

     It is settled that "area-entry inspections at court house

entrances, for safety and security purposes, are permissible

without a warrant or individualized suspicion of wrongdoing or

danger."   Commonwealth v. Roland R., 448 Mass. 278, 281 (2007).

"Where a search of persons entering a public place is necessary


     escapes, and for that purpose they may at all times require
     the aid and utmost exertions of all the officers of the
     institution except the chaplain and the physician."
     9
       General Laws c. 127, § 36, as appearing in St. 1962,
c. 142, states as follows:

     "No person except [enumerated officials not relevant here]
     may visit any . . . jail or house of correction in the
     commonwealth without the permission of the commissioner or
     of the superintendent of such institution or of the keeper
     of such jail or house of correction. Every visitor who is
     required to obtain such permission shall also make and
     subscribe a statement under the penalties of perjury
     stating his true name and residence, whether or not he has
     been convicted of a felony, and, if visiting an inmate of
     such institution, his relationship by blood or marriage, if
     any, to such inmate, and, if not so related, the purpose of
     the visit."
                                                                    8


to protect a sensitive facility from a real danger of violence,

an 'administrative search' without a warrant may be justified.

'The search must be limited and no more intrusive than necessary

to protect against the danger to be avoided, but nevertheless

reasonably effective to discover the materials sought.    The

inspection must be conducted for a purpose other than the

gathering of evidence for criminal prosecutions.'"   Commonwealth

v. Harris, 383 Mass. 655, 657 (1981) (citation omitted).    Among

the considerations applicable to an assessment of the

intrusiveness of an administrative search program are whether

persons subject to search have prior notice, see Commonwealth v.

Carkhuff, 441 Mass. 122, 128 (2004),10 and whether the parameters

of the search established by statute or policy are sufficiently

defined and constrained to limit the discretion of officials

conducting the search, see Commonwealth v. Eagleton, 402 Mass.

199, 204-205 (1988).   As in the case of inventory searches, see

Commonwealth v. Garcia, 409 Mass. 675, 681 (1991), or storage

searches, see Commonwealth v. Ford, 394 Mass. 421, 426 (1985),

written policies and procedures serve to ensure that an

administrative search is conducted consistently with the neutral


     10
       Prior notice does not imply consent, but instead serves
to minimize the degree of intrusiveness of the search. See id.
at 128 n.7. In Commonwealth v. Roland R., supra, the juvenile's
implied consent derived not from the prior notice itself but
from his act of placing his bag on the table in the screening
area and then passing through a metal detector.
                                                                      9


purposes that justify it, that the decision to search is the

result of the protocol rather than a discretionary determination

to search, and "there is no significant danger of hindsight

justification."    Commonwealth v. Ford, supra at 425, quoting

from South Dakota v. Opperman, 428 U.S. 364, 383 (1976) (Powell,

J., concurring).

     In the present case, the interest of facility officials in

preventing weapons, drugs, or other contraband from becoming

accessible to prisoners is apparent.   Cf. Rasheed v.

Commissioner of Correction, 446 Mass. 463, 473-474 (2006).11     In

addition, as we have observed, a sign posted at the entrance of

the parking lot warns that all vehicles are subject to search.

However, no written policy regulates the conduct of searches,

and not all vehicles are searched.   Indeed, the circumstances of

the present case illustrate the discretionary nature of the

decision to search:    Officer Creed's decision to search the

defendant's vehicle (and not, for example, the Volvo driven by

the attorney) was triggered by a particularized suspicion, well


     11
       The defendant suggests that no reasonable concern for the
transfer of contraband to prisoners was present in the
circumstances of this case, as the defendant and his companion
had already left the vehicle and entered the bail lobby.
However, as the Commonwealth observes, items could easily have
been removed from the vehicle and secreted within the parking
lot for later retrieval by a prisoner on work detail. Similar
considerations have been held to justify a vehicle search in
cases decided in other jurisdictions. See, e.g., State v.
Daniels, 382 N.J. Super. 14, 17 (2005).
                                                                    10


short of probable cause, that the prescription pill bottle might

contain contraband.    Although a subjective investigatory motive

will not invalidate an otherwise permissible administrative

search, see Commonwealth v. Eagleton, supra at 206-207, in the

absence of a written policy or consistent procedures the

presence of an expressly investigatory motive may suggest that

the search was investigatory rather than administrative in

nature.   In any event, the absence of a written policy detracts

from the requirement that an administrative search "meet

standard, neutral guidelines, and be conducted pursuant to a

plan devised in advance by law enforcement supervisory

personnel."   Commonwealth v. Bizarria, 31 Mass. App. Ct. 370,

378 (1991), quoting from Commonwealth v. Anderson, 406 Mass.

343, 347 (1989).

     We acknowledge that there is no inherent right to visit a

correctional facility, see G. L. c. 127, § 36; note 9, supra, so

that visitors have a diminished expectation of privacy when they

choose to visit.12    However, we are not persuaded that the mere

posting of a sign at the entrance to the facility so reduces a

visitor's expectation of privacy that he may be subjected to a

search of his vehicle at the discretion of correction officials,


     12
       We note, however, that this defendant is not within the
class of visitors described in the statute, in the sense that he
traveled to the facility for the purpose of posting bail, and
did not visit the facility itself or any inmate within it.
                                                                    11


without any consistent policy or procedure to guide the decision

regarding which vehicles to search.

    This case is unlike those decided in other jurisdictions

upholding administrative searches of vehicles in correctional

facility parking lots.   In State v. Daniels, 382 N.J. Super. 14,

16 (2005), the search was conducted pursuant to a Department of

Corrections policy instituted in 1999.   In Neumeyer v. Beard,

301 F. Supp. 2d 349, 349-350 (M.D. Pa. 2004), aff'd, 421 F.3d

210 (3d Cir. 2005), the search was conducted pursuant to a

written Department of Corrections policy, and the plaintiff

signed a written form consenting to the search of her vehicle.

In Estes v. Rowland, 14 Cal. App. 4th 508, 517 (1993), not only

was the search conducted pursuant to a written policy, but the

policy was mailed to prospective visitors before their visit.

In Romo v. Champion, 46 F.3d 1013, 1016 (10th Cir.), cert.

denied, 516 U.S. 947 (1995), officials searched all vehicles

passing through a roadblock on a road leading to a prison.     In

People v. Turnbeaugh, 116 Ill. App. 3d 199, 202 (1983), the

routine search of vehicles approaching the facility was the

subject of internal regulations of the facility, pursuant to

which the owner or driver of any such vehicle was advised that

he must consent to a search of his vehicle or he would be

refused access to the facility.   Finally, in State v. Putt, 955

S.W.2d 640, 642 (Tenn. Crim. App. 1997), a task force was
                                                                  12


assigned to search all vehicles entering a prison facility,

after the vehicles passed a sign warning they would be subject

to search.

    In sum, although correction officials have a legitimate

interest in preventing the introduction of weapons, drugs, or

other contraband onto facility grounds, in the absence of

regulations or a written policy describing the parameters of an

administrative search procedure (or, alternatively, a procedure

in which every vehicle is searched as it enters the facility),

the mere posting of a sign advising that vehicles entering the

facility parking lot are subject to search was inadequate to

justify the warrantless search, on a discretionary basis, of

vehicles selected by officers patrolling the parking lot.   The

defendant's motion to suppress was properly allowed.

                                   Order allowing motion to
                                     suppress affirmed.