COMMONWEALTH.

OF MASSACHUSETTS

SUPREME JUDICIAL COURT

HAMPDEN COUNTY NO. SJC-12273

COMMONWEALTH

v.
ANTHONY ORTIZ

BRIEF FOR THE DEFENDANT ON THE COMMONWEALTH'S APPEAL

FROM A JUDGMENT OF THE
HAMPDEN COUNTY SUPERIOR COURT

PATRICK LEVIN
BBO #682927

ATTORNEY FOR DEFENDANT

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division
44 Bromfield Street
Boston, Massachusetts 02108
(617) 482-6212
plevin@ptibliccounsel.net

February, 2017.
 -i-

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT

I. THE JUDGE CORRECTLY HELD THAT THE

DEFENDANT'S CONSENT WAS LIMITED TO A
SEARCH OF THE CAR'S INTERIOR CABIN ......... 3

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 11

'
 -ii-

TABLE OF AUTHORITIES

Cases

Commonwealth v. Cantalupo
3 8 0 Mass . 17 3 ( 19 8 0) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Commonwealth v. Garcia,
379 Mass. 422 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Commonwealth v. Gause,
4 61 Mas s . 7 8 7 ( 2 0 12 ) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Commonwealth v. Thomas,
67 Mass. App. Ct. 738 (2006) . . . . . . . . . . . . . . . . . . 6

Florida v. Jimeno,
500 u.s. 248 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6

Schneckloth v. Bustamante,
412 u.s. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

State v. Lopez,
723 S.E.2d 164 (N.C. Ct. App. 2012) . . . . . . . . . . . 8

State v. Rodriquez,
615 N.E.2d 1094 (Ohio Ct. App. 1992) . . . . . . . . . . 8

State v. Troxell,
78 S.W.3d 866 (Tenn. 2002) . . . . . . . . . . . . . . . . . . . . 7-9

United States v. Wald,

J 216 F.3d 1222 (10th Cir. 2000) . . . . . . . . . . . . . . . . 6, 8, 9

Constitutional Provisions

Massachusetts Declaration of Rights

Art. 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States Constitution

Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Other Authority

LaFave, Search & Seizure

(5th ed. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
 -1-

ISSUE PRESENTED

Whether the motion judge reasonably concluded that

the Spanish-speaking defendant's permission, in broken

English, for police to "check" for narcotics or fire-

arms "in [his] vehicle" imported consent to search the

interior cabin of the car he was driving, but not to go

under the hood and remove the car's air filter.

BACKGROUND

This is an interlocutory appeal from the allowance

of a motion to suppress by a judge of the Hampden

County Superior Court (McDonough, J.). Defendant

Anthony Ortiz ("Anthony'') is charged with unlawfully

possessing two firearms discovered underneath the air

filter of a car he was driving during a warrantless

search of that vehicle. Add.4.11 The search was

precipitated by a routine stop for a violation of a

Holyoke traffic ordinance. Add.2. Holyoke police

officer Jared Hamel, who conducted the stop, recognized

Anthony from past dealings, and was aware that "he only

spoke a little English." Add.2-3. The front seat

passenger, George Ortiz ("George''), had to translate

Officer Hamel's request for license and registration

liThe Commonwealth's brief is cited as "C.Br.", the

addendum to that brief as "Add.", and the appendix
filed with it as "R." The transcript of the hearing on
the motion to suppress is cited as "Tr."
 -2-

because Anthony did not understand it. Add.3.

Eventually, Officer Hamel ascertained that none of

the car's three occupanis were licensed drivers.

Add.3. Before deciding whether to arrest Anthony for

driving without a license, Officer Hamel asked him (in

English) "if there was anything in the vehicle the

police should know about including narcotics or

firearms." Add.3. Anthony responded in imperfect

English, "no, you can check.'' Add.3. Police then

removed all three of the car's occupants from the

. vehicle, handcuffed them, and moved them off to the

side of the road. Add.4. A search of the inside of

the car, including a dog sniff, turned up nothing of

note. Add.4. Hamel then directed another officer to

check under the hood. Add.4. After removing the air

filter, the officer discovered a black bag containing

two firearms. Add.4.

In a thoughtful and well-reasoned memorandum,

Judge McDonough ordered the firearms suppressed. He

concluded that although the defendant had voluntarily

consented to a search of the car's interior, it was

unreasonable for Officer Hamel to assume that Anthony's

permission for police to ''check" "in the vehicle"

extended to going under the hood and removing the air

filter, especially in light of Hamel's knowledge that

 -3-

Anthony was not a fluent English speaker. Add.7-8.

The Commonwealth has appealed.

ARGUMENT

THE JUDGE CORRECTLY HELD THAT THE DEFENDANT'S CONSENT

WAS LIMITED TO A SEARCH OF THE CAR'S INTERIOR CABIN.

Both the Fourth Amendment to the United States

Constitution and Article 14 of the Massachusetts

Declaration of Rights protect the people of this

Commonwealth against "unreasonable searches."~/ For

the most part, searches conducted without a warrant are

considered unreasonable and hence unconstitutional.

See Commonwealth v. Gouse, 461 Mass. 787, 792 (2012).

An exception is made to this rule for searches to which

an individual has consented; courts deem it "reasonable

for the police to conduct a search once they have been

permitted to do so." Florida v. Jimeno, 500 U.S. 248,

251 (1991), citing Schneckloth v. Bustamante, ~12 U.S.

218, 219 (1973). However, "[b]ecause consent can

legitimize what would otherwise be an unreasonable and

illegal search, a search with consent is reasonable and

legal only to the extent that the individual has

1TheFourth Amendment provides: "The right of the

people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
seizures, shall not be violated." Article 14 similarly
states: "Every subject has a right to be secure from
all unreasonable searches, and seizures, of his person,
his houses, his papers, and all his possessions."
 -4-

consented." Commonwealth v. Cantalupo, 380 Mass. 173,

178 (1980). A warrantless search that exceeds the

scope of the consent granted by the defendant remains

unreasonable and thus unconstitutional.

"The standard for measuring the scope of a

suspect's consent under the Fourth Amendment is that of

'objective' reasonableness -- what would the typical

reasonable person have understood by the exchange

between the officer and the suspect?" Jimeno, 500 U.S.

at 251. The question in this case is thus whether a

typical reasonable person would understand Anthony's

permission for police to "check" "in the vehicle" to

include permission to go under the car's hood and

remove the air filter. As the judge correctly found, a

typical person would reasonably conclude from the

interaction between Anthony and the police that Anthony

had provided consent only for a search of the vehicle's

interior cabin.

As an initial matter, the motion judge properly

took Anthony's lack of proficiency in the English lan-

guage into account when deciding what could reasonably

be inferred from his interaction in that language with

Officer Hamel. A reasonable person would exercise cau-

tion in drawing conclusions about the permissible scope

of a search authorized in English by a Spanish speaker.

 -5-

Especially in light of Hamel's knowledge that Anthony

didn't speak much English, and the fact that Anthony

visibly could not understand a simple request for

identification without George's assistance, it was

unreasonable for Hamel to interpret a brief exchange in

broken English as authorizing an intrusive search into

areas of the car where items are not ordinarily stored

for transportation. Cf. Commonwealth v. Garcia, 379

Mass. 422, 430 (1980) (Miranda waiver valid where

"police made every effort to ensure that Garcia

understood English and his rights"). As the motion

judge correctly held, "the fact that a Spanish-speaking

driver gave consent to search the vehicle in English

should have raised concerns and should have prompted

Hamel to take necessary precautions." Add.B.

Moreover, even a fluent English speaker would

reasonably interpret permission to look ''in the car" as

the motion judge did: as covering the parts of the

vehicle where items ordinarily are stored. Such a

grant of consent would certainly cover the interior

cabin of the car, and presumably would also cover any

unlocked containers in the cabin that might contain the

object of the search. See Jimeno, supra. Reasonable

' minds could differ over whether it also covered the

trunk, but in the situation here -- where the consent

 -6-

is being granted by the car's driver while he is still

seated in the driver's seat -- the better answer is

that it would not. See United States v. Wald, 216 F.3d

1222, 1228 (lOth Cir. 2000) (unreasonable for police to

search car's trunk based on driver's permission to

"take a quick look inside the vehicle").

A reasonable person would not, however, expect

someone to go under his hood and start removing pieces

of his engine after receiving only permission to check

"in the car" for something. Notably, the test laid out

by the United States Supreme Court in Jimeno does not

ask whether a reasonable police officer would believe

that a given consent covered a particular area in light

of his specialized training and experience in discov-

ering evidence of crime. Instead, the Court spoke in

terms ~f a "typical reasonable person" observing the

exchange between the officer and the suspect. Jimeno,

500 U.S. at 251. The question is thus not whether a

police officer typically would look under the hood dur-

ing a search of a car, but whether an ordinary person

would expect someone to go under the hood and rifle

through the en~ine after being told they could "check

in the car." They would not; the Commonwealth's con-

trary argument is at odds with ordinary English usage.

See Commonwealth v. Thomas, 67 Mass. App. Ct. 738, 742

 -7-

(2006) (scope of consent limited to "the commonly

understood meaning of the words used to give consent").

This commonsense conclusion is reflected in the

Tennessee Supreme Court's opinion in State v. Troxell,

78 S.W.3d 866 (Tenn. 2002), whose reasoning the motion

judge found persuasive. Add.7-8. The defendant in

Troxell was initially stopped for speeding. After

issuing a citation, the police officer asked whether

there were "any weapons in the vehicle." 78 S.W.3d at

872 (emphasis in original). The defendant denied

having any weapons but gave permission for the officer

to "take a look." Id. As the court noted, this

exchange "indicated that the officer intended to search

only for 'weapons' that were 'in the vehicle,' and

there was nothing to indicate that the search would

encompass more than just the vehicle's interior." Id.

"Accordingly, applying a common sense interpretation to

the verbal exchange, it was objectively reasonable to

conclude that the consent to search included only the

interior of the vehicle and any containers that may

have contained weapons." Id. The same is true here.

The Commonwealth urges this Court to reject this

common sense interpretation of what an ordinary person

means when he says something is "in his car." Instead,

the Commonwealth would have this Court follow the North

 -8-

Carolina Court of Appeals, which recently held that a

defendant had consented to the removal of his car's air

filter during a traffic stop. See State v. Lopez, 723

S.E.2d 164 (N.C. Ct. App. 2012). This Court should

reject the Commonwealth's invitation; Troxell is the

better reasoned opinion. Moreover, the officer in

Lopez sought and obtained the defendant's consent to

"search the vehicle," not merely to "look" or "check"

for contraband "in the vehicle." Compare Lopez, 723

S.E.2d at 148 (consent to "search the vehicle''), with

Troxell, 78 S.W.3d at 872 (consent to "look" "in the

vehicle"). See also Wald, 216 F.3d at 1228 (consent to

"take a quick look inside the vehicle" did not support

search of trunk); State v. Rodriguez, 615 N.E.2d 1094,

1098 (Ohio Ct. App. 1992) (defendant's consent to "look

in his car" did not support removing interior door

panel). An ordinary person might well understand

consent to "search my car" as importing a more

intensive effort than consent to "look in my car."

The judge also correctly ruled that Anthony's

failure to object to the search under the hood once he

had been handcuffed and moved to the side of the road

could not expand the scope of the consent he gave while

still seated in the driver's seat. "Although a

defendant's later expressed language, coupled with

 -9-

silence, may be evidence of an expansion of the scope

of consent, a defendant's silence alone cannot expand

the scope of the initial consent or allow a prolonged

and continued detention." Troxell, 78 S.W.3d at 873

(emphasis added) . It would be especially inappropriate

to read an expansion of consent into Anthony's silence

when he had already been placed in handcuffs after

admitting to the crime of driving without a license.

SeeWald, 216 F.3d at 1228-1229 (defendant's "failure

to object to the search of the trunk stemmed from his

belief that he was currently under arrest and therefore

had no power to prevent the trunk search"). See also 4

LaFave, Search & Seizure 8.1(c), at 23 (5th ed. 2012)

("the defendant's failure to object should not be

treated as expanding a more limited consent, especially

when the circumstances suggest some other possible

reason for the defendant's silence").

CONCLUSION

The Commonwealth failed to prove that the search

under the hood of Anthony Ortiz's car and the removal

of part of his engine was within the scope of his valid

consent. Anthony's permission in broken English for

police to ''check" for contraband "in the vehicle"

reasonably permitted them only to search the interior

 -10-

of the car and any containers therein that might

contain contraband. If the police wanted to pop the

hood and root around in the engine compartment, they

should have either sought a warrant or asked for

permission to do so (and made certain that Anthony

understood what they were asking) . The order allowing

the motion to suppress must be affirmed.

Respectfully submitted,

PATRICK LEVIN
BBO #682927

ATTORNEY FOR ANTHONY ORTIZ

COMMITTEE FOR PUBLIC COUNSEL SERVICES

Public Defender Division
44 Bromfield Street
Boston, MA 02108
(617) 482-6212
plevin@publiccounsel.net

February, 2017.
 -11-

CERTIFICATE OF COMPLIANCE

I the undersigned, counsel to the defendant

herein, hereby certify that this brief complies with

the rules of court that pertain to the filing of

briefs, including, but not limited to, Mass. R.A.P.

16 (a) ( 6) (pertinent findings or memorandum of

decision), 16 (e) (references to the record), 16 (f)

(reproduction of statutes, rules, regulations), 16{h)

(length of briefs), 18 (appendix to the briefs), and 20

(form of briefs, appendices, and other papers).

Patrick Levin
BBO #682927
COMMITTEE FOR PUBLIC COUNSEL SERVICES
Public Defender Division
44 Bromfield Street
Boston, MA 02108
(617) 482-6212
plevin@publiccounsel.net