In a recent clarification of the law of search and seizure and search incident to arrest, the Massachusetts Appeals Court recently reversed a Superior Court judge’s allowance of a motion to suppress evidence. The subject of the suppression motion in the case, Commonwealth v. Barbosa, was a hotel room key.

The allegations were that the police responded by telephone to an advertisement for an escort/prostitute that was posted on a website, and then went to the room provided by the woman who answered the phone (room no. 540). When the police interviewed the woman, who appeared distraught, she allegedly told them “you guys can’t be here, he’s coming.”

About the same time, the defendant came out of an elevator and started to walk toward the hotel room. Another officer, who apparently knew what the defendant looked like and had been investigating him in connection with suspected human trafficking, indicated to the officers who had just spoken with the woman, that the defendant was the person they were looking into. When the defendant got close to the hotel room door, one of the officers stated that he was a police officer and asked to speak with the defendant. The defendant said “no,” and put his hand, which was holding a cellphone, into his pocket. In response, one of the officers grabbed the defendant’s hand, said “keep your hands out of your pockets,” and then said “we just want to talk to you.” The defendant allegedly again declined the request to speak with the officers, pushed an officer, and began to run. He was arrested moments later in the hotel hallway.

At this point, the police had probable cause to arrest the defendant for assault and battery on a police officer, and they began to search his person, under the “search incident to arrest” exception to the warrant requirement. The search lead to the discovery of a knife, some money, and a hotel room key. One of the officers informed the defendant of his Miranda rights. When one of the police officers then asked the defendant which room the key fit, he allegedly told them that it fit room 540. He declined to speak further, invoking his right to counsel.

At a hearing on the defendant’s motion to suppress as evidence the room key, the Superior Court judge determined that although the defendant’s statement about the key was voluntarily given after a valid Miranda warning, nevertheless the police officers’ investigatory use of the key was prohibited by Massachusetts General Laws Chapter 276, section 1. That statute provides in relevant part that:

A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings.

On appeal, the defendant argued that, under Commonwealth v. Blevines, 438 Mass. 604 (2003), and the statute cited above, the motion judge’s suppression of the key was proper.

Blevines involved an individual arrested for drinking in public. When the police searched him incident to the arrest, they found keys on a keychain. The police, believing that the defendant had given them a false name, then used the keys to try the locks on several nearby vehicles. After they found a vehicle that could be opened with one of the keys, they looked further and discovered what appeared to be cocaine inside the vehicle.

The Supreme Judicial Court held in Blevines that the alleged contraband should have been suppressed because law enforcement had no information that would justify their use of the car keys for investigatory purposes. “More specifically, the police had no information suggesting that the vehicle had any connection to criminal activity and lacked the founded or reasonable suspicion they would need to insert the key.”

The Appeals Court in Barbosa contrasted that case with Blevines, holding that “[c]onversely, here, the officers had ample evidence of the defendant’s involvement in the separate criminal activity of human trafficking before they arrested or frisked him. This evidence, at a minimum, rose to the level of reasonable suspicion and, thus, justified the inquiry regarding the room key.”

The Appeals Court cited a 2009 case for the proposition that “the limitation on admissibility of evidence expressed in G. L. c. 276, § 1, does not bar the admission of new evidence discovered during a search incident to a lawful arrest . . . when that new evidence is immediately apparent as contraband or evidence of other criminality.” Commonwealth v. Dessources, 74 Mass. App. Ct. 232, 236-37 (2009).

Therefore, because “the room key, unlike the car key in Blevines, had immediate evidentiary significance vis-à-vis the crime of human trafficking,” and because the room key therefore gave the police reasonable suspicion that the defendant was engaging in criminal activity, the police had not violated G.L. c. 276, §1 when they used the hotel room key in their investigation.

The order suppressing the hotel room key was reversed.

Attorney Kevin D. Quinlan
The Law Offices of Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569
(508) 723-6384