Commonwealth v. Dobson

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SJC-13794

COMMONWEALTH vs. CHERI DOBSON.

Suffolk. October 8, 2025. – July 17, 2026.

Present (Sitting at Fall River): Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.

Search and Seizure, Motor vehicle, Fruits of illegal search, Consent, Search incident to lawful arrest. Constitutional Law, Search and seizure. Motor Vehicle, Firearms. Consent. Firearms. Controlled Substances. Practice, Criminal, Motion to suppress.

Indictments found and returned in the Superior Court Department on March 27, 2023.

A pretrial motion to suppress evidence was heard by Sarah Weyland Ellis, J.

An application for leave to prosecute an interlocutory appeal was allowed by Kafker, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Mathew B. Zindroski (Dmitry Lev also present) for the defendant. Darcy Jordan, Assistant District Attorney, for the Commonwealth.  2

DEWAR, J. The defendant, Cheri Dobson, appeals from the

denial of her motion to suppress evidence recovered from the

locked glove compartment of her vehicle during a traffic stop by

police for a civil window tint infraction. During the stop,

police repeatedly requested that the defendant give them her car

key so that they could unlock the glove compartment, where they

suspected they would find contraband. The defendant refused

these requests and struggled with officers when they attempted

to handcuff her. Once handcuffed, the defendant continued to

refuse police requests for the key, which the officers believed

she had hidden on her person during the struggle. The officers

performed a series of increasingly intrusive searches of her

person to locate the key, none of which succeeded in locating

it. Shortly after the final and most intrusive search, the

officers informed the defendant that a trained dog had alerted

to the presence of firearm evidence in the glove compartment,

and they continued to urge her to surrender the key, telling her

that towing and searching her vehicle without a key would damage

the vehicle. She then retrieved the key from where it was

hidden and handed it to the officers. The police used the key

to unlock the glove compartment, where they found a firearm and

pills.

A Superior Court judge concluded that the police searches

of the defendant's person violated her rights under the Fourth  3

Amendment to the United States Constitution and art. 14 of the

Massachusetts Declaration of Rights, because the searches

exceeded the limited scope permissible "where an officer has

reasonable suspicion that the suspect is armed and dangerous."

Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020). The

judge nonetheless denied the motion to suppress on the ground

that the defendant validly consented to the search of the glove

compartment when she handed police the key they had been

seeking, concluding that the consent was sufficiently attenuated

from the unconstitutional searches of the defendant's person.

We begin by rejecting the Commonwealth's argument, raised

for the first time on appeal, that the final and most intrusive

search of the defendant's person was lawful as a search incident

to her arrest for assault and battery on a police officer.

Under G. L. c. 276, § 1, a search incident to arrest may be made

only for the purpose of obtaining evidence of the crime of

arrest or removing weapons that might be used to resist arrest

or escape. Here, undisputed factual findings of the motion

judge establish that the searches of the defendant's person

violated the statute because the searches' purpose was to

investigate a different crime from the one for which the

defendant was under arrest.

We next conclude that the Commonwealth failed to carry its

burden to show that the defendant's subsequent surrender of the  4

key constituted valid consent to the search of the glove

compartment, untainted by the coercive effect of the preceding

police misconduct. In the absence of an alternative ground for

affirmance, we reverse the order denying the defendant's motion

to suppress.

Background. We recite the facts found by the motion judge,

supplemented by uncontroverted evidence at the motion hearing

that is consistent with the judge's findings. See Commonwealth

v. Alexis, 481 Mass. 91, 93 (2018). The admitted evidence

included audio-visual recordings of the traffic stop from police

body-worn cameras. See Commonwealth v. Yusuf, 488 Mass. 379,

381 (2021), citing Commonwealth v. Clarke, 461 Mass. 336, 341

(2012) (appellate court stands in same position as motion judge

in viewing documentary evidence).

1. Traffic stop. On the evening of August 29, 2022,

Boston police Officers Ryan Fullam and Christopher Hegerich were

patrolling the Nubian Square neighborhood of the Roxbury section

of Boston in an unmarked police cruiser. They were assigned to

patrol the area following a series of shootings and other

violent crimes there that summer. At around 8:20 P.M., Fullam

observed a vehicle traveling in the opposite direction with

window tinting that appeared to violate the minimum light

transmittance required by law. See G. L. c. 90, § 9D. Based on

his training and experience, Fullam believed that window tint  5

often is used to evade detection by opposing gang members, and,

in recent months, Fullam had recovered firearms four times as a

result of traffic stops for illegal window tint. The officers

decided to stop the vehicle.

Once the vehicle stopped, Fullam approached, carrying a

flashlight. He shined the flashlight through the rear

windshield and saw the front seat passenger reach down toward

the console or glove compartment area and, with some force, make

a pushing motion. Fullam relayed his observation to Hegerich.

Hegerich approached the driver's side of the car. The

defendant lowered the window and, after repeated requests by the

officer, shut off the vehicle. Hegerich asked her for her

license and registration. The defendant was identified, and

Fullam recognized her as a member of a specific gang.

Fullam, on the passenger's side of the vehicle, asked the

passenger what he had "stuff[ed] in the console," to which the

passenger answered, in essence, that he did not know what Fullam

was asking about. After further exchanges between the passenger

and Fullam, during which the defendant admonished the passenger

not to argue with police, the officers issued an exit order for

the passenger, handcuffed him, conducted a patfrisk of his

person, and informed him that he was being detained for reasons

of officer safety.  6

Hegerich subsequently ordered the defendant to get out of

the vehicle, and she complied. Hegerich conducted a patfrisk of

her person, pulled a bag with small bundles of marijuana from

the left pocket of her shorts, and returned the bag to her

pocket. He asked the defendant if there were any weapons in the

vehicle, and she did not answer. Hegerich did not handcuff the

defendant then, and she walked away from the vehicle to join her

passenger on the sidewalk.

Hegerich then pat frisked the vehicle for weapons. He

observed that the glove compartment was locked and asked the

defendant whether she had the car key; he had seen her holding a

key.1

On hearing the request, the defendant placed her left hand

in her pocket and asked Hegerich why he needed the key, to which

Hegerich responded that he "just need[ed]" it. Hegerich

directed her to take her hand out of her pocket, and when she

did not comply, he removed her hand from her pocket and began to

take from her hand an object that appeared to be a key. The

defendant jerked her hand away, asking, "For what?"

The motion judge did not make a finding whether the 1

defendant had one single car key or multiple keys, and the record is not clear on this question. We, like the judge, at times refer to the defendant's key or keys, in accord with the inconsistent references in the record. The distinction is not material in our discussion.  7

The officers then sought to place handcuffs on the

defendant while the defendant continued to ask the officers why

they needed her key. Refusing to comply with the officers'

commands to put her hands behind her back, the defendant yanked

her arm away and pushed against the officers. Fullam called for

assistance over his police radio as the struggle continued.

Eventually, after Hegerich told the defendant that he was going

to "spray" her, the officers were able to handcuff her, about

one minute after her refusal to remove her hand from her pocket.

Once the defendant was in handcuffs, Fullam repeatedly

asked her where her keys were. The defendant did not answer the

questions. Meanwhile, Hegerich patted the outside of the

defendant's left pocket; Fullam reached into the same pocket;

and Hegerich again patted the outside of the pocket and

manipulated its fabric from the outside. Fullam then patted the

outside of the defendant's shorts again, including in the area

of her buttocks.

The officers called for assistance from a female officer to

perform a further search of the defendant, and meanwhile

additional male officers also arrived in response to the initial

call for assistance. Fullam explained to the newly arrived

officers that the defendant had been holding her keys, and "we

lost [them] in the fight." Hegerich and the responding officers

looked on the ground for the keys, and Hegerich commented that  8

they were "probably [still] on her." As the search for the keys

continued, Fullam stated, "Worst comes to worst we get a search

warrant." A call then was made for a K-9 police officer.

Boston police Officer Astrid Gonzalez and her partner,

Officer Ana Depina, heard the radio request for a female

officer. After arriving at the scene, they spoke with Fullam,

who requested that they search the defendant for car keys.

Depina thoroughly pat frisked the defendant's person over her T-

shirt and shorts, including feeling along the edges of her bra;

examined the waistband of the defendant's shorts by placing

fingers on the inside and outside of the waistband and feeling

along its circumference; and also turned inside out the

defendant's pockets and examined the contents. No key was

found.

Gonzalez then asked the defendant in a quiet,

conversational tone to give police her car keys. In the same

tone, Depina told the defendant that, if the summoned police dog

gave an alert, even if a false positive, police were "just going

to ransack [the] vehicle." If, however, the defendant gave them

the keys, Gonzalez added, "[t]hey're not going to break it."

Gonzalez told the defendant that refusing to give up the keys

was "not worth it in the long run." The defendant did not

respond.  9

While Gonzalez and Depina searched and spoke to the

defendant, the supervising sergeant arrived at the scene.

Fullam reported to him on the stop, the struggle when the

officers sought to handcuff the defendant, and the missing key.

He told the sergeant that the officers were "looking for the

keys to get into the glove [compartment]."

As search of the area for the key continued, Fullam and

Hegerich spoke with Gonzalez, who confirmed that she and Depina

had not found a key in their search of the defendant. Hegerich

instructed her to perform another search and "go as deep as you

can go."

Gonzalez and Depina then performed their second search of

the defendant's person. Depina placed her hands underneath the

defendant's T-shirt, asked the defendant if she was wearing a

"sports bra," and searched the defendant by feeling beneath the

T-shirt and over the defendant's bra and undershirt. This

search beneath the defendant's T-shirt briefly exposed portions

of the defendant's undershirt and bare stomach. Gonzalez then

pat frisked the back and crotch area of the defendant's shorts.

Gonzalez also pulled on the shorts' elastic waistband and felt

the waistband for keys. Again, nothing was recovered.

While Depina and Gonzalez performed this final search of

the defendant's person, a K-9 officer arrived with a dog trained

to detect firearms and explosives. The dog gave alerts for the  10

passenger's side door and, once the door was opened, bit the

glove compartment, signaling the presence of firearm evidence.

Fullam approached the defendant, who remained handcuffed on

the sidewalk, and explained to her:

"This is where we're at, okay? The dog hit on your glove box for a firearm. So, what's going to happen unless you give us the keys is we're going to get a search warrant on the car, that we have probable cause at this point. We're going to tow your car; we're going to get a search warrant. So, you can tell us where the keys are now and avoid not having a car for a few days, . . . and deal with it now, or . . . you know what I'm saying. Essentially, that glove box is going to be opened whether it's a few days or now. Ok, right now, you're detained. Ok, but we're going to apply for a search warrant."

The defendant acknowledged she understood but renewed her

request to know why police wanted her key. Fullam answered, "We

can talk about that in court," and repeated that they were going

to apply for a search warrant. Hegerich stated that, if

officers obtained a search warrant but did not have the key,

then "we pry the car open," adding that the process of towing

without keys "usually does damage to the car anyway." Fullam

then told the defendant he would give her "a few minutes" to

decide and walked away.

Thereafter, Gonzalez and Depina continued to encourage the

defendant to surrender the car key. The defendant did not

respond.

While Gonzalez and Depina still were speaking with the

defendant, less than one minute after Fullam had last spoken  11

with her, Fullam returned and told her that he was calling the

tow truck, so she had "to make that decision." The defendant,

without speaking, placed her handcuffed hands into the rear of

her shorts and produced the car key for the officers.

Fullam used the key to open the glove compartment, in which

he discovered a firearm and pills. Asked by an officer to

produce her license to carry, the defendant responded that she

did not have one. Fullam then read the defendant her rights

under Miranda v. Arizona, 384 U.S. 436 (1966).

2. Proceedings below. Following the traffic stop, a

complaint issued against the defendant charging her with firearm

offenses, drug offenses, two counts of assault and battery on a

police officer, and a civil window tint infraction. The

defendant subsequently was indicted on charges of carrying a

firearm without a license, carrying a loaded firearm without a

license, possessing a large capacity magazine, unlawfully

possessing ammunition, possessing a firearm during the

commission or attempted commission of a felony, trafficking in

thirty-six grams or more of cocaine, and possessing with intent

to distribute amphetamine.

In the Superior Court, the defendant moved to suppress the

evidence against her resulting from the traffic stop under G. L.

c. 276, §§ 1-8; the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution; and arts. 10, 12,  12

and 14 of the Massachusetts Declaration of Rights. After an

evidentiary hearing, the judge denied the defendant's motion.

The judge held that that the stop of the vehicle for the window

tint infraction, the exit orders directed to the defendant and

her passenger, and the initial patfrisk of the defendant all

were lawful, but that the Commonwealth had failed to meet its

burden to demonstrate the lawfulness of the subsequent searches

of the defendant's person. The judge nonetheless denied the

motion to suppress on the grounds that the defendant freely and

voluntarily consented to the search of her glove compartment

when she later turned over her key to police, and that the

consent was valid because by then the unlawful police conduct

had been sufficiently attenuated by time and intervening events.

A single justice of this court allowed the defendant's

application for leave to pursue an interlocutory appeal and

reported the appeal to the Appeals Court under Mass. R. Crim. P.

15 (a) (2), as amended, 476 Mass. 1501 (2017). We transferred

the appeal to this court on our own motion.

Discussion. The defendant argues that the evidence found

by police in their search of her glove compartment must be

suppressed as the fruit of unlawful repeated searches of her

person by police. She contends that the motion judge erred in

concluding that the surrender of her car key amounted to valid

consent to the warrantless search, because the Commonwealth did  13

not carry its burden to demonstrate attenuation of the preceding

police misconduct. The Commonwealth defends both the propriety

of the officers' conduct during the stop and the validity of the

defendant's subsequent consent.2

"'In reviewing a ruling on a motion to suppress evidence,

we accept the judge's subsidiary findings of fact absent clear

error,' and we defer to the judge's determination of the weight

and credibility to be given to oral testimony presented at a

motion hearing." Commonwealth v. Hoose, 467 Mass. 395, 399

(2014), quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001).

"Where a judge's findings are based on recorded evidence, we are

2 In addition to her argument for suppression based on the repeated searches of her person, the defendant also argues that the evidence must be suppressed as the fruit of custodial interrogation in the absence of Miranda warnings. Deciding this case as we do, we need not consider this issue or the Commonwealth's related waiver argument. We note that, in responding to the defendant's Miranda argument, the Commonwealth contends in part that suppression is not required because the evidence was not obtained by exploitation of any tainted statements by the defendant but instead was obtained through "an independent source," namely, "the dog hit on the glove box." The Commonwealth's brief makes no argument under the independent source doctrine with respect to the repeated searches of the defendant's person, and the Commonwealth did not raise any argument before the motion judge under either the independent source doctrine, cf. Commonwealth v. Pearson, 486 Mass. 809, 814-815 (2021) (discussion of doctrine presupposing that police obtained search warrant), or the inevitable discovery doctrine, see generally Commonwealth v. Chism, 495 Mass. 358, 400 (2025), citing Commonwealth v. O'Connor, 406 Mass. 112, 119 (1989). We therefore do not consider any such argument. See Commonwealth v. Beverly, 485 Mass. 1, 16 (2020).  14

in as good a position as the motion judge to evaluate that

evidence." Hoose, supra. "However, where, as here, the judge

considered the recorded evidence in light of oral testimony at

the motion to suppress hearing and made credibility

determinations therefrom, we adhere to the normal standard of

review." Id. at 399-400, citing Clarke, 461 Mass. at 340-341.

We conduct an independent review of the judge's application of

constitutional principles to the facts found. See Commonwealth

v. Buckley, 478 Mass. 861, 864 (2018).

1. Search incident to arrest. Although the Commonwealth

contends that the initial searches of the defendant's person

were justified under the Fourth Amendment and art. 14 as "a

'carefully limited search of the outer clothing of [the

defendant] . . . to discover weapons' for safety purposes"

during the traffic stop, Torres-Pagan, 484 Mass. at 36, quoting

Terry v. Ohio, 392 U.S. 1, 30 (1968), the Commonwealth does not

claim error in the motion judge's conclusion that the final and

most intrusive search of the defendant's person exceeded the

permissible scope of such a search for officer safety purposes.

Instead, the Commonwealth newly argues on appeal that the final

search was a proper search incident to the defendant's arrest  15

for assault and battery on a police officer.3 The Commonwealth's

argument fails on statutory grounds.

Although the Fourth Amendment and art. 14 permit police to

perform a search without a warrant incident to a lawful arrest,

see Commonwealth v. Mauricio, 477 Mass. 588, 592 (2017), our

Legislature has imposed a limit on such searches. General Laws

c. 276, § 1, second par., provides:

"A search conducted incident to 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." (Emphases added.)

The statute thus "authorizes a search to be made incident to an

arrest only (1) for the purpose of seizing evidence of the crime

for which the arrest has been made in order to prevent its

destruction or concealment or (2) for the purpose of removing

any weapon the person arrested might use to resist arrest or to

escape." Commonwealth v. Blevines, 438 Mass. 604, 607 (2003),

quoting Commonwealth v. Wilson, 389 Mass. 115, 118 (1983). A

search may not, however, be made for an "investigatory purpose

3 The parties do not dispute, and we therefore assume without deciding, that at the time of the challenged searches the police both had probable cause to arrest the defendant for assault and battery on a police officer and had in fact placed her under arrest for that offense.  16

unrelated to the crime for which the defendant [is] being

arrested." Blevines, supra at 609. In this respect, the

statute "is more restrictive than the Fourth Amendment"

(quotation omitted). Id. at 607. Whether a search was made for

a purpose permitted under the statute is assessed based on the

circumstances reflected in the record under "an objective

standard." Id. at 608.

Here, the defendant was under arrest for assault and

battery on a police officer following a physical altercation on

a public sidewalk in which, using her hands and body, she

combatted the officers' attempts to handcuff her. See note 3,

supra. The statute thus required that any search incident to

this arrest be made for the purpose of (1) seizing evidence of

the assault and battery, or (2) disarming the defendant of any

weapon she might use to resist arrest or escape. See G. L.

c. 276, § 1, second par.; Blevines, 438 Mass. at 607.

As to the first permissible purpose, the Commonwealth does

not contend that the search was justified to seize a "fruit[],"

"instrumentalit[y]," or piece of "evidence" of the assault and

battery for which the defendant was under arrest. G. L. c. 276,

§ 1, second par. Indeed, it is "difficult to conceive" what

evidence of the defendant's physical acts against the officers

could have been concealed on her person. Commonwealth v. Toole,

389 Mass. 159, 162 (1983) (likewise "difficult to conceive" what  17

evidence of prior assault and battery could be found in search

of defendant's vehicle incident to his arrest on outstanding

arrest warrant for that offense).

And the record forecloses the Commonwealth's argument that

the searches were limited to the second permissible purpose of

disarmament. The Commonwealth correctly notes that car keys

may, in appropriate circumstances, be seized as a potential

weapon during a patfrisk incident to arrest. See Blevines, 438

Mass. at 608. Here, however, the repeated searches of the

defendant's person had the impermissible purpose to investigate

a crime different from the assault and battery for which the

defendant was under arrest. See id. at 609. As the motion

judge found, police officers repeatedly requested -- before,

during, and after the challenged searches -- that the defendant

give them her car keys and told her that they would use the keys

to open the locked glove compartment; the female officers who

performed the two most thorough searches of the defendant's

person were instructed to look for the car keys; Fullam

meanwhile reported to the supervising sergeant that they were

"looking for the keys to get into the glove [compartment]"; and,

after obtaining the key, the officers in fact used it to open

the locked glove compartment to investigate its contents. The

Commonwealth does not dispute these factual findings, which are

amply supported by both the testimony of the officers and the  18

police body-camera footage. These undisputed facts establish

that the repeated searches of the defendant's person for the key

had an impermissible "investigatory purpose unrelated to the

crime for which the defendant was being arrested" -- namely, as

in Blevines, obtaining and using the defendant's car key to

investigate another crime. Id.4

We thus reject the Commonwealth's argument that the final

and most intrusive search of the defendant was lawful as a

search incident to arrest under G. L. c. 276, § 1.5 We therefore

4 Because the officers' use of the key they sought in their searches of the defendant thus establishes that, under the objective standard set forth in Blevines, 438 Mass. at 608-609, the searches of the defendant had an investigatory purpose that is not permissible under G. L. c. 276, § 1, second par., we need not revisit in this case our interpretation of that statute, including the extent to which the standard for determining the "purposes" of a search under the statute accords with the objective standard applicable in assessing the constitutionality of a traffic stop under art. 14. Cf. Blevines, supra at 608, citing Commonwealth v. Santana, 420 Mass. 205, 208 (1995).

5 Having so concluded, we need not consider the propriety of the preceding less intrusive searches of the defendant's person. And we decline on this record to consider the Commonwealth's new argument on appeal that the scope of the final search of the defendant's person was reasonable under the Fourth Amendment and art. 14 because the dog's alert to the presence of firearm evidence occurred -- and gave the police probable cause to search the glove compartment -- before the female officers performed the most intrusive aspects of the final search. Cf. Commonwealth v. Washington, 449 Mass. 476, 483 (2007) (reviewing court may affirm denial of motion to suppress evidence "on any ground supported by the record"). The Commonwealth did not develop a record at the evidentiary hearing regarding the relative timing of the dog's alert and the various aspects of the officers' final search of the defendant's person; the motion judge accordingly made no findings on this point; and the  19

turn to the question whether the defendant validly consented to

the search of her locked glove compartment when, after the

repeated searches of her person culminating in the unlawful

final search, she handed the police her car key.

2. Consent to search and attenuation. A warrantless

search of a private vehicle is presumptively unreasonable under

both the Fourth Amendment and art. 14 unless one of the

established exceptions to the warrant requirement applies. See

Buckley, 478 Mass. at 875. The sole ground on which the motion

judge upheld the search of the defendant's glove compartment was

the consent exception. See id. The judge found that the

defendant freely and voluntarily consented to the search when

she ultimately removed her car key from the back of her shorts

and handed it to the officers. See Commonwealth v. Carr, 458

Mass. 295, 302 (2010), quoting Commonwealth v. Walker, 370 Mass.

548, 555, cert. denied, 429 U.S. 943 (1976) (voluntariness of

consent is generally question of fact, with burden on government

to prove "consent unfettered by coercion, express or implied,

and also something more than mere acquiescence to a claim of

relative timing is not self-evident from the police body-worn camera footage, in part because Gonzalez's camera did not capture during the final search any indication that the dog's alert had occurred. Concluding only that the Commonwealth's new argument finds insufficient factual support in the record, we express no view on its merits.  20

lawful authority" [quotation omitted]). And the judge further

concluded that this consent was valid, because the Commonwealth

had met its burden to prove attenuation of the preceding police

misconduct. The defendant challenges the judge's conclusion as

to the validity of the consent.

"When consent to search is obtained through exploitation of

a prior illegality, particularly very close in time following

the prior illegality, the . . . compromised consent has been

thought to be tainted and inadmissible." Commonwealth v.

Fredericq, 482 Mass. 70, 81 (2019). The court must determine

whether the evidence for which suppression is sought "has been

come at by exploitation of [that] illegality or instead by means

sufficiently distinguishable to be purged of the primary taint."

Id. at 78, quoting Commonwealth v. Damiano, 444 Mass. 444, 453

(2005). The Commonwealth bears the burden of proving such

attenuation of the underlying illegality. Commonwealth v.

Robinson, 497 Mass. 156, 164 (2026). While no single fact is

dispositive, we consider (1) the temporal proximity between the

illegal search or seizure and the defendant's alleged consent,

(2) the presence of intervening circumstances, and particularly

(3) the purpose and flagrancy of the official misconduct. See

id.; Commonwealth v. Loughlin, 385 Mass. 60, 63 & n.4 (1982),

citing Brown v. Illinois, 422 U.S. 590, 603-604 (1975). Because

attenuation "turn[s] on the 'application of constitutional  21

principles to the facts found,' we 'review independently' the

motion judge's determination[]" (citation omitted).

Commonwealth v. Diaz, 496 Mass. 210, 213 (2025). See id. at

214, quoting Commonwealth v. Nelson, 460 Mass. 564, 570-571

(2011) (describing dual purposes of exclusionary rule "to deter

police misconduct and preserve judicial integrity by

dissociating courts from unlawful conduct").

We begin by rejecting the Commonwealth's argument that,

because the repeated searches of the defendant's person did not

yield evidence against her, "it cannot be said that the

defendant's consent was derived from those searches." The final

search of the defendant's person for her car key followed a

series of other such searches, including a prior thorough search

by a female officer, and it was, as the motion judge found, more

intrusive than a patfrisk in several respects, including that an

officer manually searched beneath her T-shirt over her bra and

undershirt. Cf. Terry, 392 U.S. at 16-17 (patfrisk alone

constitutes "serious intrusion on the sanctity of the person").

As such, the final search was coercive in nature. The motion

judge therefore correctly determined that, to uphold the search

of the glove compartment on the ground that the defendant

validly consented to it, the Commonwealth bore the burden to

show that the defendant's choice to give police her key was not  22

tainted by the preceding police misconduct. See Fredericq, 482

Mass. at 78.6

The first attenuation factor, the length of time between

the search of the defendant's person and her subsequent consent,

weighs against attenuation. See generally Diaz, 496 Mass. at

216 ("a defendant's conduct that immediately follows illegal

police action is more likely to be responsive thereto").

Approximately three minutes elapsed between the final, most

invasive search in the series of searches of the defendant's

person and her surrender of the key. During these few minutes,

Fullam informed the defendant that the police dog had alerted to

the presence of firearm evidence in the glove compartment and

told her that she could have "a few minutes" to make the

decision whether to surrender the key. Fullam then approached

the defendant again approximately thirty seconds later,

informing her that he was going to call the tow truck "now" and

6 In Fredericq, 482 Mass. at 81 n.8, we observed that "[t]he attenuation analysis regarding whether a defendant's consent is tainted by an illegal search must differ somewhat from the analysis regarding whether a defendant's postarrest statements are tainted by an illegal arrest," and that "the potential taint arising from an illegal search generally comes from the defendant being confronted with the information derived from the illegal search, which may influence what the defendant says and his or her willingness to consent to a [further] search" (emphasis added). In the circumstances here, however, the question is whether the taint of the unlawful and coercive search of the defendant's person for the key had dissipated by the time she chose to hand the officers the key. See id.  23

that she had to "make that decision." All the while, Gonzalez

continued her efforts to encourage the defendant to part with

the car key. In these circumstances, we cannot conclude that

"significant time elapsed between the illegality and the

'consent.'" Loughlin, 385 Mass. at 64. See Robinson, 497 Mass.

at 164 (interval of "less than two minutes" between unlawful

exit order and consent "strongly favor[ed]" suppression).

The second factor, intervening events, weighs in favor of

attenuation. As the motion judge found, the dog's alert,

together with the information from Fullam that a tow truck was

coming and that police were seeking a warrant, provided the

defendant with new information after the searches of her person.7

During the period of time when police were performing their

searches of the defendant's person in order to find her car key,

Depina and Gonzalez had warned the defendant that the summoned

dog might give an alert and that officers then were "just going

7 The judge implicitly found, and the record supports, that the defendant learned of the dog's alert only after the final search was complete. Thus, from the defendant's perspective, regardless of the precise moment the dog's alert occurred, see note 5, supra, the alert intervened between the final unlawful search and the defendant's decision to hand over the key. And, because we are concerned here with the coercive effect of the search on the defendant, new information with which the defendant was confronted during the period following the search is relevant, see Fredericq, 482 Mass. at 81 n.8, even if that information was obtained by police while the unlawful conduct was still ongoing.  24

to ransack [the] vehicle" and "break it" unless the defendant

gave them the key.8 It thus would have been newly apparent to

the defendant as a result of the dog's alert that discovery of

the firearm by police was certain one way or another and that

surrendering her key might avoid damage to her car from a

keyless tow and search.9 Further, as the judge also found, the

defendant had refused repeated police demands for the key

throughout the period of the searches of her person and gave

police the key only after the dog's alert. These intervening

circumstances weigh in favor of attenuation.

The third and final factor, regarding the purpose and

flagrancy of police misconduct, weighs against attenuation.

"When weighing this factor, 'we ask, first, whether police

performed the illegal act for the purpose of obtaining the

evidence that the defendant seeks to suppress, and second,

8 Deciding this case as we do, we need not consider further the propriety of the police comments regarding "ransack[ing]" the defendant's vehicle, nor whether this discussion of the prospect of the dog's alert during the period of the searches of the defendant's person rendered the actual alert not entirely independent of the unlawful conduct. Cf. Diaz, 496 Mass. at 216 ("when viewed as a whole," illegal stop, defendant's flight, and attempted disposal of evidence "more plausibly construed as a single 'entangled' nexus than as a sequence of distinct and independent events" [citation omitted]).

9 The motion judge found that the defendant also sought to avoid the inconvenience of waiting for a search warrant to issue and be executed. Such an inconvenience too would have appeared inevitable following the dog's alert.  25

whether the police knew that their actions were illegal but

proceeded anyway.'" Diaz, 496 Mass. at 215, quoting

Commonwealth v. Long, 476 Mass. 526, 537-538 (2017). While the

judge made no factual findings regarding whether the officers

knew their conduct was illegal, she did find that they performed

the challenged searches because they wanted to find the

defendant's key to open the locked glove compartment and

investigate what was located inside it. As discussed above,

these findings were amply supported by the record. Police thus

sought, by searching the defendant's person, an unlawful

"shortcut" to obtain evidence they suspected they would find in

the glove compartment. Commonwealth v. Webster, 75 Mass. App.

Ct. 247, 255 (2009), quoting Commonwealth v. McAfee, 63 Mass.

App. Ct. 467, 481 (2005). Accordingly, "[a]pplication of the

exclusionary rule in this situation could" indeed have a

"deterrent effect on the behavior of [the police]" (citation

omitted). Damiano, 444 Mass. at 458-459.

In sum, there was no significant break in time between the

unlawful search of the defendant's person and her purported

consent, amounting to only three minutes during which officers

continued to press her to surrender the key; after the unlawful

search, the defendant was informed that a dog had alerted to the

presence of a firearm in her locked glove compartment, rendering

a search of the glove compartment inevitable, and, having been  26

warned by police of the prospect of damage to her vehicle if she

did not give them her key to use in searching the vehicle, she

gave them the key for use in the search; and police had

performed the unlawful search of the defendant's person for the

purpose of finding the key to obtain evidence they suspected

they would discover in the glove compartment. In these

circumstances, we cannot conclude that the Commonwealth has

demonstrated that the evidence the police obtained using the car

key is sufficiently attenuated from the preceding unlawful

conduct so as to be purged of its taint. See Fredericq, 482

Mass. at 78. In other words, the defendant's handover of her

car key did not amount to valid consent to the search. See

Robinson, 497 Mass. at 164.

The motion judge's conclusion to the contrary rested on an

attenuation analysis that was incomplete. Guided by

Commonwealth v. Kipp, 57 Mass. App. Ct. 629, 633 (2003), the

judge concluded that it could "rationally be determined that

[the consent] did not come about by virtue of the prior

illegality, but rather was given for reasons independent of the

earlier unlawful act or event"; the defendant had been given

time to consider her decision and decided to relinquish her car

key only after the intervening event of the dog's alert, in

order to avoid damage to her car and the inconvenience of

waiting for a search warrant to issue and be executed. Similar  27

to the analysis in Kipp, however, the judge did not go on to

address whether the purpose or flagrancy of the police

misconduct weighed in favor of attenuation, despite having found

that the officers performed the repeated searches of the

defendant's person in order to obtain her car key to open the

glove compartment. We underscore today that the purpose and

flagrancy of police misconduct are relevant to the validity of

consent following an unlawful search or seizure. See Fredericq,

482 Mass. at 81-82. See also Commonwealth v. Suters, 90 Mass.

App. Ct. 449, 460 (2016) (significance of purpose and flagrancy

derives from their "tie[s] to the purpose underlying the

exclusionary rule").

We thus conclude that the warrantless search of the

defendant's glove compartment cannot be upheld on the ground

that the defendant validly consented to the search.

Conclusion. The order denying the defendant's motion to

suppress is reversed. The case is remanded to the Superior

Court for entry of an order allowing the defendant's motion to

suppress and for such further proceedings as may be appropriate.

So ordered.  GEORGES, J. (concurring). I concur in the court's judgment

reversing the order denying the defendant's motion to suppress.

The repeated searches of the defendant's person exceeded the

limits of a lawful search incident to arrest under G. L. c. 276,

§ 1, and the Commonwealth failed to establish that the

defendant's eventual surrender of the car key was sufficiently

attenuated from the preceding misconduct to constitute valid

consent. I write separately because this case illustrates the

significance of body-worn camera footage in suppression analysis

under G. L. c. 276, § 1, and to explain why the recordings here

independently confirm that the searches lost their statutory

bases.

Body-worn camera footage is not merely corroborative.

Recordings often provide the clearest objective account of how a

search unfolded and whether it remained tied to the limited

purposes G. L. c. 276, § 1, permits. See Commonwealth v. Yusuf,

488 Mass. 379, 390 (2021) (body-worn cameras "may serve to

protect police officers from allegations of damage, to

memorialize and preserve the events as they transpire, and to

advance interest in police accountability"). As these

recordings become routine, they will be used with increasing

frequency in suppression litigation under G. L. c. 276, § 1,

second par. See Yusuf, supra at 392 (noting recent increase in

use of such cameras).  2

I begin where the relevant statutory language begins.

General Laws c. 276, § 1, second par., authorizes a search

incident to arrest "only" to seize evidence "of the crime for

which the arrest has been made" or to remove weapons "the

arrestee might use to resist arrest or effect [the arrestee's]

escape." The Legislature's choice of the word "only," coupled

with the statute's enumeration of two permissible aims,

deliberately constrains search authority below the

constitutional floor set by United States v. Robinson, 414 U.S.

218, 234-236 (1973), which held that a search incident to arrest

is reasonable even where the search for contraband or evidence

is unrelated to the crime of arrest.

Massachusetts law rejects the broader Federal rule that a

custodial arrest, standing alone, supplies categorical

justification for a search of the arrestee for any evidence,

irrespective of the relation of that evidence to the offense for

which that person has been arrested. See Commonwealth v.

Wilson, 389 Mass. 115, 118 (1983) (G. L. c. 276, § 1, was

Legislature's repudiation of holding in Robinson). As we

explained in Commonwealth v. Blevines, 438 Mass. 604, 610

(2003), the statute forecloses the use of an arrest as a conduit

to a generalized evidentiary search. The permissible scope

remains tethered, at every moment, to the offense of arrest and

the specific safety concerns the Legislature identified.  3

That textual command carries two consequences important to this

case. First, the lawfulness of a search incident to arrest is

not fixed at the instant of arrest. It is a continuing

condition on the scope of the search as the search progresses.

Once the search ceases to serve either of the two enumerated

purposes, statutory authority for it ends. Second, the inquiry

is objective. See Blevines, supra at 608.

That the inquiry is objective, however, does not mean it is

frozen in time or divorced from the record of what occurred.

Blevines prevents courts from invalidating a search based on

speculation about an officer's unspoken thoughts. It does not

require courts to disregard what officers say and do while the

search is underway. Cf. Commonwealth v. Buckley, 478 Mass. 861,

868 (2018) (objective analysis for traffic stops "avoids this

often-speculative probing of the police's 'true' motives," while

providing "administrable rule" for both law enforcement and

reviewing courts). Statements directing the scope of a search

or instructing officers how to proceed are not hidden mental

states. Cf. Commonwealth v. Matta, 483 Mass. 357, 364 (2019)

(determining moment of seizure -- an objective inquiry -- based

on what officer said to defendant). They are observable

features of the encounter, and they bear directly on the

question Blevines requires courts to confront: what is the

objective purpose of the search?  4

The distinction is between motive and conduct. Officers'

contemporaneous words can be conduct, such as when they issue

orders. See Matta, 483 Mass. at 364 ("we look to whether an

officer has communicat[ed] what a reasonable person would

understand as a command that would be enforced by the police

power" [quotation and citation omitted]). They form part of the

record courts must examine in deciding whether a search served a

statutorily permissible purpose. To disregard that record would

not preserve objectivity. It would artificially shrink the

record and require courts to assess the legality of a search

while disregarding what officers said and did as the encounter

unfolded.

Body-worn camera footage fits within the framework Blevines

requires because it captures the progression of the search as it

occurred in real time. The recordings preserve officers' real-

time directives, explanations, and investigative focus. They do

not reveal hidden motives. They show the search as it happened.

The recordings here document a continuous, escalating effort to

gain access to the locked glove compartment of the defendant's

vehicle. At the outset, the circumstances gave a reasonable

officer legitimate safety concerns. Fullam observed movements

toward the console, and he and Hegerich were entitled to take

reasonable steps to secure the scene. The problem is not that

the officers investigated those concerns. The problem is that  5

as the searches progressed, their purpose did not remain tied to

the limited purposes G. L. c. 276, § 1, authorizes. Three

features captured on the recordings make the progression

unmistakable.

First, before the defendant was arrested, she was issued an

exit order and pat frisked without incident. Hegerich then

ordered her to stand to the side of the car under the

supervision of Fullam while Hegerich searched the vehicle. It

was only after Hegerich observed that the glove compartment was

locked that he and Fullam repeatedly demanded her key after

observing her holding what appeared to be one. When the

defendant asked why the key was needed, Hegerich responded only

that he "just need[ed]" it.

Equally significant, the initial frisk disclosed no weapon.

Once that frisk dispelled the immediate safety concern, and

while the defendant remained restrained and monitored by

multiple officers, neither the defendant's resistance during

handcuffing nor the dog's later reaction to the glove

compartment provided an objective basis for successive and

increasingly intrusive searches for weapons. Yet the officers'

efforts intensified after the locked glove compartment was

discovered. That progression is itself objective evidence that

the searches had shifted away from the limited statutory  6

purposes authorizing a search incident to arrest.10 See

Commonwealth v. Washington, 449 Mass. 476, 481 (2007) ("search

may precede the formal arrest" only if probable cause exists

"independent of the results of the search").

Second, after the defendant had been restrained and

officers were searching unsuccessfully for the missing key,

Fullam stated, "Worst case, like we said, we get a dog and a

search warrant." Viewed in context, the statement reflected

that the encounter had shifted toward obtaining evidence from

the glove compartment rather than preserving evidence of the

arrest offense or addressing officer safety concerns.

Third, the most intrusive searches were directed expressly

toward locating the key. Fullam told the supervising sergeant

that officers were "looking for the keys to get into the glove

10The cases cited by the Commonwealth to suggest that the officers' conduct fell under reasonable suspicion or safety concerns are inapposite. The cited cases involved either an initial protective frisk supported by contemporaneous safety concerns or additional facts renewing those concerns during the encounter. See, e.g., Commonwealth v. Guardado, 491 Mass. 666, 669, 682, S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024); Commonwealth v. Johnson, 454 Mass. 159, 164 (2009); Commonwealth v. Rock, 429 Mass. 609, 610 (1999); Commonwealth v. Graham, 78 Mass. App. Ct. 127, 128-130 (2010); Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 368, 373 (2010). Here, by contrast, officers conducted increasingly intrusive searches after the initial frisk yielded no weapon and without any intervening facts renewing an objectively reasonable concern for officer safety. Nor did the defendant's physical resistance to the officers justify renewed concern for weapons on the defendant's person, or create any link to the locked glovebox.  7

[compartment]." Hegerich later instructed another officer

conducting the final and most invasive search to "go as deep as

you can go." By that point the defendant had been handcuffed

and searched repeatedly. Neither the offense that resulted in

the defendant's arrest nor any plausible concern about weapons

explained why the officers continued to penetrate her person at

that depth. Instead, the search conduct, viewed together with

the officers' contemporaneous directives, objectively

demonstrated that the encounter had shifted toward obtaining

access to the glove compartment.

None of this means that an isolated or ambiguous remark by

an officer will dictate the validity of a search. Trial courts

must evaluate body-worn camera evidence in context and alongside

the rest of the record. Some statements will carry little

weight. Others may reflect frustration, shorthand among

colleagues, or imprecise wording during a fluid encounter. Yet

where recordings show a sustained effort by police to obtain

evidence of a crime unrelated to the arrest, beginning even

before probable cause for that arrest existed, courts need not

ignore contemporaneous statements and investigative directives

in the name of objectivity. The recordings themselves may

objectively establish that the search has crossed the line

Blevines draws.  8

That is what occurred here. The body-worn camera footage

did more than corroborate the motion judge's findings. Ante

at . The recordings themselves showed that the searches

evolved from measures justified by the offense of arrest or

concerns for officer safety into an effort to obtain access to

the locked glove compartment for investigative purposes

unrelated to either the traffic stop or the subsequent arrest.

Once the searches no longer served the limited purposes

identified in G. L. c. 276, § 1, they exceeded the permissible

scope of a search incident to arrest. See Blevines, 438 Mass.

at 609.

Blevines does not require courts to disregard

contemporaneous evidence bearing on the objective character and

progression of a search. It requires only that courts avoid

speculation about unexpressed motives. In an era when police

encounters are routinely recorded in real time, fidelity to that

principle requires courts to engage with the record before them.

Because the recordings here objectively demonstrate that the

searches exceeded the limits imposed by G. L. c. 276, § 1, I

concur.