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Court: Concern about ‘tiny weapons’ didn't justify search

E-mail|Link|Comments () December 17, 2009 01:07 PM

By Globe Staff'

Salem police officers who opened a pill bottle in a man's car and found cocaine could not justify the search by saying they were concerned that the bottle might contain a tiny weapon, the state appeals court ruled today.

The Massachusetts Appeals Court ruled in the case of Wilbert Cruz-Rivera, who was convicted of possessing cocaine with intent to distribute and a drug violation near a school or park.

Cruz-Rivera was stopped by police on July 1, 2007, at about 10:20 p.m. As they got out of their car for the traffic stop, the officers saw him lean to the right, move toward the center console, and bend to the floor in front of the driver's seat, the court said. Concerned that he might have been reaching for or discarding a weapon, an officer searched beneath the front seat and in the center console area.

The officer found a vitamin pill bottle in the console and opened it, finding 12 glassine bags containing the cocaine.

But the appeals court agreed with Cruz-Rivera's contention that the drug evidence should be suppressed because the search was improper.

The court said that the two officers had been informed about the existence of very small weapons, such as single-shot pen-sized guns, knives, or razors, but there was no evidence that tiny weapons had proliferated and no evidence that the defendant had a history of using such small weapons.

"On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four-and-one-half inches by one-and-three-fourths inches, and use it in an effort to harm the two nearby, fully armed police officers who had just released him," the court said.

The court noted that if it allowed such a search, it would "essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents."