Commonwealth v. Kobe Smith.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-298

COMMONWEALTH

vs.

KOBE SMITH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kobe Smith, was charged with multiple

crimes, including carrying a loaded firearm without a valid

license in violation of G. L. c. 269, § 10 (n), arising out of

an interaction with police wherein a firearm was seized from a

backpack allegedly belonging to him. The Commonwealth has filed

this interlocutory appeal from an order of a judge of the Boston

Municipal Court allowing the defendant's motion to suppress

evidence. We affirm.

Background. We recite the judge's factual findings in

their entirety, as the Commonwealth does not dispute them.

"On May 9, 2020, members of the Youth Violence Strike Force
were searching for a [juvenile] named Carl1 who had an

1 A pseudonym.
active arrest warrant. Carl was on a [Global Positioning
System] monitoring device at the time. The device
indicated that he was at the Comfort Inn hotel in
Dorchester.

"Boston Police Detective Stephen Ridge went to the Comfort
Inn and spoke to security staff. He viewed surveillance
footage that confirmed that Carl had entered the hotel.
Security staff indicated that he was likely on the second
floor.

"Ridge went to the second floor where he encountered a
woman . . . in the hallway. He had a respectful,
consensual conversation with [the woman] during which he
explained that he was looking for Carl. [She] said that
she had rented two hotel rooms for her sons and their
acquaintances. She directed Ridge to rooms 205 and 206 and
gave them consent to enter each room.

"Ridge and roughly four other police officers entered room
206 where they encountered two young men, one of whom was
[the woman's] son. Her son led the officers to room 205.

"Officers knocked on Room 205. The defendant opened the
door and the officers entered the room. Roughly ten people
between the ages fourteen and twenty-one were congregating
inside. An officer immediately indicated that Carl was
standing in the corner.

"Officers arrested Carl. A moment later, Officer Ryan
Schain told his fellow officer Eric MacPherson that he
recognized one of the male occupants as Jamani Humphries
who he knew to have an arrest warrant. Officers arrested
Humphries and then handcuffed the defendant who they moved
into the hallway. One of the occupants asked why the
defendant was being handcuffed, to which Officer MacPherson
cavalierly responded, 'Cause he's standing right there, so
. . . they'll figure it out.' He then added, 'We're just
gonna have to go through and make sure everybody is who
they are.' A moment later, another officer can be heard
saying, 'We're just gonna ID everybody here. Then we're
gonna get out of here.'

"Officers demanded identification from every remaining
occupant. They checked the [Criminal Justice Information
Services] database and learned that several of the males

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had active arrest warrants for offenses including assault,
armed robbery, and firearms possession. One young man was
detained because officers believed that he was giving them
a false name. They arrested a total of five people,
including Carl and Humphries. The defendant did not have
an arrest warrant but remained handcuffed in the hallway
for at least twenty minutes while officers obtained
identifying information from the other room occupants.

"There were backpacks, bags, and other personal items
strewn about the hotel room. Several backpacks were on the
floor next to the desk.

"A man identified as Richard Archie was one of the last
people arrested. MacPherson asked him if one of the
backpacks belonged to him. Archie initially said, 'Yeah,
I'm screwed. I don't care,' but then indicated that two of
them belonged to him. He identified a backpack and a
duffel bag as his property.

"The officers eventually ordered everyone to leave room
205. They did this because they intended to conduct a
general search of the room. On the body camera footage,
Officer MacPherson can be heard saying, 'There's too many
people in here to start really looking around.' At roughly
the same time, he and other officers began to put on latex
gloves.

"The officers sought to identify the owner of each
backpack. Their purpose was to determine whether a
particular bag belonged to an arrestee so that it could be
processed as that person's property. MacPherson indicated
that non-arrested parties would be permitted to leave with
their own property but frisked the exterior of each
backpack before handling it to its owner.

"At some point, Officer Ryan Schain handed a backpack to
Officer Eric MacPherson and told him that he had found a
gun inside. MacPherson looked inside and saw a gun. He
also found paperwork with the defendant's name on it.

"Schain did not testify at the suppression hearing. The
Court makes no finding as to where Schain located the
backpack, whether he unzipped the backpack, or how he came
to locate the gun inside."

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Based on these factual findings, the judge concluded that

the detention of the defendant was unreasonable because, even if

the initial detention was lawful, once officers had arrested

Carl and Humphries there was no reason to further detain the

defendant. In addition, the judge ruled that the search of the

backpack at issue was unlawful because the backpack was not

connected to a specific person placed under arrest. The

Commonwealth failed to call the officer who located the backpack

as a witness, leaving the judge with no evidence as to where

police found the backpack, whether the backpack was open or

closed, who may have been near the backpack, or how the police

officer saw the gun inside of it. The judge then suppressed the

evidence of the firearm.

Discussion. When reviewing a ruling on a motion to

suppress, "we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of his

ultimate findings and conclusions of law." Commonwealth v.

Silvelo, 486 Mass. 13, 15 (2020), quoting Commonwealth v.

Perkins, 465 Mass. 600, 601 (2013). As noted above, the

Commonwealth does not contest any of the judge's findings of

fact. Rather, it maintains that the motion judge made an error

of law in concluding that the detention of the defendant was

unreasonable and that the search of his backpack was

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unconstitutional. As to the search of the backpack, the

Commonwealth contends that it was justified either as a search

incident to the arrest of the five occupants in the hotel room

or as a protective sweep because several of the arrestees were

charged with crimes of violence.

We need not address the Commonwealth's argument that the

motion judge erred in finding that the detention of the

defendant was unreasonable in the circumstances. Even assuming,

without deciding, that the Commonwealth is correct, it does not

necessarily follow that the search of the backpack at issue was

justified.

Setting aside the issue of the reasonableness of the

defendant's detention in the hallway, we turn to the issue of

the search of the backpack. "Warrantless searches are

presumptively unreasonable under both the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts

Declaration of Rights." Commonwealth v. Ortiz, 487 Mass. 602,

606 (2021). "Warrantless searches, however, 'may be justifiable

. . . if the circumstances of the search fall within an

established exception to the warrant requirement'" (citation

omitted). Id. "Among the exceptions to the warrant requirement

is a search incident to a lawful arrest" (citation omitted).

Commonwealth v. Perkins, 465 Mass. 600, 605 (2013). Under this

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exception, police may, incident to a lawful arrest, "search a

bag carried by a person . . . where there is also probable cause

to believe that the bag contains evidence of the crime for which

the arrest was made" (citation omitted). Commonwealth v.

Phifer, 463 Mass. 790, 795 (2012).

"Once a custodial arrest occurs . . . no additional

justification is required for a search of the person for weapons

that otherwise might be used to resist arrest or to escape, or

to discover evidence of the crime for which the arrest was

made." Commonwealth v. Prophete, 443 Mass. 548, 552 (2005).

This type of search must be limited "to the body of the person

arrested and the area and items within his or her immediate

possession and control at the time." Commonwealth v. Phifer,

463 Mass. 790, 794 (2012), quoting Commonwealth v. Santiago, 410

Mass. 737, 743 (1991). Police "may secure the arrestee and then

safely search the area within his immediate control at the

moment of arrest." Commonwealth v. Figueroa, 468 Mass. 204, 216

(2014). "The 'geographic scope' of a lawful search incident to

arrest is the area within [an arrestee's] 'immediate control' at

the moment of arrest" and not the "'grab area' at the time of

the search, when the [individual was] restrained or handcuffed."

Id. at 215-216. In Figueroa, the court upheld the search of a

duffel bag incident to arrest even though the arrestee was

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handcuffed at the time of the search. See id. at 216. The

court reasoned that it would undermine officer safety to require

police "to seize all evidence within the arrestee's immediate

control before securing the arrestee." Id. at 215.

Here, soon after the police officers lawfully entered room

205, they had probable cause to arrest Carl and, upon seeing

him, Humphries. Lawfully or not, something we need not and do

not decide, the officers soon developed probable cause to arrest

several other occupants due to outstanding warrants. However,

the defendant was detained in the hallway and, while all parties

agree that he was seized, there was no probable cause to arrest

the defendant for the commission of a crime and he did not have

any outstanding warrants. Therefore, the seizure and search of

the backpack at issue cannot be justified as a search incident

to his arrest. Rather, the Commonwealth argues, the police were

permitted to search the entire hotel room as a search incident

to the arrest of the five occupants in the hotel room. We are

not persuaded.2

2 Nor was this a permissible "protective sweep," which, when
permitted, can extend only to areas where a dangerous individual
could be hiding. "While executing an arrest warrant, police may
conduct a protective sweep, 'a quick and limited search of the
premises' to protect the officers' safety, if they have a
reasonable belief based on 'specific and articulable facts' that
the area could harbor a dangerous individual." Commonwealth v.
Matos, 78 Mass. App. Ct. 156, 159 (2010), quoting Maryland v.
Buie, 494 U.S. 325, 327 (1990).

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At bottom, the Commonwealth's theory that the backpack at

issue was properly seized and searched as a search incident to

the arrest of his companions in the hotel room suffers from a

fatal flaw -- the failure by the prosecutor to call Officer

Schain to testify at the motion to suppress hearing. Without

his testimony, there was no evidence indicating where the

backpack at issue was located. Instead, the evidence showed

only that several bags and backpacks were together in a corner

of the hotel room, which was insufficient to establish where

this particular backpack was found. The Commonwealth's argument

that the backpack was "most likely" located in the heap of bags

in the corner of room 205 is not enough, without more, to

justify the warrantless search. It was the Commonwealth's

burden to establish the facts that would support a judge's

conclusion that the item seized was permissible as an exception

to the search warrant requirement. Because the prosecutor

failed to establish this crucial testimony, the backpack's

seizure and search cannot be justified as a search incident to

arrest.

The Commonwealth concedes that the "record lacks clarity as

to the specific location of the defendant's backpack and the

matter in which it was initially searched by Officer Schain."

However, the Commonwealth contends that this fact is not

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determinative because the body camera footage sufficed to show

that the backpack was located somewhere in the room. This

argument, however, misses the mark as police do not have

unfettered discretion or the absolute right to search an entire

hotel room, including inside closed bags, simply because they

placed one or more occupants of the room under arrest. Because

the body camera footage does nothing more to illuminate where

the backpack in question was located or its condition, we agree

with the motion judge that, as a matter of law, its seizure and

search was unlawful, and the evidence must be suppressed.

Order allowing motion to
suppress affirmed.

By the Court (Rubin, Walsh &
Hershfang, JJ.3),

Clerk

Entered: February 6, 2026.

3 The panelists are listed in order of seniority.

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