A guest of a motel guest had standing to challenge the search of the room. While he might have somehow violated hotel policy [something not really realistic], he had a reasonable expectation of privacy in the room, one that society would recognize as reasonable. United States v. Rollins, 2005 U.S. Dist. LEXIS 43849 (D. Utah July 18, 2005).
Assuming, without deciding, that a cotenant could not consent to a search that produced clothing identifiable by a robbery victim, it was harmless beyond a reasonable doubt when the cotenant also testified to defendant’s appearance that day. People v. Bass, 155 P.3d 547 (Colo. App. 2006):
Here, the victim described her attacker as having bushy hair and a scraggly beard, and she stated that he was wearing “dark clothing and dark blue jeans” and “[h]e had a black shirt on, that … had some sort of writing on it or picture.” Likewise, the tenant testified that, on the early morning of July 10, Bass appeared “scruffily and scraggly . . . his hair was all out of place,” he had several days growth of beard, and he was wearing a “black shirt, a camel T-shirt” and dark blue jeans.
Bass argues that the admission of the seized clothing was not harmless because it helped bridge a gap between the victim’s description of her attacker and Bass’s physical appearance. However, the tenant testified in detail regarding Bass’s appearance, and the seized clothing merely served to corroborate that description. Accordingly, we conclude the guilty verdict rendered in this case was surely unattributable to the error, see Bernal, supra, and, therefore, was harmless beyond a reasonable doubt.
The community caretaking function could not be applied to seizure of a defendant who fled from officers. Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 856 N.E.2d 189 (November 2, 2006), aff’d 450 Mass. 1030, 879 N.E.2d 1242 (2008):
The motion judge concluded that the flight of the defendant was a nonverbal response to the officer that the defendant was not in need of assistance and that the action of the police did not come within the community caretaking function. We agree.
The community caretaking function “applies when the purpose of the police [intrusion] is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property.” Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 & n.2 (1990). Even though the defendant appeared impaired and possibly injured, he was being assisted by another person. Certainly the police would have been warranted in offering aid, but in these circumstances, chasing the defendant and ordering him to stop went beyond the scope of the community caretaking function. Contrast Commonwealth v. Murdough, 428 Mass. 760, 762 (1999) (police officers acted reasonably in asking defendant to get out of vehicle because they were “concerned about his condition” and they “thought that the defendant might have been on a narcotics bender and fresh air might do him good”, quoting from Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738 [1998]). Here, the defendant was not operating a motor vehicle, which could, in his condition, have posed a potential danger to the public. Contrast Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002) (police may ask whether driver of automobile parked in breakdown lane with blinker flashing needs assistance). See generally Commonwealth v. Brinson, 440 Mass. 609, 615 (2003).
Nor was this a proper exercise of police power, as the Commonwealth argues, under the protective custody statute, G. L. c. 111B, § 8, which provides, among other provisions, that the police may temporarily detain people and determine whether they are intoxicated. The authority of the police to act under c. 111B, § 8, is limited to persons incapacitated by alcohol who are “(1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or damage property, or (4) disorderly.” G. L. c. 111B, § 3, as inserted by St. 1971, c. 1076, § 2. “The reasonable suspicion standard is … appropriate to G. L. c. 111B, § 8, the protective custody statute.” Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 716 (2000). There is nothing in the record to indicate that Horan was aware of sufficient facts to support a belief that the defendant was incapacitated due to alcohol within the meaning of the statute. To the extent there may be a gap in the statute because it only pertains to incapacity due to alcohol consumption, it is for the Legislature to enact a statute that provides for protective custody of persons incapacitated from the ingestion of drugs or for other reasons.
Defendant’s overbreath challenge to a drug premises statute was rejected. On the search and seizure claim, there was nothing in the statute that mandated a search, so that challenge is rejected as well. State v. Macelman, 154 N.H. 304, 910 A.2d 1267 (2006).*
Defendants’ conduct of one hiding face behind a map during traffic stop and then both coming out of the car and walking back to the patrol car, to the officer’s great alarm, while the officer was on the radio was reasonable suspicion. People v. Leiva, 33 A.D.3d 1021, 823 N.Y.S.2d 494 (2d Dept. October 31, 2006):
In light of the suspicious conduct of the defendant’s passenger in attempting to cover his face with a map, in light of the “very very rare” conduct of the two men in later approaching the officer while she was speaking over the police radio, the defendant having given contradictory responses when asked about his destination, together with the various other circumstances revealed at the pretrial hearing, the officer at the very least had a founded suspicion that criminal activity was afoot so as to authorize her and the other officers to request the defendant’s consent to a search of the minivan.
A bottle cap folded around a plastic bag is commonly associated with containing drugs, and that is PC to believe drugs are inside when it is seen in a vehicle. State v. Stock, 209 Ore. App. 7, 146 P.3d 393 (November 1, 2006).
