Opinion
13-P-1612
12-22-2014
COMMONWEALTH v. ANDRES BUENROSTRO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Central Division of the Boston Municipal Court Department allowed the defendant's motion to suppress evidence relating to drug possession and firearms offenses. On appeal, the Commonwealth claims the judge erred by concluding that the officers were not justified in ordering the defendant and Jose Ordaz from their car because their apprehension of danger was not reasonable. We agree and reverse.
In reviewing a motion to suppress, we make "an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Article 14 of the Massachusetts Declaration of Rights "requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle." Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999). While there must be specific and articulable facts to support an exit order, "it does not take much for a police officer to establish a reasonable basis to justify an exit order or a search based on safety concerns." Id. at 664. See Commonwealth v. Goewey, 452 Mass. 399, 406-407 (2008).
As the judge properly determined, a stop in the constitutional sense did not occur until Officer Pereira issued the exit order. However, when we look at the totality of the circumstances, the exit order and the ensuing frisk were justified. The officers had encountered a vehicle parked at night, with its engine and lights on, in front of a house where a gang-related shooting had occurred some three weeks prior. The officers initially observed that the vehicle, although running, appeared unoccupied, and when they approached to investigate, the two occupants raised and then immediately lowered their heads out of view. This justifiably aroused the officers' concern. See Commonwealth v. Sumerlin, 393 Mass. 127, 130 (1984), quoting from Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (officer entitled to consider "the inordinate risk confronting [him] as he approaches a person seated in an automobile"). On arriving at the vehicle, the driver, later identified as Ordaz, reached for the center console. The officers could reasonably interpret this act as possibly an attempt to grab a weapon. See Commonwealth v. Torres, 433 Mass. 669, 674 (2001). In addition, Pereira testified that both men appeared "nervous," with Ordaz moving his hands towards the center console and looking around and backwards. This too supported the officers' apprehension of danger. See Commonwealth v. Horton, 63 Mass. App. Ct. 571, 575-576 (2005) (hand movements, combined with looking side to side in a high crime area at night, justified exit order for officer safety).
Following the frisk, which revealed no weapons on their persons, Buenrostro aroused further suspicion by his strange manner of returning to the car and sitting with his feet on the ground, as if concealing something in the door. It was at that time that Pereira observed the knife within the defendant's reach, ordered him out of the car again, and observed the nine millimeter handgun (which was loaded) in plain view.
Pereira testified that the area in question had not traditionally been a "high crime area," but that he and his partner were patrolling in response to heightened gang activity in the area.
These facts are uncontroverted in the record, yet received little or no treatment by the judge. We include them in our discussion because the judge appears to have implicitly credited those parts of the officer's testimony that he did discuss. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) ("Appellate courts may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony").
Officer Pereira immediately recognized Buenrostro, seated in the passenger seat, as a member of the 18th Street gang, one of the gangs that had allegedly participated in the shooting at this location three weeks earlier. While gang membership does not by itself create a reasonable fear for officer safety, it is certainly a factor that may be considered. See Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010) ("police are not required to blind themselves to the significance of either gang membership or the circumstances in which they encounter gang members, which are all part of the totality of the circumstances they confront and must assess"). As such, the judge erred by not weighing these facts, given that Buenrostro was a member of the same gang involved in the prior shooting, and given that he was in front of the same house as where that shooting took place.
The judge took the view that because Buenrostro and Ordaz were probably not at the house to attack a fellow member of their own gang, the police were not reasonable in fearing that they may have been armed. However, as the Commonwealth noted, the two men could have been at the house to await the appearance of rival gang members. Alternatively, it was plausible that Buenrostro and Ordaz would be armed in an area where a shooting had taken place mere weeks before. In any event, the officers were certainly not required to gamble that the most innocent explanation for the suspicious conduct was the only one. See Commonwealth v. Goewey, 452 Mass. at 407-408; Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 401 (1998).
The judge also characterizes the threshold inquiry between the officers and Buenrostro and Ordaz as "a few routine questions"; this vastly understates the suspicious nature of the encounter which was by that point anything but "routine." In response to the officers' questions as to why the two men were parked there, both gave vague and conflicting answers, with Ordaz even changing his answer after hearing Buenrostro answer the same question differently. Indeed, rather than mitigate the officers' concern for their safety, we think the inconsistent and evasive answers given by Buenrostro and Ordaz, combined with their nervous movements and the other factors present, only heightened it. See Commonwealth v. Watson, 430 Mass. 725, 734 (2000) (implausible answers to police questions supported a finding of probable cause to conduct a search).
The officers acted with restraint throughout the encounter, only escalating their inquiry into a stop when concerns for their safety justified it. The combination of factors present here amply justifies the exit order and frisk of the defendant. Consequently, the motion to suppress should have been denied.
Because we conclude the exit order was properly issued, we not discuss whether the strong odor of unburnt marijuana provided independent grounds to justify the exit order.
Order allowing motion to suppress reversed.
By the Court (Rapoza, C.J., Vuono & Meade, JJ.),
Panelists are listed in order of seniority.
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Clerk Entered: December 22, 2014.