Opinion
18-P-1732
02-03-2020
COMMONWEALTH v. Henry CARIBE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Henry Caribe, was found guilty of trafficking in cocaine. See G. L. c. 94C, § 32E (b ). On appeal, Caribe argues that the motion judge erred in denying his motion to suppress because the exit order and protective sweep of his car were unjustified. We affirm.
The jury also found Caribe guilty of possession of cocaine with intent to distribute, G. L. c. 94C, § 32A (c ), but the trial judge dismissed the charge as duplicative of the trafficking conviction.
Background. We recount the facts as found by the motion judge, supplemented by uncontroverted evidence from the suppression hearing that is consistent with his findings. See Commonwealth v. Alexis, 481 Mass. 91, 93 (2018).
At around 6:45 P.M. on May 19, 2016, three officers of the Boston Police Department's youth violence strike force were patrolling the lower Roxbury section of Boston in an unmarked police cruiser that was nevertheless identifiable as a police car. They were near a housing development on Ruggles Street that had seen a recent "uptick in violence," including at least three reports of shots fired in the prior month.
The officers observed the defendant drive past their car at an excessive rate of speed, cross two lanes of traffic, and come to a stop in a crosswalk, where his car blocked traffic. He was driving a car with Maryland license plates, which suggested to the officers that it was a rental car. The officers knew from their training and experience that rental cars are often (though certainly not always) used during the commission of criminal offenses, because police are unable to run record checks on a rental vehicle's owner.
After the defendant's car stopped in the crosswalk, the officers observed a passenger get out of the car, look at their unmarked car, look into the window at the defendant, and nod in their direction before walking away from the car. The defendant then drove off abruptly and at an excessive rate of speed, crossing in front of traffic so as to force cars behind him to stop. The officers inferred that the passenger had identified the unmarked car as a police car, and informed the defendant.
The officers followed the defendant's car, turning on the siren and lights. The defendant stopped his car near the Carter Playground. The officers got out of the car with their badges and Boston Police Department insignia visible. They approached the defendant's car and asked the defendant, who was then the sole occupant, for his license and registration. The defendant used his left hand to open the car's center console slightly, just wide enough to retrieve his wallet, before quickly closing it. By using his left hand to reach for the center console, his back shielded the console from the officers' view as he opened it. The defendant then retrieved his car rental agreement from the glove box, which he left open.
A driver's license check revealed that the defendant had two prior firearm convictions and an open case charging possession of a dangerous weapon. At that point, the officers ordered the defendant out of the car, pat frisked him, and found a knife that was lawfully owned. The officers then looked into the interior of the car and opened the center console, where they found bags of white powder later determined by the State Police crime laboratory to be cocaine.
Discussion. In reviewing a ruling on a motion to suppress, "we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found" (quotation and citation omitted). Commonwealth v. Buckley, 478 Mass. 861, 864 (2018).
"An exit order is not constitutionally justified based solely on a traffic violation." Commonwealth v. Barreto, 483 Mass. 716, 722 (2019). "Following a routine traffic stop, police may ‘order the driver or the passengers to leave the automobile ... only if they have a reasonable belief that their safety, or the safety of others, is in danger.’ " Commonwealth v. Douglas, 472 Mass. 439, 444 (2015), quoting Commonwealth v. Torres, 433 Mass. 669, 673 (2001). The defendant contends that the judge considered impermissible factors in finding that the officers had a reasonable belief that their safety was in danger.
The defendant does not contest the legality of the stop, which was based on a traffic violation. See Commonwealth v. Barreto, 483 Mass. 716, 722 (2019). The officers had seen the defendant's speeding car cutting across lanes of traffic.
Specifically, the defendant contends that the motion judge improperly considered (1) that the neighborhood was a high crime area; (2) the manner in which the defendant retrieved his wallet; (3) the passenger's nod toward the police; and (4) the defendant's criminal record. We conclude that, in the totality of the circumstances, these factors were properly considered in concluding that the officers had a reasonable belief that their safety was in danger. Douglas, 472 Mass. at 444. We address each of the factors considered by the judge in turn.
The defendant also challenges any consideration of the defendant's nervousness and use of a rental car. Although the judge made factual findings that the defendant was nervous, and that the officers believed that some (but not all) rental cars were used to transport drugs, he did not rely on these facts in making his ruling. Accordingly, we do not address them.
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"The fact that the officers were in a high crime area is unquestionably a factor to consider, albeit with caution; we recognize that so-called high crime areas are inhabited and frequented by many law-abiding citizens who are entitled to be protected against being stopped and frisked just because of the neighborhood where they live, work, or visit." Commonwealth v. Johnson, 454 Mass. 159, 163 (2009). "Although a characterization that an area is one of ‘high crime’ may be relevant ..., the accuracy of the characterization in a particular case depends on specific facts found by the judge that underlie such a determination, rather than on any label that is applied." Commonwealth v. Jones-Pannell, 472 Mass. 429, 434 (2015).
Here, the judge explicitly found that the officers knew of three reports of shots fired at the housing complex in the preceding month, and that there was gang activity at the same location. The location-specific information supported the officers' reasonable belief that being in that particular location placed them at risk. See Johnson, 454 Mass. at 163.
The motion judge also properly considered the manner in which the defendant retrieved his wallet from the center console, i.e., by reaching over with his left hand to shield the console from view and by lifting the console's lid only enough to fit his hand. See Commonwealth v. Almeida, 373 Mass. 266, 272 (1977) (reasonable for police to believe driver posed danger based, among other things, on how he "produced his operator's license ... by lifting the cover of a console on the seat just high enough to get his hand in and remove a wallet .... At one point the defendant twisted to the right in the seat at a time when the policeman could not observe his hands"). "Numerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop." Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (listing cases). Likewise, the judge did not err in concluding that the officers could permissibly infer that the passenger nodded because he had "made" their unmarked car, and that the defendant left at a high rate of speed in order to evade the police. See generally Commonwealth v. Warren, 475 Mass. 530, 539-540 (2016).
The officers gave the exit order immediately after learning that the defendant had two firearm convictions and an open case for possession of a dangerous weapon. The judge did not err in considering the officers' knowledge of the defendant's firearm convictions. Police officers' knowledge that a car contains a "passenger [who] had a history of firearm related offenses" is a factor supporting the reasonableness of the officers' "concern for their own safety". Commonwealth v. Graham, 78 Mass. App. Ct. 127, 128-129 (2010). See Douglas, 472 Mass. at 446.
The defendant also claims that the officers prolonged the stop unnecessarily, citing Commonwealth v. Cordero, 477 Mass. 237, 242 (2017). However, the roadside investigation "reasonably included confirmation of the identity of the driver" and a criminal record check, both of which were performed in Cordero. Id.
Having concluded that, in the totality of the circumstances, the officers had a reasonable basis to fear for their safety, "[i]t is settled ... that, in appropriate circumstances, a Terry type of search may extend into the interior of an automobile so long as it is limited in scope to a protective end." Commonwealth v. Manha, 479 Mass. 44, 49 (2018), quoting Commonwealth v. Silva, 366 Mass. 402, 408 (1974). The sweep here was "confined to the area from which the suspect might gain possession of a weapon, either because he is still within the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry" (quotation and citation omitted). Id. at 50. Safety concerns permitted a search of the console. See Commonwealth v. Manha, supra at 50-51 ("Searchable containers may include glove compartments, consoles, or other receptacles ..." [quotation and citation omitted] ).
Judgment affirmed.