Opinion
16-P-225
03-02-2017
COMMONWEALTH v. Takasha D. DAWSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a hearing, a judge of the District Court allowed the defendant's motion to suppress evidence seized following her arrest. The Commonwealth appeals, arguing that, after the defendant was lawfully stopped for a traffic violation, the arresting officer's observations gave him reasonable suspicion to request assistance from the State Police canine unit. We agree, and reverse.
Background . In his thoughtful memorandum and order, the judge explicitly credited the testimony of the arresting police officer, Brennan Polidoro of the Sheffield police department. Polidoro testified that, on August 12, 2014, the defendant's automobile was traveling south on Route 7 when Polidoro saw it drive slowly along, and then pass over, the white fog line. He stopped the car.
The judge found that "Officer Polidoro [was] a credible witness and [the judge] adopt[ed] his testimony elicited on both direct and cross-examination as [the judge's] findings of fact."
Polidoro checked the defendant's license status and learned that her Connecticut driver's license had been suspended since 2005; he also discovered that the defendant had an extensive criminal record of narcotics offenses. Polidoro requested assistance from the Great Barrington police department and, when back-up arrived, Polidoro asked the defendant to get out of the car ("exit the vehicle"). She did so, and he saw a plastic baggie fall onto the ground; the corners of the baggie had been cut off. The defendant was then arrested for the unlicensed operation of her car; cocaine paraphernalia was found in her bag in a search incident to her arrest.
Polidoro testified that, after he advised the defendant why he had stopped her, and requested her license and registration, the defendant "appeared to be nervous."
Based on his experience, Polidoro believed that a bag with a corner cut off indicated "narcotic use or narcotic distribution," because people so involved "will put a portion of narcotic or drug in a corner of the baggie and will twist it off to use it to distribute or ... for themselves."
Based on these facts, Polidoro requested assistance from the canine unit. Polidoro also spoke with the defendant's two passengers, and determined that neither had a valid driver's license; he decided to have the car towed because he believed it would be unsafe if left unattended on the side of the busy highway.
The two passengers were asked to sit in the rear seat of the Great Barrington police cruiser while they waited for someone to pick them up. This was done for their safety and for the safety of the officers. Polidoro conducted a patfrisk of each woman and discovered additional drug paraphernalia and suspected drugs on the person of the front-seat passenger. She was then arrested. The back-seat passenger was picked up at the scene by a third party.
Thereafter, the canine unit arrived. The dog "sniff[ed]" the exterior and interior of the defendant's car, and the "dog hit on multiple locations" where the police found approximately two grams of what they believed to be crack cocaine. An inventory search of the car was then conducted in accordance with the Sheffield police department motor vehicle inventory policy.
The Sheffield police department inventory policy was admitted in evidence at the hearing. During the search, an empty "secret hiding compartment" located behind the rear passenger seat was discovered; there was nothing in it.
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At the hearing on the defendant's motion to suppress, the judge found that Polidoro had stopped the defendant's car lawfully for a marked lanes violation, and that he had probable cause to arrest her for unlicensed operation of a motor vehicle. The judge also found that Polidoro's decision to impound and tow the car was reasonably based on the inability of either passenger to drive it away from the scene, and that, as a result, he intended to conduct an inventory search of the car in accordance with written department policy. However, the judge also "ruled as a matter of law that the information possessed by Officer Polidoro at the time he requested State Police involvement did not rise to the level of probable cause that the vehicle contained drugs.... [He] found that at most the officer had a hunch that the vehicle might contain drugs."
Discussion . In reviewing a ruling on a motion to suppress evidence seized during a warrantless search, the issue is whether the Commonwealth met its burden to establish that the evidence was lawfully obtained. See Commonwealth v. Olivera , 474 Mass. 10, 13 (2016). "[W]e 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. Baptiste , 65 Mass. App. Ct. 511, 514 (2006), quoting from Commonwealth v. Scott , 440 Mass. 642, 646 (2004). "We are also required to conduct an independent review of the judge's application of constitutional principles to the facts found." Baptiste , supra at 515.
Here, we begin with the principle that reasonable suspicion, not probable cause, is required to support a brief detention while awaiting the arrival of a drug-sniffing dog. See Commonwealth v. Feyenord , 445 Mass. 72, 78-79 (2005), cert. denied, 546 U.S. 1187 (2006). "In Feyenord , the court concluded that, after a motor vehicle stop, detention of the defendant for a brief period in order to bring a drug-sniffing dog to the scene was permissible in light of reasonable suspicion of criminal activity." Commonwealth v. Mateo-German , 453 Mass. 838, 845 n.3 (2009).
Reasonable suspicion exists when, based on specific, articulable facts and inferences reasonably drawn therefrom, considered in light of the officer's experience, the officer has reasonable grounds to suspect "a person is committing, has committed, or is about to commit a crime" (quotation omitted). Commonwealth v. Gomes , 453 Mass. 506, 511 (2009). Reasonable suspicion is measured by an objective standard, Commonwealth v. Mercado , 422 Mass. 367, 369 (1996), and the totality of the facts on which the seizure is based must establish "an individualized suspicion that the person seized is the perpetrator of the suspected crime." Commonwealth v. Warren , 475 Mass. 530, 534 (2016).
In this case, at the time that the canine unit was summoned, the police knew that the defendant had appeared "nervous" when she was stopped for the traffic violation. When she got out of the car, she had dropped a plastic bag whose condition was consistent with illegal drug use. She was under arrest for driving without a license. She had a criminal record for drug crimes and she had in her possession paraphernalia associated with illegal use of cocaine. The front-seat passenger was also under arrest and had in her possession similar paraphernalia that, in the officer's opinion, contained at least a small quantity of cocaine.
These facts provided the officer at least with reasonable suspicion that other illegal drugs were in the car. The facts are similar, if not stronger, than those described and found to be sufficient in Commonwealth v. Wright , 85 Mass. App. Ct. 380 (2014), which we see as controlling. " ‘[K]nowledge of a person's arrest record ... [may] be considered in a reasonable suspicion evaluation.’ [ Commonwealth v. Dasilva , 66 Mass. App. Ct. 556, 561 (2006) ] ... While the reasons the officer gave, taken separately, may have been insufficient to support his reasonable suspicion, see, e.g., Commonwealth v. Cardoso , 46 Mass. App. Ct. 901, 901-902 (1998) (officer may not conduct patfrisk simply because nervous defendant was fidgeting and did not make eye contact), ‘[w]e view the facts and circumstances as a whole in assessing the reasonableness of the officer['s] conduct.’ Commonwealth v. Williams , 422 Mass. 111, 116 (1996). Given the occupants' past narcotics convictions, the strong odor of air freshener, and being in a leased vehicle registered in a State where neither occupant resided, [the officer] was entitled to expand the scope of his investigation. See Commonwealth v. Fraser , 410 Mass. 541, 545 (1991) (‘[A] combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief’)." Wright , supra at 383-384.
In addition, the cases addressing this issue for the most part have centered on whether it was reasonable to detain a driver and/or the driver's passengers who were not under arrest while waiting for the dog. Here, as the judge found, the driver properly was under arrest, as was one passenger; the third passenger was permitted to leave without incident; and a decision properly had been made to tow the car.
Once the dog alerted on various areas of the car, there clearly was probable cause to search the car and the inventory search became irrelevant. See id . at 385 ("[O]nce Dash indicated the presence of drugs, the troopers had probable cause to search the vehicle"). No warrant was required, pursuant to the automobile exception to the warrant requirement. See Commonwealth v. Hernandez , 473 Mass. 379, 383 (2015), quoting from Commonwealth v. Johnson , 461 Mass. 44, 49 (2011) ("Under the automobile exception to the warrant requirement, the search of a motor vehicle is reasonable and permissible where probable cause exists to support the search").
The defendant's motion to suppress should have been denied.
Order allowing motion to suppress reversed .