Opinion
19-P-1329
01-19-2021
COMMONWEALTH v. VICTOR T. ELLIS, JR.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of a motion to suppress a statement he made, and a firearm found on his person, during a traffic stop of a car in which he was a passenger. On appeal, the defendant argues that the duration of the stop exceeded constitutional limits and so the evidence thereby obtained must be suppressed. The defendant also argues that the evidence was the fruit of an officer's unlawful exit order to the car's driver, unjustified either by reasonable suspicion of criminal activity or by safety concerns. We affirm.
Background. We summarize the motion judge's pertinent findings of fact, supplementing with additional facts from testimony that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
We allow the parties' joint motion to correct the record to remedy certain errors in the motion hearing transcript.
The traffic stop in question began after Officer Patrick Manolian of the Malden Police Department queried the license plate number of a car and found that it had no valid inspection sticker. Manolian activated his blue lights and the driver pulled the car over immediately. Manolian recognized the driver and believed that he was "affiliated with some gang activity, Maplewood gang." Manolian also was familiar with the passenger in the front seat and the defendant, who was seated in the back, both of whom Manolian knew to be affiliated with the Maplewood gang. Manolian engaged in "casual conversation" with the occupants of the car, lasting "a couple of minutes." Manolian smelled marijuana in the car and saw baggies on the car's floor. Manolian knew that all three occupants were under the age of twenty-one.
Before returning to his cruiser to ascertain the license status of the driver and to conduct a warrant check, Manolian asked and obtained permission to search two unzipped backpacks he observed in the back seat. One of the backpacks contained a Mason jar with "a little weed" inside. When completing the license and warrant check, Manolian learned that the driver had been cited within the preceding month for the lack of inspection sticker and overly tinted windows, incurring at least a $310 fine. Manolian decided to give the driver a warning with respect to those violations, and wanted to do so privately, out of the hearing of the car's other occupants. Manolian thus returned to the car and asked the driver to step out of it to have a one-to-one conversation. After a brief exchange in which the driver questioned why he was being asked to exit, the driver got out of the car.
Manolian then observed the driver adjusting his waistband in such a way that indicated he might have a firearm. This prompted Manolian to pat frisk the driver; he found a firearm on the driver's person. Manolian and other officers who had by then arrived on the scene removed the defendant and the other passenger from the car. Manolian asked the defendant whether he had any weapons on his person, and the defendant answered that he did. Manolian then recovered a firearm from a pocket of the defendant's pants.
The judge denied the defendant's motion to suppress. The defendant entered conditional guilty pleas to both carrying a firearm without a license and carrying a loaded firearm without a license.
The pleas were conditioned on the outcome of this appeal, as then permitted by Commonwealth v. Gomez, 480 Mass. 240, 243-252 (2018). See, now, Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019).
Discussion. We accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 U.S. 280 (1978), and we make an "independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found.'" Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 306 (1986), quoting Brewer v. Williams, 430 U.S. 387, 403 (1977). We are "free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
1. Duration of the traffic stop. Although the defendant concedes the initial validity of the traffic stop, he contends that Manolian unreasonably prolonged it. "In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience" (quotation and citation omitted). Commonwealth v. Cordero, 477 Mass. 237, 243 (2017). "The dispositive issue, therefore, is whether, after [the driver] had complied with the usual requirements associated with a [traffic code] violation, a legally sufficient basis existed, in terms of reasonable suspicion grounded in specific, articulable facts," to extend the interaction. Id., quoting Commonwealth v. Torres, 424 Mass. 153, 158 (1997). Our inquiry is objective, focusing on what an officer reasonably could have believed, rather than on the officer's subjective beliefs or motivations. See Commonwealth v. Buckley, 478 Mass. 861, 865-869 (2018); Commonwealth v. Hason, 387 Mass. 169, 175 (1982). Finally, "[g]eneral questioning unrelated to the reason for a police encounter does not 'convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.'" Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 372 n.13 (2010), quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009).
Here, the stop was briefly extended by Manolian engaging in "casual conversation" with the occupants of the car when he first approached it. Manolian's conduct up to the point of the consensual search of the bags was unremarkable and did not measurably extend the traffic stop beyond what was necessary. Once Manolian had smelled marijuana in the car and found marijuana in a backpack apparently belonging to one of the occupants, he was justified in conducting further investigation, including warrant checks, of the three occupants. See G. L. c. 94G, § 13 (i) (imposing criminal penalties for furnishing marijuana to person under age of twenty-one). Finally, Manolian did not impermissibly prolong the stop when he returned to the car and, rather than issue a citation to the driver, sought to discuss a more lenient disposition. Therefore, the traffic stop did not exceed constitutional limits.
2. The exit order. The defendant challenges the judge's conclusion that Manolian's request to the driver to exit the vehicle was not an exit order. Assuming without deciding that the defendant is correct, exit orders to both the driver and, shortly thereafter, to the defendant himself, were justified by circumstances supporting a reasonable suspicion of criminal activity.
We assume without deciding that the defendant has standing to challenge Manolian's request that the driver exit the vehicle.
An exit order may be justified where there are objective facts supporting a reasonable suspicion of criminal activity separate from the traffic offense. See Commonwealth v. Torres-Pagan, 484 Mass 34, 38 (2020) (exit order justified during traffic stop when police have reasonable suspicion of criminal activity); Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011). Here, there were such objective facts. Due to the presence of marijuana in the car and Manolian's knowledge that the occupants were underage, Manolian had reasonable suspicion of criminal activity -- a violation of G. L. c. 94G, § 13 (i) -- independent of the traffic violation. Notably, that all of the occupants were themselves under the age of twenty-one does not insulate any of them from liability for furnishing to other persons under that age. Cf. Commonwealth v. Kneram, 63 Mass. App. Ct. 371 (2005) (person under age of twenty-one may be convicted of furnishing alcohol to other persons under age of twenty-one). Therefore, the exit orders to the driver and the defendant were justified on reasonable suspicion of criminal activity. Even if Manolian had not found a firearm on the driver's person, it was reasonable to ask the defendant whether he was armed. Once the defendant answered in the affirmative, the patfrisk and the discovery of his firearm were also reasonable. Therefore, the defendant's motion to suppress his statement and the firearm found on him was properly denied.
Although the defendant suggests it was possible that one or more of the car's occupants lawfully possessed the marijuana for medical use, the reasonable suspicion standard does not require an officer to rule out all possible innocent explanations before conducting a threshold inquiry. See Commonwealth v. Deramo, 436 Mass. 40, 44 (2002). Indeed, threshold questioning may help determine whether an innocent explanation exists, and the need for such questioning is sufficient justification for an exit order.
Order denying motion to suppress affirmed.
By the Court (Massing, Sacks & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 19, 2021.