Opinion
13-P-1662
06-25-2015
COMMONWEALTH v. MARK MORIARTY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant brings an interlocutory appeal from the denial of his motion to suppress. He was indicted for an armed robbery in the early morning of April 13, 2012, of a Honey Farms convenience store in Worcester. That night, two State police officers -- Troopers Phillip Giardino and Eric Perez -- were coincidentally driving a few blocks from the Honey Farms store in a marked cruiser and observed a Chevy Avalanche sport utility vehicle (SUV) with two white male passengers. One wore a baseball hat and moved about in the SUV in a manner consistent with someone that had just entered the SUV. Shortly thereafter, the officers received a police radio broadcast reporting a robbery at the Honey Farms store and described the suspect as a white male on foot wearing a hat. After searching Worcester for twenty-one minutes, the troopers came across the SUV they had previously seen in the vicinity of the Honey Farms. It was parked at a gasoline station. The troopers blocked the SUV. The troopers approached the SUV and ordered the defendant, who was in the driver's seat, and his codefendant, who was in the passenger seat, out of the SUV. They patfrisked both men and placed them in handcuffs, while they searched the SUV. Inside, they found, among other things, a baseball hat and a firearm. Only one trooper, Giardino, testified at the suppression hearing.
A single justice of the Supreme Judicial Court allowed the defendant's request for leave to pursue an interlocutory appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996).
The defendant raises three arguments. He asserts the radio broadcast was not sufficiently reliable, the troopers lacked reasonable suspicion to seize the SUV, and lastly, the troopers lacked justification to search the SUV. "In reviewing a ruling on a motion to suppress, we 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. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We affirm.
Reliability of radio call. The defendant raised this argument for the first time on appeal; it was not presented to the motion judge. Therefore, it is waived, and we do not consider it on appeal. See Commonwealth v. Hilton, 443 Mass. 597, 618 n.12 (2005); Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006). Moreover, even were we to consider the defendant's claim, we would not be persuaded because, as we explain infra, the trooper's independent observations provided sufficient corroboration of the contents of the anonymous call to establish a reasonable suspicion that the occupants of the automobile had been involved in the robbery.
Reasonable suspicion to stop. "An investigatory stop of a motor vehicle is justified when the police have a reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that a vehicle occupant had committed, was committing, or was about to commit a crime." Commonwealth v. White, 74 Mass. App. Ct. 342, 345 (2009) (quotation marks and citation omitted).
The motion judge made detailed and well-reasoned findings, which we conclude are not erroneous. Shortly before receiving the report of an armed robbery at the Honey Farms, the troopers had observed a white man wearing a hat moving about in a vehicle in a manner consistent with someone that had just gotten into the SUV. They then received the broadcast of the armed robbery, which described a white man on foot wearing a hat.
The trooper scoured the surrounding area for twenty minutes and saw no one on foot, but located the SUV with the white male wearing a hat who had been seen in the vicinity of the Honey Farms just moments before the robbery broadcast. Although the broadcast was for a man on foot, the judge found that the trooper, who had been patrolling the area on foot, observed no one on foot. Thus, it was reasonable for the trooper to believe that the suspect was joined by a getaway driver. The judge credited the testimony that when the trooper had observed the SUV the first time, the man with the hat moved about in a manner consistent with an individual who had just entered the SUV. Adding to the trooper's reasonable suspicion when he saw the SUV the second time, the passenger had removed his hat and slumped over in the SUV, as if to avoid detection. While these facts and inferences are not conclusive that the passenger had committed the robbery, they provide, as the motion judge noted, a reasonable basis to justify the stop of the SUV and the investigation of its passengers in connection with a possible armed robbery. See, e.g., ibid. Cf. Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 645-646 (2011).
Search of the SUV. The defendant further asserts that, even assuming the stop was justified, the police impermissibly removed the defendants from the car and unjustifiably searched the SUV. We disagree.
"[I]n appropriate circumstances a Terry type search may extend into the interior of an automobile." Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 410-411 (2014), quoting from Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). The search "is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Douglas, supra at 411, quoting from Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quotation marks omitted). The search of the vehicle's interior is also permissible where there is a "concern that a driver or passenger returning to the vehicle [after being released] may gain access to a weapon." Douglas, supra. See Commonwealth v. Myers, 82 Mass. App. Ct. 172, 177-178 (2012).
The troopers justifiably stopped the SUV in connection with an armed robbery investigation; the crime they investigated necessarily involved the use of a dangerous weapon. G. L. c. 265, § 17. The very nature of the investigation gave rise to the trooper's heightened concern for his safety and justified the exit order, patfrisk, and search of the SUV. White, supra at 346; Myers, supra at 176-177.
Order denying motion to suppress affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 25, 2015.