Opinion
14-P-3
04-17-2015
COMMONWEALTH v. ZAUL PEREZ.
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
A grand jury indicted the defendant for trafficking in heroin, G. L. c. 94C, § 32E(c), and a school zone violation, G. L. c. 94C, § 32J. He filed a motion to suppress the heroin (and other evidence) claiming that it was discovered and seized during an unlawful search. After an evidentiary hearing, a judge of the Superior Court allowed the motion. The Commonwealth petitioned a single justice of the Supreme Judicial Court for an interlocutory appeal. The petition was granted and the case was entered in our court. We reverse the order allowing the motion to suppress and remand the case for further proceedings.
Background. We summarize the findings of the motion judge. On February 27, 2011, at about 5:45 P.M., Trooper Joseph Gray was on routine patrol in the area of Edward Everett Square in Dorchester when he stopped at a traffic light and checked the license plate number of the vehicle in front of him. Upon learning that the license plate did not match the car, which raised a question about whether the car was registered, Trooper Gray signaled to the vehicle to pull over. The driver complied immediately. Trooper Gray approached the driver's side door and observed two persons: the driver, and the defendant, who was sitting in the front passenger seat. Upon the trooper's request, the driver produced a valid driver's license, but he did not have the vehicle's registration. The driver attempted to explain that the vehicle had been purchased recently and produced a bill of sale showing that the car had been bought six days earlier by Ana Rodriguez, whom he initially identified as his wife. When pressed by the trooper, the driver clarified that he and Rodriguez were not officially married but had lived together for many years and he considered her to be his wife. The driver spoke to the trooper in English although his native language is Spanish.
There were material discrepancies in the testimony provided by the witnesses at the hearing. The judge noted that she included only those facts which she found "to be supported by credible testimony." She further observed that [o]missions in [her] findings are therefore intentional."
Meanwhile, Trooper Gray asked the defendant for his name, which he provided. The defendant's native language also is Spanish and, in response to Trooper Gray's question, he stated that he spoke English "a little bit." Trooper Gray noticed that the defendant appeared nervous and had his hands in his pockets. He told the defendant to take his hands out of his pockets. The defendant initially complied, but then placed his hands back into his pockets. Trooper Gray went to the passenger's side door, ordered the defendant to exit and to step to the rear of the vehicle where he conducted a patfrisk. When Trooper Gray touched the front pocket of the defendant's jacket, the defendant "tensed up." Trooper Gray felt a hard object and removed a plastic bag containing a brownish substance. As Trooper Gray removed the bag, the defendant stated that it was "only coke," but Trooper Gray believed the substance to be heroin. Both the defendant and the driver were arrested and the vehicle was towed.
The charges against the driver were not pursued.
The judge ruled that the initial stop of the vehicle was lawful, but concluded that suppression of the heroin found in the defendant's pocket was warranted because Trooper Gray did not have adequate justification to order the defendant out of the vehicle or to conduct a patfrisk. Based on her understanding of the motor vehicle registration statute, G. L. c. 90, § 2, the judge determined that because the driver was stopped within the grace period extended to new owners allowing them to drive a car with only a bill of sale, there was no basis for towing the car for appearing to be unregistered or uninsured. Having no legitimate reason to tow the car, the judge reasoned, Trooper Gray could not justify ordering the defendant (or the driver) out of the vehicle. The judge also found that Trooper Gray had no reasonable suspicion that the defendant had committed or was committing a crime, or that he was armed and dangerous. The judge noted that the defendant did not make any threatening gestures and that Trooper Gray did not observe any bulges in the defendant's clothing that would have suggested the defendant was armed. Finally, the judge concluded that "[a]lthough the defendant did put his hands back into his pockets after removing them at Gray's order, this behavior could easily be explained by a language barrier," and "does not provide an objective basis, without more, for the search of the defendant's person."
Given the judge's conclusion, she did not make any findings or rulings of law on the question whether Trooper Gray exceeded the scope of the patfrisk when he seized the heroin from the pocket of the defendant's jacket. See Commonwealth v. Wilson, 441 Mass. 390, 398 (2004). Nor did the judge address the defendant's assertion that his statements to the police and the additional heroin found on his person during the booking procedure should be suppressed -- other than noting that all evidence obtained was fruit of the poisonous tree. These issues should be addressed on remand.
Discussion. In reviewing a motion to suppress, this court accepts the motion judge's findings of fact absent clear error, but independently reviews the judge's legal conclusions. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The Commonwealth argues that two of the judge's findings that were central to her conclusions of law were unsupported by the evidence and, as a result, were clearly erroneous. First, the Commonwealth asserts that there was no evidence that the car was lawfully registered or insured; and second, the Commonwealth claims that the judge improperly found that the driver of the vehicle could permissibly drive the car with only a bill of sale because of the "grace period" set forth in G. L. c. 90, § 2. These "clearly erroneous" facts, the Commonwealth claims, led to an improper conclusion, namely that there was no basis for towing the vehicle and, therefore, no legitimate reason to order the defendant out of the car in connection with a tow.
We agree with the Commonwealth's reading of the motor vehicle registration statute, G. L. c. 90, § 2, and conclude that the judge erred in finding that the driver could permissibly drive the car with only a bill of sale. As the Commonwealth notes, to benefit from the grace period established by the statute a driver must carry either a bill of sale "reciting the registration number to be transferred" or a certificate of transfer approved by the registrar. Ibid., as appearing in St. 1998, c. 155. The judge made no finding regarding whether the bill of sale presented by the driver in this case met these criteria and, in turn, could be a valid substitute for the certificate of registration. Having made no such finding, it was improper for the judge to conclude that the vehicle was lawfully registered such that it could not be towed and its occupants could not be ordered out of the vehicle as preparatory to the tow. See Commonwealth v. Pacheco, 51 Mass. App. Ct. 736, 740 (2001), quoting from Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833-834 (2001) (exit order proper upon "tender of a registration not crediting ownership of the vehicle to any occupant").
We reject the defendant's claim that the Commonwealth is responsible for the absence of such evidence. Clearly, the judge credited the driver's testimony that he produced a bill of sale, but there was no finding that the trooper confiscated what was provided to him nor was there testimony about the information contained within the document itself such that the judge could determine whether the requirements of the statute were satisfied. Furthermore, it is apparent that the defendant had copies of the documents as they were marked for identification at the hearing.
Additionally, we disagree with the conclusion of the motion judge that the circumstances presented did not pose a safety risk that justified the exit order and the patfrisk. "Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, 'a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle.' Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). However, '[w]hile a mere hunch is not enough . . . it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order.' Id. at 664." Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005), cert. denied, 546 U.S. 1187 (2006). To determine whether it is reasonable for an officer to believe that danger is present, we consider "whether a reasonably prudent man in the policeman's position would be warranted" in such a belief. Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997), quoting from Commonwealth v. Santana, 420 Mass. 205, 212-213 (1995).
Here, although the stop and inquiry of the driver began uneventfully, the driver had trouble explaining his relationship to the person (Ana Rodriguez) listed on the bill of sale and did not produce a valid registration. While this factor alone was not sufficient to create any suspicion of danger, it contributed to reasonable suspicion when considered in the totality of the circumstances of the encounter. At the same time, the defendant appeared nervous for no apparent reason as the stop involved only the driver of the car. The defendant then failed to completely obey the trooper's demand to remove his hands from his pockets. As the judge found, the defendant initially removed his hands and then put them back in his pockets. It matters not, as the judge observed, that one likely reason for the defendant's behavior is that he did not understand Trooper Gray. The question is not whether the defendant could reasonably have believed he was permitted to return his hands to his pockets, but whether Trooper Gray could reasonably have believed the defendant's actions in doing so posed a risk of danger. Commonwealth v. Nunez, 70 Mass. App. Ct. 752, 756 n.7 (2007). Furthermore, although the judge was skeptical that Trooper Gray was concerned for his safety given that he did not call for back up, the fact that he was alone is an additional factor which legitimately contributed to a heightened concern. See Commonwealth v. Feyenord, supra at 76; Commonwealth v. Brown, 75 Mass. App. Ct. 528, 538 (2009).
Conclusion. The order allowing the motion to suppress is reversed and the case is remanded for further proceedings.
So ordered.
By the Court (Rapoza, C.J., Vuono & Meade, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: April 17, 2015.