Opinion
14-P-202
05-27-2015
COMMONWEALTH v. AARON POWELL.
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, Aaron Powell, appeals from his convictions of two firearms offenses. He contends that (1) the motion judge erred by denying his motion to suppress the firearm and ammunition obtained during a patfrisk conducted after he was ordered out of a vehicle during a routine traffic stop, and (2) his trial counsel rendered ineffective assistance. We affirm.
1. Motion to suppress. The defendant asserts the motion judge erred in denying his motion to suppress the firearm and ammunition, because the exit order and frisk were not justified by a reasonable concern for officer safety. "To determine whether such a belief [that the safety of the officers or the public is in danger] is reasonable, we ask 'whether a reasonably prudent man in the policeman's position would be warranted' in such a belief." Commonwealth v. Stampley, 437 Mass. 323, 325 (2002), quoting from Commonwealth v. Torres, 433 Mass. 669, 673 (2001). "[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." Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). "[T]he officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Gonsalves, supra at 665 (citation omitted).
As an initial matter, the propriety of the traffic stop itself is not in dispute. The stop was permissible because Officer Gregory McCormick observed the commission of the offense of traveling without a rear license plate light. See Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833 (2001) (initial stop for "traveling without a rear license plate light" was lawful). "Neither does it matter that the defendant was never cited for the civil motor vehicle infraction." Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643 (2001).
Under the criteria of a routine traffic stop, we see no reason to disturb the motion judge's conclusion that a reasonably prudent person in Officer McCormick's position would have been justified in believing that his safety was at risk. The car contained three people, including the defendant, who was a backseat passenger. Officer McCormick observed the defendant "dip down," "bending at the waist as if reaching to the floor." After that motion, the defendant continued to look toward his lap and maintained his left hand on his waist area "as if holding something in place." His hands were also shaking. These movements and furtive gestures led Officer McCormick to the reasonable conclusion that the defendant may have been concealing or retrieving either a weapon or contraband. See Stampley, 437 Mass. at 327 ("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. Sheridan, 470 Mass. 752, 758 (2015) ("rocking back and forth" may be furtive behavior [citation omitted]).
Moreover, the stop occurred late at night and in a high crime area. See Riche, 50 Mass. App. Ct. at 834 ("The conjunction of [other] factors -- and the time being early morning and the location a high crime area -- created a 'reasonable suspicion'" [citation and footnote omitted]). Considering the totality of the circumstances, the evidence in this case supports the required heightened awareness of danger.
2. Ineffective assistance. The defendant raises his claim of ineffective assistance on direct appeal, based solely on the trial record. Such an ineffective assistance claim is in its "weakest form" because "it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). As such, claims of ineffective assistance should normally be raised through a motion for a new trial, where an appropriate factual record can be developed. Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) ("[B]oth this court and the Appeals Court normally do not entertain ineffective assistance claims on direct appeal"). Here, based on the trial record, we conclude that there was nothing manifestly unreasonable about counsel's tactical decisions and that none of the claimed failures by counsel was likely to influence the motion judge's decision. See Zinser, supra; Diaz, supra.
Conclusion. For the reasons articulated above, we find no error in the motion judge's ruling denying the defendant's motion to suppress. We also reject the defendant's ineffective assistance of counsel arguments.
Judgments affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 27, 2015.