Opinion
16-P-531
06-28-2017
COMMONWEALTH v. Jonathan SELDEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Jonathan Selden, was convicted of possession of a firearm without a license and possession of ammunition without a firearm identification card. On appeal, he contends that the judge erred in denying his motion to suppress. We affirm.
Background. Before trial, the defendant moved to suppress all evidence obtained as a result of the stop and search of the rental vehicle he was operating. The motion judge conducted an evidentiary hearing spanning several days. His findings included the following.
In May, 2013, Dartmouth Detective Keith DaCosta was told by a reliable confidential informant that an individual described as a black, bald male with a full beard was coming from Pennsylvania to Maxfield Street in New Bedford to conduct narcotics transactions. On July 18, 2013, the same informant notified Detective DaCosta that the individual was now at 546 Maxfield Street.
The judge's findings of fact state that on "July 13, 2013" the informant notified Detective DaCosta that the described individual was at 546 Maxfield Street in New Bedford. Detective DaCosta testified however, that he received this notification on July 18, 2013. The judge's mischaracterization is not material to our analysis.
That same day, Detective DaCosta set up surveillance outside 546 Maxfield Street. He observed a pickup truck bearing a Pennsylvania license plate registered to Enterprise Rentals. DaCosta associated the use of a rental car with efforts to conceal a drug dealer's identity. Using binoculars, he observed people arrive at 546 Maxfield for short meetings with an individual who matched the description given by the informant and who was later identified as the defendant. DaCosta associated the short meetings with drug transactions. DaCosta also observed the defendant interact with other people, including a man "known by the police to be involved with drugs and firearms," and drive to various locations for short visits.
1. The stop. At 8:30 P.M. , Detective DaCosta observed the defendant leave 546 Maxfield Street carrying a plastic bag "whose shape had assumed a rectangular form apparently because of the shape of the item inside the bag." DaCosta saw the defendant open the hood of the rental car and reach under it. Detective DaCosta reported his observations to Trooper Mark Lavoie, who, along with other members of law enforcement, assisted DaCosta in the investigation. The defendant then drove to Route 140 North, and then onto Route 195 heading west. Trooper Lavoie observed the rental truck traveling at approximately eighty miles per hour. He relayed his observations to Sergeant Michael Smith of the Massachusetts State Police, who conducted a stop of the motor vehicle.
2. The exit order. Sergeant Smith approached the vehicle and observed two passengers in addition to the defendant. The defendant produced his license and an Enterprise rental slip, issued the previous day at approximately 6:00 P.M. , listing him as an eligible operator. Sergeant Smith asked the defendant where he had been and asked the passengers the same. Not satisfied with the vague responses, Smith ordered the defendant out of the vehicle so as to have a conversation outside the other passengers' hearing. The defendant's explanation of where he had been and what he had been doing did not match those offered by the passengers, and his timeline did not match the Enterprise rental slip.
3. The search. Detective DaCosta shared with other officers his observations of the defendant manipulating an area underneath the hood of the rental truck under the driver's side. Based on this information, their own observations, and the collective information known to the officers, Sergeant Smith and Trooper Lavoie checked under the hood of the truck. Therein, Lavoie located a firearm and "magazines." Officers also found a black bag containing in excess of $25,000 in a storage drawer underneath the radio of the rental truck.
Discussion. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error. The weight and credibility to be given oral testimony is for the judge.... However, we review independently the motion judge's application of constitutional principles to the facts found." Commonwealth v. Franklin, 456 Mass. 818, 820 (2010).
The defendant argues that his motion to suppress should have been allowed because (1) the stop of the motor vehicle was not based on reasonable suspicion; (2) the exit order exceeded the bounds of a valid Terry-type stop; and (3) the police did not have probable cause to search the truck. The claims are unavailing.
Terry v. Ohio, 392 U.S. 1 (1968).
As to the stop, the defendant concedes that the evidence presented at the motion hearing satisfied the reliability prong of the familiar Aguilar-Spinelli test, but contends that it fell short on the basis of knowledge prong. We disagree, and hold that the judge properly concluded that the police had reasonable suspicion to stop the motor vehicle. The evidence supported the judge's ruling that the police had at least reasonable suspicion to believe that the defendant had deposited narcotics or other contraband under the hood of the truck. This evidence included the information received from the confidential informant, which was corroborated by the presence of the defendant at 546 Maxfield Street; the presence of the rental vehicle with a Pennsylvania license plate; and the officers' observations of the defendant using the truck in activities consistent with drug transactions, placing the plastic bag under the hood of the truck, and conducting short "meetings" with various individuals, including one known for his gun and drug-related activity. See Commonwealth v. Gonzales, 90 Mass. App. Ct. 100, 103-104 (2016) (independent police corroboration of informant information sufficient to satisfy basis of knowledge prong). In view of the totality of information known to the officers engaged in the cooperative investigation, Commonwealth v. Mendes, 46 Mass. App. Ct. 581, 589 (1999), the police had at least reasonable suspicion to stop the truck. See Commonwealth v. Perez, 80 Mass. App. Ct. 271, 274-275 (2011).
Aguilar v. Texas, 378 U.S. 108 (1964). Spinelli v. United States, 393 U.S. 108 (1964).
The stop of the truck was also justified by Trooper Lavoie's observation of the truck traveling at approximately eighty miles per hour in a sixty-five mile per hour zone.
We further hold that the exit order and questions to the occupants of the truck were a reasonable means to investigate and "proportional to the suspicion that prompted the intrusion." Commonwealth v. Bostock, 450 Mass. 616, 622 (2008). See Commonwealth v. Riche, 50 Mass. App. Ct. 830, 834 (2001). While motorists generally have an expectation that police will conduct routine traffic stops with "minimal intrusion," this was not a routine stop and "[a] reasonable suspicion of criminal activity is justification to act in a more intrusive manner." Bostock, supra at 620-621.
We disagree with the defendant's reading of Bostock, supra. The language of Bostock instructs that to be constitutional, an officer's intrusion must merely be proportional to the degree of suspicion prompting the intrusion; it is not limited to the circumstances iterated by the defendant. See Bostock, supra at 619-622 (observing that the holding in Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 [1999], "was expressly limited to routine traffic stops").
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Finally, we have little difficulty affirming the judge's conclusion that the officers "collectively held information, that now contained knowledge of the occupants['] lies [which] provide[d] probable cause to believe that the vehicle contained narcotics, evidence of narcotic transactions and accessories for narcotic transactions." See Mendes, supra. We are not persuaded by the defendant's claim that the Commonwealth's failure to elicit testimony that "the black bag was indicative of packaging of narcotics" rendered the evidence speculative. While it was possible that the defendant opened the hood of the rental truck to check the oil or for some other reason, the totality of his actions and the officers' observations demonstrated the strong probability that he opened the hood to hide therein the plastic bag, which likely contained contraband. See Commonwealth v. Watson, 430 Mass. 725, 733-734 (2000).
Judgments affirmed.