Opinion
18-P-1160
01-21-2020
COMMONWEALTH v. Dijoun BEASLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of possession of cocaine with the intent to distribute and acquitted of various firearm violations. The cocaine was seized from the defendant during a patfrisk conducted after a taxicab, in which he was traveling as a passenger, was stopped for a traffic violation. Prior to trial, the defendant filed a motion to suppress a firearm found in the taxicab and the evidence obtained during the patfrisk. After an evidentiary hearing, the motion was denied. On appeal, the defendant claims error in the denial of his motion to suppress, claiming that the traffic stop and the subsequent exit order and patfrisk were unlawful. We affirm.
The jury found the defendant not guilty of three firearm violations: carrying a firearm without a license, possession of ammunition without an FID card, and carrying a loaded firearm without a license.
The defendant also claims that without the evidence seized during the patfrisk the Commonwealth's evidence would not have been sufficient to convict him. Sufficiency is "measured upon that which was admitted in evidence without regard to the propriety of the admission." Commonwealth v. Sepheus, 468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). In any event, given our conclusion that the evidence was admissible, we need not address this argument.
1. Facts. We summarize the motion judge's findings of fact, supplemented where appropriate by uncontroverted testimony from the suppression hearing. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
On December 19, 2015, in the early afternoon, a number of officers from the Boston Police Department were conducting surveillance of a multi-unit home on Norfolk Street in Boston. The officers were attempting to serve an arrest warrant on an individual named Jamari Manning. During the course of the surveillance, one of the officers, Lauren Woods, observed two young men, later identified as the defendant and Tyshawn Cummings, enter and exit the house multiple times. At one point, Officer Woods saw Cummings moving his sweatshirt and adjusting his clothing around his waistband in a manner that suggested he was holding something there. Based on her experience and training, Officer Woods knew that it is common practice for individuals to carry a weapon, like a firearm, in their waistband, and she became concerned that Cummings had a weapon.
Soon thereafter, a taxicab pulled up to the house and picked up the defendant and Cummings. Woods reported her observations to the other members of the surveillance team, three of whom followed the taxicab in an unmarked police cruiser. The officers followed the taxicab for approximately one-half mile and stopped it when they observed it travel above the speed limit. As the officers approached the taxicab, the defendant, who was sitting in the back seat, looked backward and made eye contact with one of the officers, Joseph Connolly. Officer Connolly recognized the defendant. A few years earlier, in 2011, he had arrested the defendant for unlawful possession of a firearm. The defendant then turned back around and "ben[t] over at the waist," moving out of Officer Connolly's line of sight. At this point, Officer Connolly became concerned for his safety, and, based on his training and experience, he believed that the defendant was attempting to conceal a firearm or may have been armed. As a result, he sped up and reached the door of the taxicab quickly. The defendant was still bent over and twisting toward his left, away from the door. Connolly observed the defendant's hands on the floor of the taxicab and, as the defendant straightened up, "within seconds" Connolly saw a gun on the floor by the defendant's left foot. Upon seeing the gun, Connolly opened the door, put his hands on the defendant, and ordered him out of the taxicab. During the ensuing patfrisk the police found $1,123 in cash, a plastic bag containing what turned out to be marijuana, and seven smaller plastic bags containing what was later determined to be crack cocaine. After the defendant and Cummings were arrested, the police spoke to the taxicab driver. He admitted that he had been driving over the speed limit and received a citation for speeding.
The motion judge's findings regarding the speed at which the taxicab was traveling are inconsistent. She credited Officer Connolly's testimony that the taxicab was traveling at least forty-five miles per hour, but also credited the taxicab driver's testimony that he was driving thirty-two to thirty-three miles per hour. However, because the driver acknowledged that he was speeding, the judge's finding that the speed of the taxicab exceeded the posted speed limit was not clearly erroneous.
Although the judge specifically found that Connolly saw the firearm before he opened the car door, Connolly's testimony at the hearing, which the judge credited in its entirety, was that he opened the car door and then saw the firearm. Even if Officer Connolly had not seen the firearm until after he opened the door, his opening the door would have been reasonable and the exit order justified under the circumstances. See Commonwealth v. Widener, 91 Mass. App. Ct. 696, 698-700 (2017) (where officer observed passenger's movements inside vehicle and reasonably feared for safety, officer was justified in opening door and removing passenger from vehicle, resulting in discovery of firearm, as "the level of intrusiveness of police conduct" was proportional to "[t]he degree of suspicion the police reasonably harbor[ed]"). In any event, because it is clear that the exit order was not given until after Officer Connolly saw the gun, the discrepancy is inconsequential.
In denying the motion to suppress, the motion judge concluded that the initial stop of the taxicab was justified because the police had observed a traffic violation. She further concluded that the defendant's conduct before entering the vehicle as reported by Officer Woods and after the vehicle was stopped as observed by Officer Connolly, as well as Officer Connolly's knowledge that the defendant had been previously arrested for possession of a firearm, established a reasonable basis to justify the exit order and patfrisk.
The motion judge also concluded that the stop was justified because the officers had "an honest and reasonable belief that Jamari Manning was in the car." The defendant claims this finding is clearly erroneous. Because we conclude that the police were warranted in stopping the taxicab for a traffic violation, we need not reach the question whether the motion judge's determination that the officers had a reasonable suspicion that Manning was in the car was supported by the evidence.
2. Discussion. When we review an order on a motion to suppress evidence, we accept the motion judge's subsidiary findings of fact absent clear error and review independently her ultimate findings and conclusions of law. Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The questions we address in this case are whether the stop of the taxicab was warranted and whether the police were justified in ordering the defendant out of the taxicab and conducting a patfrisk.
a. The stop. It is well settled that when the police have observed a traffic violation, they are warranted in stopping a vehicle. Commonwealth v. Torres, 433 Mass. 669, 673 (2001). Here, the judge found that the driver of the taxicab was speeding. Thus, the stop of the taxicab was lawful. Furthermore, it matters not, as the defendant suggests, that the officers had a subjective belief that some sort of criminal activity was afoot. "[P]olice conduct is to be judged ‘under a standard of objective reasonableness’ " (citation omitted). Commonwealth v. Santana, 420 Mass. 205, 208 (1995) (rejecting challenge to stop for traffic infraction regardless whether officers subjectively "believed that the defendants were engaging in illegal drug activity").
b. The exit order. "When police are justified in stopping an automobile, they may, for their safety and the safety of the public, order the occupants to exit the automobile," provided that "a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger" (citations omitted). Santana, 420 Mass. at 212-213. We conclude, as did the motion judge, that the circumstances warranted an exit order. When the officers approached the vehicle, Officer Connolly recognized the defendant, whom he knew from having arrested him for possessing a firearm. In addition, after making eye contact with Officer Connolly, the defendant bent forward, out of view, and was twisted to the side with his hands on the floor when Officer Connolly arrived at the car door. This conduct alone would have justified an exit order, see Torres, 433 Mass. at 674-675 (observation, among other suspicious circumstances, that vehicle occupants bent over and appeared to handle something on floor suggested concealing or retrieving weapon and justified reasonable belief that safety of officers and public was in danger), but then Connolly saw a firearm as well. Given the situation, we have no trouble concluding that Connolly had a reasonable belief that his safety and that of the other officers was in danger.
c. The patfrisk. Once the officers reasonably concluded that their safety was at risk and ordered the defendant out of the taxicab, it was proper for them to pat frisk the defendant. Torres, 433 Mass. at 676 ("The standard for a patfrisk is the same as the standard required to justify an order to the occupants of a vehicle stopped for traffic violations to leave the vehicle"). Thus, the cocaine, money, and marijuana seized from the defendant during the patfrisk were admissible at trial.
3. Conclusion. Because the officers observed the taxicab speeding, the stop of the taxicab was justified. Thereafter, the facts known to the officers and the defendant's conduct during the stop gave rise to a reasonable belief that their safety was in danger. Accordingly, the exit order and subsequent patfrisk were lawful. The motion to suppress was properly denied.
Judgment affirmed.