Opinion
No. 16–P–330.
12-28-2016
COMMONWEALTH v. Justin W. BOWERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Justin W. Bowers, was convicted on two firearm charges after a bench trial in the District Court. He argues that the motion judge erred in denying his motion to suppress evidence recovered from a patfrisk and search of his motor vehicle. We affirm.
The defendant was convicted of carrying a firearm without a license, in violation of G.L. c. 269, § 10(a ), and doing so while the firearm was loaded, in violation of G.L.c. 269, § 10(n ). He was charged with other firearm, drug possession, and motor vehicle violations, some of which were dismissed; on others, he was acquitted. He also was found responsible for the civil infraction of speeding.
We recite the relevant facts found by the judge at the motion to suppress hearing. The defendant drove his car on a freeway at more than ninety miles per hour past a State trooper at approximately 4:00 A.M. The trooper pursued the defendant's car, initiating both his siren and lights before the defendant finally stopped in the breakdown lane.
The trooper approached the driver's side of the car where the defendant was sitting. He noticed the defendant's "eyes appeared to be heavy and bloodshot." When the defendant moved to search for the car registration, the trooper observed a tattoo on the driver's right shoulder. The tattoo was shaped like a symbol known to the trooper to be affiliated with a local gang having a reputation for trafficking in drugs and firearms.
The trooper asked the defendant to where he was bound. The defendant replied with a destination that was several exits behind the location of the stop. The trooper inquired about the defendant's alcohol consumption that evening. The defendant replied that he had consumed three drinks. The trooper then asked the defendant to exit the car and conducted a patfrisk.
During the patfrisk, the trooper discovered a .22 caliber firearm in the defendant's back pocket. The trooper asked if the defendant had a license to carry, and the defendant admitted he had none. When asked about the tattoo, the defendant replied that he was Irish and refused to provide further information.
Before trial, the defendant sought to suppress evidence resulting from the exit order and the patfrisk, claiming it was unconstitutional as the trooper had no reasonable articulable safety concern and no reasonable suspicion that there was criminal wrongdoing. The judge denied the motion. "In reviewing a ruling on a motion to suppress, we accept the motion judge's subsidiary findings unless there is clear error, and we give substantial deference to the judge's ultimate findings." Commonwealth v. Davis, 41 Mass.App.Ct. 793, 795 (1996).
We discern no error in the judge's conclusion that the exit order was permissible. The defendant was traveling at a speed of more than thirty miles in excess of the speed limit. He admitted to having consumed three alcoholic drinks and his eyes appeared bloodshot. He was slow to pull over and gave an irrational answer to the inquiry regarding his destination. In these circumstances, the officer had reasonable suspicion that the defendant was operating while under the influence of alcohol. See Commonwealth v. Blais, 428 Mass. 294, 298 (1998).
Continuing to the legality of the patfrisk, we find the defendant's reliance on Commonwealth v. Davis unavailing. In Davis, supra at 796, the court found that "[n]othing about [the defendant's] clothing or movements suggested that she might be armed and dangerous" and that "[the officer] had no knowledge of any facts about the defendant before the frisk that reasonably could have put the officer in fear for her safety."
The tattoo, taken in concert with the defendant's failure to pull over immediately, his admission of alcohol consumption, his illogical response regarding his destination, and the setting of the one-on-one interaction—a highway in the early morning before dawn—warranted the trooper's heightened awareness of danger and justified the patfrisk. A trooper "need point only to some facts or facts in the totality of the circumstances that would create ... a heightened awareness of danger." Commonwealth v. Gonsalves, 429 Mass. 658, 665 (1999).
The record provides evidence of the trooper's training and experience with gangs and gang symbols, and with this particular gang's involvement in drug and firearms trafficking. He was allowed to take into account "his knowledge of the group ... as part of the ‘totality of the circumstances.’ " Commonwealth v. Heon, 44 Mass.App.Ct. 254, 256 (1998) (citation omitted).
In sum, the judge took into consideration the following facts which led to his conclusion that the trooper was reasonably in fear for his safety: the defendant's gang-affiliated tattoo, the time of night, the location of the stop, the defendant's behavior and the fact that the trooper was alone.
The motion judge did not err in denying the defendant's motion to suppress evidence resulting from the patfrisk.
Judgments affirmed.