Opinion
No. 15–P–721.
06-23-2016
COMMONWEALTH v. Peter DeAmelio.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an evidentiary hearing, a District Court judge denied the defendant's motion to suppress evidence resulting from a motor vehicle stop and search of the defendant's person and vehicle. The defendant sought and obtained permission to file this interlocutory appeal, in which he claims that the judge erred because the trooper: (1) did not possess specific and articulable facts that the defendant was armed and presently dangerous to support a patfrisk of the defendant's person; (2) exceeded the permissible scope of a Terry -type search; and (3) did not possess probable cause justifying a further search of the defendant after finding less than one ounce of marijuana on the defendant's person. For the following reasons, we vacate the order and remand for further findings.
See Terry v. Ohio, 392 U.S. 1 (1968).
1. Facts and procedural background. On March 4, 2014, Trooper Danab Shea pulled over the defendant, and issued him a citation for possession of a class B substance, in violation of G.L. c. 94C, § 34. The defendant filed a motion to suppress evidence, and the judge held an evidentiary hearing at which the trooper testified as the sole witness. At the hearing, the defendant submitted a memorandum of law in support of his motion to suppress, and the judge took the matter under advisement. Later that day, the judge denied the defendant's motion, denoting his rationale in shorthand margin notations. The defendant subsequently requested, and the judge issued, written findings of fact and rulings of law pursuant to Mass.R.Crim.P. 15(b)(2), as appearing in 422 Mass. 1501 (1996). In the written decision, the judge found:
The handwritten margin notations read, as best we can discern, as follows: “[V]alid traffic stop”; “Pls exit order FST”; Pat/Frisk valid P/O safety”; “Found w/3 packets”; and “CLB chest pocket.”
“On March 4, 2014 at approximately 3:10 p.m., Trooper Danab Shea was on routine patrol in Revere, Massachusetts. Trooper Shea observed the Defendant operating a green Mazda sedan (registration [number] ). At the time Trooper Shea observed the Defendant's vehicle, it was stopped in the middle of Beach Road. Trooper Shea saw the Defendant's head bent forward. The Defendant then raised his head and looked up. Trooper Shea then observed the motor vehicle pull out onto Route 107 where it proceeded through a posted stop sign. Trooper Shea then conducted a motor vehicle stop.
“As Trooper Shea approached the motor vehicle to ask the Defendant for his license and registration, the Trooper noticed the Defendant appeared nervous and looked worried. The Trooper also observed a backpack in the front passenger seat of the motor vehicle. The Trooper observed multiple prescription bottles inside the outer pocket of the backpack.
“While speaking with the Defendant, the Trooper noticed the Defendant's eyes were bloodshot and glassy and his pupils were constricted. The Trooper asked the Defendant to exit the vehicle to perform field sobriety tests. Prior to conducting the tests, the Trooper searched the Defendant for safety purposes. The Trooper found no weapons, but found three small plastic baggies inside the chest pocket of the Defendant. The baggies appeared to contain crack cocaine. The Trooper also found a small plastic bag containing marijuana. Following the search, the Defendant admitted to having a crack pipe in the motor vehicle. The Trooper searched the motor vehicle and found the crack pipe under the driver's seat. The Trooper performed three field sobriety tests. The Defendant passed the tests. The Trooper gave the Defendant a citation and a summons to appear in court.”
In denying the motion to suppress, the judge ruled that “[t]he exit order is allowed as the Trooper perceived that his safety and that of the public was in jeopardy once the Trooper noticed that the Defendant's eyes were glassy and bloodshot and his pupils constricted as well as the multiple prescription bottles”; and “a reasonable prudent individual in the Trooper's position would have believed, that the Defendant could have posed a danger to the safety of the public had he been allowed to drive following the traffic stop.”
Notably, the judge's memorandum of decision framed the issue presented as “[w]hether the exit order was unconstitutional,” and did not specifically address the constitutional violations alleged to have occurred after the exit order. Two months later, at a subsequent hearing, the defendant requested that the judge review his decision and make additional findings pertaining to the other alleged constitutional violations. Upon reviewing his findings, the judge indicated in open court that he was satisfied with the findings and rulings he had made. Thereafter, the defendant requested leave to file an interlocutory appeal, which was granted by a single justice of the Supreme Judicial Court on March 30, 2015. This appeal followed.
Namely, whether: (1) the trooper possessed specific and articulable facts to justify a patfrisk; (2) the trooper exceeded the permissible scope of a Terry -type search by allegedly reaching into the defendant's pocket and conducting a full-blown search; and (3) the defendant's subsequent statements should be suppressed and the search of the vehicle was constitutionally justified.
2. Discussion. “In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing.” Commonwealth v. Wilson, 441 Mass. 390, 393 (2004), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). “We review independently the application of constitutional principles to the facts found.” Wilson, supra, citing Commonwealth v. Eckert, 431 Mass. 591, 593 (2000).
The defendant's argument, at its essence, is that the judge did not properly address the constitutional violations alleged to have occurred after the exit order. We agree. “[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns,” provided “the intrusiveness of the officer's conduct [is] ‘proportional to the degree of suspicion that prompted it.’ “ Commonwealth v. Daniel, 464 Mass. 746, 752 (2013) (citations omitted). However, alleged constitutional violations arising from the patfrisk or the subsequent searches of the defendant's person and vehicle may give independent justification to suppress evidence obtained as a result of the stop and exit order, and the judge's rulings of law do not reflect an analysis of those subsequent issues.
At the suppression hearing, the defendant effectively conceded that the exit order was valid.
We recognize that the judge's initial margin order denying the motion to suppress notes, in relevant part, “Pat/Frisk valid P/O safety,” and that the judge's written decision states that “[p]rior to conducting the [field sobriety] tests, the Trooper searched the Defendant for safety purposes.” The judge's findings of fact and rulings of law, however, do not delineate facts that explain how or why the patfrisk and the subsequent search were justified. The judge declined the defendant's appropriate request to make additional findings.
We thus consider whether sufficient facts were found to allow us to address the outstanding constitutional violations. We answer in the negative. The judge's findings state: the trooper observed erratic driving; the defendant's eyes were bloodshot and glassy, and his pupils were constricted; the defendant appeared nervous and looked worried; and the trooper observed prescription pill bottles in a backpack on the front passenger seat. The judge's written analysis further states that a “reasonable prudent person in the position of the Trooper would believe that the Trooper's safety and that of the public was in danger due to the Defendant's actions. Thus, implementing an exit order is permissible.” Such findings, standing alone, do not “establish a reasonable belief that the defendant was armed and dangerous and presented a threat to the officer or others” so as to justify a patfrisk. Wilson, supra at 394–395.
The judge also noted that the defendant “could have posed a danger to the safety of the public had he been allowed to drive following the traffic stop,” but did not address how that concern justified the patfrisk and the subsequent searches.
While the Commonwealth argues that we should look beyond the judge's findings to the uncontroverted testimony of the trooper, we decline to do so. It is clear that there are “gaps in the facts [that] are material” to the unaddressed constitutional violations. Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007). The judge neither implicitly credited nor discredited the pertinent portions of the trooper's testimony that would allow us to supplement the judge's findings in order to analyze those unaddressed constitutional violations. See Commonwealth v. Jones–Pannell, 472 Mass. 429, 437 (2015) (“In the absence of findings on a critical issue, however, or where the facts as found are ‘susceptible of more than one interpretation,’ and there is additional evidence in the record, neither implicitly credited nor discredited by the judge, remand may be appropriate” [citation omitted] ).
For instance, during the evidentiary hearing, the trooper testified that the defendant appeared nervous when stopped, and after exiting the car put his hands in his pockets. After the defendant took his hands out of his pockets in response to the trooper's request, the trooper “did a check of [the defendant's] person for [the trooper's] safety at that point. [The trooper] located what appeared to be two bags of marijuana in [the defendant's] front right pocket and three clear plastic bags of a hard white substance in his shirt or jacket pocket which appeared to be crack cocaine.” However, only when probed on cross-examination about what specific facts caused the trooper to fear for his safety did he make any mention of his purported concern that the defendant was armed with a hypodermic needle or any other weapon. The judge's findings reference neither the defendant's hands in his pockets nor the trooper's stated concern that the defendant possessed a hypodermic needle. Absent findings on these points and others, we cannot determine, on this record, whether the facts “establish[ed] a reasonable belief that the defendant was armed and dangerous and presented a threat to the [trooper] or others.” Wilson, 441 Mass. at 394395. Likewise, the trooper testified that the bags of marijuana “could be consistent with distribution,” but the judge did not explain whether he credited that testimony, or whether the trooper's discovery of the marijuana justified a further search. Compare Commonwealth v. Meneide, 89 Mass.App.Ct. 448, 452–455 (2016) (safety concerns justified exit order from automobile and patfrisk of driver, but once patfrisk resulted in discovery of only noncriminal amount of marijuana, safety concerns did not justify searching backseat armrest of automobile). The judge's findings of fact also do not address the trooper's basis for escalating the patfrisk of the exterior of the defendant's clothing to a search of the inside of his pants and chest pockets. Nor do the findings of fact address whether the defendant's subsequent statements and the search of the vehicle were tainted by the preceding constitutional violations.
While the defendant argues that the judge's findings provide sufficient foundation upon which we could rule in his favor, we heed to “our long-standing jurisprudence [which] makes plain, in no event is it proper for an appellate court to engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony.” Id. at 438. Accordingly, as we find the judge's factual findings insufficient to address all of the constitutional violations raised below, and we decline to supplant the judge's discretion to assess witness credibility by finding facts on our own, we must vacate the order.
In an attempt to avoid this conclusion, the Commonwealth argues that the judge was correct to deny the defendant's motion to suppress because, at the moment of the exit order, the trooper possessed probable cause to arrest the defendant for operating while under the influence of narcotics. Here, again, absent findings from the judge, we are unable to discern whether the combination of facts purportedly indicating intoxication established probable cause. Contrast Commonwealth v. Johnson, 461 Mass. 44, 50 (2011) ; Commonwealth v. Jewett, 471 Mass. 624, 629 n. 4 (2015).
3. Conclusion. The order denying the motion to suppress is vacated. The matter is remanded to the District Court for the judge to make further findings of fact and rulings of law. The judge shall address whether: (1) specific and articulable facts justified a patfrisk of the defendant's person; (2) the trooper exceeded the permissible scope of a Terry search; and (3) the defendant's subsequent statements should be suppressed and the search of the vehicle was constitutionally justified. The judge's findings shall specify the factual and legal bases for each of these determinations. On remand, the judge may also conduct further proceedings consistent with this memorandum and order.
So ordered.