Opinion
No. 11–P–1639.
2012-10-17
COMMONWEALTH v. Narciso DUARTE.
By the Court (CYPHER, KAFKER & KATZMANN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Narciso Duarte, was convicted of one count of trafficking cocaine in violation of G.L. c. 94C, § 32E( b ). On appeal, he argues that the judge erred in denying his motion to suppress. We affirm.
The facts, as found by the motion judge, were as follows: the defendant was pulled over for not displaying a front license plate, a civil motor vehicle infraction in violation of G.L. c. 90, § 6. As the trooper approached the vehicle, he smelled a strong odor of air freshener. The trooper identified himself and asked the defendant for his operator's license and registration. The trooper then observed that the defendant's hand and forearm were trembling. As they discussed the reason for the stop, the defendant explained that it was his girlfriend's car and he was coming back from New York for her birthday. The trooper then asked how long he had been in New York, and the defendant responded that he had been there more than one week. At that time, the defendant opened the glove compartment and produced his registration. The trooper observed that there were no weapons in the glove compartment. The trooper then repeated the request for the defendant's license, which the defendant provided. The defendant's entire upper body began to shake and his right eye to twitch from nervousness. The license the defendant provided was bent across the photograph, and the person in the photograph appeared much younger and approximately one hundred pounds lighter than the defendant. The trooper inquired whether the defendant had had any problems with his license, or if he ever had appeared in court for criminal charges. The defendant stated that his license was in good standing, and that he never had been arrested. The trooper returned to his car to run the license and registration through the motor vehicle registry and to run a criminal history check. Still unsure that the license belonged to the defendant, the trooper returned to the defendant's vehicle to obtain another form of identification.
When the trooper returned to the vehicle, he noticed the strong odor of new air freshener, and observed two spray bottles of air freshener not present earlier. The trooper asked for an additional form of identification. The defendant then provided the trooper with a receipt with the name “Narciso Duarte” on it. The receipt was dated four days prior to the stop, and placed the defendant in Leominster. This receipt directly contradicted the defendant's statement that he had been in New York for more than one week. After the defendant attempted to explain the inconsistency, the trooper returned to his car to view the results of the records check. He learned that the defendant's license was active and that the defendant had been arraigned on a weapons charge, which was inconsistent with the defendant's statement that he never had been arrested. The trooper returned to the vehicle to ask the defendant about the inconsistency. In response, the defendant indicated that the firearms charge had been dismissed. The trooper then asked the defendant if he had any firearms on his person or in the vehicle and he responded, “No. You can check the car.” After additional questioning raised more concerns, particularly regarding the defendant's attempts to disassociate himself from a suitcase in the back of the vehicle, the trooper reminded the defendant that he previously had stated that he (the trooper) could search the car and specifically asked if he could do so. The defendant responded affirmatively.
The defendant properly concedes that the stop was legitimate due to the missing front license plate. See Commonwealth v. Torres, 424 Mass. 153, 157 (1997). He contends however that the questioning should have stopped and the defendant allowed to leave once he produced his license and registration. We disagree. “[A]nalysis of events in motor vehicle stops is not only fact intensive and time dependent, ... but also interconnected and dynamic: observations made, and events occurring, during the stop often lead to heightened suspicion (justifying further inquiry).” Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 642 (2001). That is exactly what occurred here. By the time the trooper had verified that the defendant had an active license and was the person in the photograph on the license, the trooper (and a second trooper who had arrived on the scene) had reasonable suspicion that criminal activity was afoot. The defendant was unusually nervous to the point of convulsing. See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007). He had sprayed more air freshener into a car that already had a strong odor of air freshener. See Commonwealth v. Watts, 74 Mass.App.Ct. 514, 515 (2009); Commonwealth v. Lawson, 79 Mass.App.Ct. 322, 327 & n. 6 (2011). He had given multiple inconsistent answers, including whether he previously had been arrested. See Commonwealth v. Feyenord, 445 Mass. 72, 78 (2005). In addition, the prior arrest was for a weapons charge. See Commonwealth v. Dasilva, 66 Mass.App.Ct. 556, 561 (2006). At this point, the defendant told the troopers that they could search the automobile, even though they had not yet requested to do so. Although they did not act on this consent immediately, and instead chose to continue questioning, the inconsistent answers that followed led to more suspicion. The further questioning leading up to and including the request to search the automobile was reasonable in light of the troopers' increasing suspicion. See Commonwealth v. Moses, 408 Mass. 136, 141 (1990) ( “The pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances. The degree of intrusiveness that is permitted is that which is ‘proportional to the degree of suspicion that prompted the intrusion” ’), quoting from Commonwealth v. Borges, 395 Mass. 788, 794 (1985). As the continued questioning was justified and the consent to search was freely given on both occasions, the motion to suppress properly was denied.
The defendant does not contend that the consent itself was not freely given or that the search exceeded the scope of the consent. See Florida v. Jimeno, 500 U.S. 248, 251–252 (1991). See also Commonwealth v. Cantalupo, 380 Mass. 173, 178–179 (1980).
Judgment affirmed.