Opinion
16-P-470
07-12-2017
COMMONWEALTH v. Miguel HERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress evidence resulting from a motor vehicle stop and subsequent search of the defendant's person and the vehicle. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to file this interlocutory appeal. The sole issue is whether the judge erred in determining that the State troopers lacked reasonable suspicion to extend the motor vehicle stop and conduct the search. We affirm.
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).
1. The stop. While conducting routine traffic enforcement, Sergeant Brendhan Shugrue of the Massachusetts State Police observed a green Kia sport utility vehicle (SUV). After checking the license plate number and learning that the driver's license of one of the two registered owners of the vehicle was suspended, he proceeded to stop the vehicle.
We are not persuaded by the defendant's argument that because only one of the two registered owners had a suspended license, the stop was premised on a hunch and therefore was per se unreasonable. "While it is certainly possible that someone other than a vehicle's registered owner may be operating the vehicle on any given occasion, the likelihood that the operator is the owner is strong enough to satisfy the reasonable suspicion standard." Commonwealth v. Deramo, 436 Mass. 40, 43-44 (2002). See Commonwealth v. Garden, 451 Mass. 43, 46 (2008). We conclude that the initial stop was proper because, based on the information known to him at the time, Sergeant Shugrue had reasonable suspicion to believe that the driver was committing the crime of operating a motor vehicle with a suspended license. See Deramo, supra at 42-43.
2. The inquiry. While checking the license plate of the SUV, Sergeant Shugrue had learned that both registered owners were female. He also had learned their names, Pam and Shirley, and what they looked like. Once the SUV was stopped, Sergeant Shugrue and a second trooper, Theodore Tudryn, approached. It quickly became clear to the troopers that neither the male driver (the defendant) nor the female passenger was one of the registered owners.
Prior to executing the stop of the SUV, Sergeant Shugrue had viewed the names and photographs of the two registered owners of the vehicle on the computer in his cruiser.
The troopers were unable to make this determination before stopping the vehicle; the windows of the SUV were tinted.
Sergeant Shugrue asked the defendant who owned the vehicle. He responded that the vehicle was owned by "Mike," but said he did not know "Mike's" last name. Sergeant Shugrue then asked the defendant to produce his driver's license and the vehicle registration, which he did. Sergeant Shugrue continued the inquiry and asked the defendant where "Mike" lived, and asked the female passenger for identification, which she provided. He then told the occupants that he had stopped the vehicle because one of the registered owners, Pam, had a suspended license. He then asked the occupants "how they knew Pam." The defendant responded that he "used to live near them in Springfield."
Sergeant Shugrue returned to his cruiser, checked the defendant's board of probation record, and recognized that the defendant had a record of prior drug offenses. Sergeant Shugrue returned to the vehicle and noticed that the defendant "was now smoking a cigarette and his left leg was bouncing up and down." He asked the defendant "to call Mike." The occupants represented that they did not know Mike's number, but the female passenger retrieved her cellular telephone, and the defendant "used it to call an individual who[m] he identified as Pam." The defendant then handed the telephone to Sergeant Shugrue, who was "reluctant to put the phone right up to [his] ear and face," because he "[did not] know where the phone had been." Sergeant Shugrue terminated the call because he "couldn't hear [the female speaker] very well" and was "unable to carry on a conversation." He then asked the occupants if there were weapons or drugs in the vehicle, and if he could search the vehicle. They responded that he could. The troopers then proceeded to pat frisk the defendant and search the vehicle.
The judge's findings erroneously state that Sergeant Shugrue requested that the defendant call "Pam." For purposes of our analysis, we accept the Commonwealth's contention, supported by the transcript from the motion hearing, that Sergeant Shugrue asked the defendant to call "Mike."
The searches yielded evidence that led to the defendant being charged with possession of heroin with intent to distribute, subsequent offense.
The defendant argues that at the point the troopers saw that neither of the occupants was the vehicle owner who had an expired license, they no longer had reasonable suspicion that a crime was being committed, and the inquiry should have ended. See Deramo, 436 Mass. at 43-44. The Commonwealth contends, however, that Sergeant Shugrue was justified in extending the stop because he wanted to determine who was driving the vehicle, if not the registered owner. See Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996) (Massachusetts cases "do not require that an officer making a stop for a traffic violation ignore what he sees, smells or hears"). See also Garden, 451 Mass. at 46 ("At the very least, the [troopers] properly could have taken the opportunity to explain the reason for the stop"). Even if we were to agree with the Commonwealth, here the troopers did not explain the reason for the stop until well into their inquiry. Further, the troopers' justification for continuing the inquiry and pressing for details about the occupants' relationship with the owners was the mere fact that neither the driver nor the passenger was a registered owner. We recognize, however, that "analysis 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) (citation omitted). Compare Commonwealth v. Gonsalves, 429 Mass. 658, 665-666 (1999). Accordingly, we assume for purposes of our analysis that the troopers' observations that neither the driver nor the passenger owned the vehicle justified some proportional inquiry into how the occupants knew the owners.
Sergeant Shugrue testified that the SUV had not been reported as stolen, and that the troopers did not see, smell, or hear anything unusual or suspect when they approached. Contrast Garden, 451 Mass. at 47-48 (smell of burnt marijuana from clothes of passengers in vehicle justified further investigation). Thus, the cases and rationale cited by the Commonwealth to support the extension of the stop are distinguishable and unavailing.
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That notwithstanding, the judge determined that once the defendant produced a valid license and registration, the inquiry should have ended. See Bartlett, supra at 472. He further concluded that, "[a]t a minimum, Sergeant Shugrue abandoned any reasonable suspicion when he refused to take the cellular telephone and speak with the individual [the defendant] purported to be Pam. Just as in Bartlett, Sergeant Shugrue acted on a ‘good hunch and fished until he caught something.’ " The Commonwealth argues that the judge erroneously applied a bright-line rule, and ignored the principle that the degree of intrusiveness must be measured against all of the facts known to the police at the time they act to extend a stop. On the record before us, we cannot say that the judge erred in determining that once the defendant produced a valid license and registration, the inquiry should have ceased. Even assuming, arguendo, that some further inquiry into the ownership of the vehicle was justified, the judge was warranted in ruling that the continued questioning and the prolonged stop were unreasonable and grounded on a hunch. This conclusion is bolstered by the fact that Sergeant Shugrue requested that the defendant contact the owner of the vehicle, but then effectively refused to take the call that was made.
While we recognize the inherently fast-paced and volatile nature of police work, see Gonsalves, supra, this was not a case where specific, articulable facts justified the repeated and continued inquiry of the driver of a motor vehicle stopped for a routine traffic violation that he had not committed. See Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997). Contrast Commonwealth v. Wright, 85 Mass. App. Ct. 380, 384 (2014) (strong odor of air freshener and presence of occupants in leased vehicle registered in State where neither resided plus occupants' past narcotics convictions entitled trooper to expand investigation). Accordingly, we affirm the order allowing the motion to suppress.
So ordered.
Affirmed.