Opinion
No. 11–P–1824.
2013-09-12
COMMONWEALTH v. Shane G. MATHIESON–JACOB.
By the Court (SIKORA, BROWN & CARHART, JJ.).
This case was originally submitted to a panel comprised of Justices Mills, Brown, and Sikora. Following the retirement of Justice Mills, Justice Carhart was added to the panel and participated in this decision.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By a criminal complaint issued from the District Court on November 8, 2010, the Commonwealth charged the defendant, Shane Mathieson–Jacob, with (1) possession of a class D substance with intent to distribute, G.L. c. 94C, § 32C( a ); (2) defacing the serial number of a firearm, G.L. c. 269, § 11C; (3) carrying a firearm without a license, G.L. c. 269, § 10( a ); and (4) possession of ammunition without a firearm identification card, G.L. c. 269, § 10( h )(1).
Thereafter the defendant moved to suppress all evidence resulting from a police order compelling him to exit from his automobile and from the ensuing search of the automobile. After an evidentiary hearing, a District Court judge allowed the motion in full. Pursuant to G.L. c. 278, § 28E, and Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), the Commonwealth submitted a motion to a single justice of the Supreme Judicial Court for leave to file an interlocutory appeal in this court. The single justice allowed the motion. We received briefs and heard oral argument on April 6, 2012. We then stayed the appeal in order to await guidance from the further appellate review of Commonwealth v. Daniel, 81 Mass.App.Ct. 306 (2012), pending in the Supreme Judicial Court. On April 5, 2013, the Supreme Judicial Court issued its decision in Commonwealth v. Daniel, 464 Mass. 746 (2013). In light of that decision, we now address the validity of the automobile search at issue here and affirm the order of suppression entered by the District Court judge. Background. The motion judge received the following testimony from the two police officers conducting the search of the automobile and the arrest of the defendant.
On November 6, 2010, Patrolman Marcus Humber of the Amherst police department was working the midnight to 8:00 A.M. shift in the “north section” of Amherst. Humber was a six-year veteran of the department. He had participated in fifty to one hundred narcotics investigations. At approximately 12:55 A. M., he responded to a complaint of noise on Hobart Lane, an off-campus residential housing area for University of Massachusetts students located in Northampton. Upon arrival, he found the dead end street to be entirely quiet. He drove to the end of the street in order to turn around.
At that point he noticed three automobiles parked in a no parking area posted with “Tow Zone” signs. He illuminated the area with his cruiser spotlight. He could see that two of the vehicles parked on the left-hand side of the road were unoccupied, and that the one on the right-hand side of the road was occupied. The occupant was the defendant; he was seated in the driver's seat; his car was facing forward toward a field.
Officer Humber pulled his cruiser to a position behind the defendant's car and directed his spotlight onto it. The defendant reached toward the passenger seat and ducked out of sight for two to three seconds. Humber left his cruiser and approached the defendant's car unguarded (without weapon drawn).
When Humber reached the side of the defendant's car, he smelled a strong odor of burnt marijuana. He did not find the defendant to be nervous or threatening. He asked the defendant whether any marijuana was present in the car; the defendant responded that there was not. Humber did not inquire whether the defendant had any weapons in the car. By this time, a second uniformed officer, Scott Soverino, had arrived on the scene in a cruiser.
As Officer Soverino stood on the passenger side of the car, Officer Humber asked the defendant to step out of the vehicle, frisked or searched his person for marijuana, and found none. Officer Soverino understood the patfrisk or search to be one for “class D contraband.” At the conclusion of the patfrisk outside the car, Officer Soverino examined the license produced by the defendant and then escorted him to the front end of Officer Humber's cruiser.
At that point, Humber performed a sweep of the passenger area within reach from the driver's seat. He discovered five burnt marijuana cigarettes in the car ashtray and $310 in a cup holder. Humber then searched the passenger side of the car toward which the defendant had ducked out of sight. There he opened a gym bag on the passenger seat and inside found four individually wrapped baggies of marijuana, a digital scale, two empty baggies containing apparent marijuana residue, shorts, and a key chain.
Next, Humber expanded the search to the entire car. In the back pocket of the driver's seat, he found more baggies of marijuana. In the trunk, he located a backpack containing two glass smoking bowls, another digital scale, a .22 caliber Bernardelli pistol with ammunition, eleven yellow pills, and a greenish cake-like substance.
Humber asked the defendant to produce a license to carry a firearm. When he could not produce a license, Humber and Soverino handcuffed him, read his Miranda warnings, placed him in a cruiser, and transported him to the Amherst police station.
Upon this evidence and his direct observations of the two officers as witnesses, the judge made a specific finding that Officer Humber had searched the defendant's person and his car for marijuana and not out of a concern for his safety. The officer did testify on direct examination that he had based his exit order in part on the defendant's duck out of view as he (Humber) approached the car. On cross-examination, he testified also that he was pat-frisking for weapons and looking for marijuana. However, the judge explicitly discredited those representations with the observation that Officer Humber had acknowledged in both cross-examination and in his police report that he had ordered the defendant to exit the vehicle in order to search for marijuana, and that he had expressed no concern about officer safety in his report.
As a conclusion of law, the judge determined that the evidence resulting from the hearing was insufficient to support “a heightened awareness of danger that justified the exit order and search.” He reasoned that neither the odor of burnt marijuana nor the duck out of view toward the passenger seat provided the necessary “heightened awareness of danger” amid the total circumstances of the encounter. Accordingly, he entered the order of suppression of all evidence resulting from the search of the automobile.
Analysis. 1. Standard of review. The usual principles govern. We accept a motion judge's findings of fact in the absence of clear error. Commonwealth v. Torres, 433 Mass. 669, 670 (2001). Commonwealth v. Robie, 51 Mass.App.Ct. 494, 495 (2001). We determine independently the correctness of the judge's application of constitutional doctrine to the facts. Commonwealth v. Torres, supra at 672, citing Commonwealth v. James, 427 Mass. 312, 314 (1998).
2. Nature of the initial stop. We first classify the initial stop of the defendant's car as either routine or nonroutine. Commonwealth v. Torres, 433 Mass. at 674 n. 5. A routine motor vehicle stop for a civil infraction, or a criminal infraction not involving violence, differs from a motor vehicle stop made upon suspicion of criminal activity involving violence. See ibid.; Commonwealth v. Riche, 50 Mass.App.Ct. 830, 834 n. 10 (2001), and cases cited. The initial classification is important because the level of suspicion needed to justify an exit order and subsequent patfrisk and search is dependent upon the character of the stop as routine or nonroutine. Commonwealth v. Bostock, 450 Mass. 616, 619–621 (2008).
Here, the original reason for the officer's approach to the vehicle was its location in a no parking zone, a civil infraction. As a result, the initial “stop” of the car was a valid routine traffic stop. See G.L. c. 90C, § 2 (officer may approach a parked car committing a traffic violation and issue a ticket).
Further, the odor of freshly burnt marijuana detected by Officer Humber upon his arrival at the side of the vehicle would not justify an exit order in the circumstance of an otherwise routine traffic stop. Commonwealth v. Cruz, 459 Mass. 459, 472 (2011). Although police did not have the benefit of that published decision at the time of our events in November of 2010, the law of Cruz took effect as of December 4, 2008, upon the implementation of G.L. c. 94C, § 32L (inserted by St.2008, c. 387, § 2), and its decriminalization of possession of one ounce or less of marijuana. Therefore we assess the validity of the exit order and the consequent search of the defendant's automobile in circumstances of a routine stop for a civil infraction unaltered by the odor of burnt marijuana.
3. Article 14 standards. Article 14 of the Declaration of Rights of the Massachusetts Constitution governs the present automobile exit order. The Commonwealth must show that a police officer had a reasonable belief of a danger to his safety or the safety of others as a basis for such an order. See Commonwealth v. Gonsalves, 429 Mass. 658, 662–663 (1999); Commonwealth v. Stampley, 437 Mass. 323, 325 (2002).
The Commonwealth must show that facts and circumstances, viewed reasonably and objectively, would create a heightened awareness of danger on the part of the police confronting an occupied motor vehicle. See Commonwealth v. Gonsalves, supra at 664–665; Commonwealth v. Stampley, supra. The standard does not require a specific finding that an individual is armed and dangerous. See Commonwealth v. Gonsalves, supra at 665; Commonwealth v. Stampley, supra at 326.
Article 14 operates more restrictively against automobile exit search than the Fourth and Fourteenth Amendments to the United States Constitution. Federal doctrine permits police to order a driver or passenger to exit from an automobile upon the occasion of any routine traffic stop. See Pennsylvania v. Mimms, 434 U.S. 106, 108–111 & n. 6 (1977); Maryland v. Wilson, 519 U.S. 408, 413–415 (1997). Contrast Commonwealth v. Gonsalves, 429 Mass. at 660–661, 663.
In the past, a police officer's actual subjective mentality appeared to play no part in the objective determination. See Commonwealth v. Cruz, 459 Mass. at 462 n. 7 (“[S]ubjective intentions of police are irrelevant so long as their actions were objectively reasonable”); Commonwealth v. Daniel, 81 Mass.App.Ct. at 315 n. 14 (“So long as the officer's actions are objectively reasonable under the circumstances, his subjective intentions and fears are as irrelevant as an unreasonable bravado would be”). However, the Supreme Judicial Court's recent decision of Commonwealth v. Daniel, 464 Mass. 746 (2013), by further appellate review, now assigns some significance to the mentality and behavior of the police dealing with the vehicle. “It is not necessary to show that an individual police officer personally experienced fear, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger, but an officer's actions may suggest whether a suspect's movements appeared threatening to a trained eye ” (emphasis added). Id. at 753 n. 2 (internal quotation marks and citation omitted).
The generic features of the Daniel case resemble our own. An officer stopped a car, in which the defendant was a passenger, for a traffic violation. 464 Mass. at 749. After the officer smelled burnt marijuana and asked the driver and the defendant whether the car contained any more marijuana, the defendant placed the contents of his pockets, including a folding knife, onto the dashboard. Id. at 749–750. Then, without removing the knife or ordering the occupants out of the car, the officer directed the driver to move her vehicle to the side of the road and left the occupants briefly to move his own cruiser as well. Id. at 750, 753 n. 2. Then, the officer ordered the defendant out of the car, searched him, and searched the glove box of the car. Id. at 750. The court held that the exit order and search were not justified. It emphasized that the officer's allowance of the relocation of the car without prior removal of the knife from the dashboard indicated that the defendant's actions, “viewed by a trained officer on the scene, did not create a ‘heightened awareness of danger.’ “ Id. at 753.
Under these criteria, the evidence in our case does not support the required heightened awareness of danger. The location of the stop was a residential street in a neighborhood of college housing. The ratio of officers to occupants was two to one. Both officers approached the car in an unguarded posture, that is, without weapons drawn and without call for back-up. Neither officer communicated to the other any need for caution. The primary officer testified explicitly that he was searching for marijuana, and not weapons. On direct examination, when the opportunity was optimum, he expressed no concern about safety. He was a trained police officer, with six years of experience on the job, preparation at the police academy, and participation in fifty to one hundred narcotics investigations.
The Commonwealth has emphasized that the defendant's head duck for two to three seconds toward the passenger seat (after illumination of his car by Officer Humber's spotlight) created the necessary concern and justified the exit order. We acknowledge that “[n]umerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop.” Commonwealth v. Stampley, 437 Mass. at 327, and cases cited. However, as the court in Daniel pointed out, with abundant collection of authority, the automobile head dip or ducking action has typically required some additional factor in order to achieve justification for an exit order. 464 Mass. at 753–754. In Daniel, the court rejected the contention that the defendant's “rocking back and forth” in the passenger seat, alone, permitted the search of the interior of the car. Id. at 749, 752–753. Our survey of the case law leads to the same conclusion: that the single ducking motion will typically not furnish sufficient justification for an exit order and automobile search.
See Commonwealth v. Holley, 52 Mass.App.Ct. 659, 663 (2001), quoting from Commonwealth v. Concepcion, 10 Mass.App.Ct. 613, 616 n. 2 (1980) (“A lunge or other furtive gesture is usually insufficient, by itself, to render a search reasonable”).
In each of the following cases, the court found that the “furtive gesture” was supported by at least one other factor that gave officers justification for ordering the driver or passengers out of the car. See Commonwealth v. Moses, 408 Mass. 136, 138, 140, 142 (1990) (officers observed a suspected drug transaction and the men standing around the parked car dispersed when they saw the police officer); Commonwealth v. Torres, 433 Mass. at 674 (one passenger ran away with a backpack as the car stopped and officers then observed three back-seat passengers “bent over” and “messing with something” on the floor of the stopped vehicle); Commonwealth v. Stampley, 437 Mass. at 324–325 (passenger twice ducked out of view, once after officers had already removed the driver from the car); Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 312–313, 315 (1992) (four passengers were in the car, as well as an aluminum bat and no other sporting equipment; officers had knowledge that a fellow officer had been beaten to death with a bat two weeks earlier); Commonwealth v. Heughan, 40 Mass.App.Ct. 102, 103–105 (1996) (officers had received an all points bulletin about a shooting and then saw a car driving quickly away from that area; the driver could not produce a license or registration, nor could passengers provide registration). We note that in Commonwealth v. Stampley, supra at 327 n. 3, the Supreme Judicial Court stated that “other cases have found sufficient justification for an exit order based on little or nothing more than an occupant's bending or ducking briefly out of sight, or reaching in some direction.” However, in our review of these cases we find that other factors contributed to justification for the exit orders. See Commonwealth v. Vanderlinde, 27 Mass.App.Ct. 1103, 1103–1104 (1989) (interaction began with a three-to-four mile high-speed chase prior to stop); Commonwealth v. Prevost, 44 Mass.App.Ct. 398, 399, 401 (1998) (stop began with a moving violation; passenger then ducked out of view as police approached and continued his attempt to put his coat on as officer arrived at the side of the car).
Conclusion. For these reasons we view the exit order, patfrisk, and search of the automobile as unjustified. Because the discovery of the marijuana, instruments of distribution, handgun, and ammunition all grew out of the invalid exit order and resulting searches, the judge correctly allowed the motion to suppress.
Order allowing motion to suppress affirmed.