Opinion
No. 11–P–1614.
2012-11-13
COMMONWEALTH v. Izett C. MAYO.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant guilty of drug possession. On appeal, the sole appellate claim is that the motion judge erred in concluding that the police had probable cause to arrest and search him and in denying the defendant's motion to suppress evidence. We affirm the defendant's conviction for substantially the reasons advanced at pages nine through twelve of the Commonwealth's brief.
We need not resolve whether the police had probable cause to arrest the defendant for disorderly conduct or disturbing the peace. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate court may affirm on grounds different from motion judge if supported by record and factual findings); Commonwealth v. Cruz, 430 Mass. 838, 844 (2000). On the facts found by the judge, for which there is record support, we conclude that the police possessed reasonable suspicion of criminal activity and a reasonable apprehension of danger sufficient to support the patfrisk that resulted in the discovery of heroin. Among the facts that establish reasonable suspicion of criminal activity are the driver's refusal to stop the vehicle for police, the attempts at evasion (including erratic operation in the wrong lane of traffic and collision with a parked car), and the immediate flight of all five of the vehicle's occupants. See Commonwealth v. Sykes, 449 Mass. 308, 315 (2007) (in light of circumstances, nature of flight supported suspicion of criminal activity); Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 413–415 (2001). The actions of the defendant and other occupants of the vehicle were not the ordinary or expected response of those signaled to stop for a civil motor vehicle infraction. Indeed, their actions suggested much more—fear that evidence of a more serious criminality might be uncovered during the stop. What began as a routine motor vehicle stop for a defective exhaust system quickly escalated into evasive and dangerous operation, collision with a parked vehicle, and flight helter-skelter from the vehicle. Such behavior fundamentally altered the nature of the encounter and suggested a criminality serious enough to warrant further investigation. See Commonwealth v. Feyenord, 62 Mass.App.Ct. 200, 205–206 (2004), S.C., 445 Mass. 72, 75–80 (2005) (suspicion of criminal activity, although imprecise, supports further investigative detention).
The same circumstances provided a basis to frisk the defendant once he was stopped by area residents. See ibid. “The risk of a violent encounter in a traffic-stop setting ‘stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.’ “ Arizona v. Johnson, 555 U.S. 323, 331 (2009), quoting from Maryland v. Wilson, 519 U.S. 408, 414 (1997). As a passenger in a lawfully stopped motor vehicle, the defendant was not free to leave until the police had accomplished the purposes of that stop. See id. at 332–333. His flight, and the fact that his four companions remained at large, created a reasonable apprehension of danger that supported a frisk by the officer, who was alone. See Commonwealth v. Torres, 433 Mass. 669, 675–676 (2001); Commonwealth v. Feyenord, supra. The officer had every reason to be concerned given that the vehicle's occupants were willing to engage in desperate measures to avoid apprehension. In these circumstances, the officer was “not required to gamble with [his] ... safety.” Commonwealth v. Robbins, 407 Mass. 147, 152 (1990).
Judgment affirmed.