Opinion
19-P-266
12-12-2019
COMMONWEALTH v. PILAR P., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's appeal from a Juvenile Court order allowing the juvenile's motion to suppress. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to pursue an interlocutory appeal from that ruling, and directed the appeal to this court. We vacate the order and remand to the Juvenile Court for further findings.
Background. We summarize the motion judge's findings of fact, which the Commonwealth does not contest, and supplement those findings where appropriate with uncontroverted testimony from the suppression hearing. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). While on patrol at 1:27 A.M. in an unmarked cruiser and wearing plain clothes, Boston Police Officers McDonough and Stevens observed a car with what appeared to be excessive tint on the side windows make an abrupt left turn. When the officers made inquiry of the car's license plates through the registry of motor vehicles database, they learned the car was a rental car from Hertz Car Rental. Believing that it was illegal for a rental car to have tinted windows, the officers pulled the car over.
The officers were patrolling the area to monitor gang violence.
"[T]he standard to be used in determining the legality of a stop based on a suspected violation of [G. L.] c. 90, § 9D, is whether the officer reasonably suspected, based on his visual observations, that the tinting of the windows exceeded the permissible limits of § 9D." Commonwealth v. Baez, 47 Mass. App. Ct. 115, 118 (1999).
Officer McDonough approached the driver's side of the car while Officer Stevens approached the passenger's side. The defendant juvenile was in the passenger seat and had already lowered her window. Officer McDonough asked the driver for his license while Officer Stevens asked the juvenile for the rental agreement. The juvenile appeared "very nervous" and she was shaking "a little bit." Noticing an open purse at her feet, Officer Stevens shined a flashlight into the interior of the car and into her purse. He saw a hairbrush in the purse, and he also saw a "black and silver object" that looked like the exposed magazine at the bottom of a firearm. Officer Stevens was not positive it was a firearm, however, and assumed it was part of the hairbrush.
After a short period of time, Officer McDonough walked back to the cruiser to conduct a license and registration check through his mobile data terminal. As a result, he learned that the car was insured and registered, and the driver was properly licensed. Officer McDonough then walked to the rear of the vehicle and met with Officer Stevens. During a brief conversation between the two, Officer McDonough told Officer Stevens that he had knowledge that the driver was associated with a gang, and that he (McDonough) was going to give the driver a traffic ticket for operating a motor vehicle with excessive tint. Officer Stevens did not share his suspicions with Officer McDonough that there was a firearm in the juvenile's purse. When Officer McDonough returned to the front of the vehicle to give the driver a citation, Officer Stevens again approached the juvenile on the passenger's side. Again, he shined a flashlight into the juvenile's purse "to confirm what [he] had [seen] before." The purse had been moved, and a firearm was now easily visible within the bag. Officer Stevens knew he was looking at a firearm "almost instantly." Officer Stevens instructed the juvenile to get out of the vehicle, placed her under arrest, and issued her a Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (1966). Thereafter, the juvenile made certain statements to the officers that have no bearing on this appeal.
It is unclear from the record whether knowledge of the driver's gang affiliation was ascertained from the registry system, from prior personal knowledge, or otherwise.
Officer Stevens testified that he "always" walks back up to the vehicle if his partner is doing so, for "officer safety."
The Commonwealth conceded at the motion to suppress hearing that the juvenile's statements following the Miranda warnings were properly suppressed because she was interrogated without an interested adult present. See Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). The Commonwealth does not appeal from that portion of the suppression order.
The juvenile was arrested and charged with (1) carrying a firearm without a license in violation of G. L. c. 269, § 10 (a ) ; (2) carrying a loaded firearm without a license in violation of G. L. c. 269, § 10 (n ) ; (3) possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10 (h ) (1) ; (4) receiving stolen property valued at less than $1,200 in violation of G. L. c. 266, § 60 ; and (5) possession of a class D substance in violation of G. L. c. 94C, § 34. After the juvenile filed a motion to suppress, an evidentiary hearing was held in the Boston Juvenile Court and the motion was allowed in its entirety. The judge found that the initial stop and flashlight search were lawful, but that Officer Stevens's second view of the juvenile's purse was unlawful because there was no reason to extend the traffic stop.
Discussion. The Commonwealth argues on appeal that the second viewing of the firearm was lawful because the traffic stop, overall, did not exceed the amount of time required to issue the citation, Officer Stevens's approaching the passenger's side of the car was reasonable, and the firearm was in plain view. We accept the motion judge's findings of fact absent clear error and "make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
"[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’ -- to address the traffic violation that warranted the stop." Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). "It is well settled that a police inquiry in a routine traffic stop must end [when the purpose of the stop is accomplished] unless the police have grounds for inferring that ‘either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct’ " (citation omitted). Commonwealth v. Torres, 424 Mass. 153, 158 (1997). Police should not prolong routine traffic stops "in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime." Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999).
While the motion judge concluded that "the purpose of the stop had been accomplished" and that "[t]here was no basis for further investigation of the occupants or their belongings," the factual findings necessary to support that view have not been made. Indeed, the judge made no findings addressing whether Officer Stevens made his second flashlight view before or after Officer McDonough gave the citation to the driver, or more generally, how long the entire stop lasted. It is unclear whether the judge found that Officer Stevens took other steps to prolong the length of the stop. See Rodriguez, 135 S. Ct. at 1614 (police authority to seize individual ends "when tasks tied to the traffic infraction are -- or reasonably should have been -- completed"). The judge made no findings regarding how much time elapsed while Officer McDonough learned of the driver's gang affiliation and discussed that topic with his partner. For these reasons, the factual findings neither establish nor rebut the proposition that the stop of the vehicle indeed lasted "longer than reasonably necessary to effectuate the purpose of the stop" (citation omitted). Commonwealth v. Cruz, 459 Mass. 459, 465 (2011). Accordingly, we vacate the order allowing the juvenile's motion to suppress and remand the matter to the Juvenile Court for further findings.
We express no view as to whether the judge may wish to take additional evidence.
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So ordered.
vacated and remanded