Opinion
No. 06-754.
May 18, 2007.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
INTRODUCTION
The defendant is charged with narcotics offenses based on evidence found in a vehicle he was driving. Before the Court is the defendant's motion to suppress the evidence. For the reasons that will be explained, the motion will be allowed.
FINDINGS OF FACT
Based on the credible evidence presented at the hearing, the Court finds as follows. Trooper Charles Kane of the Massachusetts State Police has substantial training and experience in narcotics investigations, including, in particular, training related to the use of "hides" in vehicles to secrete contraband, and the use of air fresheners in vehicles to mask the odor of narcotics. As a member of the canine unit, Kane travels with his dog, Riggs, who has received intensive training to detect narcotics. Together Kane and Riggs engage in training on a weekly basis. Both have received multiple certifications in narcotics investigation and detection.
On August 18, 2006, at approximately 5:15 p.m., Kane was in Quincy, in an area where he has worked repeatedly over a number of years, and with which he was very familiar. He was operating a semi-marked cruiser that was readily identifiable as a state police vehicle. He entered the parking lot of a closed Saturn dealership on Furnace Brook Parkway, near a rotary where an entrance to Route 93 is located. The location is in a high crime area. The Saturn dealership is across a side street from a Mobil gas station that Kane frequents; he is familiar with the vehicles operated by the owner and staff of that station that are often parked there.
Upon entering the parking lot of the Saturn dealership, Kane noticed a Nissan Altima parked in the Mobil station, away from the gas pumps, between two other cars that he recognized as belonging to personnel of the Mobil station. The Nissan was parked front first, facing a fence. One person was inside, facing front. Kane watched for about a minute and a half. He did not see the person get out of the car, turn around, or do anything else.
Suspecting criminal activity, and wanting to get a closer look, Kane drove over to the Mobil Station and pulled up at the gas pumps. When he did so, he saw the driver of the Nissan, later identified as the defendant, turn his head toward Kane, and then immediately and abruptly drive out of the station onto Furnace Brook Parkway. The Nissan's tires squealed as it exited the station. Still suspicious of criminal activity, indeed more so, and believing the squealing tires to provide a basis for a stop for violation of G. L. c. 90, § 16, Kane followed. As he did so he entered the defendant's license plate number into the Registry of Motor Vehicles database on the computer in his cruiser; information soon appeared indicating that the car was registered to a woman at an address in Peabody.
The Nissan traveled to the rotary and then up the ramp toward Route 93 North. Kane followed, about one to one and a half car lengths behind. He saw the defendant look at him through his rear view mirror, adding to Kane's suspicion of criminal activity. As the defendant drove up the entrance ramp, the Nissan twice moved slightly to the right, so that its tires crossed the white line, known as the "fog line," that marks the edge of the travel lane of the entrance ramp. The second time, its right front tires went slightly off the asphalt and onto a granite area close to the guardrail. Kane believed that to constitute a violation of G. L. c. 89, § 4A, and thus to provide further justification for a stop of the vehicle.
A cut out area, located on Route 93 North shortly past the entrance at that location, is the only safe place to stop before the next exit. Immediately after entering the highway, Kane activated his lights to direct the Nissan to stop in the cut out area. The defendant obeyed, although he drove nearly to the end of the cut out area before stopping. Kane got out of his cruiser, approached the driver's door, and asked the defendant for his license and registration. From outside the car he could see two cell phones and a beeper; all three rang repeatedly during his interaction with the defendant. Although the defendant appeared to understand Kane, it quickly became apparent that the defendant was Spanish-speaking and less than fluent in English. Kane understands some Spanish, and the two were able to communicate.
Kane's testimony made no mention of the defendant's ethnicity. The defendant has dark skin and features consistent with Latin American origin. Those characteristics are sufficiently noticeable that Kane would likely have observed them when he saw the defendant turn toward him at the Mobil station.
The defendant handed over a license and registration; Kane noticed that his hands shook as he did so. Kane asked him who owned the car; the defendant responded that he had borrowed it from his "amigo" in Boston. Recognizing the masculine form of the noun for friend, Kane perceived an inconsistency with the Registry of Motor Vehicles information he had obtained from his computer.
Kane used his portable radio to call in an inquiry on the defendant's driver's license. He soon received a report that the Registry of Motor Vehicles database showed two records, under separate driver's license numbers, birthdates, and addresses, with the same photograph. The dispatcher also reported that the defendant's Board of Probation record showed an entry for a "true name violation." Kane went back to his cruiser, leaving Trooper Collins, who had arrived on the scene, with the defendant, and checked the two driver's license numbers on his computer. He saw that both showed a photograph matching the defendant.
Kane returned to the Nissan, ordered the defendant out of the car, escorted him to its rear, pat-frisked him, finding nothing, and handcuffed him. Leaving the defendant with Collins, Kane entered the car, sat in the driver's seat, and looked around. He opened the console, and found a substantial amount of cash, arranged in stacks of bills making up sets of $40 and $100. He perceived these amounts, arranged in that manner, to be consistent with proceeds of drug transactions. Looking around the floor area of the car, Kane noticed that the base of the front passenger seat was considerably lower than that of the driver's seat, and appeared to have been altered. He also noticed a smell of air freshener, but did not see the source of the smell.
Suspecting the presence of a hide for narcotics in the base of the passenger seat, Kane retrieved Riggs from his cruiser and let him in to the Nissan. Riggs immediately alerted to the base of the passenger seat. Kane told Collins, and the two formally arrested the defendant approximately twenty-five minutes after the stop. Kane then returned to the Nissan and looked for the mechanism to open what he believed to be a hide under the passenger seat. Finding none, he pried open a plastic panel at the base of the seat, revealing a compartment, where he found packages of powder, later determined to be trafficking quantities of cocaine and heroin.
CONCLUSIONS OF LAW AND DISCUSSION
The first question that must be considered is whether the stop of the vehicle was lawful. It is plainly apparent from the facts found, despite Trooper Kane's testimony otherwise, that his actual purpose in stopping the vehicle was not to cite the driver for any traffic violation, but to follow up on his suspicion that the driver was engaged in criminal activity. Nevertheless, whatever Kane's subjective motivation, the stop was lawful if he had objective grounds, based on either observation of a traffic offense, or reasonable suspicion of criminal activity. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995); Commonwealth v. Moses, 408 Mass. 136, 140 (1990). As to the former theory, the Commonwealth identifies two statutes that it contends were violated: G. L. c. 90, § 16, and G. L. c. 89, § 4A. Having examined both, the Court is not persuaded that the defendant's driving violated either.
General Laws c. 90, § 16, provides, in pertinent part: "No person operating a motor vehicle shall sound a bell, horn or other device, nor in any manner operate such motor vehicle so as to make a harsh, objectionable or unreasonable noise." Other portions of the statute require that vehicles be equipped with mufflers, prohibit modification of mufflers to increase noise, and prohibit the use of certain devices to create excessive light or pollution. The apparent purpose of the statute is to impose an overall limitation on noise, light and pollution, based on a general standard of reasonableness and necessity. The statute does not purport to, and does not prohibit all vehicular sounds, or even all sounds that might be avoidable in particular circumstances. Here, while driving in a commercial area, at 5:15 p.m. on a summer weekday afternoon, the defendant engaged in an abrupt maneuver that resulted in a single instance of squealing tires. Application of this statute to such an instance would not serve its purpose, but would serve only to provide justification for a stop effected for entirely independent reasons. The Court concludes that the statute does not reach the conduct Kane observed on this occasion.
General Laws c. 89, § 4A, provides in pertinent part: "When any way has been divided into lanes, the driver of a vehicle shall so drive that the vehicle shall be entirely within a single lane, and he shall not move from the lane in which he is driving until he has first ascertained if such movement can be made with safety." The evidence establishes that the entrance ramp where the defendant crossed slightly over the white line was not divided into lanes, but had a single travel lane. The white line served not to divide lanes, but to alert the driver to the edge of the travel lane and the nearby guard rail. The statute has no application to these facts, and provides no basis for the stop. Compare Commonwealth v. Holley, 52 Mass. App. Ct. 659, 662 n. 1 (2001) (stop lawful where police observed defendant cross multiple travel lanes).
The legitimacy of the stop thus depends on whether Kane had reasonable suspicion of criminal activity. At the time of the stop, Kane had the following information: He had observed the defendant seated in a vehicle in a gas station parking lot, in a high crime area, for about a minute and a half, without purchasing gas or otherwise demonstrating any lawful business there — although, having arrived after the defendant, Kane had no apparent way of knowing whether the defendant might have bought gas or transacted other business before Kane arrived. Upon seeing the Trooper in his semi-marked cruiser, the defendant left the gas station abruptly. As Kane followed, the defendant looked at him in his rear view mirror, with the apparent result that he had some minor difficulty keeping his car straight as he went up the entrance ramp to the highway.
These facts provide some, but not much, basis for suspicion. The high crime location is significant, but in itself hardly determinative; many law abiding citizens have the misfortune to live or transact business in high crime areas. See Commonwealth v. Thompson, 427 Mass. 729, 734 (1998); Commonwealth v. Cheek, 413 Mass. 492, 496-497 (1992). The defendant's apparent lack of activity in the parking area would be consistent with waiting for a drug deal or some other criminal transaction, but would also be consistent with consulting a map, putting away change after making a purchase, eating a snack, making a cellular telephone call, or any number of other innocent purposes. The abrupt departure upon seeing the cruiser suggests that the defendant had something to hide, but again is insufficient in itself; many law-abiding citizens prefer to avoid contact with police. See Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981) (defendant's abrupt turn upon seeing police car not sufficient for reasonable suspicion); compare Commonwealth v. Sanchez, 403 Mass. 640, 646 (1988) (defendant's flight after agreeing to search provided reasonable suspicion). The observation in the rear view mirror, similarly, suggests a degree of nervousness about contact with police, but in itself is insufficient; many drivers feel such nervousness when followed by a police car, and still more make a habit of taking note of cars behind them at all times, particularly while entering a highway. See Thibeau, supra; Commonwealth v. Bacon, 381 Mass. 642, 646 (1980) (driver's attempt to conceal his face with his hands after spotting police was insufficient to support reasonable suspicion); Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 686-687 (2001) ("a defendant's desire to avoid an interaction with police, without more, does not create reasonable suspicion"). What Trooper Kane had was a set of facts, each of which in itself was innocuous, but which, together, provided minimally adequate justification to stop the vehicle.
Having stopped the vehicle, Kane was authorized to investigate in a manner that would intrude on the defendant's liberty no more than reasonably necessary in proportion to the level of suspicion warranted by the information he had. See, e.g., Commonwealth v. Torres, 433 Mass. 669, 672 (2001). Certainly Kane was warranted in asking the defendant for his license and registration, and in checking the information he received against Registry of Motor Vehicles records, as is routine in any motor vehicle stop. The result of that inquiry was that Kane observed the defendant's hands shaking, reflecting an unusual level of nervousness; he obtained an answer to his inquiry regarding ownership of the vehicle that did not match RMV data; and he learned that the RMV records reflected two driver's license numbers with photographs of the defendant, in different names and numbers. This information provided a basis to suspect that the defendant was driving without a valid license, as well as increased basis to suspect other criminal conduct. Kane was entitled to take reasonably necessary steps to conduct further investigation.
A police officer who has made a lawful vehicle stop is entitled to order the driver out of the vehicle if he has a reasonable basis to fear for his own safety, or if doing so will reasonably further investigation of suspected criminal activity. See Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005), citing Commonwealth v. Torres, 433 Mass. at 675, and Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). Here, although there was a reasonable basis for suspicion of some criminal activity, particularly operating without a valid license, nothing in the facts indicates any manner in which such an order would further the investigation. Compare Feyenord, supra, 445 Mass. at 74 (officer ordered driver out, leaving passenger in, and questioned them separately, obtaining inconsistent answers that added to basis for suspicion). Nor was there anything — beyond a general suspicion of criminal activity — to warrant a concern for safety. The defendant was alone, not with a passenger. Compare Feyenord, supra; Torres, supra, at 675 (occupants of vehicle outnumbered officer five to one). Although Kane was initially alone, he soon had back-up from Trooper Collins. The defendant made no furtive gesture, and nothing else suggested the presence of any weapon. His nervousness, although part of the overall set of facts warranting suspicion of criminal activity, did not in itself warrant ordering him out of the car. See Torres, supra, at 673; Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186, 189 (1999) (officer's exit order was improper when based solely on the observation that defendant appeared "very nervous"). Compare Commonwealth v. Horton, 63 Mass. App. Ct. 571, 576 (2005) (passenger's movements created reasonable apprehension of danger warranting exit order). There is thus considerable room for doubt as to the legitimacy of the exit order.
Once the defendant was out of the car, and a pat-frisk had revealed nothing, Kane got in the car, and looked around, including inside the console. His observations increased his suspicion, leading him to bring Riggs into the car. Riggs's alert then provided probable cause to believe that drugs were in the car, triggering Kane's search of the hide.
Kane's initial entry into the car, and his look around, amounted to a search. See Commonwealth v. Vasquez, 426 Mass. 99, 102-103 (1997); Commonwealth v. Stack, 49 Mass. App. Ct. 227, 234 (2000). The Commonwealth does not contend that Kane had probable cause at that point to believe that evidence of crime would be found in the car; it seeks to justify Kane's action only as a "protective sweep" for weapons. See Commonwealth v. Santos, 65 Mass. App. Ct. 122, 124-125 (2005) (in the context of a traffic stop, officers may conduct a search, even extending into the interior of a vehicle, where articulable circumstances warrant a reasonable belief that a search is necessary to protect the safety of the police and the public).
Kane might have obtained probable cause if he had caused Riggs to sniff the outside of the car, as the officers did in Feyenord, 445 Mass. at 74, before entering the car. Such action would not have required probable cause, or any other justification, since it would not constitute a search in the constitutional sense. See id. at 82-83.
As discussed supra, the facts provided nothing to indicate the presence of any weapon in the car, beyond a general association between violence and the unspecified criminal activity of which Kane suspected the defendant. Kane had seen no gesture suggesting secreting a weapon. Compare Commonwealth v. Almeida, 373 Mass. 266, 272 (1977) (search of car for weapons justified where officer observed driver twist his body to the right, with his hands out of sight, and then when asked for license defendant lifted console cover just enough to remove his wallet, preventing officer from seeing inside); Commonwealth v. Stack, 49 Mass. App. Ct. at 234 (information from informant and furtive movements). A pat-frisk of the defendant had turned up nothing, and nothing in the defendant's behavior was in any way threatening. Moreover, at the time of Kane's search of the car, the defendant was outside it, beyond the reach of any weapon that might have been inside. Under these circumstances, Kane had no reason to suspect the presence of a weapon in the car, no basis to fear for his safety as a result of any weapon that might have been present, and therefore no justification to enter the car and search it. See Commonwealth v. Kimball, 37 Mass. App. Ct. 604, 608 (1994) (officer had no lawful basis to search defendant's automobile after pat-frisking the occupants of the car, finding no weapons or contraband, and securing his own safety); compare Commonwealth v. Horton, 63 Mass. App. Ct. at 575-576 (search of automobile justified because officer reasonably feared for his safety after he observed the defendant moving in the rear seat tucking something under his leg).
What Kane had, at that point, was information to warrant suspicion that the defendant might be operating without a valid driver's license. He could properly have detained the defendant for further investigation on that issue. He also had inconsistent information regarding ownership of the car, which would have warranted additional efforts to identify and contact the owner. Investigation on these points might have yielded grounds for arrest, which might, in turn, have provided grounds for impoundment and inventory of the vehicle. Kane, however, did not take those steps, and instead searched without cause. The results of that search, particularly his observations of the cash in the console and the apparently altered base of the passenger seat, led him to bring Riggs into the car. Riggs's alert, in turn, led to opening the hide. The evidence found in the hide, therefore, is the fruit of the illegality, and must be suppressed.
CONCLUSION AND ORDER
For the reasons stated, the Defendant's Motion to Suppress is ALLOWED .