Opinion
13-P-285
03-16-2015
COMMONWEALTH v. SANGHENG YOTH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of possessing ecstasy. On appeal, the defendant challenges the order denying his motion to suppress the ecstasy pills found in a hat stuffed in the passenger seat after a vehicle stop.
The defendant was charged with possession with intent to distribute ecstasy. The jury returned a guilty verdict as to possession of a class B substance, a lesser included offense.
1. Factual background. We summarize the factual findings of the motion judge, supplemented by the uncontroverted evidence presented at the suppression hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). In July of 2010, Lowell police Detective Demarais received information from a confidential informant that an Asian male with the nickname "Nate," having ties to the street gang, "Tiny Rascals," was involved in distributing ecstasy in Lowell. The informant stated that "Nate" did not keep ecstasy at his residence, but retrieved it from a house on Walker Street and delivered it to his customers in his vehicle.
The detective knew from past experience that members of the Tiny Rascals gang had been previously charged with, and convicted of, drug offenses, gun offenses, and crimes of violence. Also, Detective Demarais was aware of a previous police investigation of the Tiny Rascals gang, which identified the defendant, Sangheng Yoth, as going by the nickname "Nate" and having tattoos and a body build as described by the informant. The informant identified a booking photograph of the defendant confirming the defendant was "Nate."
During the week before the arrest, Detective Demarais set up surveillance of the defendant. What was seen in two surveillances corroborated the informant's statements. Specifically, the detective saw the defendant make two separate trips from his residence on Grace Street to the Walker Street house, where the defendant stayed for only a few minutes each time. The detective testified at the motion hearing that, in his opinion, this course of conduct was consistent with drug distribution.
On July 9, 2010, the informant told the detective that the defendant was going that day to pick up a large quantity of ecstasy at the Walker Street house between the hours of 5:00 and 9:00 P.M. Detective Demarais set up surveillance of the defendant's Grace Street residence, observed the defendant leave his residence, drive to Walker Street, enter the house, stay for a few minutes, then drive away in his car. The detective followed in an unmarked cruiser. While directly behind the defendant at a stop sign, the detective saw the defendant repeatedly looking back in his side-view mirror. The defendant slowed, but did not stop at the next stop sign, and then accelerated away from the detective's car. According to the detective, the defendant seemed to have discerned that he was being followed and was attempting to evade.
The detective turned on his car's blue lights and a siren. The defendant did not stop, but instead continued driving, finally slowing to about five miles per hour about 250 feet down the street. During this time, the detective could see the defendant leaning towards the car's center console and passenger seat, moving "frantically," which the detective believed were movements "either retrieving a weapon or hiding one." Once the defendant pulled over, the detective ordered him to exit the vehicle and show his hands. The detective pat frisked the defendant for weapons, but found none.
The detective then conducted a protective reach search into the car interior directed to the center console area and passenger seat near where the defendant had been frantically leaning during the pursuit. In the back support part of the passenger seat the detective saw a women's wide-brim hat, stuffed down into that space -- which was within the area to which the defendant had been reaching. As the detective moved the folded hat, it unfolded, disclosing four tied plastic baggies each containing pills analyzed to be ecstasy.
The defendant contends that the detective did not have a reasonable suspicion or articulable basis to: (1) stop his vehicle; (2) order him to exit; (3) conduct a patfrisk; (4) reach into the car interior toward the area where the defendant had moved frantically; or (5) pull out the hat stuffed into the seat. The defendant's contentions on each of these fronts concerning the stop, exit order, and protective reach/search into the car and retrieval of the hat are unavailing.
As to the first contention, we reject this. The defendant failed to stop at a stop sign, and, thus, committed a motor vehicle violation. "It was reasonable for the police to pull over an automobile that violated a motor vehicle law." Commonwealth v. Santana, 420 Mass. 205, 208 (1995). Additionally, "the fact that [an officer] may have believed that [the defendant was] engaging in illegal drug activity does not limit their power to make an authorized stop." Ibid.
As to the second contention, we reject this. The exit order was also appropriate. "[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 905 (2013) (exit order justified where suspect quickly opens and closes glove compartment then puts hand under thigh).
As to the third contention concerning the patfrisk of the defendant, we reject this. "[A] Terry-type pat frisk incident to the investigatory stop is permissible where the police officer reasonably believes that the individual is armed and dangerous." Commonwealth v. Wilson, 441 Mass. 390, 394 (2004), citing Terry v. Ohio 392 U.S. 1 (1968). In any event, in this case because nothing was found in the patfrisk of the defendant, this particular challenge is effectively moot. We only note that -- so long as articulable and specific facts exist that a weapon may be involved in the police encounter and that a suspect in a car stop may be armed and dangerous -- notwithstanding that an outside-of-the-car patfrisk of the suspect that does not yield a weapon on the suspect's person -- an ensuing protective search, that is "minimally necessary" for the protection of the officer, into the car interior may still be justified to determine whether a weapon may be hidden within the car. Commonwealth v. Cruz-Rivera, 76 Mass. App. Ct. 14, 18 (2009) (Cruz-Rivera).
2. The car interior protective search. We turn now to the police protective search into the car interior, and the police action in taking hold of the hat in the passenger seat back.
On this issue, Massachusetts search and seizure law has tracked that of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032 (1983). "[T]he search of the passenger compartment of an automobile [is (a)] limited to those areas in which a weapon may be placed or hidden," (b) focuses on whether the "police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, [c] reasonably warrant' the officer in believing that the suspect is dangerous and [d] the suspect may gain immediate control of weapons." Michigan v. Long, supra at 1049, quoting from Terry v. Ohio, 392 U.S. at 21. In accord with this Federal standard, the Massachusetts Supreme Judicial Court holds that, "[i]t is settled in law that in appropriate circumstances, a Terry type of search may extend into the interior of an automobile as long as it is limited in scope to a protective end." Commonwealth v. Silva, 366 Mass. 402, 408 (1974) (Silva). "[I]n appropriate circumstances a Terry type search may extend into the interior of an automobile." Commonwealth v. Almeida, 373 Mass. 266, 270 (1977) (Almeida). In this case, the facts described above concerning the agitated in-car actions of the defendant, as he was followed by the detective provided adequate specific and articulable facts to suspect that a weapon may have been present in the car. Specifically, the defendant ran a stop sign, did not stop for the officer when he put his blue lights on, and, when finally slowing down just prior to pulling his car over, he was seen reaching frantically and leaning toward the front center in the car and toward the passenger seat. Commonwealth v. Rivera, 76 Mass. App. Ct. 304, 309-310 (2010) (reasonable suspicion where suspect does not immediately pull over and makes furtive movements side to side and slightly forward) (Rivera).
At the next and second level of review under the Michigan/Terry/Silva standards, assuming solid facts are present, a police protective search of the car interior is permissible, so long as the search is confined to the area within the vehicle "from within which the suspect might gain possession of a weapon," Silva, supra, and is limited "to what is minimally necessary to learn whether the suspect is armed and to disarm him once [any] weapon is discovered." Cruz-Rivera, supra. See Almeida, supra at 272; Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995) (protective search of car interior and space which would be within reach of suspect upon re-entry to car following justified exit order in vehicular stop is justified).
Applying these space reach standards, in this case, the search of the center console and passenger seat was within appropriate space limitations in the car interior. The hat was embedded in "the area from within which the suspect might gain possession of a weapon." Silva, supra, quoting from Chimel v. California, 395 U.S. 752, 763 (1969). Indeed, the hat had been stuffed into the passenger seat -- a place where the defendant had been seen frantically moving, as if trying to retrieve or hide something, as the detective followed the defendant's car. Furthermore, the narrow space where the hat was embedded was not a common place to stuff a wide-brim hat. Thus, the hat was within the geographic space properly subject to a protective interior car reach/search.
So to this point, each step in the Michigan v. Long, Terry v. Ohio, and Commonwealth v. Silva, analysis was appropriately pursued. In this case, however, we must make an additional scrutiny, and we must decide whether the detective exceeded constitutional limits when he pulled the stuffed hat from the passenger seat back, thereby unfolding and, in effect, opening it. To meet constitutional standards, in order for police to open a container or object during a protective search, that object or container must be of sufficient size to conceal a weapon. Silva, 366 Mass. at 410. See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 5-4 [e] (2013- 2014). It is logical that, in assessing the reasonableness of an officer's decision to open a container in the context of a vehicular interior weapons protective search, the consideration of dimensions of the object or container is involved. If the dimensions are not such that the object or container could hold a weapon, then the object or container cannot be opened. Conversely, if the dimensions of the object or container in question are large enough so as to reasonably conceal a weapon, then a police officer may proceed to open that object or container. Compare Silva, supra at 410 (improper for police to search small, circular, black, coin purse that could not conceivably contain weapon), with Commonwealth v. Pagan, 440 Mass. 62, 68-73 (2003) (officers justified in opening large, heavy backpack, made of pliable material, that could reasonably contain weapon). The question of where an object or container falls on the line between cannot-be-opened (the too small Silva case) versus the can-be-opened (much bigger Pagan backpack) is a question of fact within the realm of the motion judge's review to be followed by specific findings of fact.
The backpack in Pagan was pliable, as was the wide-brimmed hat here. As the court noted in Pagan "the mere fact that a particular container is made of soft or pliable material does not necessarily mean that a patfrisk [standing alone] will provide useful or reliable information as to the presence or absence of weapons inside." Pagan, supra at 70. "In each case, the method and scope of an officer's search for reasonably suspected weapons must be confined to what is minimally necessary to discover the presence or confirm the absence of a weapon, and the specific circumstances will dictate what measures, including but not limited to a preliminary patfrisk, will satisfy that standard." Id. at 72-73.
In this case, the dimensions of a woman's wide-brimmed hat and its hat top were large enough to conceal a weapon. This is unlike the small coin purse at issue in Silva, which "could not conceivably have contained a gun, nor could an officer reasonably have considered that it contained a dangerous weapon of any kind." Silva, supra at 410. In contrast, this wide-brimmed hat had sufficient girth to hold a weapon.
Finally, as the hat was pulled out from the seat, the ecstasy pills came into plain view. "Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Commonwealth v. Santana, 420 Mass. at 211, quoting from Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Here, the detective was lawfully in a position from which to view the pills and was not searching for evidence. See Commonwealth v. DeJesus, 439 Mass. 616, 624 n.8 (2003). The seizure was justified.
For the aforementioned reasons, the motion to suppress the drugs found in the vehicle was properly denied.
Judgment affirmed.
By the Court (Berry, Katzmann & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 16, 2015.