Opinion
16-P-991
07-07-2017
COMONWEALTH v. CHRISTOPHER COLBERT.
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
The Commonwealth brings this interlocutory appeal challenging an order allowing the defendant's motion to suppress evidence flowing from a lawful traffic stop. At issue is the discovery of evidence seized following a State trooper's exit order. The Commonwealth argues that safety concerns justified the exit order, and therefore the motion judge erred in allowing the motion to suppress. We affirm.
Background. We summarize the findings of "the motion judge after an evidentiary hearing, supplemented by uncontested facts in the record." Commonwealth v. Craan, 469 Mass. 24, 26 (2014). State Trooper Mark Weiner was driving his cruiser on Interstate Highway 91 when he came up behind the defendant's vehicle in the far left traffic lane. The defendant's vehicle was operating in excess of the sixty-five mile-per-hour speed limit. Weiner signaled to the defendant by activating his cruiser's blue lights and sounding his cruiser's siren and noticed the defendant's car beginning to jerk back and forth within the lane. The defendant decelerated, began to swerve, and came to a full stop in the left lane. After Weiner repeatedly instructed the defendant to move the vehicle to the right, the defendant complied.
As Weiner approached the defendant's vehicle on the passenger side, he could see that the defendant was the sole occupant. Weiner noticed that the defendant repeatedly looked over his left shoulder, over his right shoulder into the back seat, and down at the floor.
Weiner knocked on the passenger window, which visibly startled the defendant, and asked for the defendant's license and registration. The defendant informed Weiner that the vehicle belonged to a relative. The defendant stated that he had a Connecticut driver's license but did not have it with him. Weiner noticed that the defendant was extremely nervous; he was sweating despite the cold January night, his hands were trembling, and his voice cracked. Weiner asked the defendant if he had "any form of a photo ID or other form of identification." When the defendant produced two insurance cards and a debit card, Weiner declined to view them because they did not bear photographs.
Weiner ordered the defendant out of the vehicle. Once the defendant complied, Weiner could clearly see plastic bags containing a white substance on the floor of the vehicle in front of the driver's seat. He recognized this substance to be consistent with cocaine. Weiner then pat frisked the defendant for weapons and found none. Weiner radioed for backup and directed the defendant to the back seat of the cruiser. He did not place handcuffs on the defendant or read him his Miranda rights. While in the cruiser, the defendant told Weiner that his license might be in his jacket in the back seat. Weiner located the license in the jacket. Weiner also retrieved the suspected cocaine, placed the defendant under arrest, and took him to the police barracks, where a further search revealed approximately $1,100 in cash in the defendant's pockets.
The defendant was indicted on charges of trafficking in a controlled substance and unlawful possession of a controlled substance. After an evidentiary hearing, the motion judge allowed the defendant's motion to suppress all items seized following the exit order. The Commonwealth appeals.
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
"There is no dispute that the initial stop of the defendant's [vehicle] and request for identification were proper." Commonwealth v. Santos, 65 Mass. App. Ct. 122, 124 (2005). The question is whether the exit order was proper.
"When the police are justified in stopping an automobile for a routine traffic violation, they may, for their safety and the safety of the public, order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger." Commonwealth v. Torres, 433 Mass. 669, 673 (2001). "[W]hile a mere hunch is not enough . . . it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns and, if the basis is there, a court will uphold the order." Commonwealth v. Feyenord, 445 Mass. 72, 75-76 (2005), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999).
The motion judge found that Weiner did not "experience a heightened sense of danger during his encounter with [the] defendant, nor was he confronted with any facts [that] would have supported such reaction." The Commonwealth argues that the defendant's behavior, including his nervousness, his repeated glances over his shoulders and down at his feet, his inability to produce his driver's license, his reluctance to stop for the trooper, and his erratic driving, justified the exit order. We agree with the motion judge.
While the standard in this case is an objective one, Weiner's subjective reactions can be instructive in deciding whether the circumstances created a reasonable fear. See Commonwealth v. Daniel, 464 Mass. 746, 753 n.2 (2013). Weiner testified that he did have safety concerns, but also agreed that he did not mention anywhere in his report of the incident that he had any safety concern. The motion judge was entitled to evaluate the credibility of the evidence in deciding the motion. See Commonwealth v. Quinones, 78 Mass. App. Ct. 215, 220 n.2 (2010), quoting from Commonwealth v. Bacigalupo, 455 Mass. 485, 489 (2009) (the Appeals Court does not "consider the credibility of the witnesses").
The Commonwealth agreed at oral argument that the motion judge "disagreed with" Weiner's testimony that the defendant's conduct was suspicious.
Weiner testified that, based on the defendant's lack of suitable identification, not being the owner of the vehicle, erratic manner of stopping, stopping in the left travel lane, and nervous demeanor, he "decided that it would be prudent to have [the defendant] step from the vehicle, have him take a seat in the back of [Weiner's] cruiser so [Weiner] could better establish his identity." This testimony suggests that the exit order was investigatory in nature, and not for a protective purpose. See Santos, supra at 128 ("to allow such a search would be to invite random, unequal treatment of motorists").
The fact that the defendant appeared to be nervous, as shown through his shaking, sweating, and cracking voice, was insufficient to justify an exit order. Commonwealth v. Locke, 89 Mass. App. Ct. 497, 504, (2016) ("nervousness alone is insufficient to support an exit order"). The motion judge found that the defendant's trembling was at least in part due to the cold conditions of the January night.
The defendant's glances over his shoulders and down to the floor are also not grounds for an exit order. The motion judge found that the defendant's glances and his startled reaction to the knock on the window were consistent with the defendant expecting Weiner to approach the driver's side of the vehicle and looking for him to do so. Indeed, Weiner testified that when he pulls drivers over, "frequently they will look over their left shoulder to see when I'm walking up." A person stopped for a traffic violation is not required to remain completely still. See Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 686 (2001). These innocuous gestures cannot justify an exit order.
The failure of the defendant to produce a license is significant. However, as in Santos, "there was no other evidence to indicate that the car was stolen or that criminal activity was afoot." Santos, 65 Mass. App. Ct. at 126. Nor was this "a 'swiftly developing situation' that prevented verification or disproof of the [trooper's] suspicions regarding the defendant's identity or the ownership of the car through routine computer or radio checks." Ibid., quoting from Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001). When Weiner asked for his license, the defendant stated that he did have one, but could not locate it. Weiner rejected the two insurance cards and debit card the defendant provided him because they were not government-issued photo identification. These documents gave Weiner a matching name he could verify, but he ran no records check to confirm the defendant's identity or to determine whether the defendant had an active driver's license. As in Santos, "in these circumstances, the officer did not have a reasonable apprehension of danger when he had the defendant exit the car, put him in handcuffs, and searched the car." 65 Mass. App. Ct. at 127. Cf. Feyenord, 445 Mass. at 73-74 (exit order justified where defendant driver did not produce valid driver's license, "did not provide an intelligible response to" officer's request for his name, and gave conflicting answers regarding his age, and exit order separated driver from passenger).
In Massachusetts, it is an arrestable offense for an out-of-State driver not to have a license "on his person or in the vehicle in some easily accessible place." G. L. c. 90, § 10. The Commonwealth does not argue that the defendant's failure to produce his driver's license was an independent justification for the exit order. We agree that because Weiner did not issue the exit order to arrest the defendant for violation of this statute, it is inapposite.
The motion judge stated that he was "left puzzled as to why Weiner — after [the]defendant told him he could not locate his driver's license — declined to even examine either [the] defendant's insurance cards or his bank debit card after Weiner asked if he had any identification."
The Commonwealth also argues that the exit order was valid because the defendant's reluctance to pull to the side of the road and his erratic driving created a reasonable fear for the safety of the general public. Erratic driving may provide an officer with reasonable suspicion that the driver is impaired, permitting an investigatory stop. See Daniel, 464 Mass. at 756. However, in this case, once Weiner stopped the defendant's vehicle, any suspicion of intoxication was dispelled. Our courts have consistently required more than erratic driving in order to justify an exit order. See id. at 749 (exit order not warranted where a defendant had "applied the brakes and made an abrupt stop in the middle of the left travel lane"); Locke, 89 Mass. App. Ct. at 498 (exit order not warranted where the defendant's vehicle had "made an erratic lane change . . . nearly causing a collision"). Thus, the defendant's driving is also an insufficient basis for Weiner's exit order.
In sum, without more, we conclude that the search of the vehicle in these circumstances was not authorized to protect the officer's safety or the safety of the public.
Order allowing motion to suppress affirmed.
By the Court (Maldonado, Massing & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 7, 2017.