Commonwealth v. Buckley, SJC–12344

• Decision Date: 14 February 2018
• Docket Number: SJC–12344
• Citation: 478 Mass. 861,90 N.E.3d 767
• Parties: COMMONWEALTH v. Rogelio R. BUCKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 861

90 N.E.3d 767

COMMONWEALTH

v.Rogelio R. BUCKLEY.

SJC–12344

Supreme Judicial Court of Massachusetts, Plymouth..

Argued October 5, 2017.

Decided February 14, 2018.

The following submitted briefs for amici curiae:

Matthew Malm for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Ivan Espinoza–Madrigal, of New York, Oren M. Sellstrom, & Oren N. Nimni for Lawyers' Committee for Civil Rights and Economic Justice & others.

Rebecca Kiley, Committee for Public Counsel Services, & Derege B. Demissie for Committee for Public Counsel Services & another.

Jeff Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan D. Hall, Jessie J. Rossman, & Carlton E. Williams for American Civil Liberties Union of Massachusetts.

Daniel F. Conley, District Attorney, & John P. Zanini, Cailin M. Campbell, & David D. McGowan, Assistant District Attorneys, for District Attorney for the Suffolk District.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

In this appeal we are asked to reconsider one tenet of our search and seizure jurisprudence: that a traffic stop constitutes a "reasonable" "seizure" for purposes of art. 14 of the Massachusetts Declaration of Rights where a police officer has observed a traffic violation, notwithstanding the officer's underlying motive for conducting the stop. See Commonwealth v. Santana, 420 Mass. 205, 649 N.E.2d 717 (1995). For the sound legal and practical reasons discussed below, we decline to depart from that tenet as the general standard governing the validity of traffic stops under art. 14. We affirm the denial of the defendant's motion to suppress, and we also affirm the judgment of conviction.

Facts. We recount the facts found by the motion judge, supplemented by uncontroverted testimony at the motion hearing. Commonwealth v. Cordero, 477 Mass. 237, 238, 74 N.E.3d 1282 (2017). On January 25, 2013, Whitman police Detectives Joseph Bombardier and Eric Campbell were conducting surveillance of a three-unit apartment building out of which they suspected drug activity was being conducted.¹ At approximately 10:50 P.M. that evening, the detectives observed a vehicle park nearby, and its two occupants enter the building. Those same two individuals reemerged a few minutes later, returned to the vehicle, and drove away without the vehicle's headlights on. Bombardier instructed fellow Officer Gary Nelson to stop the vehicle for suspected drug activity. Nelson did so a few minutes later, upon observing the vehicle traveling above the speed limit along a road in Whitman.² Nelson radioed Bombardier that he had stopped the vehicle.

When the detectives arrived, Nelson was standing at the vehicle's driver's side. Bombardier likewise approached the driver, and in doing so he noticed a strong odor of marijuana emanating from inside the vehicle. Bombardier asked the driver if she had any marijuana in the vehicle.³ She told him that she did not think so, and said that he could check. After instructing the driver to step out, Bombardier used his flashlight to search the interior of the driver's seat area. Finding nothing, he directed Campbell to ask the front seat passenger, the defendant, to leave the vehicle. When the defendant stepped out, Campbell observed what he believed to be a firearm under the front passenger seat.⁴ The officers arrested the defendant and the driver, placed them in separate cruisers, and advised them of the Miranda rights. Another officer later observed a plastic bag on the floor of the cruiser between the defendant's feet that appeared to contain "crack" cocaine. The defendant was subsequently indicted for possession with the intent to distribute cocaine, as well as with firearm offenses and other offenses with enhanced penalties.

Prior to trial, the defendant moved to suppress the evidence seized during the traffic stop. The motion judge held an evidentiary hearing, and thereafter, he denied the defendant's motion. In April, 2015, a jury convicted the defendant on the lesser included offense of cocaine possession, and he was sentenced to one year in jail. The defendant timely filed this appeal from the judgment of conviction, and on appeal, he challenges only the denial of his pretrial motion to suppress.

Discussion.⁵ The defendant challenges the denial of his motion to suppress on three grounds. First, he argues that the evidence against him should be suppressed as the product of a pretextual stop, where the Whitman officers stopped the vehicle the defendant occupied not because it was speeding, but because the police suspected that its occupants were involved in drug activity. The defendant contends that all such pretextual stops, which generally are legitimated on the basis of an observed civil traffic violation yet motivated by a desire to investigate suspected criminal wrongdoing as to which the police lack reasonable suspicion or probable cause to justify an investigatory stop, violate art. 14 and its protection against unreasonable seizures.⁶ On this point, the defendant asks that we overturn our decision in Santana, 420 Mass. 205, 649 N.E.2d 717, which holds that an observed traffic violation is itself a lawful basis for the police to conduct a traffic stop regardless of the officer's underlying motive.

Second, the defendant argues that the police impermissibly expanded the scope of the stop when detectives Bombardier and Campbell approached the vehicle during Nelson's traffic inquiry and asked the driver about the smell of marijuana. Last, the defendant challenges the motion judge's finding that the driver's consent to the search of the vehicle was freely and voluntarily given.

We review these arguments in turn. In doing so, "we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004).

1. Pretext. The parties dispute, as a threshold matter, whether the defendant adequately raised this issue before the motion judge. We conclude that he did. The first section of the defendant's memorandum of law in support of his motion to suppress asserted that "[t]he car stop was effectuated so that the occupants could be identified and the car searched." The motion judge's written opinion likewise acknowledged "[t]he defendant['s] argu[ment] that the stop for the traffic offense was a pretext." The fact that the defendant did not specifically state that he challenged the continued viability of Santana does not preclude our review of this issue, given both its treatment below and the fact that the motion judge was bound to apply Santana regardless of the defendant's position. See generally Commonwealth v. Vasquez, 456 Mass. 350, 357–358, 923 N.E.2d 524 (2010).⁷

Article 14, like the Fourth Amendment to the United States Constitution, guarantees "a right to be secure from all unreasonable searches[ ] and seizures."⁸ Because "[a] police stop of a moving automobile constitutes a seizure," Commonwealth v. Rodriguez, 472 Mass. 767, 773, 37 N.E.3d 611 (2015), that stop must be reasonable in order to be valid under the Fourth Amendment and art. 14. A passenger in a vehicle may challenge the constitutionality of a stop. See Commonwealth v. Quintos Q., 457 Mass. 107, 110, 928 N.E.2d 320 (2010), citing Brendlin v. California, 551 U.S. 249, 251, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

In Santana, 420 Mass. at 209, 649 N.E.2d 717, we articulated the current State constitutional standard for evaluating the validity of a traffic stop. Under that rule, called the authorization approach, a traffic stop is reasonable for art. 14 purposes "so long as the police are doing no more than they are legally permitted and objectively authorized to do," regardless of the underlying intent or motivations of the officers involved. Santana, supra, quoting United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989), cert. denied sub nom. Cummins v. United States, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 116 L.Ed.2d 449 (1991).⁹ Stated differently, under the authorization test, a stop is reasonable under art. 14 as long as there is a legal justification for it. We have long held that an observed traffic violation is one such justification. See, e.g., Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle"); Commonwealth v. Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016) (valid stop where "unlit registration plate"); Commonwealth v. Feyenord, 445 Mass. 72, 75, 833 N.E.2d 590 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1369, 164 L.Ed.2d 77 (2006) (valid stop where inoperable headlight in daylight); Santana, 420 Mass. at 207, 649 N.E.2d 717 (valid stop where defective taillight). Cf. Commonwealth v. Lora, 451 Mass. 425, 436, 886 N.E.2d 688 (2008), quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("the decision to stop an automobile is reasonable for Fourth Amendment purposes ‘where the police have probable cause to believe that a traffic violation has occurred’ "). As Santana makes clear, the authority to conduct a traffic stop where a traffic violation has occurred is not limited by "[t]he fact that the [police] may have believed that the [driver was] engaging in illegal drug activity." 420 Mass. at 208, 649 N.E.2d 717.

In the defendant's view, however, evaluating the reasonableness of a traffic stop on the basis of legal justification alone is not enough, because this creates the risk that the police might use an observed traffic violation as a pretext for investigating other suspected wrongdoing.¹⁰ In place of the authorization test, the defendant seeks a new art. 14 standard for traffic stops that looks beyond objective legal justification in order to examine the police's underlying motives for conducting the stop. Sp...