Commonwealth v. Clay C.
| Decision Date | 20 September 2016 |
| Docket Number | No. 15–P–776.,15–P–776. |
| Citation | 90 Mass.App.Ct. 1106,59 N.E.3d 455 (Table) |
| Parties | COMMONWEALTH v. CLAY C., a juvenile. |
| Court | Appeals Court of Massachusetts |
After a bench trial, the juvenile was adjudicated delinquent on charges of carrying a loaded firearm without a license, G.L.c. 269, § 10(n ), and possessing ammunition without a firearm identification card, G.L.c. 269, § 10(h )(1).3 He was also found guilty of being a youthful offender on the indictment charging him with carrying a firearm without a license, G.L.c. 269, § 10(a ). On appeal, the juvenile asserts that the motion judge erred in denying his motion to suppress physical evidence, including a revolver and ammunition, as well as statements he made to the police. We affirm.
Background. The relevant facts, as set forth at the evidentiary hearing on the juvenile's motion, and credited by the judge, are as follows. On June 8, 2014, Boston police Officers Nicholas Fisher and James Walsh were patrolling the Mission Hill area of Boston in an unmarked police vehicle. At approximately 7:05 P.M., the officers observed a vehicle with excessive window tint traveling in the opposite direction. Officer Fisher, who was driving, activated the police vehicle's sirens and lights and attempted to effectuate a motor vehicle stop. The vehicle pulled over approximately one-quarter of a mile away.
The officers, dressed in plain clothes, approached the vehicle with their badges displayed. Officer Fisher approached the driver's side while Officer Walsh approached the passenger's side. When the driver rolled down his window, Officer Fisher recognized him as an individual who previously had been convicted of firearm related offenses. Officer Fisher also recognized the juvenile sitting in the passenger seat from prior encounters in the Mission Hill area. On this occasion, Officer Fisher observed that the juvenile sat rigidly, looked straight ahead, and avoided eye contact with the officers.
Officer Walsh knocked several times on the front passenger window. When the juvenile did not lower the window, Officer Walsh opened the passenger side door and engaged in conversation with the juvenile about summer activities, school, and employment. The juvenile stated that he needed to leave. The juvenile's behavior was different from other times when Officer Fisher had spoken to him. Officer Walsh observed a bulge in the front left waist area of the juvenile's pants. Both the driver and the juvenile were asked to step out of the vehicle. While pat frisking the juvenile, Officer Walsh found a loaded firearm. The juvenile then was arrested and taken into custody.
Discussion. In reviewing a decision on a motion to suppress, we accept, absent clear error, the motion judge's subsidiary findings, but independently review his ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed.” Commonwealth v. Hilton, 450 Mass. 173, 178 (2007).
1. Erroneous finding. The juvenile contends that the motion judge's subsidiary finding that “[i]t was ... observed that there was a bulge in the waistband of the Juvenile's pants” was clearly erroneous in light of Officer Fisher's testimony on cross-examination that he did not observe the bulge himself. Even if we were to agree with the juvenile that he adequately preserved his claim by his earlier objection during the direct examination of Officer Fisher, the heightened standard of review does not assist his argument, as we discern no error. See generally Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
While officer Fisher was the only witness who testified at the motion to suppress hearing, his testimony regarding the information Officer Walsh relayed to him was properly admitted. See Commonwealth v. Fletcher, 52 Mass.App.Ct. 166, 168 n. 2 (2001) (). Both officers were present throughout the encounter. The testifying officer described his personal observations, and the information told to him by his partner. This was an appropriate application of the collective knowledge doctrine. See Richardson v. Boston, 53 Mass.App.Ct. 201, 206 (2001) ; Commonwealth v. Quinn, 68 Mass.App.Ct. 476, 480–481 (2007). Compare Commonwealth v. King, 67 Mass.App.Ct. 823, 825, 830 (2006). That the bulge was not observed by Officer Fisher is of no import. The judge was free to credit Officer Fisher's testimony regarding the information Officer Walsh supplied. There was no error in the judge's factual findings.
2. Scope of the search. The juvenile acknowledges that the civil motor vehicle violation justified the stop, see Commonwealth v. Baez, 47 Mass.App.Ct. 115, 117 (1999), but contends that the opening of the passenger side door, the exit order, and the subsequent patfrisk were not justified. He asserts the circumstances do not support a reasonable concern for officer safety. We disagree.
Ordinarily, “[w]hen 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). To determine whether there exists a reasonable belief that the safety of the officers or the public is in danger, “we ask ‘whether a reasonably prudent man in the policeman's position would be warranted’ in such a belief.” Commonwealth v. Stampley, 437 Mass. 323, 325 (2002), quoting from Torres, supra. “A ‘mere hunch’ is not enough, nor is nervousness or fidgeting on the part of the driver or passengers in a stopped vehicle [by itself] an adequate reason to order them out of...
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