Com. v. Bostock, SJC-09929.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Spina
• Citation: 880 N.E.2d 759,450 Mass. 616
• Docket Number: SJC-09929.
• Decision Date: 11 February 2008
• Parties: COMMONWEALTH v. William BOSTOCK.

880 N.E.2d 759 450 Mass. 616 COMMONWEALTH
v.
William BOSTOCK. SJC-09929. Supreme Judicial Court of Massachusetts, Norfolk. Argued January 7, 2008. Decided February 11, 2008.

[880 N.E.2d 762]

Brian A. Wilson, Assistant District Attorney, for the Commonwealth.

Paul C. Brennan, Woburn, for the defendant.

Andrew S. Crouch, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

SPINA, J.

450 Mass. 617

The Commonwealth sought interlocutory review of the order of a judge in the Superior Court suppressing evidence obtained after police ordered the defendant, William Bostock, out of a vehicle and searched his bags. The judge concluded that the police lacked authority to issue the exit order and search Bostock's bags. A single justice allowed the interlocutory appeal, and we transferred the case here on our own motion. We reverse the allowance of the motion to suppress.

Background. On September 22, 2003, at approximately 10 P.M., Officer Donald Allison of the Quincy police department received a dispatch that someone had broken into a vehicle located at 45 Bracket Street in Quincy. Within one minute of the dispatch, Allison arrived at the scene and spoke with William Mello, a security guard who had reported the break-in. In a conversation that lasted approximately one minute,¹ Mello told Allison that the suspect was male, was wearing a light-colored shirt and blue jeans, and was carrying a duffel bag. Mello told Allison that he had seen the suspect rummaging through a car belonging to a friend and that, when Mello called out, the suspect had stepped out of the vehicle and headed toward 99 Bracket Street.

Allison drove toward 99 Bracket Street and arrived within fifteen seconds. As Allison entered the parking lot at 99 Bracket Street, Richard Richu hailed him.

880 N.E.2d 763

Richu informed Allison that he had seen a white male wearing a light-colored shirt and jeans walking away from Richu's van in the parking lot. Richu said that he had examined his vehicle and found several items to be missing, including a compact disc player, a radar detector, and a Nextel cellular telephone. Richu said that the suspect had walked in the direction of a wooden fence that separated the parking lot from an adjacent parking lot.

Allison radioed for backup, and several officers responded to help search for the suspect. Shortly thereafter, Officer Thomas Gaeta radioed that he had found a person (Bostock) who

450 Mass. 618

matched the suspect's description in a parked pickup truck² in the adjacent parking lot beyond the wooden fence. Within approximately fifteen seconds of Gaeta's report, Allison arrived at Bostock's location. There was no evidence that Bostock was armed or dangerous.

On Allison's arrival, Gaeta ordered Bostock out of the truck. He complied. Allison then asked Bostock what his name was and what he was doing in the area. He replied by giving his name and by explaining that he had been too late to get a bed at Father Bill's.³ He told Allison that he had just entered the truck. As Bostock answered, Allison looked inside the truck and saw a Nextel cellular telephone and three bags. At least one of the bags was a duffel bag.

Allison asked Bostock, "Are those your bags?" Bostock answered that they were not. Allison then reached into the vehicle and removed the bags. At that point, the mouth of one bag gaped open, and Allison saw a compact disc player inside.

Thereafter, Allison asked other police officers to bring Mello and. Richu to Bostock. After his arrival, Mello made a positive identification of Bostock. The police formally placed Bostock under arrest. Richu arrived and also identified Bostock.

At the evidentiary hearing, Bostock moved to suppress the statements made and physical evidence obtained after the warrantless search and seizure. The judge determined that there was no probable cause to suspect that the truck contained fruits or instrumentalities of a crime and that the "automobile exception" to the warrant requirement therefore did not apply. The judge concluded that there was reasonable suspicion to believe that Bostock had committed, was committing, or was about to commit a crime but found that Gaeta's exit order violated art. 14 of the Massachusetts Declaration of Rights because the police did not have a reasonable belief that they were in danger. The judge suppressed the evidence obtained from the truck after the warrantless search and seizure.

450 Mass. 619

Discussion. "We accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (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. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

The parties dispute whether the judge was correct to find that the police

880 N.E.2d 764

had reasonable suspicion to believe that Bostock had committed, was committing, or was about to commit a crime when Bostock was ordered out of the truck.

Where a police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Thibeau, 384 Mass. 762, 763, 429 N.E.2d 1009 (1981); Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). A mere hunch does not amount to reasonable suspicion. Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). When Bostock was ordered out of the truck, the police had more than a mere hunch. They had found Bostock within minutes of two break-ins and in the general vicinity of the alleged crimes. Bostock matched the descriptions that two witnesses had provided independently to the police, and the police, having canvassed the area, had found no one else matching those descriptions. In light of these specific, articulable facts, the judge was correct to find that the police had reasonable suspicion to conduct a threshold inquiry.

The parties dispute, in addition, whether our holding in Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 711 N.E.2d 108 (1999) (Gonsalves), applies to this case. More specifically, the Commonwealth argues that the judge erred in finding that, to issue an exit order, police are required to have a reasonable belief that their safety is at risk. Bostock, on the other hand, argues that the judge did not err, and that such a reasonable belief is required before a person may be ordered out of a car.

In Gonsalves, supra, we held that art. 14 requires that, before ordering a driver out of a car, a police officer must have a reasonable belief that the officer's safety or the safety of others is in danger. The holding in that case was expressly limited to

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routine traffic stops. Id. (art. 14 "requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle" [emphasis added]). See id. at 666 n. 5, 711 N.E.2d 108 ("To the extent that a bright-line rule is needed, our conclusions today establish one: No exit order may be given to the driver or any passenger in a routine traffic stop without the police officer's having an objective reasonable basis to justify the order" [emphasis added] ); id. at 668, 711 N.E.2d 108 ("we conclude that, under art. 14, the balancing of interests requires that Massachusetts citizens should not be subjected to unjustified exit orders during routine traffic stops" [emphasis added] ).

Later opinions have adhered to Gonsalves's limitation to cases involving routine traffic stops. See Commonwealth v. Torres, 433 Mass. 669, 673, 745 N.E.2d 945 (2001) ("When the police are justified in stopping an automobile for a routine traffic violation, they may . . . 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" [emphasis added] ); Commonwealth v. Hooker, 52 Mass.App. Ct. 683, 685, 755 N.E.2d 791 (2001) ("in a routine motor vehicle stop, the police may not . . . order a driver or passenger from a lawfully stopped vehicle without reasonable apprehension of danger to an officer or others" [emphasis. added]); Commonwealth v. Robie, 51 Mass.App.Ct. 494, 498, 746 N.E.2d 583 (2001) ("where there is a routine traffic stop, the Commonwealth must show that a police officer had a reasonable belief that the officer's safety, or the safety of others, was in danger before

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ordering a driver or passengers out of a vehicle" [emphasis added]). See also Commonwealth v. Washington, 449 Mass. 476, 482, 869 N.E.2d 605 (2007) (analyzing "exit order and patfrisk as part of a routine traffic stop").

The underlying policies of Gonsalves urge us not to extend its holding to a case where the police have reasonable suspicion of criminal activity. Gonsalves bases its holding in part on reasonable expectations. More specifically, motorists have a reasonable expectation that the police will...