Com. v. Brown

• Citation: 915 N.E.2d 252,75 Mass. App. Ct. 528
• Decision Date: 21 October 2009
• Docket Number: No. 08-P-0649.,08-P-0649.
• Parties: COMMONWEALTH v. Elosko D. BROWN.
• Court: Appeals Court of Massachusetts

915 N.E.2d 252

75 Mass. App. Ct. 528

COMMONWEALTH v. Elosko D. BROWN.

No. 08-P-0649.

Appeals Court of Massachusetts, Plymouth.

Argued January 15, 2009.

Decided October 21, 2009.

Stephen Elliott, Bridgewater, for the defendant.

Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., DUFFLY, & COHEN, JJ.

DUFFLY, J.

The defendant was a passenger in a taxicab that was pulled over by a State trooper for a routine traffic violation. Because the defendant was not wearing a seat belt, the trooper asked for his license, which the defendant stated he did not have. Perceiving the defendant to be "nervous," the trooper ordered the defendant to step out of the vehicle. During the ensuing patfrisk, the trooper found a firearm. A judge of the Superior Court denied the defendant's motion to suppress. A single justice of the Supreme Judicial Court granted the defendant's application for leave to pursue this interlocutory appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We reverse.

1. Facts. The judge's findings were based on the testimony of the sole witness, State Trooper Mark Cohen, which the judge explicitly credited. We summarize the findings and uncontradicted testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). At approximately 8:40 P.M. on July 23, 2007, in Brockton, Trooper Cohen, while driving an unmarked police cruiser, observed a taxicab heading south on Warren Avenue, then turning onto Nillson Street, a residential street. Noting that the taxicab was traveling too close to the left side of the two-way street, Cohen activated the cruiser's blue lights and signaled the driver to stop. The area was one that he patrolled more frequently than others "because of the inciden[ce] of crime." The trooper approached the driver's side of the taxicab. As he examined the driver's license and registration and questioned him about his driving,¹ he could see two passengers seated in the rear, looking straight ahead.

Noticing that the passengers were not wearing their seat belts, Cohen admonished them for failing to do so. In response, the passengers became agitated. According to Cohen, they had "tense, nervous looks on their face[s]" and "said that they were just [being driven] in a taxi." Cohen thought their responses "an overreaction" to the situation and, at that point, decided "to get their information" in order to write each a citation for not wearing a seat belt. Cohen testified that when he asked the passenger seated behind the driver for a driver's license, the passenger responded that he "did not want to give [Cohen] a license." Cohen told the passenger that "he was in violation, he wasn't wearing a seat belt," and that he, Cohen, "needed to see a license." The passenger then informed Cohen that he did not have one. Cohen then requested, and the passenger provided, his name and date of birth. Cohen then asked the second passenger, the defendant, for a driver's license or other identification. "In a quiet tone, he said no. He said he did not have a license or an ID on him."

As Cohen was questioning the passengers, a uniformed Brockton police officer, who happened to be patrolling the same street, stopped to inquire if Cohen was "all set." Cohen asked him to "stick around for a couple of minutes." The officer parked behind Cohen's cruiser and joined the trooper next to the driver's side of the taxicab.

At this point, according to Cohen, both passengers having stated that they did not have identification, he "just wanted to get some information from each party, separate them and talk with them and get some information." Cohen told the passenger seated behind the driver to step out of the vehicle, and he then pat frisked him "for safety." Finding no identification or anything else of consequence as a result of the patfrisk, he told the passenger to resume his seat in the taxicab.

Cohen and the officer then walked to the rear passenger side of the taxicab, where the defendant was seated, and told him to step out of the vehicle. On cross-examination, Cohen agreed that at this point he "had not seen either [passenger] make any sudden movements," nor had he "seen them make any furtive movements as if they were trying to bend over and hide something." Cohen testified, "At that point, I was going to pat frisk him for my safety and, same thing, I wanted to get some information from him just to write it down." The trooper pat frisked the defendant and discovered a revolver in defendant's pants pocket.²

2. Discussion. We are concerned once more with deciding whether a particular constellation of facts was constitutionally sufficient to justify the exit order and patfrisk of the defendant.³

We accept the motion judge's subsidiary findings of fact Commonwealth v. Quinn, 68 Mass.App.Ct. 476, 479, 862 N.E.2d 769 (2007), but "[t]he ultimate legal conclusion to be drawn from the fact[s] developed at the hearing [on a motion to suppress] is a matter for our review, particularly where the conclusion is of constitutional dimension." Commonwealth v. Rivera, 67 Mass.App.Ct. 362, 364, 853 N.E.2d 1075 (2006), quoting from Commonwealth v. Accaputo, 380 Mass. 435, 448 n. 18, 404 N.E.2d 1204 (1980).⁴

That an automobile stop may pose a danger to the officer involved is a fact beyond contention. See, e.g., Commonwealth v. Gonsalves, 429 Mass. 658, 664, 711 N.E.2d 108 (1999), S.C., 432 Mass. 613, 739 N.E.2d 1100 (2000), quoting from Commonwealth v. Williams, 46 Mass.App. Ct. 181, 183, 704 N.E.2d 212 (1999) ("[T]here is danger for a police officer inherent in any auto stop"). Accordingly, our courts have consistently held that "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." Ibid. However, we do require that an officer have a basis for reasonable suspicion rooted in specific and articulable facts that a "particular passenger in the car is involved in criminal activity or `engaged in other suspicious conduct.'" Commonwealth v. Alvarez, 44 Mass.App. Ct. 531, 534, 692 N.E.2d 106 (1998), quoting from Commonwealth v. Torres, 424 Mass. 153, 158, 674 N.E.2d 638 (1997). See Grasso & McEvoy, Suppression Matters under Massachusetts Law § 5-3[c][1], at 5-7 (2009-2010 ed.), quoting from Commonwealth v. Gutierrez, 26 Mass.App.Ct. 42, 47, 522 N.E.2d 1002 (1988) ("To justify the frisk, the officer must be able to point to `particular facts' from which the inference is reasonable that the individual was armed and dangerous"). See also Grasso & McEvoy, supra at § 5-3[c][2], at 5-10. The facts offered here by the Commonwealth to justify the trooper's exit order and subsequent patfrisk of the defendant, while significant, do not establish such a basis.

To justify an exit order or a patfrisk, "we ask `whether a reasonably prudent [person] in the police [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger.'" Commonwealth v. Vazquez, 426 Mass. 99, 103, 686 N.E.2d 993 (1997), quoting from Commonwealth v. Santana, 420 Mass. 205, 212-213, 649 N.E.2d 717 (1995). "A mere `hunch' is not enough; rather the patfrisk must `be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience.'" Commonwealth v. Holley, 52 Mass.App.Ct. 659, 662, 755 N.E.2d 811 (2001), quoting from Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974).

The Commonwealth argues that the exit order was justified by the following facts: the defendant and the other passenger appeared nervous; both lacked documentary forms of identification; the police were outnumbered; and the stop took place in a high crime area.⁵ None of these observations in isolation is sufficient to justify an exit order, and they do not, in the circumstances here, combine to create that justification. See Commonwealth v. Torres, 424 Mass. at 161, 674 N.E.2d 638 ("Adding up eight innocuous observations—eight zeros—does not produce a sum of suspicion that justifies a line of interrogation, an order of persons out of their car, and a search of their car") a. Nervous appearance. The trooper's testimony that the defendant and his fellow passenger had "nervous looks" or appeared to be "tense" are "general descriptions [that] fall short of the `specific and articulable facts' which are required to demonstrate reasonableness. [Commonwealth v. King, 389 Mass. 233, 234, 449 N.E.2d 1217 (1983)]." Commonwealth v. Williams, 46 Mass.App.Ct. 181, 184, 704 N.E.2d 212 (1999) (officer testified that defendant driver "was acting suspicious[ly], `moving around' and appeared extremely `nervous'"). See Commonwealth v. Gonsalves, 429 Mass. at 660, 669, 711 N.E.2d 108 (where trooper ordered passenger to leave taxicab because he "thought the defendant was extremely nervous. His hands were trembling and moving from his lap to the seat and back to his lap again, and he appeared to be breathing heavily," court concluded that "nervousness and fidgeting do not warrant what occurred here"). See also Commonwealth v. DePeiza, 449 Mass. 367, 372, 868 N.E.2d 90 (2007) (signs of nervousness "do not supply reasonable suspicion when considered in isolation"). It is thus well established that a defendant's nervous movements or appearance alone is insufficient to render a patfrisk reasonable.

Our appellate courts have considered a defendant's nervousness along with certain other factors in determining the reasonableness of an exit order or a patfrisk. Suppression is appropriately denied where, in addition to the defendant's nervous appearance, other factors exist, including in particular police observation of a furtive gesture. See, e.g., Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 640-641, 644, 747 N.E.2d 1253 (2001) (after being told not to, defendant...