Com. v. Doulette

• Decision Date: 04 August 1992
• Docket Number: No. 91-P-119,91-P-119
• Citation: 591 N.E.2d 213,32 Mass.App.Ct. 506
• Parties: COMMONWEALTH v. David DOULETTE.
• Court: Appeals Court of Massachusetts

Page 213

591 N.E.2d 213

32 Mass.App.Ct. 506

COMMONWEALTH v. David DOULETTE.

No. 91-P-119.

Appeals Court of Massachusetts Plymouth.

Argued Feb. 6, 1992.

Decided May 11, 1992.

Further Appellate Review Granted Aug. 4, 1992.

Arthur C. Ryley, Barnstable, for defendant.

Kathleen A. Reagan, Asst. Dist. Atty., for the Com.

Before BROWN, DREBEN and GREENBERG, JJ.

GREENBERG, Justice.

The defendant was charged and convicted of possession of cocaine (G.L. c. 94C, § 34). Just prior to a six-member jury trial, he moved to suppress the Commonwealth's evidence on the ground of an illegal search and seizure. His sole claim on appeal is that the District Court judge was mistaken when he denied the motion.

The facts, taken from the judge's memorandum and supplemented by details from the transcript of the motion hearing, were these. At 9:45 P.M. on September 22, 1988, a State police trooper, Bruce Malenfant, while on uniformed cruiser patrol, entered the commuter parking lot in a remote area off Route 104 in Bridgewater. His surveillance of the lot was routine, and on past occasions he had made arrests there for public drinking, breach of the peace, and various other unlawful activity. He noticed two unattended vehicles in the dimly lighted lot. Simultaneously he observed an interior light flick on and off inside a third--the defendant's car. He then shone his spotlight on each of the vehicles, which permitted this further observation. The defendant, seated behind the steering wheel, was looking straight ahead and talking out of the side of his mouth. The passenger in the front seat bent over, as if to pick up something--all the while staring straight at the cruiser. From such circumstances the officer inferred, and we think correctly, that a closer look was warranted. He pulled within ten to fifteen feet abreast of the defendant's vehicle. He alighted from his cruiser and, with flashlight lit, approached the defendant's vehicle and called out, "What's going on?" As there was no reply forthcoming, the officer walked up to the vehicle and noticed that the passenger was "looking down in front of him." He peered into the passenger side and saw protruding beneath the passenger seat a razor blade, a 1"' X 1 1/2"' paper wrapper, and a 3"' X 5"' mirror with white powder on it. As the passenger was ordered out of the vehicle, a film container, later determined to contain a packet of cocaine, fell to the ground. The cocaine and paraphernalia were seized, and the occupants were arrested.

On the basis of these facts, the judge concluded that no search was made by the arresting officer, that his approach to the vehicle was justified as a routine inquiry, and that the evidence was in plain view. We agree.

The defendant contends that such an investigatory check of his vehicle, however limited in purpose, was an invasion of his privacy rights. See Commonwealth v. King, 389 Mass. 233, 241, 449 N.E.2d 1217 (1983). Absent specific articulable facts, his argument goes, the officer acted only on an impermissible "hunch," which was insufficient to justify the more intensive inquiry that followed. Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987). ¹

Since the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been established that there is a broad category of brief, investigative stops and detentions which are constitutional despite the fact that they are undertaken both without a warrant and on the less demanding basis of "reasonable suspicion" (that criminal activity is about to be committed or that a felony has occurred) rather than on the basis of probable cause. See United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). The same standard is applicable to parked vehicles as well. See Commonwealth v. Almeida, 373 Mass. 266, 268, 270, 366 N.E.2d 756 (1977); Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990). In these types of cases, the first part of our two-pronged inquiry is whether the initiation of the investigation by the police is reasonable in the circumstances. Ibid., citing Terry v. Ohio, supra. See also Delaware v. Prouse, 440 U.S. 648, 653-654, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). ² It has often been stated that there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Camara v. Municipal Ct. of San Francisco, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). See Commonwealth v. King, supra 389 Mass. at 241, 449 N.E.2d 1217. Furthermore, the question of the reasonableness of the officer's conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.

In Commonwealth v. Bacon, 381 Mass. 642, 411 N.E.2d 772 (1980), two youthful-appearing men were operating a relatively expensive motor vehicle early one morning, and, upon seeing a police cruiser, the driver attempted to obscure his face from the view of the oncoming police. The court held that, standing alone, these factors were insufficient to warrant reasonable suspicion allowing an investigatory stop. Id. at 645-646, 411 N.E.2d 772. See also ³ LaFave, Search & Seizure § 9.3(c) at 456-457 (2d ed. 1987). Here, we think it is of controlling significance that the passenger's act of concealment confirmed the officer's initial suspicion that "criminal activity may be afoot." 3 The situation in the instant case is comparable to Commonwealth v. Patti, 31 Mass.App.Ct. 440, 579 N.E.2d 170 (1991), where a police officer came upon a man standing in a hotel parking lot at 3:15 A.M. next to an automobile with its hood up and where the police officer knew the parking lot had been the scene of motor vehicle thefts. There, we held it reasonable--but approaching the "outer limits"--for a police officer to initiate a Terry threshold inquiry. Id. at 441-443, 579 N.E.2d 170. Nighttime investigations of the particulars of an occupied vehicle, parked in an area where crimes have been committed, may be warranted. See Commonwealth v. Almeida, 373 Mass. at 271-272, 366 N.E.2d 756 (police properly initiated a threshold inquiry of a defendant seated alone in an automobile with engine running and headlights off in a private parking spot when the officer knew crimes had recently been committed in the area); Commonwealth v. Moses, 408 Mass. at 140, 557 N.E.2d 14 (reasonable suspicion that a drug transaction was taking place was warranted when officers on routine patrol at 5:45 P.M. observed men looking into a parked automobile and who quickly dispersed on the...