Com. v. Ellsworth, 95-P-1552

Decision Date31 October 1996
Docket NumberNo. 95-P-1552,95-P-1552
Citation671 N.E.2d 1001,41 Mass.App.Ct. 554
PartiesCOMMONWEALTH v. Shaun D. ELLSWORTH.
CourtAppeals Court of Massachusetts

Eric Neyman, Assistant District Attorney, for Com.

Robert J. Carnes, Pittsfield, for defendant.

Before SMITH, PORADA and GREENBERG, JJ.

PORADA, Justice.

This is a joint interlocutory appeal by the Commonwealth and the defendant from a Superior Court judge's rulings on the defendant's motion to suppress as evidence drugs seized in the search of an automobile occupied by him as a passenger. The judge did not make detailed findings of fact, but ruled from the bench at the conclusion of the suppression hearing that the initial search of the car after a justifiable stop for a traffic violation was valid because it was consensual and that the subsequent search of the car at the police station was not valid because, in the circumstances of the case, it was a search for evidence and not an inventory search. We conclude that the motion to suppress should have been allowed in its entirety because all the drugs that were seized were "the fruit of the poisonous tree" of an illegal detention of the occupants following the completion of a justifiable threshold inquiry. See Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978); Commonwealth v. Loughlin, 385 Mass. 60, 63, 430 N.E.2d 823 (1982).

We summarize the judge's brief findings supplemented by the uncontroverted evidence presented at the motion hearing. At approximately 1:30 A.M. Officer Garner of the Williamstown police department stopped a vehicle because he observed it being operated in an erratic manner. Before he exited his marked police cruiser, he observed that there were five people in the car, three in the front seat and two in the rear. One of the rear seat passengers appeared to be bending forward as if to place an object under the seat in front of him. Fearing that the passenger may have placed a gun under the seat, Officer Garner called for a backup. Before another police officer arrived on the scene, Officer Garner approached the driver's side of the car and, keeping an eye on the passengers in the car, asked the driver for her license and registration. At that time, the officer detected an odor of alcohol coming from the car. The driver produced her license and a passenger in the front seat, who was the owner of the car, produced the registration. After inquiring of the operator if she had been drinking, which she denied, the officer asked the operator to step out of the car and to follow him back to his cruiser. At that time another officer had arrived on the scene. Officer Garner told him to keep an eye on the passengers. That officer did not, however, approach the car. After speaking to the operator for two or three minutes, Officer Garner concluded that she was sober and allowed her to return to the car. At that point, he testified that his investigation regarding any moving violation was over, 1 but that he was still concerned that the rear seat passenger might have been concealing a gun because of his movements in the car. Because of that concern, Officer Garner, accompanied by the other officer, returned to the car and asked both the owner of the car and that passenger to step out of the car. As the passenger left the car, Officer Garner noticed "green plant like material" on the passenger's shirt which appeared to be marijuana. The passenger started to brush the material off his shirt but Officer Garner stopped him. The passenger did not appear to be armed. Officer Garner then turned to the owner of the car and asked him if he had any weapons or drugs on him or in the car. The owner denied that he had. The officer then asked him if "he had a problem with" the police looking "through his car for any weapon or drugs." The owner said that he had no problem because he had nothing to hide. The police then ordered everyone out of the car and proceeded to search the car. Under the floor mat in front of the seat occupied by the passenger who had made the furtive movement, Officer Garner found seven bags of marijuana. The officers then placed the owner and the four passengers under arrest and had the car towed to the police station. At the police station, the car was again searched. No additional drugs were found at that time. The five occupants of the car were also searched. In searching one of the passengers, Peterson, the police found five bundles of rock crack cocaine in his sock. When the cocaine was discovered, Peterson told Officer Garner that there was more cocaine to be found and that it was either on the person of the defendant Ellsworth or in the...

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  • Com. v. Brown
    • United States
    • Appeals Court of Massachusetts
    • October 21, 2009
    ...Law § 5-3[c][2], at 5-10, citing Commonwealth v. Vazquez, 426 Mass. at 100-101, 686 N.E.2d 993. See Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 556-557, 671 N.E.2d 1001 (1996) (driver stopped for routine traffic violation produced valid license and registration; officer had no reason to......
  • Com. v. Gonsalves
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 14, 1999
    ...traffic violation, officer may not ask for passenger's identification as matter of "routine practice"); Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 556-557, 671 N.E.2d 1001 (1996) (after officer, having stopped driver for erratic driving, determined that there was no traffic offense and......
  • Commonwealth v. Feyenord, SJC-09410 (MA 9/2/2005)
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 2, 2005
    ...is commensurate with the purpose of the stop.'" Commonwealth v. Torres, 424 Mass. 153, 162 (1997), quoting Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 557 (1996). "In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion. `The degree of s......
  • Com. v. Feyenord
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 2, 2005
    ...with the purpose of the stop.'" Commonwealth v. Torres, 424 Mass. 153, 162, 674 N.E.2d 638 (1997), quoting Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 557, 671 N.E.2d 1001 (1996). "In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion.......
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