Com. v. Ferrara

• Decision Date: 29 September 1978
• Citation: 381 N.E.2d 141,376 Mass. 502
• Parties: COMMONWEALTH v. Dante FERRARA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

381 N.E.2d 141

376 Mass. 502

COMMONWEALTH v. Dante FERRARA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 13, 1978.

Decided Sept. 29, 1978.

Paul D'Agostino, Somerville, for defendant.

William L. Pardee, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

In a defendant's interlocutory appeal pursuant to G. L. c. 278, § 28E, we are asked to review the constitutionality of a stop of the automobile he was driving and of the ensuing search. Following Commonwealth v. McCleery, 345 Mass. 151, 153, 186 N.E.2d 469 (1962), we hold that, once the driver produced a valid license and registration, the police had no authority to order the passengers out of the car. In the circumstances, it follows that the defendant's motion to suppress the evidence discovered as a result of that order should have been granted.

The defendant was charged with several crimes, and he moved to suppress a revolver, ammunition, and metallic knuckles seized in a search of the automobile. The judge denied the motion. A single justice of this court granted the defendant's application for an interlocutory appeal and reported the case, without decision, to the full court.

We summarize the evidence, relying primarily on the judge's findings. Shortly after noon on November 3, 1976, two State troopers were on surveillance duty in an unmarked vehicle outside a cleaning establishment in Somerville. The owner of the cleaners' was under investigation in connection with the theft of a tractor trailer unit containing 44,000 pounds of coffee. The defendant arrived in a vehicle with two passengers. He went into the cleaners' three times in a few minutes, carrying nothing. The first two times he came out and spoke to the passengers. The third time he drove away, and the troopers followed. The passenger in the back seat looked back at the police two or three times and then leaned forward toward the two occupants of the front seat. The troopers recognized the defendant, and a check revealed that his wife was the registered owner. The defendant traveled at a normal rate of speed and committed no observed traffic violations. After two or three miles, he made a sharp right turn in Everett, and the troopers then stopped him.

The troopers were not in uniform. One identified himself and asked the defendant for his license and registration; the other asked the passengers for identification. The defendant produced a valid license and registration; the passengers gave names but produced no identification. The second trooper ordered the passengers out of the car, saw a handgun in the back seat, and took possession of it. All three denied knowledge of the gun and were placed under arrest. A frisk of the three disclosed that the front-seat passenger had a second gun. A ski mask or cap and metal knuckles were found under the front seat. One of the troopers said he would get a warrant to search the rest of the car, and the defendant said, "Go ahead and search. I don't care." A third gun was found in the trunk.

1. The stop. The judge's findings eliminate motor vehicle violations and car theft as bases for the stop. Cf. Commonwealth v. Ling, 371 Mass. ---, --- - --- ^A, 346 N.E.2d 703 (1976) (car theft); Commonwealth v. Cavanaugh, 366 Mass. 277, 278, 317 N.E.2d 480 (1974) (traffic offenses); Commonwealth v. Hawkes, 362 Mass. 786, 788, 291 N.E.2d 411 (1973) (same). But "we have consistently sustained the right of the officer to make a threshold inquiry where suspicious conduct gives the officer reasonable ground to suspect that a person has committed, is committing, or is about to commit a crime." Commonwealth v. Almeida, --- Mass. --- ^B, 366 N.E.2d 756 (1977). The officer's action 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. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). We have applied this analysis "in upholding the stopping of an automobile in order to conduct such an inquiry." Id. at 405, 318 N.E.2d at 898, and cases cited. Commonwealth v. Ling, supra.

In the present case the Commonwealth has not been able to articulate specific facts and inferences that warranted the intrusion. We assume that the summary identification of the crime being investigated was adequate, but no attempt was made to show the connection of the owner of the cleaning establishment with that crime. The judge properly struck the unresponsive testimony of an officer that an individual involved with the cleaners' had "definite organized crime connections." The defendant testified that he had been convicted of larceny and related charges arising out of a search of his truck in April, 1976, but there was no testimony that the officers knew of those charges at the time of the stop. The facts that the defendant went into the cleaners' three times, that an occupant of his car looked back at an unmarked car following him closely, and that the defendant made a sharp right turn provide a slender basis for asking him to identify himself. We see no basis for interrogation of his...