Com. v. Feyenord

• Citation: 833 N.E.2d 590,445 Mass. 72
• Parties: COMMONWEALTH v. Kenton W. FEYENORD.
• Decision Date: 02 September 2005
• Court: United States State Supreme Judicial Court of Massachusetts

833 N.E.2d 590

445 Mass. 72

COMMONWEALTH v. Kenton W. FEYENORD.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 3, 2005.

Decided September 2, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael J. Traft, Boston, for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

A jury convicted the defendant, Kenton W. Feyenord, of trafficking between one hundred and 200 grams of cocaine in violation of G.L. c. 94C, § 32E (b) (3). A divided panel of the Appeals Court affirmed the conviction. Commonwealth v. Feyenord, 62 Mass.App.Ct. 200, 815 N.E.2d 628 (2004). We granted further appellate review, limited to consideration of two issues: the denial of Feyenord's motion to suppress cocaine found by the police in the vehicle he was driving; and the sufficiency of the evidence.¹ We conclude that the exterior sniff of a properly stopped motor vehicle, by a dog trained in drug detection, is not a search within the meaning of the Massachusetts Declaration of Rights. We also conclude that Feyenord's extended detention, after his motor vehicle was stopped for a traffic violation, for the purpose of summoning a canine unit, was reasonable and proportional to the unfolding circumstances that suggested his involvement in criminal activity beyond the violation for which he was initially detained. Consequently, Feyenord's motion to suppress was properly denied. We finally conclude that the evidence at trial was sufficient to support the jury's verdict and affirm the conviction.

1. Motion to suppress. We accept the motion judge's findings of fact and the undisputed evidence consistent with those findings adduced at the hearing on Feyenord's motion to suppress.² See Commonwealth v. Colon-Cruz, 408 Mass. 533, 538, 562 N.E.2d 797 (1990). On May 4, 2000, at approximately 5:45 P.M., State Trooper William Pinkes was traveling on Route 395 in Auburn when he noticed a vehicle traveling behind him with one headlight out. The weather did not require the use of headlights, and it was daylight. After Pinkes allowed the vehicle to pass his marked police cruiser, he activated the cruiser's blue lights, and the driver pulled over. Inside were Feyenord and a passenger. Pinkes approached the vehicle and asked Feyenord for his driver's license and automobile registration. Feyenord was visibly nervous, and his hands were shaking. He was unable to produce a license but did hand Pinkes a Massachusetts registration that was apparently valid but not in his name. Pinkes asked the passenger for identification, and the passenger produced a photographic identification card from the country of Jamaica that identified him as a Jamaican national named Junior Cox. When Feyenord did not provide an intelligible response to Pinkes's request for his name, Pinkes ordered him out of the vehicle. Cox remained in the passenger seat.

Having separated Feyenord from Cox, Pinkes went back and forth between them to ask basic questions about their identities and destination. Standing outside the vehicle, Feyenord told Pinkes that his name was Kadari Bowen and his birthday was June 6, 1978. When asked his age, however, Feyenord struggled with the answer, providing one age and then another. Feyenord told Pinkes that Cox was his brother-in-law and the father of his sister's child, and that he had known Cox for twelve years. Feyenord also said that he had a New York driver's license and he and Cox were traveling to visit a friend in Putnam, Connecticut, for whom he could produce neither an address nor a telephone number. In contrast, Cox, still seated in the vehicle, told Pinkes that he had known Feyenord for two to three years, knew him only as "Pat," did not know his last name, and was not acquainted with any members of his family. Cox also said that they were headed to Brooklyn, New York.

These preliminaries lasted between five and ten minutes. At this point, Pinkes ordered Feyenord to sit in the back seat of the cruiser (unhandcuffed), telling him that he was not under arrest but was not free to leave. Pinkes then radioed for assistance from a canine officer, State Trooper James Devlin, who arrived at the scene within fifteen to twenty minutes with a drug-sniffing dog. Devlin proceeded to direct the dog around the vehicle. The dog displayed a heightened interest in an area near the left rear of the vehicle's trunk. The officers proceeded to open the trunk and place the dog inside.³ The dog again became excited in the area of the trunk near the left taillight. Pinkes then searched the trunk, discovering an access panel in the area that had caused the dog's agitation. Once he removed this panel, Pinkes found a gray plastic bag and, within, a digital scale and small black plastic bags each containing a quantity of a substance that appeared to be crack cocaine.

a. The traffic stop. Feyenord first argues that the judge should have granted his motion to suppress the cocaine because the police had no justification to stop him for driving a vehicle with one inoperable headlight in daylight. We disagree. General Laws c. 90, § 7, provides that "[e]very motor vehicle operated in or upon any way ... shall be provided with ... suitable lamps." We interpret this language to mean that a motor vehicle's headlamps must be suitable at all times so that they are capable of being illuminated whenever road conditions might warrant.⁴ Neither the time of day nor the weather conditions during the operation of the motor vehicle has any bearing on this requirement. Although some vehicles driven during daylight may have defective headlights but escape detection by police, Feyenord was nonetheless operating his vehicle in violation of the statute. Pinkes's stop of Feyenord's vehicle was lawful. Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E.2d 717 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle").

b. The exit order. Feyenord next argues that the judge should have granted his motion to suppress because Pinkes ordered him to leave the vehicle without a reasonable suspicion of danger. We conclude that the exit order was proper.

Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, "a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle." Commonwealth v. Gonsalves, 429 Mass. 658, 662, 711 N.E.2d 108 (1999). However, "[w]hile a mere hunch is not enough ... 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, and, if the basis is there, a court will uphold the order." Id. at 664, 711 N.E.2d 108.

Here, Feyenord could not produce his driver's license, and Pinkes had been unable to ascertain his identity. Commonwealth v. Santana, supra at 213-214 n. 8, 649 N.E.2d 717, and cases cited. Feyenord was visibly nervous and with a companion. Pinkes was alone. Although the exit order was not predicated on suspicious movements or the visible presence of a weapon or possible contraband, police officers need not "gamble with their personal safety," and the course of events after the stop sufficiently gave "rise to legitimate safety concerns" to justify the taking of the reasonable precaution of separating Feyenord from Cox and ordering Feyenord from the vehicle. Commonwealth v. Haskell, 438 Mass. 790, 794, 784 N.E.2d 625 (2003), quoting Commonwealth v. Robbins, 407 Mass. 147, 152, 552 N.E.2d 77 (1990). See Commonwealth v. Stampley, 437 Mass. 323, 328, 771 N.E.2d 784 (2002) ("justification for an exit order does not depend on the presence of an `immediate threat' at the precise moment of the order, but rather on the safety concerns raised by the entire circumstances of the encounter"). The order also served a valid investigatory purpose. See Commonwealth v. Torres, 433 Mass. 669, 675, 745 N.E.2d 945 (2001) ("officer acted reasonably and within the limits of both Fourth Amendment and art. 14" because exit order was "no more intrusive than necessary ... to effectuate both the safe conclusion to the traffic stop and the further investigation of the suspicious conduct"). See also Commonwealth v. Riche, 50 Mass.App.Ct. 830, 833-834, 741 N.E.2d 871 (2001) (exit order justified where "tender of a registration not crediting ownership of the vehicle to any occupant raised a question whether the car was stolen," and order served "special practical purpose" of "separating those in a stopped car from each other to frustrate interchange or collaboration among them"). Feyenord's claim that the fruits of the subsequent investigation should be suppressed because the exit order was unlawful is without merit.

c. Feyenord's further detention. Feyenord next argues that his motion to suppress should have been granted because he was unreasonably detained while the police, without reasonable suspicion of drug-related activity, summoned a canine officer with a drug-sniffing dog to the scene, thereby impermissibly broadening the scope of the inquiry under art. 14 and the Fourth Amendment. We have not had occasion to decide what type of suspicion police officers must have to escalate a general inquiry of a motorist in connection with a violation of traffic laws to an investigation that utilizes a drug-sniffing dog and justifies the prearrest detention of a motorist for such purpose. We are, however, aided by the progeny of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), applicable to traffic stops and temporary detentions. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (investigative stop of a vehicle by police is "analogous to a so-called `Terry stop'").

In considering the temporary detention of a motorist, we begin with the ...