Com. v. Goewey

• Decision Date: 25 June 2007
• Docket Number: No. 06-P-1204.,06-P-1204.
• Citation: 69 Mass. App. Ct. 429,868 N.E.2d 651
• Parties: COMMONWEALTH v. Thomas K. GOEWEY.
• Court: Appeals Court of Massachusetts

868 N.E.2d 651

69 Mass. App. Ct. 429

COMMONWEALTH v. Thomas K. GOEWEY.

No. 06-P-1204.

Appeals Court of Massachusetts, Berkshire.

Argued April 12, 2007.

Decided June 25, 2007.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

Present: VUONO, SMITH, & MEADE, JJ.

MEADE, J.

The defendant was charged by complaint in District Court with possession of a class D controlled substance with intent to distribute in violation of G.L. c. 94C, § 32C(a), and for not wearing a seatbelt in violation of G.L. c. 90, § 13A. Prior to trial, the defendant moved to suppress the marijuana that was found concealed on his person during a traffic stop. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed the motion to suppress. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the matter to this court. See G.L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). This appeal presents the question whether a State trooper articulated a reasonable belief that his safety or the public's safety was in danger when he ordered the defendant to exit a car in which he was riding as a passenger and pat frisked the defendant. The motion judge determined that the exit order and patfrisk were unjustified and suppressed the marijuana. We reverse.

1. The suppression hearing. We recite the facts taken from the judge's findings, supplemented by uncontroverted testimony

of the only two witnesses at the suppression hearing, State police Trooper Brendan O'Neill and State police Sergeant George Hamilton.¹ See Commonwealth v. Alvarado, 423 Mass. 266, 268 n. 2, 667 N.E.2d 856 (1996). On February 27, 2004, at approximately 5:45 P.M., when it was becoming dark, O'Neill observed a four-door sedan displaying an invalid inspection sticker operating on Green River Road in Alford. O'Neill stopped the vehicle and parked his cruiser behind it. As O'Neill approached the vehicle, he noticed that none of the four occupants had secured themselves with seatbelts. In order to issue citations for the seatbelt violations, O'Neill requested each occupant to provide him with identification. The driver's license provided by the defendant, who was the right rear passenger, had expired two years prior and the photograph it contained did not resemble the defendant.²

While O'Neill was examining the licenses at his cruiser, Hamilton arrived at the scene and offered to assist. O'Neill gave Hamilton the defendant's license and explained that he thought it was possibly false because it did not appear to depict the defendant. O'Neill asked Hamilton to investigate the license while he wrote the citations for the seatbelt violations. While the troopers had this conversation, the defendant turned around four to six times in his seat to look at the troopers behind him. At this point, Hamilton told O'Neill he was going to question the defendant about his identity.

When Hamilton reached the car and asked the defendant if he was the individual pictured on the license, the defendant replied that it was his license. When asked why his license was no longer current, the defendant hesitated and then stammered nervously that he no longer drove. Hamilton asked the defendant if he had any other forms of identification such as a supermarket card or a Social Security card. As the defendant leafed through his wallet, Hamilton could see the defendant's hands shaking. The defendant was unable to produce any other identification, and Hamilton returned to O'Neill's cruiser.

As soon as Hamilton reached the cruiser, which was fifteen to twenty feet away, he again saw the defendant looking back at him, quickly turning away, and moving his head down. To Hamilton, it then appeared that the defendant reached either into a coat, around his body, or down below the seat.³ The defendant's hands were out of Hamilton's sight. Based on the totality of what he had observed up until this point, and his continuing progression of uncertainty as to the defendant, Hamilton feared for his safety. Due to that fear, he told O'Neill that he (Hamilton) was going to have the defendant get out of the car.

When Hamilton returned to the car, the defendant was smoking a cigarette. Upon request, the defendant extinguished it and stepped out of the car. Once outside the car, Hamilton pat frisked the defendant for weapons. In the course of the patfrisk, he asked the defendant if there was anything with which he (Hamilton) should be concerned. The defendant said, "no, just some marijuana." The marijuana was taped to his right calf, concealed under the defendant's pant leg. Hamilton continued the patfrisk of the remainder of the defendant's person. No weapons were discovered. Hamilton did not search the other occupants of the vehicle, as they had exhibited neither furtive movements nor any of the behavior he witnessed in the defendant.

2. The judge's findings. The motion judge determined that the initial stop of the car was justified. According to the judge, the

propriety of the search turned on whether the defendant's behavior, taken in its totality, equaled furtive movements that would have given Hamilton reasonable suspicion to conduct the patfrisk. The judge discounted as a factor any information related to the defendant's expired license because, as a passenger, he was not required to carry identification.

The judge characterized Hamilton's articulated basis for the fear for his safety as merely a "hunch," which did not "reach the constitutional threshold of reasonable suspicion." To the extent any of the defendant's movements may have served as a basis for Hamilton's fear for his safety, the judge determined that Hamilton's fear should have been allayed when he saw the defendant smoking a cigarette. The judge found it "clear[ ]" that the defendant's movements inside the car were for the purpose of retrieving and lighting a cigarette. In light of these findings, the judge found that at the time Hamilton "seized" the defendant, Hamilton "lacked the requisite suspicion" to justify his action, and the judge allowed the motion to suppress.

3. Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error `but conduct an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). Here, the propriety of the traffic stop, itself, is not in dispute as the car in question did not have a valid inspection sticker. See Commonwealth v. Pacheco, 51 Mass. App.Ct. 736, 739, 748 N.E.2d 498 (2001) (invalid inspection sticker justified motor vehicle stop); G.L. c. 90C, § 3(A)(1) (police officer who observes occurrence of civil motor vehicle infraction may issue written citation). The only issue presented to the motion judge was whether the exit order and the related patfrisk were appropriate.

Under art. 14 of the Massachusetts Declaration of Rights, the touchstone of our analysis of police conduct that results in a search or seizure is whether that conduct was reasonable. See Commonwealth v. Anderson, 406 Mass. 343, 346, 547 N.E.2d 1134 (1989). The reasonableness of the particular conduct at issue here is controlled by Commonwealth v. Gonsalves, 429 Mass. 658, 711 N.E.2d 108 (1999), where the Supreme Judicial Court determined that "art. 14 requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle." Id. at 662-663, 711 N.E.2d 108.⁴ See Commonwealth v. Torres, 433 Mass. 669, 673, 675-676, 745 N.E.2d 945 (2001) (also noting that this standard applies to both patfrisks and exit orders). Stressing the leniency of this test, the court emphasized 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." Gonsalves, supra at 664, 711 N.E.2d 108.

Estimating the reasonableness of the officer's belief is done objectively by asking "whether a reasonably prudent man in the policeman's position would be warranted" in the belief that he or the public was in danger. Torres, supra at 673, 745 N.E.2d 945. See Commonwealth v. Vazquez, 426 Mass. 99, 102-103, 686 N.E.2d 993 (1997). Reasonableness, however, is not measured by whether the Commonwealth is able to make a specific showing that the occupant in question is armed and dangerous. Commonwealth v. Stampley, 437 Mass. 323, 326, 771 N.E.2d 784 (2002). "Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Gonsalves, supra at 665, 711 N.E.2d 108, quoting from State v. Smith, 134 N.J. 599, 618, 637 A.2d 158 (1994). Therefore, we must "determine whether there were facts and circumstances in the course of this particular traffic stop that, viewed objectively, would give rise to `a heightened awareness of danger' on the part of the trooper, ... recognizing that law enforcement officials may have little time in which to avert `the sometimes lethal dangers of routine traffic stops.'" Stampley, supra, quoting from Gonsalves, supra at 671, 711 N.E.2d 108 (Fried, J., dissenting).

The stop of the car here was due to the invalid inspection sticker. Once stopped, O'Neill could see that none of the vehicle's four occupants was wearing a seatbelt. That fact justified his request for identification from the occupants to enable him to write citations for the seatbelt infractions. See Stampley, supra at 326, 771 N.E.2d 784. O'Neill's...