Com. v. Gonsalves

• Decision Date: 14 June 1999
• Citation: 429 Mass. 658,711 N.E.2d 108
• Parties: COMMONWEALTH v. John D. GONSALVES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 108

711 N.E.2d 108

429 Mass. 658

COMMONWEALTH v. John D. GONSALVES.

Supreme Judicial Court of Massachusetts Plymouth.

Argued April 5, 1999.

Decided June 14, 1999.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

J. Drew Seqadelli, Falmouth (Janet S. Stateman with him) for the defendant.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

GREANEY, J.

The defendant is charged with trafficking in cocaine in violation of G.L. c. 94C, § 32E (b ). The cocaine was seized by a State trooper, who, while on routine traffic patrol about 9 P.M. on March 5, 1997, stopped a taxi on Route 195 near Marion, after he had seen the taxi drift over a marked lane into the breakdown lane. In the course of the stop, the trooper ordered the defendant, who was sitting in the rear of the taxi, to get out. After conversing with the defendant, the trooper searched the rear seat area and seized a package of cocaine weighing approximately seventy-eight grams. A judge in the Superior Court allowed the defendant's motion to suppress both the cocaine and his statements because the trooper had "no objective basis upon which to order the defendant out of the vehicle." ¹ The Appeals Court affirmed the suppression order, relying on our case law under art. 14 of the Declaration of Rights of the Massachusetts Constitution, concluding, as did the Superior Court judge, that the trooper had no reasonable basis to support his order to the defendant to step out of the taxicab. Commonwealth v. Gonsalves, 46 Mass.App.Ct. 186, 704 N.E.2d 515 (1999). The Appeals Court rejected the Commonwealth's request that our law should be changed to conform to Maryland v. Wilson 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), which holds that a police officer does not violate the Fourth Amendment to the United States Constitution, when the officer, in a routine traffic stop, orders a passenger out of the vehicle. Commonwealth v. Gonsalves, supra at 187, 704 N.E.2d 515. We granted the Commonwealth's application for further appellate review to consider the Commonwealth's request. We are not persuaded that we should change our law developed under art. 14.

Based on the evidence that he found credible, the judge made findings of fact. We accept those facts, see Commonwealth v. Colon-Cruz, 408 Mass. 533, 538, 562 N.E.2d 797 (1990), and now summarize them. When the State trooper observed the taxi traveling partly in the breakdown lane of the highway which he was patrolling, he became concerned that the driver might be under the influence of an intoxicant, and signaled for the driver to stop. The trooper approached the stopped taxi, spoke to the driver, and noted that there were also two passengers in the car, including the defendant, who was the sole occupant of the back seat. The trooper took the taxi driver's license and registration. He questioned the driver about his driving over the marked lane, and the driver told the trooper that he had trouble with his night vision. In the course of questioning the driver, the trooper trained his flashlight on the occupants of the car, something which he routinely did on such stops for his personal safety. The trooper thought the defendant was extremely nervous. His hands were trembling and moving from his lap to the seat and back to his lap again, and he appeared to be breathing heavily. Because the defendant appeared nervous, the trooper ordered him to step out of the taxi. The defendant complied, and the trooper conducted a patfrisk, which revealed nothing. He asked the defendant why he was nervous, and the defendant replied that there were warrants outstanding against him for driving without a license. At that point, the trooper "secured" the defendant in the rear seat of the police cruiser. He obtained permission from the driver of the taxi to search the vehicle's back seat, where the trooper saw a portion of a plastic bag protruding from between the seat cushion and the seat back. The plastic bag contained white powder which the trooper suspected was cocaine.

The trooper returned to the cruiser, recited the Miranda rights to the defendant, and questioned him. The defendant denied knowledge of the plastic bag or any cocaine. After citing the taxi driver for a marked lane violation, the trooper allowed the taxi to leave. He then took the defendant to the Bourne barracks for further questioning. At first, the defendant continued to deny any knowledge of the bag of white powder, which weighed approximately seventy-eight grams, but eventually, he made inculpatory statements in the trooper's presence.

1. In Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that a police officer, may, as matter of course, order a driver out of a vehicle that has been lawfully stopped for a traffic violation. In Maryland v. Wilson, supra at 415, 117 S.Ct. 882, the Court extended that rule to approve similar orders given to passengers in a stopped vehicle. ² The Commonwealth argues that we have "consistently purported to follow Mimms." It relies on Commonwealth v. Santana, 420 Mass. 205, 212-213, 649 N.E.2d 717 (1995), for this statement, while acknowledging, as it must, that Santana contains language which "squarely cuts against the [the United States Supreme] Court's holding in Mimms." Nonetheless, the Commonwealth argues that we should now expressly embrace Mimms, and its corollary, the ruling in Wilson, and make plain that our art. 14 case law coincides with the Mimms-Wilson holdings under the Fourth Amendment.

We have not adopted Mimms.

"It is true that cases from [the Appeals Court] and the Supreme Judicial Court have cited approvingly to Mimms, without expressly stating that the police are not entitled to carte blanche authority to order drivers out of their vehicles. See, e.g., Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978); Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990); Commonwealth v. Moses, 408 Mass. 136, 142, 557 N.E.2d 14 (1990); Commonwealth v. Lantigua, 38 Mass.App.Ct. 526, 528-529, 649 N.E.2d 1129 (1995).

"However, a closer examination of these cases reveals that while explicit language requiring a 'reasonable suspicion' has not appeared, each case explored the factual basis for the officer's suspicion. See Commonwealth v. Ferrara, 376 Mass. at 505, 381 N.E.2d 141 (finding no basis for further interrogation and no need for further protective precautions, and reversing order denying motion to suppress); Commonwealth v. Robbins, 407 Mass. at 152, 552 N.E.2d 77 (police officer's actions proper where officer saw brown-handled object wedged in passenger seat and driver had just been arrested on outstanding warrant); Commonwealth v. Moses, 408 Mass. at 138, 141-143, 557 N.E.2d 14 (police officer's actions proper where officer feared defendants had access to a weapon, was outnumbered by defendants, and one defendant, upon making eye contact with the officer, ducked under dashboard)."

Commonwealth v. Williams, 46 Mass.App.Ct. 181, 183-184, 704 N.E.2d 212 (1999). As the Williams opinion goes on to point out, what was implicit in the decisions just referred to, was made explicit in Commonwealth v. Santana, supra, where we stated that "[t]o determine whether [an exit] order was justified, we ask 'whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.' " Commonwealth v. Santana, supra at 212-213, 649 N.E.2d 717, quoting Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977). This statement in Santana was reiterated two years later in Commonwealth v. Vazquez, 426 Mass. 99, 102-103, 686 N.E.2d 993 (1997). Thus, the rule that a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle has been affirmed by this court well after the United States Supreme Court abandoned that requirement in Mimms. Because we have departed from the Federal view of a citizen's Fourth Amendment rights in the area, our long-standing rule expresses a principle of State constitutional law under art. 14.

We have expressly granted other protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment. See Commonwealth v. Torres, 424 Mass. 153, 154-155, 157-164, 674 N.E.2d 638 (1997) (that passenger left vehicle, without being asked to do so, on routine traffic stop provides no basis to further detain driver and passenger after issuing speeding ticket); Commonwealth v. King, 389 Mass. 233, 244, 449 N.E.2d 1217 (1983) (once officer, making valid investigatory check of parked car at rest area, verified driver's and passenger's licenses and vehicle registration, no grounds existed for further investigation or precautions); Commonwealth v. Loughlin, 385 Mass. 60, 61-63 & n. 3, 430 N.E.2d 823 (1982) (search conducted after justifiable threshold inquiry wherein driver produced valid license and registration held impermissible); Commonwealth v. Ferrara, supra at 504-505, 381 N.E.2d 141 (no basis to interrogate passengers after driver produced valid license and registration); Commonwealth v. Alvarez, 44 Mass.App.Ct. 531, 534, 692 N.E.2d 106 (1998) (during routine stop for 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 driver had produced valid license and registration, he had no reason to issue exit orders to passengers, in spite of earlier furtive movements of one passenger); Commonwealth v. Kimball, 37 Mass.App.Ct. 604, 607, 641 N.E.2d...