Com. v. Gonsalves, 97-P-2331

• Decision Date: 19 January 1999
• Docket Number: No. 97-P-2331,97-P-2331
• Parties: COMMONWEALTH v. John D. GONSALVES.
• Court: Appeals Court of Massachusetts

Page 515

704 N.E.2d 515

46 Mass.App.Ct. 186

COMMONWEALTH v. John D. GONSALVES.

No. 97-P-2331.

Appeals Court of Massachusetts Plymouth.

Argued Oct. 5, 1998.

Decided Jan. 19, 1999.

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

Gary A. Nickerson, Barnstable, for defendant.

Before ARMSTRONG, GILLERMAN and KASS, JJ.

KASS, Justice.

At about 9 P.M. on March 5, 1997, William R. Serpa, a State trooper, on routine patrol duty on Route 195, pulled over a white Chevrolet taxi because it had faded over a marked line and into the breakdown lane. During the course of the stop, Trooper Serpa ordered a rear-seat passenger out of the taxi, searched around the rear seat, and found cocaine. A judge of the Superior Court ordered that the fruits of Trooper Serpa's search be suppressed because the trooper had "no objective basis upon which to order the defendant out of the vehicle...." The Commonwealth asks us to adopt the holding of Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), which allows a police officer, as matter of routine in a traffic stop, to order a passenger out of a car. We decline the invitation.

1. Salient facts. When he saw the taxi veer into the breakdown lane, Trooper Serpa suspected the driver might be drunk. The taxicab driver pulled over on command from flashing blue lights on Serpa's cruiser. There were two passengers in the car, one in front and one--the defendant--in back. Trooper Serpa approached the car from the driver's side, where he asked for and obtained the driver's license and the vehicle's registration. Those documents were facially in order and proved out when the trooper later checked them by radio.

Before so checking the bona fides of the license and registration, the trooper turned his flashlight on the passengers. He became interested in the back-seat passenger, who had apparently hired the cab; the man in front was a friend of the driver. Trooper Serpa thought the back-seat man to be acting highly nervous. His hands were trembling and moving from his lap to the seat and back to his lap again. The back-seat man appeared to Serpa to be breathing heavily. Struck by the man's nervousness, the trooper ordered him out of the taxi and pat-frisked him. The pat-down turned up no weapons or anything else notable. In response to questioning, the back-seat man, whom we shall now refer to as the defendant, explained he was nervous because of warrants outstanding against him for driving without a license. Trooper Serpa suspected there were other reasons. He deposited the defendant, "secured," in his cruiser and turned his attention to an examination of the back seat of the taxi. There he found a bag of cocaine that measured seventy-eight grams, enough to support a trafficking indictment against the defendant. As to the driver, the trooper returned to him, cited him for a marked-line violation, and sent him on his way with the front-seat passenger. There had been no signs that the driver was inebriated.

The judge who heard and allowed the suppression motion determined that Trooper Serpa did not have a legally sufficient basis for ordering the defendant from the taxi. Nervousness, the judge observed, was not enough to go on. The judge wrote:

"No gesture or conduct indicated the presence of a weapon on the defendant's person or in his immediate vicinity. Although certainly the trooper had every right to be careful for his own safety, he had no objective basis upon which to order the defendant out of the vehicle and to continue his investigation. The trooper was simply following a 'hunch' because of the defendant's demeanor. Although the trooper's instincts were on target, the evidence must nonetheless be suppressed."

2. Automatic exit order. The position of the Commonwealth is that we ought not to sift the facts for articulable reasons that support an order directing the driver or passenger of a motor vehicle stopped for a traffic offense to step out of that vehicle. Rather, we should follow the rule pronounced by the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that a police officer may order a driver out of a lawfully stopped car as a matter of course, and that the same rule applies to passengers in that car. Maryland v. Wilson, 519 U.S. at 415, 117 S.Ct. 882. ¹ We reject the Commonwealth's contention, because the law as developed under art. 14 of the Declaration of Rights of the Massachusetts Constitution does not follow the Mimms / Wilson rules. ²

As to Pennsylvania v. Mimms, supra, we have had very recent occasion to state that our courts do not follow so much of that opinion as permits an automatic exit order, but that our decisions, to validate an exit order directed to the driver, require evidence of specific articulable facts that would warrant a police officer reasonably to be apprehensive about his safety. See Commonwealth v. Williams, 46 Mass.App.Ct. 181, 704 N.E.2d 212 (1999). See also Commonwealth v. Santana, 420 Mass. 205, 212-213, 649 N.E.2d 717 (1995); Commonwealth v. Vazquez, 426 Mass. 99, 102-103, 686 N.E.2d 993 (1997); Commonwealth v. Farmer, 12 Mass.App.Ct. 961, 962, 428 N.E.2d 143 (1981). When an officer stops a car for an apparent traffic violation and receives a license and registration that are in order, that is the end of the inquiry unless the officer has a reasonable suspicion, again grounded in articulable facts, that the driver or passengers are engaged in the commission of a crime or are about to commit one. Commonwealth v. Ferrara, 376 Mass. 502, 504-505, 381 N.E.2d 141 (1978). Commonwealth v. Torres, 424 Mass. 153, 158, 674 N.E.2d 638 (1997). Commonwealth v. Bartlett, 41 Mass.App.Ct. 468, 471-472, 671 N.E.2d 515 (1996).

Apart from the simple logic that passengers do not have lesser constitutional rights than drivers, we have already applied to exit orders to passengers the requirement of reasonable suspicion grounded in articulable facts. Commonwealth v. Alvarez, 44 Mass.App.Ct. 531, 534, 692 N.E.2d 106 (1998). Taken together, our decisions in the Williams case and the Alvarez case impose under the State Constitution more discipline on exit orders incident to traffic stops than is required by Maryland v. Wilson, ...