Com. v. Kimball, 93-P-1194

• Decision Date: 09 November 1994
• Docket Number: No. 93-P-1194,93-P-1194
• Citation: 641 N.E.2d 1066,37 Mass.App.Ct. 604
• Parties: COMMONWEALTH v. William J. KIMBALL.
• Court: Appeals Court of Massachusetts

Page 1066

641 N.E.2d 1066

37 Mass.App.Ct. 604

COMMONWEALTH v. William J. KIMBALL.

No. 93-P-1194.

Appeals Court of Massachusetts,

Worcester.

Argued Sept. 23, 1994.

Decided Nov. 9, 1994.

Peter M. Onek, Committee for Public Counsel Services, for defendant.

James P. McKenna, Asst. Dist. Atty., for the Com.

Before BROWN, KASS and FINE, JJ.

KASS, Justice.

This much is common ground: the defendant's Pontiac automobile, which Trooper Daniel J. Viel stopped on Interstate Highway 84 at 11:15 A.M. on December 27, 1991, was a disreputable looking jalopy. The car was, however, proceeding within the speed limit and was not, according to the record, found in violation of any law relating to traffic or the roadworthiness of motor vehicles. That a car is a junk heap is not of itself a sufficient reason for a stop. We think the State trooper operated on a hunch and lacked lawful articulable reasons to stop and then search the defendant's car. Accordingly, the motion to suppress cocaine seized in the search of that car should have been allowed, and the judgment of conviction for trafficking in more than 200 grams of cocaine is reversed.

We take the pertinent facts from helpful findings of fact made by the judge who acted on the motion to suppress. Trooper Viel's cruiser was stopped perpendicular to the flow of eastbound traffic when he noticed the defendant's car. What caught Viel's attention was that a side window just rear of the driver's window was smashed out and covered by cloth; there was a hole where the trunk lock should have been; and the rear license plate was askew and held by only one screw. These faults disposed Trooper Viel to think the car had been stolen, a suspicion that he said was heightened because neither the driver nor the passenger (who was the defendant) in the Pontiac looked at him but, rather, looked straight ahead. While he followed the Pontiac, Viel noticed the passenger disappear from view for an instant, as if he had ducked down for some purpose.

Trooper Viel pulled the car over. The way it came to a stop in the breakdown lane was normal. As Trooper Viel approached the vehicle, the two men in it sat still, facing forward; they did not look at him. Trooper Viel thought this peculiar and became sufficiently concerned about his safety so that he unlatched the holster on his side arm. He asked the driver for his license and registration and the driver, who was John Kimball, the brother of the defendant William J. Kimball, produced a facially valid Connecticut operator's license and a Maine registration that was consistent with the Maine plates that the car carried. The car was registered to William Kimball. After glancing at the documents, Trooper Viel put them in his pocket. The motion judge inferred that the police officer did so to have the papers when making a stolen car check by radio. That inference, however, is contrary to the trooper's testimony at the suppression hearing. When asked why he pocketed the license and registration that John Kimball had displayed, Trooper Viel testified, "I put them in my pocket in case something happened, I would have--I would have the identity of whoever I stopped in my pocket, or at least the driver." Trooper Veil then asked the passenger, William Kimball, for some identification. William responded that he did not have any. Veil thought the two men in the Pontiac were in a nervous and fidgety state.

Still convinced from the appearance of things that something felonious was going on, Trooper Viel consecutively ordered William Kimball and John Kimball out of the car, pat frisked them, and ordered them to step over the highway guardrail at a distance of about fifteen feet ahead of their automobile. The pat frisks had not turned up weapons or anything else out of the ordinary, although the officer noticed white powder on William's work boots. He thought the powder "possibly could have been a controlled substance." Trooper Viel asked John Kimball if there were any drugs in the car. Kimball said he did not know; it was not his car.

1. The stop. In the absence of a traffic violation or visible unlawful vehicular defect, ¹ we do not think that a broken window and missing trunk lock on a generally old dilapidated car add up to a basis for a threshold stop. The circumstances are unlike those in Commonwealth v. Valentine, 18 Mass.App.Ct. 965, 966, 470 N.E.2d 384 (1984), in which the car lacked rear lights and had a "popped-out" trunk lock. There the vehicular defect in and of itself constituted a violation of law and justified a stop. The "popped-out" lock was a stimulus for additional investigation of a car that was going to be stopped in any event. Here, there was of course no visible violation of law and, it is worth nothing, Trooper Viel did not speak of a "popped-out" lock but of a hole where the trunk lock would have been, a condition consistent with the generally deteriorated character of the automobile. A third ground for Viel's suspicion was that the occupants of the Pontiac looked straight ahead rather than making eye contact. Surely minding one's business does not display consciousness of guilt, and one easily imagines that had the Kimball brothers looked at the trooper and then away, they would have been thought to have acted furtively. As to the fleeting disappearance from view of William Kimball, that occurred before the trooper had signalled any intention to stop the car. None of the grounds articulated for the stop makes the grade as specific facts warranting a car stop and inquiry. Contrast Commonwealth v. Cavanaugh, 366 Mass. 277, 278, 317 N.E.2d 480 (1974) (car stopped after going wrong way down a one-way street and then leading police on a chase); Commonwealth v. Wren, 391 Mass. 705, 707-708, 463 N.E.2d 344 (1984) (van had stopped inexplicably at night by a vacant lot in a residential neighborhood...