Com. v. King
| Citation | 389 Mass. 233,449 N.E.2d 1217 |
| Parties | COMMONWEALTH v. Christopher KING. |
| Decision Date | 16 May 1983 |
| Court | United States State Supreme Judicial Court of Massachusetts |
William M. Kunstler, New York City (Robert J. Doyle and Edward Berkin, Boston, with him), for defendant.
Phillip L. Weiner, Asst. Dist. Atty. (Ralph K. Mulford, Asst. Dist. Atty., with him), for the Commonwealth.
Judith H. Mizner and John Reinstein, Boston, for Civil Liberties Union of Massachusetts, amicus curiae.
Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.
On February 17, 1982, the defendant, Christopher King, was indicted by the Bristol County grand jury of the following offenses: assault with intent to murder while armed (two counts); assault by means of a dangerous weapon (two counts); concealing firearms with obliterated numbers (four counts); unlawful possession of a controlled substance class D; unlawful possession of a controlled substance class B; unlawfully carrying a firearm without a license; and unlawfully carrying a firearm in a motor vehicle (three counts). This case comes before us on an appeal from a ruling by a judge of the Superior Court denying the defendant's motion to suppress evidence seized during a warrantless search by a State trooper of his person and the automobile in which he was a passenger. A single justice of this court allowed the defendant's application for interlocutory appeal pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979). We uphold the judge's ruling, but on different grounds from those on which he relied.
The defendant argues that the judge erred in denying his motion to suppress the evidence. He alleges that the initial inquiry by the State trooper to the occupants of the vehicle, the order given by the trooper to the defendant to leave the automobile, and the attempt by the officer to frisk the defendant violated his constitutional rights. The Commonwealth argues that the judge correctly determined the issues raised by the motion to suppress, and, further, that the defendant lacks standing to challenge the admissibility of the evidence seized.
The facts found by the judge are as follows. 1 On February 7, 1982, in the early morning, Officer Paul Landry, a State trooper assigned to the State police barracks at Foxborough, was on routine patrol. Trooper Landry was fully uniformed and driving a clearly marked State police cruiser. He had been a State trooper for eight years 2 and had been on this particular patrol duty for two and one-half years. At the time of this incident, in the interest of public safety, and because of the hazards of winter driving, the commanding officer of A-Troop in Foxborough had a policy requiring patrol officers during winter months to investigate every stopped vehicle they encountered to determine whether the occupants, if any, were disabled, had fallen asleep, had abandoned the vehicle, or were otherwise in need of assistance. The policy applied to any stopped or parked vehicle, no matter where situated.
At about 2 A.M., the trooper entered a rest area on the southbound lane of Route 95 in North Attleborough. 3 As the cruiser pulled in to the rest area, the officer observed two parked vehicles, one van and one station wagon. He noticed two individuals in the front seat of the station wagon. Pursuant to the State police troop's policy, he decided to investigate. The officer passed the vehicles, made a U-turn, and drove back to the station wagon in order to direct his high beam headlights at the station wagon.
The officer's suspicions were aroused by the fact that one of the occupants was white and the other was black. 4 Pulling the cruiser up at an angle to the right front of the station wagon, the trooper alighted from his automobile and approached the driver's side. As he approached, he observed that the vehicle's lights were off and the engine was running. He further noticed that the occupants were acting nervously and were looking at each other, and that the defendant had his right hand tucked inside his jacket near his belt on the left side of his body. Directing his flashlight into the interior of the station wagon, he observed a small green bag on the front floor at the defendant's feet, a duffel bag in the rear on top of the folded-down passenger seat, and a Doberman pinscher dog pacing back and forth in the rear.
The officer initially inquired what the occupants were doing in the rest area and where they were coming from. The driver responded that they were coming from New Hampshire and were trying to get some rest. The officer then requested identifications, licenses, and the vehicle registration. The driver produced a class 1 New York license with his picture stapled to it, identifying him as "Salvatore Bella." The defendant produced a class 5 New York license with a Brooklyn address, indicating that his name was "Lester Jordan." 5 There was no picture attached to the back of the license. Aside from minor details, 6 the licenses appeared valid.
At this time the defendant removed his hand from his coat, retrieved a Massachusetts registration from the glove compartment, and handed it to the driver, who in turn handed it to the trooper. Before examining it, the trooper inquired who owned the automobile. The response of the driver was that the automobile belonged to his girl friend, Lucinda Keith, the name on the registration. Upon inquiry by the trooper, the driver stated that he did not know his girl friend's telephone number. Both men appeared to the trooper to be nervous at this time.
After asking the men to remain seated in their automobile, the officer returned to his cruiser to check their licenses and the registration. Prior to the check, however, he repositioned his cruiser parallel to the rear of the station wagon so that he could watch the occupants without being observed. The trooper testified on cross-examination that the repositioning of his cruiser was not normal procedure, but that he had a "gut feeling that there was something wrong with this car." While he testified that it was not uncommon for people to become nervous when questioned by a uniformed State trooper, he characterized the occupants' nervousness as different from the ordinary because it made him nervous, something that normally did not happen.
The officer requested, by use of his radio, a "missing and wanted" check on Salvatore Bella and Lester Jordan, as well as a registration check. The record check by the computer proved negative. The registration check yielded no response from the Registry of Motor Vehicles, which indicated that either the registration was new 7 or no such plate was issued.
Nevertheless, the officer was still not satisfied. He testified that he was suspicious because it was unusual to have New York licenses with a Massachusetts registration in a different name from both licenses, because the occupants kept nervously looking at each other and the trooper, and because he was concerned that the defendant might be concealing a weapon or drugs under his jacket. The trooper sought backup help because he had decided to approach the vehicle again to question the occupants further, and to search the defendant to determine what, if anything, he was concealing. On cross-examination the trooper acknowledged that his request for backup assistance was not normal procedure. Usually if the "missing and wanted" check and the registration check came back negative, that would be the end of the inquiry.
Very shortly thereafter, Officer Crosby, also a State trooper, arrived. The two State troopers approached the passenger side. Trooper Landry observed that the small green bag at the defendant's feet was no longer visible. He asked the defendant to step out of the automobile, and the defendant complied. Landry asked King what he had under his jacket and reached his hand toward the defendant's midriff. King pushed Landry's hand away and said that he had nothing there. Having felt what he believed to be a bullet-proof vest Trooper Landry drew his gun and ordered the defendant to put his hands on his head. Again, the trooper reached near the defendant's belt, and again the defendant pushed his hand away.
At this point, the driver jumped out of the station wagon and began crouching alongside the station wagon back and forth, periodically popping his head up. Landry then backed the defendant up by the collar of his coat, keeping the defendant between himself and the driver. The driver moved to the rear of the station wagon, pointed a weapon, and fired three times. Trooper Landry pulled the defendant down and removed a loaded nine millimeter automatic pistol 8 from the defendant's belt in the same place the trooper had observed the defendant's hand. The defendant was handcuffed, and the trooper turned his attention toward the station wagon. Trooper Crosby was moving to a position to return the driver's fire. Although called upon to drop his weapon, Laaman fired two more shots and ran into the nearby woods. Trooper Landry then dragged the defendant, who refused to stand up, out of the line of fire. Several additional State troopers arrived within minutes after Trooper Crosby radioed for assistance. 9
King was taken to the Foxborough barracks. A search of the defendant's person at the barracks produced (1) a bullet-proof vest, (2) a license with a photograph of King, bearing the name of William Gray, (3) almost $1,600 in cash, and (4) a fully loaded ammunition clip fitting the confiscated pistol. After the defendant was transported to the barracks, troopers at the scene searched the vehicle. They found a large duffel bag in the rear of the station wagon and opened it. It contained firearms and ammunition. 10 A later search of the vehicle at State police headquarters revealed the small green bag under the front passenger's seat. It also contained weapons. 11 Additional items were found in the glove compartment. 12
1. Sta...
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