Com. v. Kitchings

Decision Date24 July 1996
Docket Number95-P-1579 and 95-P-1642,Nos. 95-P-1578,s. 95-P-1578
Citation40 Mass.App.Ct. 591,666 N.E.2d 511
PartiesCOMMONWEALTH v. Tirrell KITCHINGS (and two companion cases 1 ).Appeals Court of Massachusetts, Middlesex
CourtAppeals Court of Massachusetts

Lisa J. Steele, Bolton, for Tirrell Kitchings.

Mark R. Meehan, Somerville, for Leon L. Dorch.

James M. Hankin, Topsfield, for John Rudolph.

Peter Schlossman, Assistant District Attorney, for the Commonwealth.

Before ARMSTRONG, GILLERMAN and LENK, JJ.

GILLERMAN, Justice.

On the evening of September 4, 1994, the defendants Kitchings, Dorch, and Rudolph, and their companion, Robert Moore, 2 were parked in the parking lot of a Burger King restaurant. The three defendants had driven up from South Carolina headed for Lowell. As a result of the events described below, the defendants were each charged with unlawful possession of a firearm in a vehicle, G.L. c. 269, § 10(a), unlawful possession of ammunition, G.L. c. 269, § 10(h ), and possession of marijuana, G.L. c. 94C, § 34.

After a hearing, the judge denied the defendants' motions to suppress all evidence obtained as a result of a warrantless search of the van in which the defendants were riding, and a jury subsequently returned guilty verdicts against the three defendants on all charges. The defendants were each sentenced to a term of one year in the Billerica house of correction for possession of a firearm without a license. The convictions for unlawful possession of ammunition and marijuana were placed on file without objection.

After the hearing on the defendants' suppression motions, the judge filed his findings of fact and decision. Absent a showing of clear error, we accept the motion judge's findings and give substantial deference to his rulings of law based on those findings. Commonwealth v. Cast, 407 Mass. 891, 897, 556 N.E.2d 69 (1990), and cases cited. We summarize those findings below.

All the defendants argue that the judge erred in denying their suppression motions. The defendant Rudolph also contends that the judge erred in denying his motion to suppress a statement made by him, and the defendant Kitchings contends that his motion for a required finding of not guilty should have been allowed. We agree with the judge's conclusions (although not his precise reasoning) in each instance, 3 and affirm.

The motion hearing. On September 4, 1994, at approximately 5:05 P.M., a Dodge van drove past Massachusetts State Trooper John Barrett on Route 110 in Lawrence. Barrett was alone on a routine patrol in a marked cruiser. He noticed that affixed to the vehicle was a plastic dealership tag, "M & M Motors," but an official State registration plate appeared to be missing. Barrett followed the van into a Burger King parking lot. After the van parked, Barrett pulled up behind the van.

Barrett approached Moore, the driver of the vehicle, who had stepped out of the van. In response to Barrett's requests, Moore produced a Massachusetts driver's license, and Moore obtained from the defendant Tirrell Kitchings, who was seated in the front passenger seat of the van, a copy of a rental agreement for the van. The rental agreement stated that David Johnson was the approved driver of the van. Moore also told Barrett that Kitchings was the person who had rented the van.

Barrett, proceeding to the passenger side of the van, asked Kitchings for his license. Kitchings produced a South Carolina driver's license, and he told Barrett that Johnson was a friend who had rented the van as a favor to Kitchings.

There were two additional passengers in the van who were later identified as the defendants John Rudolph and Leon L. Dorch. Both were seated in the row of seats behind the driver. Turning to these passengers, Barrett asked for identification. They had none. No one in the van claimed to be Johnson, the only authorized driver.

While questioning Moore and the three defendants, Barrett, who had training and experience in narcotics detection as a member of a drug task force, noticed a "very strong odor of burnt marijuana," and he observed that the van "absolutely reeked of it ... it had to be fresh." 4 Barrett asked the four men to step out of the van. They did so, and appeared to be "in a nervous state." Barrett, alone and concerned for his own safety, proceeded to pat-frisk each of the four men. He found a large sum of cash in Dorch's front pocket.

Barrett then placed both Dorch and Rudolph, uncuffed, in the back of his cruiser. He turned to Moore and Kitchings who by now had returned to the van and were again seated in the front seats.

As Barrett approached the van from the passenger side, he looked through the window and saw a loaded ammunition clip for a semi-automatic pistol in the van's open glove compartment. Seeing the clip, Barrett promptly placed Moore and Kitchings, uncuffed, in the rear of his cruiser along with Rudolph and Dorch.

Outnumbered four to one, and exceedingly concerned for his own safety, Barrett called for back-up assistance. The judge credited Barrett's testimony that he was "scared shitless"--a concern which the judge found was fully justified. It was at this point that Barrett turned to the four men in his cruiser and shouted, "Where is the fucking gun?" Rudolph said, "The gun's on the back seat."

In the back of the van underneath a sweatshirt Barrett found a Glock 40-caliber semiautomatic pistol, which was loaded with fifteen yellow jacket hollow point bullets, 5 and an unloaded nine millimeter semiautomatic pistol. Barrett also found a second loaded clip right beside it.

The backup trooper was Trooper Day; she arrived minutes after Barrett's call. Barrett then turned to the four men in his cruiser and asked whether anybody had a permit for the guns; no one answered. 6

Meanwhile, Day found some empty baggies and one full "dime bag" of marijuana in the van. Barrett then transported Dorch and Rudolph to the Concord barracks; they were in the back seat. Trooper Day transported Moore and Kitchings. Later, when Barrett searched the back seat of his cruiser to see if it was clear, he found some marijuana. 7

Each of the defendants was booked and advised of his Miranda rights. Before questioning each defendant, Barrett again read each man his Miranda rights. Thereafter, Dorch, Rudolph, and Kitchings each stated, separately, that David Johnson had rented the vehicle on their behalf and that they did not have to pay him back. Each one explained that they had driven from South Carolina to Delaware then to New York before reaching Lowell. They all admitted to smoking marijuana, and each one admitted knowing about either one or both of the guns in the van.

The trial. At trial, Barrett's testimony was substantially the same as his testimony at the suppression hearing. Two additional witnesses testified for the Commonwealth at trial who did not testify at the motion hearing: Trooper Day, who was the back-up trooper and Robert Moore, the driver of the van. None of the defendants testified or called any witnesses.

The two guns, ammunition, corresponding certificates of analysis, ammunition clips, the bag of marijuana, a cigarette "joint," and the analysis of the marijuana were all admitted in evidence without objection by the defendants.

Discussion--the motion to suppress. There being no stop of the van by Barrett--the van was already parked in the Burger King lot--the mere questioning of Moore and Kitchings following Barrett's observation that a State registration plate appeared to be absent, was a routine inquiry that required no justification. There was no show of force and no restraint of anyone's liberty. See Commonwealth v. Leonard, 422 Mass. 504, 508, 663 N.E.2d 828 (1996), citing Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968); Commonwealth v. Fraser, 410 Mass. 541, 543 -544, 573 N.E.2d 979 (1991).

Barrett's additional questions to Rudolph and Dorch were also routine inquiries, given the fact that the rental agreement named a David Johnson as the only authorized driver. As noted above, David Johnson was not to be found inside the van.

However, matters quickly became more serious when, during his questioning, the officer noticed a "very strong odor of burnt marijuana." The van reeked of the odor, and it was fresh. At this point, Barrett was confronted with the suspected unlawful presence of marijuana in the van, the absence of any recognizable registration plate, the absence of the authorized driver for the van, the nervous state of the defendants, the discovery of a large amount of cash in Dorch's front pocket, and the fact that he was alone, facing four men. These circumstances were sufficient to justify Barrett's reasonable suspicion, based on articulable facts, that the defendants may have been unlawfully in possession of a controlled substance in violation of G.L. c. 94C, § 34, with the result that Barrett was justified in imposing an investigative stop upon the defendants, provided the degree of intrusion was reasonable under the circumstances. See Commonwealth v. Varnum, 39 Mass.App.Ct. 571, 574-575, 658 N.E.2d 702 (1995); Commonwealth v. Andrews, 34 Mass.App.Ct. 324, 328, 611 N.E.2d 252 (1993).

Placing Dorch and Rudolph, uncuffed, in the cruiser in order to permit Barrett to continue his investigation was reasonable under the circumstances. There was the immediate need to search the van for contraband, 8 Barrett was alone and understandably anxious, and the four men were visibly nervous. Placing Dorch and Rudolph in the rear of his cruiser while the investigation continued involved a degree of intrusion which was "proportional to the degree of suspicion that prompted the intrusion" and did exceed the scope of an investigative stop. See id. at 328-329, 658 N.E.2d 702. Moreover, securing Dorch and Rudolph was a reasonable precaution for Barrett's safety. See Commonwealth v. Willis, 415 Mass. 814, 819-820, ...

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