Com. v. Lantigua

• Decision Date: 10 July 1995
• Docket Number: No. 93-P-1386,93-P-1386
• Citation: 649 N.E.2d 1129,38 Mass.App.Ct. 526
• Parties: COMMONWEALTH v. Roberto LANTIGUA.
• Court: Appeals Court of Massachusetts

Page 1129

649 N.E.2d 1129

38 Mass.App.Ct. 526

COMMONWEALTH v. Roberto LANTIGUA.

No. 93-P-1386.

Appeals Court of Massachusetts,

Essex.

Argued Jan. 9, 1995.

Decided May 11, 1995.

Further Appellate Review Denied July 10, 1995.

Ronald Ian Segal, Lynn, for defendant.

Margaret J. Perry, Asst. Dist. Atty., for the Com.

Present: ARMSTRONG, SMITH and LAURENCE, JJ.

ARMSTRONG, Judge.

Two police officers on patrol in an unmarked cruiser drove by the defendant's car and the car of a person known to them parked at the roadside. The person whom the officers knew, and of whom they were suspicious for reasons not put in evidence, was walking toward the defendant's car. The officers reversed direction to return to the scene and saw the defendant's car pulling away "at a fairly good rate of speed." They followed the defendant's car in the cruiser and observed it drive through a stop sign at an intersection, slowing but not stopping, and turn into the parking lot of an apartment building. The two officers, now pursuing with the intent of stopping the defendant's car for the traffic violation, drove into the lot after him. The defendant parked his car. The officers, pulling up behind him, saw the defendant lean forward and down to the right before he got out of the car. The officers, who were not in uniform, identified themselves as police and asked to see the defendant driver's license and registration. The defendant was unable to produce a license. He offered to get the registration from the glove compartment, but one of the officers, as a safety precaution, wanted to look into the car first. The officer opened the driver's door, leaned across the seat toward the glove compartment and observed plastic bags containing white powder on the floor. The powder appeared to the officer, an experienced narcotics investigator, to be cocaine--a fact verified by subsequent testing. He then opened the console and found another bag of white powder. From the glove compartment, he obtained the registration which was in the name of a person other than the defendant. The officers then formally arrested the defendant for possession of cocaine, citing him also for operating without a license and failing to stop at a stop sign. The facts set out above are, in essence, those found by the judge, warrantably, on the evidence introduced at the suppression hearing.

After the powder was tested and weighed, the defendant was indicted for trafficking in cocaine and was convicted. The appeal, raises, as the principal issue, the judge's denial of the defendant's motion to suppress the cocaine.

The entry into the car was lawful. The case comes within the authority of such cases as Commonwealth v. Almeida, 373 Mass. 266, 270-273, 366 N.E.2d 756 (1977); Commonwealth v. Ferrara, 376 Mass. 502, 504-505, 381 N.E.2d 141 (1978); Commonwealth v. Sumerlin, 393 Mass. 127, 129-131, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985); and Commonwealth v. Robbins, 407 Mass. 147, 151-152, 552 N.E.2d 77 (1990). See also Commonwealth v. Silva, 366 Mass. 402, 405-410, 318 N.E.2d 895 (1974). The officers had seen a traffic violation, which justified stopping the defendant's car and asking to see the defendant's driver's license and automobile registration. (The fact that he had already stopped and had exited from the car did not terminate their authority in this regard.) The defendant's inability to produce a license was itself a criminal offense (see G.L. c. 90, § 11 [operating without a license in possession]; § 10 [operating without having been issued a license]; § 23 [operating after suspension or revocation of license] ) and gave the officers probable cause to arrest him (see G.L. c. 90, § 21). See generally Nolan & Henry, Criminal Law §§ 582, 583 (2d ed. 1988). Inability to produce a license or a registration reasonably gives rise to a suspicion of other offenses, such as automobile theft, and justifies heightened precautions for the officers' own safety.

Faced with this situation, the officer's entry into the car was justified on either of two rationales. First, prior to allowing the defendant to reenter the car to obtain the registration, the officers could properly effect a Terry-type search of the areas of the car which would be readily accessible to the defendant on reentering. The purpose of the search would be protective only, analogous to a pat frisk of the defendant's person for weapons. The reasonableness of a scan for weapons turns, we think, not so much on the finding that the defendant bent down and to the right before leaving the car, ¹ but on the particular danger to an officer when the person he is investigating is seated in a car with his movements concealed from the officer's view. The same concerns that allow an officer investigating a traffic violation to order the driver out of the car for the officer's safety, Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), also allow a limited search of the passenger compartment for weapons before the passenger reenters the car to obtain the registration. Courts cannot be oblivious to the recent escalation in the numbers of incidents reported wherein police officers have been killed or wounded while performing routine traffic functions. "[W]e think it crucial to remember that, as shown by many staged climaxes to threshold police inquiries, 'the answer might be a bullet' " Commonwealth v. Silva, supra at 407, 318 N.E.2d 895, quoting from Terry v. Ohio, 392 U.S. 1, 33, 88 S.Ct. 1868, 1886, 20 L.Ed.2d...