Com. v. Mateo-German

• Decision Date: 21 May 2009
• Docket Number: SJC-10126.
• Citation: 906 N.E.2d 970,453 Mass. 838
• Parties: COMMONWEALTH v. Pedro MATEO-GERMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

906 N.E.2d 970

453 Mass. 838

COMMONWEALTH v. Pedro MATEO-GERMAN.

SJC-10126.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 8, 2008.

Decided May 21, 2009.

Garrett R. Fregault, Assistant District Attorney (Steven E. Gagne, Assistant District Attorney, with him) for the Commonwealth.

David Keighley, Fairhaven, for the defendant.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

In this case a dog sniff of a temporarily disabled motor vehicle yielded discovery of heroin and cocaine within the vehicle. We must decide whether a police officer properly engaged in a community caretaking function involving the disabled automobile effected a seizure for constitutional purposes by requesting consent for a canine sniff of the exterior of that motor vehicle.

A judge of the Superior Court allowed the defendant's motion to suppress the heroin and cocaine. A single justice of this court granted the Commonwealth leave to appeal from that interlocutory order. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We reverse the Superior Court decision for the reasons that follow.

Background. We recite the essential facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing. See Commonwealth v. DePeiza, 449 Mass. 367, 368, 868 N.E.2d 90 (2007).

On June 9, 2006, at approximately 7:35 P.M., the defendant's automobile, an Acura sedan, ran out of gasoline while traveling south on Route 140, in an area where the road was a four-lane divided highway with a posted speed limit of fifty-five miles per hour. At the same time, a State trooper on routine patrol with his drug-detection police dog was driving on the highway in a marked cruiser. The trooper noticed the defendant's vehicle abruptly slow down, with its hazard lights flashing, and pull into the breakdown lane. The trooper activated the cruiser's blue lights and parked directly behind the Acura. The defendant got out of his car, indicated that he needed assistance, and approached the trooper. He said: "I'm out of gas, what should I do?" The trooper stood by the defendant while the defendant used his own cellular telephone to call a friend to bring gasoline to him.

The trooper observed that the vehicle had heavily tinted windows. However, because the front windows were rolled down, he was able to see several bottles of water, some empty and some full, in the rear of the car. The trooper also noticed an air freshener hanging from the rear-view mirror, and smelled a strong air freshener scent coming from within the automobile.

As the two men stood outside the Acura waiting for the arrival of the person bringing gasoline, the trooper engaged the defendant in conversation. The defendant appeared nervous. He told the trooper that he had been shopping for clothing at a shopping mall, but the trooper noticed no shopping bags in the passenger compartment. The defendant also told the trooper that he was unemployed and had recently moved to New Bedford from Boston. He said that he had purchased the Acura approximately seven months earlier, and that the vehicle was registered in the name of his girl friend. The trooper commented on the Acura's special "Fish and Wildlife" environmental registration plate, suggesting "it must be nice to support something that you believe in." When the defendant did not respond, the trooper asked the defendant whether his girl friend was "into fish and wildlife." The defendant replied, "[Y]eah, I think so." The entire conversation took place during a period of approximately twenty to thirty minutes.

At that point, the trooper asked the defendant for his driver's license and automobile registration. The defendant produced both items from inside the Acura. The license identified the defendant, and the registration indicated that the Acura was registered to a woman in New Bedford. While the trooper conducted a computer check of the license and registration, the defendant sat in the driver's seat of the Acura. The computer check revealed that the defendant had a valid license and no outstanding warrants, and that the vehicle had not been reported stolen.

The trooper handed the license and registration back to the defendant through the passenger side window. The trooper observed the defendant's wallet on the dashboard, and a bulge in the right pocket of the defendant's pants. He asked the defendant whether he had any weapons on his person. The defendant responded affirmatively, removing a small pocket knife from the pocket of his pants and handing it to the trooper. The trooper noticed that a bulge remained in the defendant's pants pocket and inquired about it. The defendant responded that he had a "wad of cash." The trooper did not ask the defendant to produce the remaining contents of his pocket at that time.

The trooper, who had been trained in narcotics trafficking, asked the defendant whether he would consent to the trooper's police dog sniffing the exterior of the Acura. The defendant gave an affirmative response, stating that he "had nothing to hide." The defendant got out of the vehicle and stood approximately thirty feet away. The trooper retrieved his dog from the cruiser. The canine performed an exterior sniff of the car. When the dog reached the driver's side door of the Acura, it pointed its snout up toward the open driver's side window. The trooper understood the dog's actions to mean that the dog detected the scent of narcotics emanating from the Acura's interior. The trooper asked the defendant whether there were at that time, or had ever been, narcotics inside the Acura. The defendant responded that he had friends who would borrow the vehicle on occasion and smoke marijuana in it. He told the trooper he used air freshener because he did not care for the smell of marijuana in the vehicle.

The trooper next asked the defendant whether he would consent to the dog searching the interior of the vehicle. The defendant responded that it was not a problem. The dog entered the car and indicated that it recognized the scent of narcotics under the rear passenger seat area.

After securing the dog in the cruiser, the trooper returned to the Acura, raised the rear seat, and discovered a door to a hidden compartment cut into the vehicle's gasoline tank. Inside, the trooper found packages wrapped in cellophane containing what appeared to be heroin.¹ The defendant was arrested. A search of the compartment revealed packages later determined to be of heroin and cocaine. An inventory search, conducted after the defendant was placed in custody, revealed cash in his pants pocket in the amount of $306. The defendant was indicted on charges of trafficking in 200 or more grams of heroin in violation of G.L. c. 94C, § 32E (c) (4); and trafficking in one hundred or more grams of cocaine in violation of G.L. c. 94C, § 32E (b) (3).

After an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress the drugs. The judge ruled that, although the trooper's initial questioning of the defendant was a proper part of the community caretaking function, the trooper lacked any reasonable suspicion of criminal activity to justify further expanding the scope of inquiry. Once the trooper determined that the defendant needed no assistance, had no weapons, and had produced a valid license and registration, the trooper had no basis for further inquiry and his investigation should have terminated. The judge concluded in addition that the trooper's decision to conduct the canine sniff of the exterior of the vehicle was not reasonable. Finally, the judge ruled that the Commonwealth had not met its burden of establishing that the defendant's consent to the dog sniff was given freely and voluntarily.

Discussion. When reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error. Commonwealth v. Eckert, 431 Mass. 591 592-593, 728 N.E.2d 312 (2000), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). Although we accord substantial deference to the judge's ultimate findings, we independently review the correctness of the judge's application of constitutional principles to the facts as found. Commonwealth v. Eckert, supra at 593, 728 N.E.2d 312.

It is not contested that the encounter began as an appropriate community caretaking one. "Local police officers are charged with `community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" Commonwealth v. Evans, 436 Mass. 369, 372, 764 N.E.2d 841 (2002), quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In carrying out the community caretaking function, a police officer may, among other things, check on a stopped motor vehicle in the breakdown lane of a highway. See id. at 372-373, 764 N.E.2d 841. A check by a police officer on the status of a vehicle and its occupants falls within the scope of the community caretaking function when its purpose is to protect the well-being of the vehicle's occupants and the public—and not when the purpose is the detection or investigation of possible criminal activity. See Cady v. Dombrowski, supra; Commonwealth v. Knowles, 451 Mass. 91, 95, 883 N.E.2d 941 (2008); Commonwealth v. Murdough, 428 Mass. 760, 764, 704 N.E.2d 1184 (1999) (inquiry into condition of driver of vehicle stopped at highway rest area, for purpose of determining whether driver posed extreme danger to self or others, came within scope of community caretaking function). "The very limited and focused inspection of a vehicle to determine whether assistance or aid is required is a minimal intrusion on the occupant's, or owner's, expectation of privacy." Commonwealth v. King, 389 Mass. 233, 242, 449 N.E.2d 1217 (1983).

A noncoercive inquiry initiated for a community caretaking...