Com. v. Moses

• Citation: 557 N.E.2d 14,408 Mass. 136
• Parties: COMMONWEALTH v. Gregory M. MOSES (and eleven companion cases). 1
• Decision Date: 18 July 1990
• Court: United States State Supreme Judicial Court of Massachusetts

Page 14

557 N.E.2d 14

408 Mass. 136

COMMONWEALTH v. Gregory M. MOSES (and eleven companion cases). ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 8, 1990.

Decided July 18, 1990.

Joseph J. Balliro, Boston, for Robert P. Cohn and another.

Roger A. Cox, Boston, for Gregory M. Moses.

Daniel M. Marposon, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The defendants each were indicted for trafficking in cocaine (more than 200 grams), conspiracy to violate the controlled substances laws, unlawful possession of a Class "C" controlled substance with intent to distribute, and four counts of unlawfully carrying a firearm in a motor vehicle. After a hearing, a Superior Court judge denied the defendants' motions to suppress evidence (firearms and drugs) seized in a warrantless search of an automobile. A single justice of this court allowed the defendants' applications for interlocutory appeal. See Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979). The defendants challenge the initial stop and inquiry, a police officer's taking of the driver's keys, the search of the automobile, and the seizure of certain evidence from the automobile. We affirm the decision and order denying the motions.

We summarize the findings of fact from the judge's decision and order. Officer Robert F. Butler of the Boston police department was on routine patrol on Washington Street in Boston in a marked, one-man, radio response police cruiser. A fourteen-year veteran of the Boston police department, Butler was in uniform that evening. At approximately 5:45 P.M., he observed a white, 1988 Mercury sedan parked parallel to the curb on Washington Street, near the intersection of Mystic Street, with its engine running. No other cars were parked near the Mercury because it was in a marked bus stop.

From fifty feet away, Butler saw four black or Latino men standing near the passenger side of the Mercury. Two of the men appeared to be looking into the automobile through the front passenger window. Butler did not recognize any of the men. When they made eye contact with Butler, the men standing outside the automobile quickly dispersed in the vicinity of a nearby housing development.

Continuing his patrol, from twenty-five to thirty feet away, Butler observed three white men sitting in the Mercury, two in the front seat and one in the rear passenger seat. Butler made eye contact with the front seat passenger, the defendant Gregory M. Moses, who immediately ducked below the dashboard, out of Butler's sight. After observing this movement, Butler pulled the cruiser to within five feet of the Mercury and parked at an angle perpendicular to the Mercury's left front wheel. The cruiser did not block the Mercury against the curb and it could have been moved either forward or backward by the driver.

Butler approached the driver's side of the automobile for the purpose of "mak[ing] an inquiry," and demanded that the driver, Joseph I. Laterra, shut off the engine and give him (Butler) the keys. Laterra complied. Butler then ordered all of the men to keep their hands in sight.

Coincidentally, two other police officers also on routine patrol, Daniel J. Coleman and Kevin Roddy, arrived at the scene. Coleman parked his cruiser behind the Mercury in such a way that the Mercury could not back up. Butler told Coleman to remove Moses from the front passenger seat. When Moses rose from the seat, Coleman observed a small plastic envelope containing a white powder, which Coleman believed to be cocaine, lying on the seat where Moses had been sitting. Coleman moved Moses away from the Mercury, patted down the exterior of his clothing, and handcuffed him.

The judge found that "Butler suspected that Moses' gesture below the dashboard was an attempt to conceal an object" and he feared that the object might be a weapon. Butler looked in the area where Moses was sitting and found a loaded .357 magnum handgun under the seat. He seized the weapon and informed Moses that he was under arrest. Laterra and Robert P. Cohn, the back seat passenger were removed from the automobile, patted down, and placed under arrest. The defendants were handcuffed and moved away from the automobile.

Assisted by Ben Leong and Ed Walsh, both members of the Boston police department's drug task force who stopped while passing by, the officers opened the Mercury's trunk by releasing an electronic latch in the glove compartment. In the trunk, the officers found several containers and a man's suit covered with what appeared to be paint chips. An open box contained an electronic scale of the type commonly associated with drug sales.

Three closed containers were visible in the trunk. A closed, but unlocked, briefcase contained nine large plastic bags containing a white rock-like substance, three plastic bags of pills, and a plastic container. When the officers opened the plastic container, they found another bag containing a rock-like substance and a .38 caliber handgun. A black, unlocked briefcase contained personal papers of Laterra. The officers pried a locked grey case open one to one and one half inches and observed a gun inside. Subsequently, the lock was cut at the station.

The defendants argue that "Butler lacked the reasonable, articulable suspicion of criminal conduct required for a threshold inquiry of the occupants of the Mercury." They claim that Butler "had only seen activity which was completely consistent with lawful and innocent behavior and was, at most, operating on a hunch in investigating the Mercury." ² They conclude that Butler's initiation of an investigatory inquiry was not reasonable. We do not agree.

"In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). "A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are committing, or are about to commit, a crime. His suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984), and cases cited. See Terry, supra 392 U.S. at 21, 88 S.Ct. at 1879; Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987); Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978). The motion judge ruled that "[Butler] had reason to suspect that a drug transaction was taking place." We agree. Butler knew from his own experience that Washington Street was in a high crime area. He saw four black or Latino men standing near an automobile parked next to the sidewalk with its motor running. The men on the sidewalk appeared to be interacting in some way with three white men who sat in the automobile. On making eye contact with Butler, ³ all four of the black or Latino men quickly dispersed in two different directions. One of the occupants of the automobile, on making eye contact with Butler, immediately ducked under the dashboard, completely out of Butler's sight. The facts were sufficient for a threshold inquiry and as ample as those in other cases in which we have upheld threshold inquiries. See, e.g., Commonwealth v. Wren, 391 Mass. 705, 707-708, 463 N.E.2d 344 (1984); Commonwealth v. Moynihan, 376 Mass. 468, 470-471, 381 N.E.2d 575 (1978); Commonwealth v. Almeida, 373 Mass. 266, 268, 366 N.E.2d 756 (1977).

The defendants argue that "when Officer Butler seized the car keys from the defendants, he arrested them without probable cause." ⁴ The motion judge stated that "[t]his court does not ignore the fact that the action by the police of taking the car keys from Laterra may be interpreted as tantamount to arrest. See Commonwealth v. Brillante, 399 Mass. 152, 503 N.E.2d 459 (1987); Commonwealth v. O'Connor, 21 Mass.App.Ct. 404, 487 N.E.2d 238 (1986). By taking the car keys at the moment of the initial inquiry, the police exerted complete control over the defendants, and may have created an impression in their eyes, as in the eyes of any reasonable person in this situation, that they were not free to leave. [Citations omitted.] However, it is common knowledge that a person who wants to avoid police questioning, very often will recklessly drive away, resulting in serious injury to the police officer and bystanders. See United States v. Harley, 682 F.2d 398 (2d Cir.1982). When Butler ordered Laterra to turn off the ignition and surrender the keys, he was acting as a reasonably prudent police officer, and his actions were similar to and consistent with the protective measures that have been sanctioned in Terry and Silva." We agree with the judge. The taking of the keys in the circumstances was a reasonably prudent protective measure and did not change the investigative stop into an arrest.

The pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances. The degree of intrusiveness that is permitted is that which is "proportional to the degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395 Mass. 788, 794, 482 N.E.2d 314 (1985). As he approached the car, Butler feared that Moses had access to a weapon. Butler kept his own gun holstered, although he rested his hand on the gun's handle. ⁵ See Commonwealth v. Bottari supra 395 Mass. at 781, 482 N.E.2d 321. At the moment when Butler asked for the keys, he was outnumbered by the defendants, three to one. He suspected that Moses's furtive movement was an attempt to conceal a weapon. Butler testified that he told Moses to turn the automobile's engine off and to give him the keys "[b]ecause [he] had a fear at that time that there...