Com. v. Vazquez

• Citation: 426 Mass. 99,686 N.E.2d 993
• Parties: COMMONWEALTH v. Carlos VAZQUEZ. 1
• Decision Date: 07 November 1997
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 993

686 N.E.2d 993

426 Mass. 99

COMMONWEALTH v. Carlos VAZQUEZ. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 1997.

Decided Nov. 7, 1997.

Robert J. Bender, Assistant District Attorney, for the Commonwealth.

Jerry B. Wittenberg, Beverly, for defendant.

Before LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

The Commonwealth appeals from an order of a judge sitting in the Salem Division of the District Court Department allowing the defendant's motion to suppress evidence, a handgun allegedly used by the defendant in an assault. A police officer had searched a vehicle, found the gun, and seized it. The judge ruled that there was no probable cause for the vehicle search.

A single justice of this court allowed the Commonwealth's request for an interlocutory appeal and ordered that the appeal be entered in this court. We conclude that the officer lawfully searched the vehicle and seized the gun both because there was probable cause to do so and because he could conduct a limited search for his own protection and that of others. We vacate the order allowing the defendant's motion to suppress, and direct that an order denying that motion be entered in the District Court.

1. On March 14, 1994, the Salem District Court issued a criminal complaint against Carlos Vazquez alleging two counts: carrying a firearm without a license in violation of G.L. c. 269, § 10 (a ), and assault by means of a dangerous weapon, in violation of G.L. c. 265, § 15B. The charges stem from an incident that occurred on March 13, 1994. At about 5:25 P.M., a Salem police officer was driving down a street in the course of his assigned duties when he observed a number of people on the street. As he drove, several people told him that an Hispanic man in a brown jacket had been chasing another man down the street with a gun. At least two people pointed to Vazquez as the alleged assailant; he was standing next to a Mazda automobile, on the passenger's side.

The officer pulled up behind the Mazda, left his vehicle and motioned to Vazquez to approach him. The officer frisked him, but located no weapon. During the frisk, the Mazda pulled away. The officer put Vazquez in his cruiser and pursued the Mazda. After a short distance, the Mazda turned into a gasoline station, followed by the officer. Two women occupied the front seats, with two young children in the back seat.

The officer approached the driver and told the women to put their hands on the dashboard. The women complied. He asked each in turn, whether they knew Vazquez. Both denied knowing him. Both women said they had not seen Vazquez put anything in the car, although they acknowledged that he had been at the passenger window before they left. The officer ordered the passenger to step out of the car. The officer then looked under her seat and found a handgun. The passenger was arrested. When a check of the driver's license and registration revealed an outstanding warrant for her arrest, the driver also was placed in custody. On the discovery of the gun, Vazquez said that the gun was his. Both occupants of the automobile were subsequently charged with carrying a firearm without a license.

On September 28 and 29, 1994, a hearing was held on a motion filed by the driver and passenger to suppress the gun seized from the Mazda. The judge allowed the motion and issued a memorandum with detailed findings of fact. On July 11, 1995, Vazquez filed his own motion to suppress the gun. The judge, without a hearing, allowed that motion, incorporating in his memorandum the findings of fact from his earlier order in the case of the two women defendants. ² He proceeded to address the sole additional question before him, whether Vazquez had standing to contest the seizure of the gun. On ruling that Vazquez did have standing, the judge allowed his motion to suppress the gun.

2. The Commonwealth argues that Vazquez did not have standing to contest the seizure of the gun, and that in any event the motion judge erred in his determination that the officer's search of the Mazda was unlawful. Because we decide that the search was lawful, we do not address the issue of standing.

The judge asked first whether the officer had a right to stop and detain the two women codefendants, justified by a reasonable suspicion of the commission of a crime by them. Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993). The judge determined that the officer had information from multiple witnesses that a man had been brandishing a gun and chasing a person down the street, that two or three of those witnesses pointed out Vazquez as the armed assailant, that the officer was entitled to rely in the circumstances on the information from the bystander witnesses, ³ and that the officer therefore had a right to stop and frisk Vazquez. ⁴ Finding no gun when he searched Vazquez, the judge determined that the officer could infer that Vazquez had dropped the gun in the Mazda, because he was standing by the passenger window.

The judge concluded that this chain of facts and inferences supported the officer's right to stop and detain the women. Following on that, the officer was entitled, the judge ruled, to inquire whether the women knew Vazquez and whether he had given them a gun or dropped one into the car. The judge further ruled that the officer had, in the circumstances, a right to protect himself and order the women to place their hands on the dashboard. The judge found the officer's actions proper until this moment in the progression of actions.

We concur with the judge's conclusions to this point. We differ with the judge's view of the officer's next action. The judge concluded that the officer could go no further than stopping the vehicle and questioning the occupants, and that he exceeded his authority by ordering the passenger out of the car and searching it. The judge found that the search of the Mazda was not for the protection of his own and others' safety, although he did not explain the basis for this finding. The judge determined that the search was conducted "for contraband qua contraband," and that the officer did not have probable cause for a search for the gun as contraband.

"It is settled that in appropriate circumstances a Terry type search may extend into the interior of an automobile." Commonwealth v. Almeida, 373 Mass. 266, 270, 366 N.E.2d 756 (1977). Furthermore, "[w]hen police are justified in stopping an automobile, they may, for their safety and the safety of the public, order the occupants to exit the automobile." Commonwealth v. Santana, 420 Mass. 205, 212, 649 N.E.2d 717 (1995), citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333-334, 54 L.Ed.2d 331 (1977) ⁵; Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978). To justify either the search or the order to the occupants to exit the automobile, "we ask 'whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.' " Santana, supra at 212-213, 649 N.E.2d 717, quoting Almeida, supra at 271, 366 N.E.2d 756. See Commonwealth v. Owens, 414 Mass. 595, 600, 609 N.E.2d 1208 (1993). At the time the police officer ordered the passenger out of the Mazda, looked under the seat and found the gun, he already had reliable information from multiple witnesses that the public in a public thoroughfare had been exposed to danger, that a specific individual allegedly had been assaulted, that the alleged assailant no longer had a gun on his person, but that a gun may well have been in the Mazda. Having seen the interaction on the street between Vazquez and the passenger in the Mazda, the officer was not required to accept at face value the Mazda occupants' denial of any connection with Vazquez or the gun.

We have upheld searches and orders for occupants to leave an automobile when, given other suspicious circumstances which justified a stop, an officer had no information whatsoever that a gun may have been in the vehicle, but still had reason to be concerned with his and others' safety. See Santana, supra at 213, 649 N.E.2d 717; Commonwealth v. Moses, 408 Mass. 136, 141-142, 557 N.E.2d 14 (1990); Almeid...