Commonwealt v. Ciaramitaro

• Decision Date: 05 March 2001
• Docket Number: P-1954
• Citation: 747 N.E.2d 1253,51 Mass. App. Ct. 638
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. ANTONINO CIARAMITARO. 99-
• Court: Appeals Court of Massachusetts

747 N.E.2d 1253 (Mass.App.Ct. 2001)

COMMONWEALTH vs. ANTONINO CIARAMITARO.

99-P-1954

Appeals Court of Massachusetts

March 5, 2001.

May 23, 2001.

County: Middlesex.

Present: Brown, Rapoza, & Grasso, JJ.

Constitutional Law, Search and seizure. Search and Seizure, Automobile, Threshold police inquiry, Plain view, Protective frisk.

Indictments found and returned in the Superior Court Department on August 28, 1996.

A motion to suppress evidence was heard by R. Malcolm Graham, J., and the cases were heard by Maria I. Lopez, J.

Michael A. Cioffi for the defendant.

Sheryl F. Grant, Assistant District Attorney, for the Commonwealth.

GRASSO, J.

Following a jury-waived trial, a Superior Court judge found the defendant guilty of trafficking in cocaine¹ and possession of two dangerous weapons: a dirk knife and a switch knife.² On appeal, the defendant challenges only the denial, after an evidentiary hearing, of his motion to suppress evidence (weapons and drugs) seized from his vehicle without a warrant. We affirm.

We summarize the facts found by the motion judge, which we supplement with uncontested testimony from the suppression hearing, Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 49 (2000), mindful that assessment of witness credibility is the province of the motion judge. See Commonwealth v. Gutierrez, 26 Mass. App. Ct. 42, 47 (1988).³ At about 10:50 P.M. on June 20, 1996, Officer Michael O'Connell of the Wakefield police department was traveling westbound on Lowell Street in a marked cruiser. Nearing the intersection of Lowell and Main Streets, he observed a Mercury Marquis making an unusual, although not illegal, right turn onto Lowell Street (vehicles normally turned left from that position) heading in the direction of Officer O'Connell's cruiser. It appeared to Officer O'Connell that, in making the turn, the operator had driven very close to, or over, the curb. The vehicle pulled quickly to the right, stopped at the curb, and then resumed motion.

Officer O'Connell pulled into a parking lot and positioned his cruiser perpendicular to vehicles passing on Lowell Street. He saw the Mercury stop briefly at the curb a second time. Another vehicle approached the Mercury from the rear, and both vehicles passed in front of the cruiser. Officer O'Connell saw that the Mercury contained a lone male, later identified as the defendant. Officer O'Connell pulled his cruiser behind the second vehicle and followed as the third car in line. At the intersection of Lowell and Main Streets, for no reason apparent to Officer O'Connell, the Mercury stopped briefly for a third time in the "right turn only" lane, causing the vehicle immediately behind, and the cruiser, to stop.

The Mercury then made a sudden, and illegal, left turn across Lowell Street into an Exxon gas station. Officer O'Connell followed and parked his cruiser a short distance behind. He did not activate the cruiser's blue lights, but his headlights were on.

As Officer O'Connell was calling the Wakefield police station to report the vehicle's plate number and his location, the defendant got out of the Mercury and approached the cruiser. Officer O'Connell left his cruiser and met the defendant half-way. The defendant began speaking in a heavy Italian accent that Officer O'Connell had difficulty understanding. Although the defendant's command of English was reasonable, he was not making coherent statements. He also appeared nervous.

Eventually, Officer O'Connell understood the defendant to be suggesting that he was lost. This struck Officer O'Connell as peculiar because the defendant said he lived in Wakefield. Officer O'Connell requested, and the defendant produced, his driver's license. Officer O'Connell was concerned enough about the defendant's behavior that he did not ask the defendant to return to his car for the registration. Officer O'Connell instructed the defendant to return to his car and remain there.

Officer O'Connell returned to the cruiser to check on the defendant's license status and any outstanding warrants. As Officer O'Connell reached for his radio, the defendant again got out of his vehicle. Once again, Officer O'Connell left his cruiser to intercept the defendant. This time, the defendant gave him the vehicle registration. After instructing the defendant to return to his vehicle and remain there, Officer O'Connell returned to his cruiser to radio the information to the station. As he did so, Officer O'Connell observed the defendant moving in the driver's seat, twisting and rotating his shoulders, and leaning side to side. He could not see the defendant's hands. These actions were not continuous, but they went on for a minute or two. In addition, the brake lights of the Mercury flashed on and off two or three times.

Shortly thereafter, Inspectors Austin and Moccia, dressed in civilian clothes, arrived in an unmarked backup unit, having been dispatched per the practice of the Wakefield police department.⁴ Officer O'Connell briefed them on the erratic operation of the defendant's vehicle⁵ and his furtive movements. As the three officers talked, the defendant left his vehicle a third time and asked what was going on. Inspector Moccia told the defendant that they were running a registry check of his license. The information had not been received back at the time.

During this conversation, the defendant reached into the pocket of his leather jacket and began fumbling with an object. Officer O'Connell asked the defendant to take his hand out of his pocket. Inspector Moccia⁶ and Officer O'Connell performed a pat frisk of the defendant's coat in the area where his hand had been. Inspector Moccia felt a small hard object; he reached in and retrieved a digital scale. Inspector Moccia asked what the scale was for, to which the defendant replied that he used it in his jewelry business.

After the pat frisk, Officer O'Connell remained with the defendant and continued to converse about his driving, while Inspectors Austin and Moccia walked over to the Mercury. From a position outside the passenger side of the vehicle, Inspector Moccia illuminated the interior with the aid of a flashlight. In the open glove compartment, Inspector Moccia observed a dirk knife, which he knew to be a dangerous weapon prohibited by G. L. c. 269, § 10. Inspector Moccia opened the passenger door, reached in, and retrieved the knife. He showed it to Inspector Austin, who had approached the driver's side. From outside the open driver's door, Inspector Austin used his flashlight to examine the floor of the vehicle. He noticed a wooden-handled object protruding from under the driver's seat; he recognized it to be a prohibited switch knife. Inspector Austin reached into the vehicle, confiscated the weapon, and showed it to Inspector Moccia.

After Inspector Austin discovered the second weapon, Inspector Moccia focused his flashlight on the interior of the vehicle. From outside the driver's side door he observed the corner of a glassine plastic bag sticking out of the "zippered portion" of the center arm rest which was in the "up" position. Inspector Moccia entered the vehicle and, on closer inspection, determined that the glassine bag contained a white powder that appeared to be cocaine.⁷ He seized the bag and placed the defendant under arrest.

This case illustrates that analysis of events in motor vehicle stops is not only fact intensive and time dependent, Commonwealth v. Torres, 424 Mass. 153, 163 n.8 (1997), but also interconnected and dynamic: observations made, and events occurring, during the stop often lead to heightened suspicion (justifying further inquiry), or to probable cause, or to plain- view seizures. Commonwealth v. Kitchings, 40 Mass. App. Ct. 591 (1996). Here, a motor vehicle infraction, Commonwealth v. Santana, 420 Mass. 205, 207 (1995), and other observations creating reasonable suspicion that the operator might be under the influence of drugs or alcohol, Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998), justified a proportional detention, Commonwealth v. Laaman, 25 Mass. App. Ct. 354, 364 (1988). Prolonged by the defendant's conduct, the detention led to a plain-view observation of contraband weapons,⁸ Commonwealth v. Doulette, 414 Mass. 653, 655 (1993), which, in turn, provided probable cause to arrest the defendant and to search his motor vehicle for additional weapons, Commonwealth v. Moses, 408 Mass. 136, 145 (1990). In the course of that weapons search, a plain- view seizure of a significant quantity of a controlled substance occurred. In light of all these circumstances, there was no error in denying the defendant's motion to suppress.

1. Constitutionality of the stop. Analysis begins with the familiar principle that "[w]here the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Santana, 420 Mass. at 207, quoting from Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Here, Officer O'Connell observed the defendant make an illegal left turn into the Exxon station.⁹ Observed indicia of erratic operation (pulling onto the roadway out or over the curb, pulling to the curb three times for short periods, stopping in the roadway for no apparent reason, and making a sudden illegal turn) also raised a reasonable suspicion that the defendant may have been operating under the influence of alcohol or drugs. That Officer O'Connell (or later Inspectors Moccia or Austin) may have harbored other unarticulated suspicions does not alter the analysis. See Commonwealth v. Santana, 420 Mass. at 207-209 (Massachusetts follows the "authorization" rather than the "pretext" approach). Neither does it matter that the defendant was never cited for the civil motor vehicle infraction. See Commonwealth v. Moscat, 49 Mass. App. Ct. 622, 624 (2000) ("police may handle [a] situation without making an arrest if they so choose"). See also Cambridge v. Phillips, 415 Mass. 126, 129 n.3 (1993).

2. Permissible scope of the...