Commonwealth v. Clay C, 092016 MACA, 15-P-776
| Party Name | COMMONWEALTH v. CLAY C, a juvenile. [1] |
| Judge Panel | By the Court (Meade, Wolohojian & Maldonado, JJ. |
| Case Date | September 20, 2016 |
| Court | Appeals Court of Massachusetts |
Unpublished Opinion
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a
bench trial, the juvenile was adjudicated delinquent on
charges of carrying a loaded firearm without a license, G. L.
c. 269, § 10(n), and possessing ammunition without a
firearm identification card, G. L. c. 269, §
10(h)(1).
Background.
The relevant facts, as set forth at the evidentiary hearing on the juvenile's motion, and credited by the judge, are as follows. On June 8, 2014, Boston police Officers Nicholas Fisher and James Walsh were patrolling the Mission Hill area of Boston in an unmarked police vehicle. At approximately 7:05 £.M., the officers observed a vehicle with excessive window tint traveling in the opposite direction. Officer Fisher, who was driving, activated the police vehicle's sirens and lights and attempted to effectuate a motor vehicle stop. The vehicle pulled over approximately one-quarter of a mile away.
The officers, dressed in plain clothes, approached the vehicle with their badges displayed. Officer Fisher approached the driver's side while Officer Walsh approached the passenger's side. When the driver rolled down his window, Officer Fisher recognized him as an individual who previously had been convicted of firearm related offenses. Officer Fisher also recognized the juvenile sitting in the passenger seat from prior encounters in the Mission Hill area. On this occasion, Officer Fisher observed that the juvenile sat rigidly, looked straight ahead, and avoided eye contact with the officers.
Officer Walsh knocked several times on the front passenger window. When the juvenile did not lower the window, Officer Walsh opened the passenger side door and engaged in conversation with the juvenile about summer activities, school, and employment. The juvenile stated that he needed to leave. The juvenile's behavior was different from other times when Officer Fisher had spoken to him. Officer Walsh observed a bulge in the front left waist area of the juvenile's pants. Both the driver and the juvenile were asked to step out of the vehicle. While pat frisking the juvenile, Officer Walsh found a loaded firearm. The juvenile then was arrested and taken into custody.
Discussion.
In reviewing a decision on a motion to suppress, we accept, absent clear error, the motion judge's subsidiary findings, but independently review his ultimate findings and conclusions of law. Commonwealth v.
Scott, 440 Mass. 642, 646 (2004). "A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed." Commonwealth v.
Hilton, 450 Mass. 173, 178 (2007) .
1. Erroneous finding.
The juvenile contends that the motion judge's subsidiary finding that "[i]t was . . . observed that there was a bulge in the waistband of the Juvenile's pants" was clearly erroneous in light of Officer Fisher's testimony on cross-examination that he did not observe the bulge himself. Even if we were to agree with the juvenile that he adequately preserved his claim by his earlier objection during the direct examination of Officer Fisher, the heightened standard of review does not assist his argument, as we discern no error. See generally Commonwealth
v. Flebotte, 417 Mass. 348, 353 (1994).
While officer Fisher was the only witness who testified at the motion to suppress hearing, his testimony regarding the information Officer Walsh relayed to him was properly admitted. See Commonwealth v.
Fletcher, 52 Mass.App.Ct. 166, 168 n.2 (2001) ("[H]earsay is admissible in a motion hearing relating to suppression"). Both officers were present throughout the encounter. The testifying officer described his personal observations, and the information told to him by his partner. This was an appropriate application of the collective knowledge doctrine. See Richardson v.
Boston, 53 Mass.App.Ct. 201, 206 (2001); Commonwealth v. Quinn, 68 Mass.App.Ct. 476, 480-481 (2007). Compare Commonwealth v. King, 67 Mass.App.Ct. 823, 825, 830 (2006). That the bulge was not observed by Officer Fisher is of no import. The judge was free to credit Officer Fisher's testimony regarding the information Officer Walsh supplied. There was no error in the judge's factual findings.
2. Scope of the search.
The juvenile acknowledges that the civil motor vehicle violation justified the stop, see Commonwealth v.
Baez, 47 Mass.App.Ct. 115, 117 (1999), but contends that the opening of the passenger side door, the exit order, and the subsequent patfrisk were not justified. He asserts the circumstances do not support a reasonable concern for officer safety. We disagree.
Ordinarily, "[w]hen the police are justified in stopping an automobile for a routine traffic violation, they may, for their safety and the safety of the public, order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger." Commonwealth v.
Torres, 433 Mass. 669, 673 (2001) . To determine whether there exists a reasonable belief that the safety of the officers or the public is in danger, "we ask 'whether a reasonably prudent man in the policeman's position would be warranted' in such a belief." Commonwealth v. Stampley, 437 Mass. 323, 325 (2002), quoting from Torres,
supra. "A 'mere hunch' is not enough, nor is nervousness or fidgeting on the part of the driver or passengers in a stopped vehicle [by itself] an adequate reason to order them out of the car." Torres,
supra (citation omitted). However, "it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, " provided "the intrusiveness of the officer's conduct [is] 'proportional to the degree of suspicion that prompted it.'" Commonwealth
v. Daniel, 464 Mass. 746, 752 (2013), quoting from Commonwealth v.
Gonsalves, 429 Mass. 658, 664 (1999), and Torres, supra at 672.
Here, the officers' actions were "proportional to the escalating suspicion that emerged over the course of the stop." Commonwealth v.
Sinforoso, 434 Mass. 320, 323 (2001) . The officers' appreciation of the circumstances commenced with the vehicle not coming to an immediate stop when signaled to do so. See Commonwealth v.
Egan, 12 Mass.App.Ct. 658, 661 (1981) ("particularized suspicion" that crime was in progress may be deduced from, among other factors, fact that vehicle did not stop when signaled to do so and proceeded for another quarter mile). Next, rising concern developed, when the vehicle's heavily tinted windows prevented the officers from seeing into the vehicle. Adding to the equation, Officer Fisher recognized the driver as someone previously convicted of a firearm related offense. See Commonwealth v. Dasilva, 66 Mass.App.Ct. 556, 561 (2006) (officers' knowledge that defendant already charged with crimes involving firearms could be considered in reasonable suspicion analysis). Then, the juvenile (who the officer knew from the area) displayed unusual behavior. The juvenile's demeanor, although insufficient in and of itself, furthered the officers' safety concerns and justification for an exit order. See Commonwealth v. Rivera, 67 Mass.App.Ct. 362, 366-367 (2006). Officer Walsh knocked several times on the passenger window, but the juvenile refused to roll the window down. In that situation, Officer Walsh was justified, in our view, in opening the vehicle's passenger side door as a safety precaution. See Commonwealth v. Willis, 415 Mass. 814, 820 (1993) ("The police are . . . entitled to take reasonable precautions for their protection").
The additional observations after that gave rise to an objectively reasonable concern for officer safety. See Torres, 433 Mass. at 673-675. The juvenile, who was in the company of a felon convicted of firearm related offenses, acted oddly and appeared to conceal something in the bulge in his waistband. See Commonwealth
v. Rock, 429 Mass. 609, 612-613 (1999). From the totality of the circumstances, we conclude the patfrisk was justified and the contraband and statements lawfully obtained. See ibid.
Adjudications of delinquency affirmed.
Judgment affirmed.
By the Court (Meade, Wolohojian & Maldonado, JJ. [3]
Notes:
[1] A pseudonym.
[2] The Commonwealth dismissed count one of the...
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