Commonwealth v. Daniel

• Citation: 985 N.E.2d 843,464 Mass. 746
• Decision Date: 05 April 2013
• Docket Number: SJC–11214.
• Parties: COMMONWEALTH v. Clint DANIEL (and a companion case ).
• Court: United States State Supreme Judicial Court of Massachusetts

464 Mass. 746

985 N.E.2d 843

COMMONWEALTH

v.Clint DANIEL (and a companion case ¹).

SJC–11214.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 6, 2012.

Decided April 5, 2013.

Timothy J. Brown, Committee for Public Counsel Services, for the defendant.

Zachary M. Hillman, Assistant District Attorney (Benjamin R. Megrian, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

The defendants, Clint Daniel and Alyson Tayetto, were stopped by a Boston police officer for a motor vehicle infraction in the early morning hours of December 13, 2009. The interior of the vehicle smelled of burnt marijuana, and in response to a question from the officer, Tayetto, the driver, produced two small bags containing the substance. The officer searched the vehicle and found a handgun and ammunition in the glove box. Daniel and Tayetto were subsequently charged with several firearms offenses.

The defendants moved to suppress the evidence recovered from the vehicle. A Boston Municipal Court judge allowed the motions, and a single justice of this court allowed the Commonwealth's motion for leave to file an interlocutory appeal in the Appeals Court, pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the Boston Municipal Court judge's order that the evidence be suppressed, Commonwealth v. Daniel, 81 Mass.App.Ct. 306, 313–316, 962 N.E.2d 213 (2012), and we granted Daniel's application for further appellate review.

The Commonwealth argues that the motions to suppress should not have been allowed. The Commonwealth contends that the officer had probable cause to search the vehicle for contraband, and thus permissibly ordered both occupants from the vehicle, and also that the circumstances would have caused a reasonable officer to fear for his safety, thus permitting him to search the vehicle for weapons. In addition, the Commonwealth makes two claims not raised before the motion judge or in its brief before the Appeals Court: that the officer had probable cause to believe that Tayetto was operating a vehicle while under the influence of marijuana, in violation of G.L. c. 90, § 24 ( a ), and therefore it was permissible to search the vehicle for evidence of that crime; and that the search was permissible because the officer had a responsibility to ensure that Tayetto did not consume any marijuana while operating a vehicle on the streets of the Commonwealth. We affirm the order allowing the motions to suppress.

Background. Daniel and Tayetto were each charged with carrying a firearm without a license, G.L. c. 269, § 10 ( a ); receiving a firearm with a defaced serial number, G.L. c. 269, § 11C; unlawful possession of ammunition, G.L. c. 269, § 10 ( h ); two counts of unlawful possession of a large capacity feeding device, G.L. c. 269, § 10 ( m ); and unlawful possession of a loaded firearm, G.L. c. 269, § 10 ( n ). Tayetto was also charged with three civil motor vehicle infractions.

The Boston police officer who stopped the vehicle was the only witness at the hearing on the motions to suppress. The prosecutor questioned the officer about the circumstances under which he had stopped the vehicle, issued exit orders to the occupants, and searched the glove box. In a memorandum in opposition to the motions to suppress filed after the hearing, the prosecutor argued that, because of the presence of marijuana in the vehicle, the officer's search was permissible under the automobile exception to the warrant requirement, and was further justified by the need to ensure officer safety. At no time did the prosecutor suggest that the search was justified because Tayetto was driving while under the influence of marijuana, and she was not charged with that offense. Nor did the prosecutor elicit testimony at the hearing which would have supported such a claim.

After the motions to suppress were allowed, the prosecutor filed a motion requesting the judge supplement her findings to credit the officer's testimony in its entirety, and also to provide more detail concerning the order in which the officer performed the search and the procedure he used. The prosecutor also filed a motion for reconsideration that raised no new issues. The motion judge issued limited supplemental findings, among them that “[t]he court believes the officer searched the car based on a hunch not substantiated by reasonable suspicion and/or articulable facts,” and denied the motion for reconsideration.

Discussion. 1. Findings of fact. In reviewing a ruling on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). The judge stated that her findings were based on the “credible testimony” of the officer who made the stop. The judge stated explicitly, however, that she did not find credible the officer's testimony that he had a heightened awareness of danger during the stop. It is therefore not implicit in the judge's findings that she found the entirety of the officer's testimony credible. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C.,450 Mass. 818, 882 N.E.2d 328 (2008) ( “Appellate courts may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony”). Rather, it is apparent that the judge credited only those portions of the testimony that were reflected in her findings and were relevant to the specific issues before her.

We summarize the judge's findings. At approximately 3:40 a.m., the officer was patrolling the Dorchester section of Boston in a marked cruiser. He noticed a Toyota sport utility vehicle (SUV) traveling toward him with a nonfunctioning driver's side headlight. The SUV “then made an abrupt left hand turn in front of his cruiser without using the directional signal.” The officer turned right and followed the vehicle. He activated his blue emergency lights, and the driver of the SUV “applied the brakes and made an abrupt stop in the middle of the left travel lane.”

The officer approached the passenger side of the vehicle and saw that Daniel, who was sitting in the passenger seat, had his head down and his shoulders were “rocking back and forth.” Daniel sat upright when the officer reached the window. The officer could smell the odor of freshly burnt marijuana. He asked the occupants if they “knew anything about” the smell, and they replied that they had been to a party where people were smoking. Upon the officer's request, Tayetto produced her driver's license. The officer then asked both occupants whether they had any marijuana in the vehicle. Tayetto “produced two small bags from her clothes.” The officer asked if there was more in the vehicle. The defendant removed a passport, keys, and a folding knife from his pockets and placed them on the dashboard, saying, “this is all I got.” The judge found that “this behavior was significant to [the officer] because it was not common for someone to empty their pockets and that when they do it is because they are trying to conceal something.” By that point, vehicles were stopped behind them on the road. The officer instructed Tayetto to move her vehicle to the side of the road, and she did so; he did not remove the marijuana or the knife from the vehicle, or order the defendant to get out of the vehicle.

The officer also moved his cruiser to the side of the road, and then returned to the SUV and ordered Daniel out of his seat. He searched the defendant for drugs and weapons “based on the smell of marijuana and his movements.” The search did not yield any contraband, and the officer instructed Daniel to sit on the bumper of the cruiser. He then ordered Tayetto out of the vehicle, and searched her, after which he instructed her to sit on the steps of a nearby house. The officer briefly returned to his cruiser, then searched the glove box of the SUV, where he discovered a firearm. At that point, he called for backup.

2. Whether the search was permissible. These events followed the passage of St. 2008, c. 387, “An Act establishing a sensible State marihuana policy” (2008 initiative), which made possession of one ounce or less of marijuana a civil infraction, rather than a criminal one. See G.L. c. 94C, §§ 32L–32N. See also Commonwealth v. Cruz, 459 Mass. 459, 460, 945 N.E.2d 899 (2011)( Cruz ). We held in Cruz, supra at 476, 945 N.E.2d 899, that, following the passage of the 2008 initiative, the smell of burnt marijuana alone does not provide probable cause to believe that there is evidence of a specific crime or a criminal amount of contraband—i.e., more than one ounce of marijuana—in a vehicle.

When police conduct a search of an automobile without first obtaining a search warrant, the Commonwealth bears the “burden of proving the existence of both probable cause to believe that the automobile contained contraband and of exigent circumstances to justify proceeding without a warrant.” Commonwealth v. Santiago, 410 Mass. 737, 744, 575 N.E.2d 350 (1991). Under the “automobile exception” to the warrant requirement, the Commonwealth may satisfy its burden by proving that officers had probable cause to believe that there was contraband in the vehicle. Commonwealth v. Motta, 424 Mass. 117, 122, 676 N.E.2d 795 (1997). The determination of probable cause is objective, and focuses on “whether the facts would warrant a ‘reasonable’ person in believing the action taken to be appropriate.” Commonwealth v. Hason, 387 Mass. 169, 175, 439 N.E.2d 251 (1982).

a. Probable cause to search for additional contraband. The Commonwealth contends that the officer had probable cause to...