Commonwealth v. Douglas
| Decision Date | 14 August 2015 |
| Docket Number | SJC–11824. |
| Citation | 472 Mass. 439,35 N.E.3d 349 |
| Parties | COMMONWEALTH v. Jason DOUGLAS (and five companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Daniel R. Katz for Wayne Steed.
Michael Tumposky, Boston, for Jason Douglas.
Donna Jalbert Patalano, Assistant District Attorney (Joseph F. Janezic, III, Assistant District Attorney, with her) for the Commonwealth.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.
DUFFLY
, J.
Following a traffic stop for a civil motor vehicle infraction (failure to use a directional signal) of a motor vehicle that they had had under surveillance, Boston police officers ordered first the rear seat passenger sitting behind the driver, then the rear seat passenger on the passenger's side, to get out of the vehicle, and pat frisked each for weapons, on the suspicion that they were armed and dangerous. No weapons were found. While the rear seat passengers remained outside the vehicle, as instructed, the front seat passenger, defendant Jason Douglas, got out of the vehicle and was ordered to return to his seat. After he did so, he moved the gear shift in the center console to the “drive” position, while the driver kept her foot on the brake. Douglas was ordered from the vehicle and pat frisked, and the driver also was ordered from the vehicle. Finding no weapon on Douglas's person, officers conducted a protective sweep of the vehicle. They discovered a loaded firearm under the front passenger seat.
Douglas and his codefendant, Wayne Steed, who had been seated behind him, were charged with unlicensed possession of a firearm and related offenses.2 Both defendants moved to suppress the evidence seized as a result of the search. After an evidentiary hearing, a Superior Court judge allowed their motions. A single justice of this court allowed the Commonwealth's application for leave to pursue an interlocutory appeal to the Appeals Court, and the Appeals Court reversed the allowance of the motions to suppress. See Commonwealth v. Douglas, 86 Mass.App.Ct. 404, 405, 17 N.E.3d 427 (2014)
. We granted the defendants' applications for further appellate review.
We conclude that, even if the patfrisks of the rear seat passengers were invalid, Douglas's action in shifting the automobile into “drive” during the course of the stop, in conjunction with the circumstances of the stop and other information known to the officers at the time, supported the officers' suspicion that Douglas might be armed and dangerous, and that a limited protective sweep of the vehicle was necessary for officer safety. We therefore conclude that the motions to suppress should not have been
allowed, but on grounds different from those relied upon by the Appeals Court, essentially for the reasons cited by the concurring opinion. See Commonwealth v. Douglas, supra at 416–418, 17 N.E.3d 427
(Rubin, J., concurring).
1. Background. The sole witness at the hearing on the motions to suppress was Boston police Officer Liam Hawkins, who was one of the arresting officers and was the officer who conducted the patfrisk of Douglas. Based on Hawkins's testimony, the motion judge found the following.
a. The stop. On an evening in April, 2011, members of the Boston police department's youth violence strike force were conducting surveillance of a party at a Boston nightclub. The party was being held to celebrate the successful release on the Internet of a video recording that had been produced by a group of individuals living on Annunciation Road in Boston. The group had been involved in a rivalry with another group of individuals from the Orchard Park housing development that had resulted in prior violence, and the surveillance was intended to gather information about the members of the group. The officers also had stationed “take down” vehicles in the vicinity, to make stops as requested. When the party ended, police followed and stopped some of the attendees in what was known as “field interrogation observations.” Some partygoers were followed to a restaurant in the Chinatown area of Boston, where officers conducted surveillance of the parking lot.
At approximately 3 a.m. , Sergeant Detective Joseph Sullivan observed a group of four individuals, three men and a woman, leave the restaurant and get into an automobile. One of the men was the defendant Douglas, who had had many prior dealings with law enforcement and had a criminal record that included at least one conviction of possession of a firearm. Sullivan reported that another of the men, later identified as the defendant Steed, was wearing a hooded sweatshirt and had been holding his hands close to his body, in the front pockets of his sweatshirt. As the vehicle was leaving the parking lot, with the woman driving, Sullivan noticed that the driver had not used a directional signal. He radioed this information to Officers Hawkins and Mathew Wosny, who were driving an unmarked “take down” vehicle. Hawkins and Wosny followed the vehicle as it traveled along Essex Street, and saw it turn onto Surface Road, again without using a turn signal. The officers activated their blue lights and siren and stopped the vehicle on the entrance ramp to Route I–93 South, for the civil motor vehicle infraction.
The motion judge further found:
Other officers had by this time arrived to assist Hawkins and Wosny. Douglas and the driver were ordered out of the vehicle and Douglas was pat frisked. Nothing was found. More officers arrived. Hawkins then searched the passenger compartment of the vehicle and found a firearm underneath the front passenger seat. All four of the vehicle's occupants were detained; Steed and Douglas later were charged with firearms offenses.
b. Motions to suppress. In allowing the defendants' motions to suppress, the judge concluded that “there was little if any information that any one of [the occupants] posed any kind of danger to the officers”; the search of each occupant did not result in any such information; and any possible suspicion that another officer might have had, based on his earlier observation of one of the occupants, later identified as Steed, before Steed entered the vehicle, as well as any suspicion of Johnson, based on his action inside the vehicle, had dissipated when no weapon was discovered
following their patfrisks. The judge found also that, although Douglas moved the gear shift, “the car did not move and he shifted the car back into park before he too was pat frisked,” and that there was no indication that the driver was armed and dangerous. Concluding that the exit orders and patfrisks were invalid, the judge determined that no further analysis was required because whatever occurred following the patfrisks was tainted by the invalid exit orders.
The Appeals Court, in a divided opinion, determined that the officers had reasonable suspicion to issue the exit orders and to pat frisk the vehicle's occupants. See Commonwealth v. Douglas, 86 Mass.App.Ct. 404, 412, 17 N.E.3d 427 (2014)
. The court concluded further that, when no weapons were found as a result of the patfrisks,3 the reasonable suspicion only increased, and the officers were justified in conducting a protective search of the vehicle for weapons.4 See id.
We conclude that, even assuming that the patfrisk of the rear seat passengers was based on a reasonable suspicion that they were armed and dangerous, any suspicion dissipated when no weapon was found on either individual, and there was no justification at that point to conduct a protective sweep of the vehicle. We agree with the analysis in the concurrence, however, see id. at 416–418, 17 N.E.3d 427
(Rubin, J., concurring), that Douglas's subsequent conduct in leaving the vehicle unbidden and, when he was ordered to return to his seat, in shifting from “park” to “drive,” considered in the totality of the circumstances and in light of other information known to the officers, provided reasonable suspicion that Douglas had a weapon either on his person or within reach inside the vehicle, and therefore that the exit order and patfrisk of Douglas, and the protective sweep of the vehicle underneath the seat he had
occupied, were permissible.5
2. Discussion. “In reviewing a decision on a motion to suppress, ‘we accept the judge's subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.’ ” Commonwealth v. Ramos, 470 Mass. 740, 742, 25 N.E.3d 849 (2015)
, quoting Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412
, cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007). “Although an...
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