Commonwealth v. Feyenord, No. 02-P-1260 (MA 10/1/2004)

• Decision Date: 01 October 2004
• Docket Number: No. 02-P-1260.,02-P-1260.
• Citation: 62 Mass. App. Ct. 200
• Parties: COMMONWEALTH vs. KENTON W. FEYENORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

COMMONWEALTHvs.

KENTON W. FEYENORD.

No. 02-P-1260.

Court of Appeals of Massachusetts.

Worcester.

November 6, 2003.

October 1, 2004.

Controlled Substances. Statute, Construction. Search and Seizure, Motor vehicle, Threshold police inquiry, Trained dog. Constitutional Law, Search and seizure, Investigatory stop. Threshold Police Inquiry.

Indictment found and returned in the Superior Court Department on November 9, 2000.

The case was tried before Timothy S. Hillman, J.

Michael J. Traft for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Present: Greenberg, Berry, & McHugh, JJ.

McHUGH, J.

After a State police officer noticed an inoperable headlight on the car driven by the defendant, Kenton Feyenord, the officer stopped the car. Soon after the stop, the officer found 169 grams of cocaine concealed in the trunk. Before his trial on resulting charges of trafficking in cocaine (G. L. c. 94C, § 32E[b][3]), the defendant, invoking both the Fourth Amendment to the Constitution of the United States and art. 14 of the Massachusetts Declaration of Rights, filed a motion to suppress all physical evidence taken from the vehicle and all statements made to the officer prior to the search.¹ His motion was denied. The defendant was subsequently convicted of trafficking cocaine, in the amount of one hundred to two hundred grams, on a joint venture theory. Now he appeals, claiming that the denial was error. We affirm.²

The events relevant to the motion to suppress began when State police officer William Pinkes (Pinkes), while on patrol at 5:45 P.M. on May 4, 2000, noticed a car behind him with its right headlight illuminated and its left headlight out. It was daylight at the time and there were no visibility hazards. As some motorists are wont to do, however, the driver had turned on the headlights prior to nightfall.

Pinkes pulled his marked cruiser to the side of the road and allowed the vehicle to pass him. After the car passed, he pulled behind it, and signaled the driver to stop. As Pinkes walked toward the stopped vehicle, he saw the defendant, a bearded black man, seated behind the wheel and a passenger, subsequently identified as "Junior" Cox, sans seat belt, sitting beside him.

Pinkes asked the defendant for his license and registration. The defendant was unable to produce a valid driver's license but did show Pinkes a proper vehicle registration certificate in the name of a person he claimed was his aunt. As the defendant produced the registration, Pinkes noticed that the defendant was nervous and that his hands were shaking. In response to Pinkes's request, Cox produced a valid identification card showing him to be a Jamaican citizen. When Pinkes asked the defendant for his name, however, the defendant's response was unintelligible.

Following the unintelligible response, Pinkes ordered the defendant to exit the vehicle so he could question him apart from Cox, who remained inside the vehicle. The ensuing exchange between Pinkes and the defendant occurred while the two were standing between the front of Pinkes's cruiser and the rear of the defendant's car. Pinkes began the conversation by again asking the defendant for his name. This time, the defendant replied that his name was Kadari Bowen.³ He provided a social security number and a birth date of June 9, 1978, but stumbled when asked for his age. At some point, the defendant said he was licensed to drive in New York but, as noted, was unable to produce any driver's license.

Leaving the defendant between the two parked cars, Pinkes went to the driver's side of the defendant's car and asked Cox who the defendant was and how long Cox had known him. Cox replied that, although he had known the defendant for two to three years, he only knew him as "Pat."

Armed with that information, Pinkes returned to the defendant and asked him how long he had known Cox. The defendant stated that Cox was his brother-in-law, the father of his sister's child, and that the defendant had known him for approximately twelve years. At that, Pinkes returned to the side of the car and asked Cox for the name of the defendant's sister. Cox told Pinkes that he did not know any of the defendant's family.

Pinkes then inquired of the defendant about the pair's intended destination. The defendant said that he and Cox were on their way to Putnam, Connecticut, to visit one of the defendant's friends. Although he did not know the friend's address or telephone number, the defendant said he intended to telephone the friend for directions when he got a little closer to Putnam.

Cox, on the other hand, told Pinkes that the pair was headed for Brooklyn, New York.

At that point, Pinkes decided that something meriting further investigation was afoot. He placed the defendant in the back of his cruiser while he contacted State police Officer James Devlin, who was assigned to the area as the handler of Heiko, a police dog trained to detect marijuana, cocaine, hashish, and heroin. Pinkes asked Devlin to come to the scene.⁴ Between five and ten minutes had elapsed between the stop and Pinkes's call to Devlin. The defendant was not handcuffed as he sat in the rear of Pinkes's cruiser and Pinkes informed him that he was not under arrest. Pinkes also told him, however, that he was not free to leave the cruiser.

Devlin and Heiko arrived at the scene ten or fifteen minutes after Devlin received Pinkes's call. After arriving, Devlin had Heiko walk around the exterior of the defendant's vehicle. Heiko "alerted" in an area at the left rear of the trunk.⁵ The officers then placed Heiko near the inside of the trunk, where he again "alerted," this time in an area near the left rear tail light. Upon inspection, the police officers found a gray plastic bag containing a digital scale and a black bag holding a quantity of what looked like, and turned out to be, cocaine. At that point, the defendant and his passenger were arrested and brought to the State police barracks.

Based on those facts, the defendant makes three related arguments attacking the validity of the search. First, he contends that Pinkes was not authorized to stop him for operating the car during daylight hours with only one functioning headlight. Second, he claims that Pinkes did not have a lawful basis for ordering him to get out of the vehicle. Finally, the defendant claims that his detention at the scene and the dog's exterior sniffing of his car amounted to an impermissible search, seizure, or both.⁶

1. The stop. The motion judge determined that operating a motor vehicle with only one headlight, during the daytime, was a traffic violation and warranted the stop. The defendant argues that there was no traffic violation. He focuses on G. L. c. 90, § 7, which, among other things, requires that headlamps be illuminated from one-half hour after sunset to one-half hour before sunrise. He concedes that headlamps must be illuminated if weather conditions during daylight hours create a visibility hazard. Absent this circumstance, however, his position is that no traffic offense had occurred and no stop was justified.

The defendant's argument is unpersuasive. General Laws c. 90, § 7, states that "[e]very motor vehicle operated in or upon any way shall be provided with . . . suitable lamps." G. L. c. 90, § 7, as appearing in St. 1978, c. 439, § 1. "Lamps" is in the plural and the requirement for "suitable lamps" depends neither on visibility conditions nor on the time of day during which the vehicle is operated.

The statute does not define the word "suitable." However, the sentence immediately after the sentence containing the "suitable lamps" requirement says that:

"[e]very automobile operated during the period from one half an hour after sunset to one half an hour before sunrise, and during any other period when visibility is reduced by atmospheric conditions so as to render dangerous further operation without lights being displayed, shall display at least two lighted white headlamps with at least one mounted at each side of the front of the vehicle."

G. L. c. 90, § 7, as appearing in St. 1978, c. 439, § 1. See G. L. c. 90, § 7A (requiring annual inspection to insure that, inter alia, "lights" are in good working order); 540 Code Mass. Regs. § 22.05 (1996) (specifying the number of feet in front of vehicle lamps must be capable of illuminating). When the statutory provisions are "construed together so as to constitute a harmonious whole consistent with the legislative purpose," Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975), we think that, at a minimum, the "suitable" lamps with which vehicles must be equipped are lamps capable of meeting the statutory requirements for illumination at night and during periods of reduced visibility, i.e., "two lighted white headlamps with at least one mounted at each side of the front of the vehicle." See G. L. c. 90, § 7. Lamps capable of being lighted manifestly must be in operating order and one of the lamps on the defendant's car was not. Therefore, the defendant's vehicle was not "provided with" "suitable" lamps and Pinkes was authorized to stop it. See, e.g., Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833 (2001).

2. The exit order. When Pinkes stopped the defendant's car, Pinkes knew only that it was not properly equipped for travel on the Commonwealth's roads. Because the stop was justified, however, he was permitted to "take reasonable precautions for [his] own protection. "Such precautions may include ordering occupants out of a car for questioning," Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978), if the officer who makes the stop has reasonable concern for his own safety or that of others. See Commonwealth v. Gonsalves, 429 Mass. 658, 660-669 (1999), S.C., 432 Mass. 613 (2000), S.C., 441 Mass. 1007 (2004). Given the wide variety of rapidly evolving circumstances an officer may face, "not . . . much [is required] for a police...