Commonwealth v. Garcia

• Decision Date: 23 July 2021
• Docket Number: 20-P-366
• Citation: 172 N.E.3d 435 (Table),100 Mass.App.Ct. 1103
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Wilson GARCIA.

100 Mass.App.Ct. 1103

172 N.E.3d 435 (Table)

COMMONWEALTH

v.Wilson GARCIA.

20-P-366

Appeals Court of Massachusetts.

Entered: July 23, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Berkshire County grand jury indicted the defendant for trafficking heroin in an amount between eighteen and thirty-six grams, in violation of G. L. c. 94C, § 32E (c ) (1). Prior to trial, the defendant filed a motion to suppress the heroin on which the indictment is based, contending that the drugs were found during an illegal patfrisk following an unlawful exit order from the vehicle in which he was a passenger.² Following an evidentiary hearing, a judge of the Superior Court denied the motion. The defendant was granted leave by a single justice of the Supreme Judicial Court to pursue an interlocutory appeal and the matter was reported to this court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). For the reasons that follow, we affirm.

Background. The only witness at the suppression hearing was Trooper Brian Phillips, the officer who stopped the car, gave the exit order, and conducted the patfrisk. We summarize the judge's findings of fact, supplemented by the Trooper's uncontested testimony. See Commonwealth v. Gonzalez, 487 Mass. 661, 662 (2021).

At about 6 P.M. on November 12, 2018, Trooper Phillips was in a marked cruiser watching traffic from the parking lot of the fire department in Lee when a gray Infiniti with heavily tinted windows drove past him. The vehicle was traveling in excess of the posted speed limit. Trooper Phillips followed the car for a few miles and stopped it just outside of town on Route 7, near the Cranwell resort.³ By that time, Trooper Phillips had run a check on the license plate and learned that the car's registered owner had numerous firearm and trafficking charges. Because he assumed that the registered owner was driving the car, Trooper Phillips approached the passenger side of the vehicle as a safety precaution and asked the driver for his license and registration through the passenger side window. The judge found that "the driver could not produce a license and indicated that the license had been suspended."

It was at this point that Trooper Philips realized there were four occupants in the car. Trooper Phillips asked the occupants for identification because it appeared to him that none of them were wearing seatbelts. The defendant was sitting in the front passenger seat "with his left arm covering his waist belt area and not moving." He replied that he did not have any identification but would provide his name. Trooper Phillips then noticed that the defendant was wearing a seat belt, contrary to his initial belief. He had not seen that the defendant's seat belt was fastened because it was covered by the defendant's arm. Trooper Phillips told the defendant that he was "fine" and it was not necessary to produce an identification because he was wearing a seatbelt. The Trooper then began to ask some questions about where the occupants were going and coming from. In response to these questions, and unlike his previous behavior of making eye contact with the Trooper while offering to provide his name, the defendant "had this look" and stared straight ahead. Trooper Phillips described the defendant's conduct as "not normal." The driver also was staring straight ahead. In the Trooper's experience, staring straight ahead means "they don't want to talk, they don't want to answer questions, probably there's something in the car that they don't want me to know about." This behavior, and the fact that the defendant did not move his arm throughout the encounter, made Phillips feel "uncomfortable." Consequently, he asked the occupants to step out of the car, beginning with the defendant.

The defendant complied and said "lock me up" as he got out of the car. Believing that the defendant had a weapon, Phillips ordered the defendant to put his hands behind his back. The defendant said, "hey, just lock me up." Trooper Phillips testified, "I said, what do you have a gun, and I put the handcuffs on and he goes no, he just said lock me up. So I brought him to the back, pat him down, and where his arm was covering was a brick ... shape item." Phillips pat frisked the defendant and discovered that the item was a plastic shopping bag containing seventeen half-packs of heroin.

The judge concluded that Phillips legitimately feared for his safety when he ordered the defendant to step out of the car, based "upon the totality of the circumstances, including the factors that lead to the stop, the suspicious unexplained movements of [the defendant] in shielding his abdomen, the averting of the eyes, the fact that the owner had a lengthy record involving firearms and trafficking charges, and the fact that he was alone in the dark on a highway with four occupants." The judge further observed that there were no other persons in the area, "[t]he vehicle was off in the middle of the night in the middle of winter" and "Trooper Phillips was alone and outnumbered on a dark street." The judge also concluded that Trooper Philips was justified in conducting a patfrisk because he had a reasonable basis to suspect that the defendant was likely armed and dangerous. As to the defendant's statement "lock me up," the judge found that the defendant "blurted out the comment." He concluded that the remark was not the product of any questioning and was made voluntarily.⁴

Discussion.

"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 the judge's ultimate findings and conclusion of law. The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. At the same time, we make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found. Our deference to the judge's assessment of the weight and credibility of testimonial evidence includes inferences derived reasonably from the testimony" (citations, alterations, and quotations omitted).

Gonzalez, 487 Mass. at 667-668.

a. Clearly erroneous findings of fact. The defendant argues that the following factual findings have no support in the record and are clearly erroneous: (1) the driver indicated his license was suspended; (2) the defendant sat "with his left arm covering his waist belt area and not moving"; (3) the defendant made suspicious movements; and (4) the stop occurred "in the middle of the night in the middle of winter." "A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7 (2018).

The defendant correctly notes that there was no evidence regarding the status of the driver's license other than Trooper Phillips's testimony that he "believe[d]" the license was suspended. We need not decide whether this testimony sufficed to support the judge's finding, however, because nothing turns on this specific fact. In the circumstances presented here, the status of the driver's license has no bearing on the question whether the exit order was justified. The significant fact about which there is no dispute is that the driver did not produce a license. As to the second challenged finding of fact, the Trooper testified that the defendant's left arm, which was "just kind of covering his stomach, chest area," "did not move ... throughout the entire time [Phillips was] at the passenger window." This testimony supported the judge's finding regarding the position of the defendant's arm during the stop.

The third challenged finding of fact, that the defendant acted suspiciously, is similarly supported by the testimony presented at the...