Commonwealth v. GRAHAM

• Decision Date: 19 October 2010
• Docket Number: No. 09-P-810.,09-P-810.
• Citation: 935 N.E.2d 370,78 Mass.App.Ct. 127
• Parties: COMMONWEALTH v. William A. GRAHAM & another.
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 127

935 N.E.2d 370

COMMONWEALTH

v.William A. GRAHAM & another. ¹

No. 09-P-810.

Appeals Court of Massachusetts,Suffolk.

Argued Feb. 8, 2010.

Decided Oct. 19, 2010.

David D. McGowan, Assistant District Attorney (Abigail Holland, Assistant District Attorney, with him), for the Commonwealth.

Alexandra H. Deal, Boston, for Robert Kines.

Krista M. Larsen, for William A. Graham.

Present: MCHUGH, DREBEN, & GRAHAM, JJ.

McHUGH, J.

Following their arrest on firearm and drug charges, the defendants, William A. Graham and Robert Kines, moved to suppress the incriminating evidence, which consisted of marijuana found in their pockets and a pistol found in the glove compartment of the automobile Kines was driving when police stopped it for traffic violations. A judge allowed the defendants' motion and the Commonwealth appeals, but only from suppression of the firearm.

We take the pertinent facts from the judge's findings. Commonwealth v. Washington, 449 Mass. 476, 477, 869 N.E.2d 605 (2007). On those facts, the motion judge found that the exit orders were warranted, but that the officers illegally searched the vehicle's passenger compartment and locked glove box. He also found that the officers had illegally searched the defendants' pockets because their preliminary patfrisk of the exterior of the pockets had not produced anything they recognized as a weapon or contraband.

[1] In appealing suppression of the firearm, the Commonwealth argues, among other things, ² that the search of the glove box was justified by a reasonable concern for officer safety. We agree.

When they first observed the defendants' vehicle, the officers were patrolling a section of Boston in response to recent firearms problems that included a shooting. The officers' attention had been drawn to the defendants when they saw a group of people on a sidewalk shrink back and away as the defendants' vehicle slowed while passing them. After stopping the vehicle for traffic violations, the existence of which no one challenges, the officers became aware that a rear seat passenger had a history of firearm-related offenses. Moreover, the officers thought that all of the vehicle's passengers, whom they knew were associated with members of a local gang, “might be involved in firearm related activity.” In addition, one of the officers had seen Kines, the driver, lock the glove compartment after retrieving the registration and heard him express concern about leaving his keys behind after he got out of the vehicle. The exit order had been prompted by Kines's refusal to stop reaching down between the seat and the center console after one of the officers told him to keep his hands in sight. A patfrisk of Kines turned up a knife clipped to the side of his jeans and four baggies officers believed contained marijuana. The initial patfrisk of Graham revealed a knife concealed in a sheath inside his waistband. Finally, the officers did not arrest the rear seat passenger whom they knew had been associated with firearms and who surely would have had access to the glove box key Kines had left on the driver's seat when he was taken into custody. Taken together, those circumstances were sufficient to give the officers a reasonable concern for their own safety.

The officers' reasonable concern for safety, in turn, permitted a Terry-type search of the vehicle's interior. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Commonwealth v. Pena, 69 Mass.App.Ct. 713, 718, 871 N.E.2d 531 (2007), quoting from Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974) (search of an automobile is permissible if police are “warranted in the belief that the[ir] safety ... or that of other persons was in danger”). See generally Commonwealth v. Lopes, 455 Mass. 147, 161, 914 N.E.2d 78 (2009). That concern was not limited to what the occupants might do while under the officers' immediate control. Instead it extended to threats that might arise from retrieval of a weapon in the vehicle by an occupant who was not placed under arrest. See Commonwealth v. Santiago, 53 Mass.App.Ct. 567, 571-572, 760 N.E.2d 800 (2002); Pena, supra at 719, 871 N.E.2d 531. See generally Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (“In this case, the officers did not act unreasonably in [searching the interior of a stopped vehicle] to ensure that there were no other weapons within [the defendant's] immediate grasp before permitting him to reenter his automobile”); Commonwealth v. Lantigua, 38 Mass.App.Ct. 526, 528, 649 N.E.2d 1129 (1995) (“[P]rior to allowing the defendant to reenter the car to obtain the registration, the officers could properly effect a Terry-type search of the areas of the car which would be readily accessible to the defendant on reentering”).

[2] [3] Contrary to the defendants' argument, the police did not exceed the scope of a permissible protective search by opening the locked glove compartment. The protective search must be limited to what is minimally necessary to dispel safety concerns, and “ ‘confined in scope to an intrusion reasonably designed to discover’ a weapon.” Commonwealth v. Moses, 408 Mass. 136, 144, 557 N.E.2d 14 (1990), quoting from Silva, supra at 408, 318 N.E.2d 895. If safety concerns necessitate doing so, police may open a closed container. See Commonwealth v. Pagan, 440 Mass. 62, 72-73, 793 N.E.2d 1236 (2003) (“[I]f the container is such that a patfrisk might suffice to establish that there is no potential weapon within, the container may not be opened as part of a search for weapons unless a patfrisk has first been performed. If, however, a patfrisk would not suffice to dispel suspicion and avert the need for a search, no patfrisk need be performed. In each case, the method and scope of an officer's search for reasonably suspected weapons must be confined to what is minimally necessary to discover the presence or confirm the absence of a weapon”). The glove compartment, which Kines had locked as police approached the car, was large enough to contain a weapon. The keys remained in the vehicle, accessible to any passenger the police released. Under those circumstances, police were entitled to open the glove compartment for the limited purpose of determining whether it contained a weapon.

[4] [5] We likewise reject the defendants' argument that there was no basis for the exit order. To be sure, “[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, 745 N.E.2d 945 (2001), citing Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 711 N.E.2d 108 (1999). In this case, the exit order was justified by essentially the same facts that justified the search of the vehicle's interior. Indeed, the only new information police obtained after the occupants left the vehicle was that Graham had a knife hidden in his waistband.

Insofar as the order required suppression of the firearm discovered in the glove compartment, the order is reversed. In all other respects, the order is affirmed.

So ordered.

GRAHAM, J. (dissenting).

I respectfully disagree with the majority's conclusion that the motion judge erred in determining that the discovery of the firearm was the result of an illegal search of a motor vehicle and not the result of a valid protective search.

We take the facts from the judge's findings, supplemented by uncontradicted evidence in the record. See Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412 (2007); Commonwealth v. Scott, 52 Mass.App.Ct. 486, 492, 754 N.E.2d 728 (2001). At approximately 12:30 a.m. on July 22, 2008, Boston police Detectives Brian Smigielski and Thomas Brooks were patrolling the Fayston Street area of Roxbury, where they had observed an increase in firearm violence that month. As they were standing on the sidewalk in front of 79 Fayston Street, talking to a group of individuals, they observed a car making a left turn from Mascoma Street onto Fayston. The individuals with whom Smigielski and Brooks were speaking retreated toward the steps of 79 Fayston Street when they saw the approaching vehicle. The detectives observed that the car, with four occupants, had a broken driver's side mirror. Neither Smigielski nor Brooks had any information that the vehicle or its occupants were involved in a crime.

Smigielski and Brooks decided to follow the car, which continued down Fayston Street and turned right onto Blue Hill Avenue. The driver failed to signal this turn, and the car's license plate was not illuminated. The car then turned left onto Alaska Street and then right onto Perrin Street, the driver failing to use directional signals on each occasion. The detectives requested the assistance of the BKO1 Unit, Officers McNeil and Dodd. The car they were following, meanwhile, came to a stop at the curb in front of 33 Perrin Street. Smigielski and Brooks pulled behind it, activated the blue lights in their vehicle, and got out with their badges displayed on the breast of their outer garments. At that point, Officers Dodd and McNeil arrived and parked behind the detectives' vehicle. All four officers then approached the car; Smigielski and Dodd were on the driver's side, and Brooks and McNeil were on the passenger side.

As Smigielski and Brooks approached the car, they saw the driver leaning toward the glove box on the passenger side of the car. Smigielski approached the driver's side of the car and saw the operator, Robert Kines, holding the registration in his left hand and locking the glove box with a set of keys in his right hand. Smigielski then requested Kines's license and registration. Kines told Smigielski that he had dropped the keys he was holding...