Commonwealth v. Merced

• Docket Number: 22-P-277
• Decision Date: 05 July 2023
• Parties: COMMONWEALTH v. CHRISTOPHER MERCED.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. CHRISTOPHER MERCED.

No. 22-P-277

Appeals Court of Massachusetts

July 5, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from the defendant's conviction in the Essex Superior Court, following a jury trial, of one count of trafficking in 200 grams or more of cocaine, G. L. c. 94C § 32E (b).^[1] On appeal, the defendant argues that his conviction should be vacated because (1) Massachusetts State Police troopers engaged in extensive illegal conduct during the course of an investigatory traffic stop; (2) the Commonwealth negligently lost exculpatory video evidence; and (3) an expert witness for the Commonwealth improperly testified as to the ultimate question before the jury. We discern no error and affirm the judgment.

1. Troopers' conduct.^[2]

The defendant first argues that State troopers (1) improperly subjected him to a pretextual stop, (2) illegally questioned him, (3) illegally ordered him to exit his vehicle, (4) arrested him without probable cause, and (5) searched his vehicle without probable cause. For these reasons, the defendant argues that all evidence collected against him should have been suppressed. After careful review, we discern no misconduct on the part of the troopers and no error by the motion judge.

a. Preserved errors.

"In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given . . . testimony presented at the motion hearing" (citation omitted). Commonwealth v. Daveiga, 489 Mass. 342, 346 (2022).

"We review independently the application of constitutional principles to the facts found" (citation omitted). Id.

"Where a police officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime, the officer may stop that person to conduct a threshold inquiry." Commonwealth v. Bostock, 450 Mass. 616, 619 (2008), citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968). "Where a law enforcement officer performs an investigatory stop, that officer's level of intrusiveness must be in proportion to the officer's suspicion or concern for safety." Commonwealth v. Manha, 479 Mass. 44, 48 (2018) . See Bostock, supra at 622. "If an officer exceeds the scope of an investigatory stop, the seizure becomes an arrest." Manha, supra. "Whether a stop is a seizure, requiring reasonable suspicion, or an arrest, requiring probable cause, depends upon the circumstances of each case." Id. "The existence of probable cause depends on whether the facts and circumstances within the officer's knowledge at the time of making the search or seizure were sufficient to warrant a prudent man in believing that the defendant had committed, or was committing, an offense." Commonwealth v. Hernandez, 473 Mass. 379, 383 (2015), quoting Bostock, supra at 624.

Here, we discern no impropriety on the part of the State troopers with respect to the stop, questioning, arrest, or search of the defendant or his vehicle. At the outset, we note that Trooper Traister's stop of the defendant's motor vehicle was supported by his observation that the defendant committed a number of motor vehicle infractions, including (1) entering the left passing lane and traveling within that lane for approximately one mile, (2) drifting over marked lanes, and (3) traveling closely behind another vehicle. Any one of these violations was sufficient to justify a traffic stop. G. L. c. 89, §§ 4A, 4B; 720 Code Mass. Regs. § 9.06(1), (2), (7) (2017). See Commonwealth v. Buckley, 478 Mass. 861, 873 (2018) ("[T]he reasonableness of a traffic stop does not depend upon the particular motivations underlying the stop. . . [L]egal justification alone, such as an observed traffic violation, is sufficient"). That Trooper Traister expected to find narcotics in the vehicle as a result of the information provided to him by Trooper Tirella is of no moment. Id. See also Commonwealth v. Santana, 420 Mass. 205, 208-209 (1995) ("Police conduct is to be judged under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved" [quotation and citation omitted]).

The defendant further argues that Trooper Traister improperly ordered him to exit his vehicle during the stop. Trooper Traister had collected the defendant's driver's license and was returning to his patrol vehicle when he saw the defendant reaching around in the back seat of his vehicle. On observing this behavior, Trooper Traister immediately ordered the defendant to exit his vehicle. Coupled with the trooper's knowledge that the defendant was the subject of a separate investigation and his earlier observations that the defendant (1) was nervous and excessively sweaty and (2) had lied about his point of origin, Trooper Traister was justified in his concern that the defendant's reaching into the back seat of his vehicle without any apparent reason for doing so created a safety risk for both of them.^[3] See Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020) ("[A]n exit order is justified during a traffic stop where [1] police are warranted in the belief that the safety of the officers or others is threatened; [2] police have reasonable suspicion of criminal activity; or [3] police are conducting a search of the vehicle on other grounds"). We discern no impropriety in the trooper's decision to order the defendant to exit his vehicle.

The defendant next argues that he was arrested without probable cause when Trooper Traister placed him in the back of his patrol vehicle prior to discovering contraband. We are not persuaded. In addition to the suspicious behavior discussed supra, Trooper Traister had been informed by Trooper Tirella that the defendant was the subject of a separate investigation. Trooper Traister's seizure of the defendant was lawful pursuant to his investigation of the defendant's suspected narcotics transportation. See Manha, 479 Mass. at 48. This knowledge was sufficient to justify detaining the defendant while awaiting the arrival of a K-9 unit.^[4] Id.

Finally, the defendant argues that the search of his vehicle was without probable cause. This argument is meritless. The use of a K-9 to detect the odor of narcotics is not a search requiring probable cause. See Commonwealth v. Feyenord, 445 Mass. 72, 82-83 (2005). Once the K-9 signaled the presence of narcotics, the troopers had probable cause to search the vehicle. Id. at 83. "Under the automobile exception to the warrant requirement, the search of a motor vehicle [wa]s reasonable and permissible." Hernandez, 473 Mass. at 383, quoting Commonwealth v. Johnson, 461 Mass. 44, 49 (2011).

b. Unpreserved error.

For the first time on appeal, the defendant also argues that troopers engaged in custodial interrogation without providing him with the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). Because the defendant did not raise this claim in his motion to suppress, we review for a substantial risk of miscarriage of justice. Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no substantial risk here.

Ordinarily, "[Terry-type vehicle] stops are permissible where an officer has a reasonable suspicion that a crime has been, is being, or is about to be committed." Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018). "At that point, the interaction is casual, and generally no Miranda warnings are necessary." Id. "At some point, however, the nature of the interaction may change, as officers begin to focus on a particular suspect." Id. "Miranda warnings require that police officers inform suspects of their right[s] . . . before a custodial interrogation" (quotation and citation omitted). Id. at 616-617. "An interview is custodial where 'a reasonable person in the suspect's shoes would experience the environment in which the interrogation took place as coercive.'" Id. at 617, quoting Commonwealth v. Larkin, 429 Mass. 426, 432 (1999).

The defendant argues that, because of the conversation between Troopers Tirella and Traister before Trooper Traister conducted the traffic stop, the defendant was a suspect at the outset of the stop and should have been given Miranda warnings immediately. The cursory questioning conducted by troopers during the traffic stop and now challenged by the defendant did not rise to the level of custodial interrogation requiring Miranda warnings. See Cawthron, 479 Mass. at 617-618. However, even if the troopers' questioning constituted custodial interrogation and required Miranda warnings that were not provided, we nevertheless discern no substantial risk of miscarriage of justice. See Letkowski, 469 Mass. at 617. Aside from asking for the defendant's license and registration and casually greeting him by saying "Hey, man, what's going on," the only questioning in which the troopers engaged was to ask the defendant about his point of origin. When the defendant...