Commonwealth v. Rosado
Decision Date | 30 August 2013 |
Docket Number | No. 11–P–1778.,11–P–1778. |
Citation | 84 Mass.App.Ct. 208,995 N.E.2d 95 |
Parties | COMMONWEALTH v. Jesus M. ROSADO. |
Court | Appeals Court of Massachusetts |
OPINION TEXT STARTS HERE
Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.
Merritt Schnipper for the defendant.
Present: GRASSO, KANTROWITZ, & SIKORA, JJ.
Before us is the Commonwealth's interlocutory appeal from an order of a District Court judge allowing the defendant's motion to suppress evidence seized during a warrantless stop of a motor vehicle. After an evidentiary hearing at which State Trooper David Pinkham was the sole witness, the judge concluded that Pinkham lacked constitutional justification to (1) open the door to the defendant's vehicle, (2) seize an item that was not an illegal weapon, and (3) remove the defendant from the vehicle and restrain him. We conclude that the judge erred in applying the law to the facts found and reverse.
1. Background. Charged with various drug and other offenses, the defendant moved to suppress the evidence seized during a motor vehicle stop that occurred in the early morning hours of January 2, 2011, in Holyoke. The defendant contended that Pinkham (1) impermissibly opened the door to his vehicle based on the observation of an item Pinkham believed was an illegal weapon, (2) improperly removed the defendant from the vehicle, and (3) used more force than the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights permit in a Terry-type stop.1
2. Facts. In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).2 The assessment of witness credibility is the exclusive province of the motion judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337–338, 861 N.E.2d 404 (2007); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 639, 747 N.E.2d 1253 (2001).
We recount the judge's factual findings, which mirror the testimony of Pinkham in all respects: 3
[ 5
3. Discussion. As we have noted in the past, analysis of events in the stop and frisk context “is not only fact intensive and time dependent, Commonwealth v. Torres, 424 Mass. 153, 163 n. 8 [674 N.E.2d 638] (1997), but also interconnected and dynamic.” Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. at 642, 747 N.E.2d 1253. We examine the facts not in isolation, but as they reasonably and objectively appeared in the context of the ongoing encounter. See ibid. We assess “whether there were facts and circumstances in the course of [the] particular traffic stop that, viewed objectively, would give rise to ‘a heightened awareness of danger’ on the part of the trooper, ... recognizing that law enforcement officials may have little time in which to avert ‘the sometimes lethal dangers of routine traffic stops.’ ” Commonwealth v. Stampley, 437 Mass. 323, 326, 771 N.E.2d 784 (2002), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 665, 671, 711 N.E.2d 108 (1999), S.C.,432 Mass. 613, 739 N.E.2d 1100 (2000). A police officer need point only to some fact or facts in the totality of the circumstances that would create a heightened awareness of danger as to warrant an objectively reasonable officer in securing the scene in a more effective manner. See Commonwealth v. Gonsalves, 429 Mass. at 665, 711 N.E.2d 108.
With these principles in mind, we consider the facts found by the judge. Here, Pinkham's observations that the vehicle lacked a front license plate and an illuminated rear license plate supported a stop of the vehicle for civil motor vehicle infractions, and the defendant does not claim otherwise. See Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E.2d 717 (1995); Commonwealth v. Ciaramitaro, supra. At the outset of that stop, and prior to its ordinary conclusion, Pinkham made observations that provided a specific and articulable factual basis to believe (1) the defendant was in possession of a nunchuck, a prohibited dangerous weapon, and (2) the weapon posed a safety threat. See Commonwealth v. Cruz, 459 Mass. 459, 466–467, 945 N.E.2d 899 (2011)(exit order justified if police possess particularized suspicion of criminal activity or reasonable apprehension of danger). It was 1:55 A. M., Pinkham was alone, and prior to reaching the defendant's vehicle, he saw the defendant duck out of sight momentarily before reappearing. As he stood next to the vehicle, Pinkham saw a wooden or leather handle in the area between the driver's seat and door next to the defendant's leg. Based on his training and experience, Pinkham believed the item was a nunchuck, a prohibited dangerous weapon, as he had seen nunchucks fashioned similarly.6 Given the dual concerns raised by these observations, Pinkham was fully justified in investigating further and securing any such weapons. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997); Commonwealth v. Johnson, 454 Mass. 159, 162, 908 N.E.2d 729 (2009). The police are “not required to gamble with their personal safety,” Commonwealth v. Robbins, 407 Mass. 147, 152, 552 N.E.2d 77 (1990), and are entitled to take reasonable precautions for their protection. Commonwealth v. Willis, 415 Mass. 814, 817, 616 N.E.2d 62 (1993).
Contrary to the defendant's claim, Pinkham was not required first to inquire...
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