Commonwealth v. Rosado, 11–P–1778.

CourtAppeals Court of Massachusetts
Writing for the CourtGRASSO
Citation84 Mass.App.Ct. 208,995 N.E.2d 95
Docket NumberNo. 11–P–1778.,11–P–1778.
Decision Date30 August 2013

84 Mass.App.Ct. 208
995 N.E.2d 95

Jesus M. ROSADO.

No. 11–P–1778.

Appeals Court of Massachusetts,

Argued May 10, 2013.
Decided Aug. 30, 2013.

[995 N.E.2d 96]

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Merritt Schnipper for the defendant.



[84 Mass.App.Ct. 208]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 [84 Mass.App.Ct. 209]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

[995 N.E.2d 97]

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

“On January 2, 2011 at approximately 1:55 AM, Trooper [84 Mass.App.Ct. 210]David Pinkham, a Massachusetts State Police officer for five years, was on the drunk driving detail in Holyoke. He was patrolling southbound on Route 116 (Race Street) when he saw a motor vehicle (Acura coupe) driving northbound on Main Street without a front license plate. Trooper Pinkham proceeded to follow the Acura, at which point he saw that the motor vehicle's back plate was a ‘red’ plate. [If cars have a ‘red’ plate then by law they are to have a plate both in the back and in the front.] He also noticed the plate light was out. At this point, the Trooper activated his lights and pulled the motor vehicle over on Mosher Street.

“Once the car stopped, the Trooper noticed the driver's head duck out of sight for a moment and then re-appear. The Trooper left his spot light on in his unmarked cruiser lighting the Defendant's car. He approached the driver's side of the car and noticed the Defendant was smoking. He asked the Defendant to put out the cigarette, which the Defendant did. At this point, the Defendant told the Trooper he knew why he was being stopped—it was because he did not have an inspection sticker. [The Defendant claimed he had been stopped earlier in the day for that same problem.] While speaking with the Defendant, the Trooper noticed that the front license plate was actually on the driver side dash window. The Trooper explained why he had stopped the Defendant—missing front plate and the non-illuminated back plate.

“The Trooper asked the Defendant where he was coming from that night. As the Defendant answered the question (he was coming from his brother's house), he handed the Trooper his driver's license. At this point the Defendant leaned over to the glove box to retrieve the registration. While the Defendant was leaning over, the Trooper noticed either a wooden or leather handle in the area between the driver's door and seat. [There was no additional description given to the Court. No other ‘identifying’ marks consistent with a nunchaku 4 was [ sic] seen. In fact, the Trooper stated on cross examination that he wasn't sure it [84 Mass.App.Ct. 211]was a nunchaku and that is why he opened the door to retrieve the item and make a ‘positive Id.’] Based on this quick visual, he believed that he saw a nunchaku, a per se dangerous weapon,

[995 N.E.2d 98]

but was not sure. The Trooper told the Defendant to put his hands on the steering wheel where he could see them. He had to tell the Defendant twice, as the first time he commanded it, the Defendant was in the process of handing over the car's registration. Once his hands were on the steering wheel, to further investigate precisely the item seen, the Trooper opened the car door and retrieved the ‘weapon.’ While opening the door, the Trooper saw the Defendant pull his right hand off the steering wheel and reach towards his right hip. The Trooper again told the Defendant to keep his hands on the wheel. The Trooper finally retrieved the item, which turned out to be a bull whip. He put the bull whip on the roof of the car, and told the Defendant to get out of the car all while physically escorting him out of the car. [The Trooper held the Defendant by the left arm as he was removing him from the car.]

“Once out of the car, the Defendant again tried to reach back with his right hand towards his right hip. The Trooper at this time told him to place his right hand on top of his head. Instead, the Defendant held his right arm up and away from his body. The Trooper again told him to put his right hand on his head. The Defendant complied. At this time, the Trooper noticed the Defendant's body started to tense-up. The Trooper increased his grip on his left arm and secured it in hand cuffs. He then took the Defendant's right arm and attempted to secure in the handcuffs, ultimately succeeding. As he was checking the tightness of the left handcuff, he could again feel the Defendant trying to reach to his right side. He noticed the Defendant had something cupped in his right hand. He told the Defendant to drop it, which he did. It was eight packets of heroin rubber banded together. At this point the Defendant was under arrest for heroin. A search incident to arrest was performed. In the car, the Trooper found 2 vials of lidocane [84 Mass.App.Ct. 212][ sic] commonly used as a cutting agent for cocaine, a box of about 50 pirated DVDs, and 80 packets of heroin. In the Defendant's back pocket $1,950.00 was found.”[ 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

[995 N.E.2d 99]

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 [84 Mass.App.Ct. 213]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...

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