Commonwealth v. Santiago
| Decision Date | 15 January 2002 |
| Docket Number | No. 00-P-114.,00-P-114. |
| Citation | 760 NE 2d 800,53 Mass. App. Ct. 567 |
| Parties | COMMONWEALTH v. ANGEL L. SANTIAGO. |
| Court | Appeals Court of Massachusetts |
Present: JACOBS, GRASSO, & COWIN, JJ.
William R. Hill, Jr., Committee for Public Counsel Services, for the defendant.
Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.
A jury convicted the defendant on the sixteen counts with which he was charged, including aggravated rape, assault with intent to rape, indecent assault and battery on a person over fourteen, assault with a dangerous weapon, kidnapping, attempted kidnapping, and unlawful possession of a dangerous weapon, arising out of attacks and attempted attacks perpetrated on four young women1 from December 15, 1997, to December 19, 1997. The defendant asserts that his car was searched unlawfully, and that it was error to deny his motion to suppress the products thereof. He argues in addition that certain questions asked by the prosecutor during cross-examination of the defendant improperly shifted the burden of proof. Finally, he claims that the evidence was insufficient to support convictions on six of the charges, and that his motions for required findings thereon should have been allowed. There was no error. We set forth the material facts as necessary throughout the opinion.
1. The motion to suppress. We accept the subsidiary findings of the motion judge absent clear error. Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). By December 19, 1997, the Everett police had received reports of a rape of Yvonne on December 15, 1997; an assault on and attempted abduction of Victoria on December 16, 1997; and an assault on and attempted abduction of Stephanie on December 18, 1997. The perpetrator of the attacks was described as a Hispanic male, mid-twenties or thirties, five feet, six inches or five feet, seven inches tall, medium build, and having a small mustache. He carried a weapon which the victims described variously as two knife blades with a wooden handle; a long-handled knife; or a long wooden handle and blade, but possibly a firearm. Two of the victims were approached by him in a motor vehicle. One described it merely as a black Jeep; the other identified it specifically as a dark Jeep Cherokee Limited Edition with gold trim.2
At subsequent roll calls, Everett police officers were informed of the reported attacks, and advised to watch for a black or dark Jeep Cherokee with gold trim driven by a Hispanic male with a thin mustache, medium build and medium height. The officers were also informed that the suspect in the attacks had carried knives and possibly a firearm. Officer Sabatino Rozza attended a roll call, heard those instructions, and commenced his evening shift in a marked police vehicle on December 19, 1997.
At about 5:30 P.M., Rozza learned from a police broadcast that there had been another report of an attempted abduction in Everett, this also involving a man with a thin mustache driving a black or dark blue Jeep. Approximately fifteen minutes later, Rozza observed a vehicle approaching the wrong way on a one-way street. Rozza activated his lights for the purpose of stopping the vehicle for the traffic offense, whereupon the vehicle turned to the right, again heading the wrong way on a one-way street, and came to a stop. As the vehicle turned, Rozza observed that it was a black Jeep Cherokee with gold trim which was driven by a young Hispanic male of average build with a thin mustache.3 He radioed that he was stopping the suspect and requested backup.
For safety reasons, Rozza approached the vehicle cautiously with his service revolver drawn. He ordered the driver (subsequently identified as the defendant) to show his hands, which he did, then opened the car door and ordered the driver to get out, which he also did. Rozza frisked the driver, found no weapons on his person, and handcuffed the driver. When other officers arrived soon thereafter, they placed the driver in a cruiser while Rozza looked inside the passenger area of the vehicle for weapons. Inside the vehicle, Rozza came upon what appeared to be a large stick, which in fact turned out to be two double-edged knives fit together within a wooden handle. The driver was then arrested for possession of a dangerous weapon, and a subsequent inventory search of the Jeep disclosed two smaller knives.4
The defendant asserts that Rozza lacked probable cause to justify either seizure of the defendant or search of the vehicle, and that accordingly the admission of the evidence obtained violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution. He appears to concede that Rozza was entitled to stop the vehicle upon observing the commission of a traffic offense. However, he argues in essence that the valid motor vehicle stop was transformed into an improper arrest without probable cause, and that the subsequent entry of the vehicle was unlawful. The motion judge ruled, correctly in our view, that Rozza, in the course of a justified Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), permissibly checked the interior of the Jeep for weapons and that there was no violation thereby of the defendant's constitutional rights.
The traffic violation having provided a legally adequate ground for the initial stop, Commonwealth v. Santana, 420 Mass. 205, 207 (1995), Rozza was entitled to take reasonable precautions for his own protection. Commonwealth v. Robbins, 407 Mass. 147, 151 (1990). Under the circumstances of this case, the officer could order the driver to come out of the automobile, Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999), and use handcuffs or display a weapon where appropriate to ensure the officer's safety. Commonwealth v. Williams, 422 Mass. 111, 117-119 (1996). "It is settled in law that, in appropriate circumstances, a Terry type of search may extend into the interior of an automobile so long as it is limited in scope to a protective end." Commonwealth v. Silva, 366 Mass. 402, 408 (1974). Commonwealth v. Almeida, 373 Mass. 266, 272 (1977), S.C., 9 Mass. App. Ct. 813 and 381 Mass. 420 (1980). Commonwealth v. Alvarado, 427 Mass. 277, 284 (1998).
Reasonable efforts to ensure the officer's safety do not transform a stop into an arrest. Commonwealth v. Alvarado, supra at 284. Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 305 (1986). What is reasonable is a product of the attendant circumstances. Here, what began as a routine traffic stop was rapidly transformed into a situation potentially perilous to the police officer when the driver and vehicle matched descriptions arising from recent attacks in the area by an individual armed with a dangerous weapon, possibly a firearm. That it was reasonable for Rozza to take steps to ensure his safety is, given these conditions, obvious. Indeed, it would have been foolhardy not to have done so. Nothing in either the Federal or State Constitution required that Rozza make of himself a passive target while performing his duties as a police officer.
The defendant would have us draw a line prohibiting as a further protective step Rozza's entry into the passenger compartment of the vehicle to look for weapons. He asserts that the entry was not justified on safety grounds because he was handcuffed and seated in a squad car under the watch of two other officers, thereby eliminating any possibility that he could endanger Rozza. Thus, he argues, there is a clear inference that Rozza's search of the interior of the Jeep was not motivated by genuine concern for Rozza's safety, but rather by a desire to obtain evidence that the suspect was in fact the rapist. Such a search could not validly be undertaken without probable cause. The defendant buttresses his argument that Rozza's true purpose was a search for evidence by observing that Rozza never asked to see the defendant's driver's license or automobile registration.
The defendant ignores the fact that Terry stops frequently terminate with the release of the suspect. If, as the defendant contends, Rozza lacked probable cause for an arrest, and if nothing developed during the stop that created probable cause, the police would shortly have been required to let their suspect go. He would then presumably have returned to his Jeep. Knowing that the suspect was possibly, if not probably, the dangerous object of a police investigation, Rozza was not required to risk becoming a victim upon the suspect's reentry into the vehicle. Nor is this affected by the fact that Rozza had not sought the suspect's license or registration, since a check of the passenger compartment for weapons was obviously in order prior to permitting the driver to enter the vehicle to procure such documents. Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995). The determination of the motion judge that Rozza's search of the passenger compartment was for his own protection was plainly warranted by the evidence.5
2. The prosecutor's questions on cross-examination. The victim Julia testified as part of the Commonwealth's case that the defendant approached her in a dark-colored Jeep while she was walking home from Chelsea High School, and forced her into the Jeep by threatening her with a long knife. He drove her to a cemetery in Everett, where he raped her in the back seat of the vehicle. The attack caused her to bleed. When the act was completed, the defendant permitted Julia to get out of the Jeep, and then drove off. Julia wrote down the Jeep's license plate number and the word "Jeep" on a homework assignment that she had been carrying in her pocket.6 She also testified that her attacker had been wearing a blue sweatshirt. Other evidence demonstrated, by means of DNA testing, that a blood stain found in the rear seat of the defendant's Jeep matched Julia's blood sample.
The defendant testified. He stated that...
To continue reading
Request your trial