Commonwealth v. Sargsyan

• Decision Date: 27 January 2021
• Docket Number: No. 19-P-1707,19-P-1707
• Citation: 163 N.E.3d 418,99 Mass.App.Ct. 114
• Parties: COMMONWEALTH v. Sergey A. SARGSYAN.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 114

163 N.E.3d 418

COMMONWEALTH

v.Sergey A. SARGSYAN.

No. 19-P-1707

Appeals Court of Massachusetts, Middlesex..

Argued September 17, 2020

Decided January 27, 2021

Adriana Contartese for the defendant.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Present: Henry, Lemire, & Shin, JJ.

LEMIRE, J.

A District Court jury convicted the defendant of possession of a class A substance. ¹

On appeal, his sole argument is that the motion judge² erred in denying his motion to suppress because the police officer exceeded the scope of the community caretaking function. We affirm the judgment.

Suppression hearing. We summarize the officer's testimony, which was credited by the judge.³ On January 16, 2015, at approximately 8 P.M. , Newton Police Officer John Bergdorf⁴ was dispatched to a small dead-end road to check on the well-being of the occupant of a car that had been parked with its motor running "for quite some time." It was a cold and dark night. When the officer arrived at the scene, the car's engine was running and its headlights were on. He walked up to the car and saw one person, who appeared to be asleep, in the driver's seat. This person later was identified as the defendant. The officer knocked on the window "many times" to wake the defendant. When that did not get the defendant's attention, he knocked harder on the door. After one or two minutes, the defendant "[p]ut up his hand and waved [the officer] away." The officer then knocked on the door again and asked the defendant to lower the window.

After the defendant lowered the window, the officer asked the defendant for his license to verify who he was and to "make sure the car was valid in his name."⁵ The defendant was slow to get his license and attempted to give credit cards to the officer. The defendant seemed very confused and his speech was slurred and slow. The officer asked the defendant where he was, where he was going, and where he was coming from. The defendant was unable to answer the questions; any statements the defendant did provide were not appropriate to the questions. The defendant's eyes were bloodshot, but the officer did not smell alcohol on the defendant.

After the defendant gave his license to the officer, the officer asked the defendant for his registration. When the defendant bent over to get his registration from the glove compartment, the officer noticed the handle of a knife tucked inside the waistband of the defendant's jeans. The officer, for "officer safety," then asked the defendant to step out of the car. After the defendant got out of the car, the officer asked him if he had weapons on him; the defendant responded, "No." For safety reasons, the officer placed the defendant in handcuffs and conducted a patfrisk, which yielded a knife. Earlier, while the defendant was getting out of the car, the officer saw a syringe on the seat underneath where the defendant had been sitting and the corner of a baggie, or "corner baggie," containing a brown powdery substance in the car's center console. The officer knew from his training that the corners of baggies are used to hold and distribute drugs. After the officer saw the baggie, the defendant was placed under arrest, read his rights, and searched. A small ball of steel wool used to smoke drugs was found on the defendant and a small glass pipe was found in the car.

Discussion. When reviewing a decision on a motion to suppress, we "conduct an independent review of [the] ultimate findings and conclusions of law." Commonwealth v. Medina, 485 Mass. 296, 300, 149 N.E.3d 747 (2020), quoting Commonwealth v. Cawthron, 479 Mass. 612, 616, 97 N.E.3d 671 (2018). The defendant argues that the community caretaking function⁶ ended before the officer requested that the defendant lower his window and show his driver's license and registration. Thus, according to the defendant, the officer's requests resulted in the defendant's seizure and all evidence subsequently obtained should have been suppressed. We disagree.

Community caretaking function. "Local police officers are charged with ‘community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ " Commonwealth v. Evans, 436 Mass. 369, 372, 764 N.E.2d 841 (2002), quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). When performing this function, an officer may "stop individuals and inquire about their well-being, even if there are no grounds to suspect ... criminal activity." Commonwealth v. Knowles, 451 Mass. 91, 94-95, 883 N.E.2d 941 (2008). The function applies "to a range of police activities involving motor vehicles ... in which there are objective facts indicating that a person may be [in] need of medical assistance or some other circumstance exists apart from the investigation of criminal activity that supports police intervention to protect an individual or the public." Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 51, 13 N.E.3d 629 (2014). Under the community caretaking function, an officer may, without reasonable suspicion of criminal activity, approach and detain citizens for community caretaking purposes. See Commonwealth v. Lubiejewski, 49 Mass. App. Ct. 212, 216, 729 N.E.2d 288 (2000). In addition, "[a]n officer may take steps that are reasonable and consistent with the purpose of his inquiry, ... even if those steps include actions that might otherwise be constitutionally intrusive." Knowles, supra at 95, 883 N.E.2d 941.

Here, the defendant first contends that the community caretaking function ended when the defendant indicated by waving his hand that he did not need help. First, we do not agree that, viewed objectively, the defendant's gesture indicated that he did not need help. See Fisher, 86 Mass. App. Ct. at 51, 13 N.E.3d 629 (objective facts must support community caretaking inquiry). On direct examination, the officer testified that the defendant "[p]ut up his hand and waved us away." On cross-examination, the officer testified that the wave "[c]ould be" an indication that the defendant was okay. Compare Evans, 436 Mass. at 374, 764 N.E.2d 841 (rejecting defendant's argument that trooper's request for license and registration was seizure because defendant had effectively denied need for assistance when answering trooper's question, "What are you doing?," by responding, "Nothing").

However, even if we assume that the defendant's gesture signaled that he was okay, we are not persuaded by his argument that his case is governed by Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 856 N.E.2d 189 (2006), S.C. 450 Mass. 1030, 879 N.E.2d 1242 (2008). In Quezada, the defendant, who was on foot and appeared to be impaired and possibly injured, was being assisted by another person known to the officer, who was in plain clothes and driving an unmarked vehicle. Id. at 694, 856 N.E.2d 189. When the officer, without identifying himself as a police officer, gestured to the two and asked if he could speak with them, the defendant ran. Id. The court concluded that although the officer would have been warranted in offering aid, in those circumstances the officer exceeded the scope of the community caretaking function by chasing the defendant and ordering him to stop. Id. at 695, 856 N.E.2d 189. The court also noted that the defendant was not operating a motor vehicle, which could have posed a potential danger to the public. Id.

Here, in contrast, the defendant was found alone, on a cold, dark January evening, and he appeared to be sleeping while seated in the driver's seat of a car that was running. It took one or two minutes of the officer tapping on the window and then knocking harder on the door before he got the defendant's attention. Given the disparate facts, Quezada does not support the defendant's argument. Rather, the facts in the defendant's case are more like those in Commonwealth v. Murdough, 428 Mass. 760, 704 N.E.2d 1184 (1999). In Murdough, the court concluded that the officers, as part of their community caretaking functions, acted reasonably in requesting that the defendant get out of his vehicle where it was a cold January morning, the defendant was found sleeping in the vehicle, and the officers had difficulty rousing the defendant. Id. at 761-762, 704 N.E.2d 1184.

We also reject the defendant's arguments that the community caretaking function ended because the officer, as characterized by the defendant, thought the defendant was in "good shape," and because the car was not disabled since its engine was running. Although the officer testified that up until he asked the defendant to get out of the car, he had no concerns about the defendant's ability to operate the car, when the officer was asked to clarify his response, he testified that, while he did not smell alcohol, he did notice the defendant's bloodshot eyes and slow speech, and that he "did not know at that point" whether the defendant was unable to drive. There are conditions other than intoxication due to alcohol or drugs, however, that could have affected the defendant's ability to drive, e.g., medical related conditions. Neither the defendant's apparent sobriety, nor the car's running engine, extinguished the need for the community caretaking inquiry to continue.

Further, the officer's requests were appropriate to the community caretaking inquiry -- they did not result in the defendant's seizure. The request that the defendant lower the window did not constitute a seizure. Compare Murdough, 428 Mass. at 764-765, 704 N.E.2d 1184 (officers' request that defendant step outside vehicle so they could observe his physical condition did not go beyond community caretaking function). Nor did the officer's subsequent requests to view the defendant's license and registration constitute a seizure.⁷ "When performing community caretaking functions involving a ... vehicle, a police officer [may be] justified in asking for a...