Commonwealth v. Shaw
| Decision Date | 22 June 2021 |
| Docket Number | 20-P-246 |
| Parties | COMMONWEALTH v. Marquis A. SHAW. |
| Court | Appeals Court of Massachusetts |
On July 30, 2019, the defendant, Marquis A. Shaw, was convicted by a Superior Court jury of unlawful possession of a controlled substance with intent to distribute (class B – oxycodone). See G. L. c. 94C, § 32A (a ). He pleaded guilty to the subsequent offense portion of the indictment. On appeal he contends that the motion judge erred in denying his motion to suppress because (1) the officers lacked reasonable suspicion to conduct a motor vehicle stop or issue an exit order; (2) the exit order was not warranted based on officer safety; (3) two patfrisks were improper because the officers lacked a reasonable belief that the defendant was armed and dangerous; and (4) the subsequent search of the car was improper. We agree that there was an insufficient basis to issue an exit order, and so we reverse the order denying the motion to suppress and vacate the conviction.
Background. "We summarize the facts as found by the motion judge," Commonwealth v. Evelyn, 485 Mass. 691, 693 (2020), "supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge." Commonwealth v. Warren, 475 Mass. 530, 531 (2016). Law enforcement personnel testified at the hearing, as did the defendant. The judge credited all of the witnesses, whose testimony was consistent in many respects relevant here.
On February 13, 2018, Massachusetts State Police Sergeant Eric Telford was conducting surveillance in the city of Brockton in an unmarked police car in an area where he had previously made drug arrests. At approximately 3:20 P.M. he saw a Nissan Altima driving slowly on Waverly Street while its driver and passenger looked left and right. The car and its occupants were not the subject of the surveillance.
The car drove towards the top of the street, reversed direction, went back down, reversed direction again, parked, and drove up and down the street again. Sergeant Telford described his observations this way: "[I]t looked like they were trying to find somebody ... they were looking left and right like they were trying to find somebody or they were lost ... they could be looking for someone to sell drugs to, or ... for someone to sell them drugs." He ultimately decided, based on his training and the "location, its reputation," that the manner in which the car was driven was indicative of a drug transaction. Sergeant Telford radioed other officers that he was watching "a suspicious vehicle that could be a drug deal." He wanted "someone to try to follow it and do a traffic stop on it."
The car pulled into a driveway, backed out, and then pulled back in and remained there for roughly three minutes. Sergeant Telford saw a third person, an older Black man, in the back seat as the car left the driveway. Sergeant Telford followed the car for a few blocks as it drove to Cumberland Farms and parked in front of the store. The driver and passengers remained in the car for a few minutes and looked around, behavior which Telford believed was indicative of scanning for law enforcement. He did not see any exchange between the people in the car.
The older man got out of the car, and the car pulled out. Sergeant Telford lost sight of the car shortly after it left the Cumberland Farms parking lot.
Sergeant Steven Connolly and Trooper Christopher St. Ives were in an unmarked police car on Center Street when they heard Sergeant Telford's radio broadcast. Five or ten minutes later Sergeant Connolly saw the Nissan Altima in traffic on Center Street and followed as it approached an intersection. The driver made a left-hand turn without using a turn signal and Connolly activated the unmarked car's blue lights. At that time, he saw the passengers "moving frantically within the vehicle, turning around, looking at us, moving their torsos from side to side." The car turned slightly to the left but there was a pedestrian in the crosswalk; the car moved to the right and stopped ten to twenty seconds after the activation of the lights.
Sergeant Connolly approached the driver's side window and asked the defendant for his license and registration. After the defendant gave his license but before he could retrieve the car registration, Connolly issued an exit order. He had found firearms in cars in the past and was concerned about weapons based on previous arrests in the "area." Sergeant Connolly conducted a patfrisk and found nothing. Trooper St. Ives also ordered the passenger to get out of the car and pat frisked him, finding nothing.
When Sergeant Telford arrived, he recognized the passenger from a prior drug-related arrest. Sergeant Telford began a conversation with the passenger and, when he looked at the cellphone in the passenger's left hand, saw a bag of what appeared to be "crack" cocaine concealed by the phone. The passenger was arrested.
The motion judge found that the defendant appeared nervous when the narcotics were discovered, and quickly turned his body to one side. Sergeant Connolly decided to search the defendant again. Connolly was concerned that he might have missed something, that the defendant might have something -- either drugs or a weapon -- or might flee. Connolly felt what he believed were packaged narcotics in the defendant's inside coat pocket. Connolly retrieved a clear plastic sandwich bag containing approximately one hundred pills. The defendant was placed under arrest. Trooper St. Ives searched the car and found $4,600 in the center console.
The defendant testified, stating that while he was giving the passenger a ride, his girlfriend asked him to stop to pick up her uncle. The defendant was given an address on Waverly Street, but there was confusion about the house number, and he drove slowly up and down the street looking for the right house. According to the defendant, once they located the uncle, he asked to be dropped off at Cumberland Farms, which is across the street from his residence in Trinity Village.
After leaving the Cumberland Farms the defendant drove to the intersection where he took a left turn. He started to drive through a crosswalk but stopped to allow the pedestrian to cross because he had previously been stopped for not allowing someone to cross. He saw the blue lights at the same time he saw the pedestrian. When the defendant saw the blue lights, he turned to look behind him. He admitted to being in somewhat of a "panic" because he had been pulled over in the past for not letting a pedestrian through the crosswalk, so he looked to see if the police were attempting to stop him.
The defendant then recounted the same sequence of events as law enforcement. He was asked to get out of the car after producing his license but before producing a registration. Sergeant Connolly said, "Honestly, it looks like you just did a drug deal," and pat frisked him. Once the drugs were found on the passenger, the defendant turned to see what was happening. Sergeant Connolly pat frisked him again while others searched the car.
The motion judge ruled that the stop was permissible "based on reasonable suspicion that the defendant and the passenger were engaged in a street level drug transaction," and because there was a civil motor vehicle violation. She further ruled that the exit order was valid because this was not a routine motor vehicle stop, but a stop based on reasonable suspicion of criminal activity. She concluded that the patfrisks were permissible because the frantic movement inside the vehicle, and the fact that the defendant "appeared to make an attempt to evade the officers once the blue lights were activated," coupled with the discovery of the narcotics on the passenger and the defendant's sudden movement to one side when the drugs were found, gave rise to a reasonable suspicion that the defendant was armed. Finally, the motion judge ruled that there was probable cause for the search of the car and that the search was also valid under applicable impoundment procedures.
Discussion. The defendant contests the validity of the stop, exit order, patfrisks, and the search of the car. "In reviewing the denial of a motion to suppress, we accept the motion judge's ‘subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.’ " Commonwealth v. Tavares, 482 Mass. 694, 699 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
1. Stop. a. Reasonable suspicion. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights protect individuals from all unreasonable searches and seizures. See Tavares, 482 Mass. at 702. "The police may stop a motor vehicle to "make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime." Id., quoting Commonwealth v. Watson, 430 Mass. 725, 729 (2000). "To perform an investigatory stop of a vehicle, the police require ‘reasonable suspicion, based on specific, articulable facts and inferences therefrom, that an occupant ... had committed, was committing, or was about to commit a crime.’ " Commonwealth v. Manha, 479 Mass. 44, 46 (2018), quoting Commonwealth v. Anderson, 461 Mass. 616, 621, cert. denied, 568 U.S. 946 (2012).
The facts relevant to the existence of reasonable suspicion of criminal activity at the time of the stop are the following: (1) the car moved slowly, changing directions at least twice, while the occupants of the car appeared to look right and left; (2) the car drew in and out of a driveway two to three times and a third person joined the first two occupants in the car; (3) the car drove to and parked at Cumberland Farms for several minutes, where the occupants looked around, and the third person left; and (4) the car was in an area known for drug sales.
We...
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