Commonwealth v. Sinforoso

• Decision Date: 08 January 2001
• Parties: COMMONWEALTH v. SEIBA SINFOROSO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 320

749 NE 2d 128

COMMONWEALTH v. SEIBA SINFOROSO.

Supreme Judicial Court of Massachusetts, Essex.

January 8, 2001.

June 15, 2001.

Present: GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Gregory I. Massing, Assistant District Attorney, for the Commonwealth.

Ronald Ian Segal for the defendant.

SOSMAN, J.

The defendant was convicted of trafficking in cocaine in an amount exceeding 200 grams in violation of G. L. c. 94C, § 32E. The Appeals Court reversed the conviction in an unpublished memorandum and order pursuant to its rule 1:28, concluding there was insufficient evidence to support the defendant's conviction. 49 Mass. App. Ct. 1103 (2000). We granted the Commonwealth's application for further appellate review. We find there was sufficient evidence to convict the defendant of trafficking in cocaine, and also rule that the judge correctly denied the defendant's motion to suppress evidence. We therefore affirm the conviction.

1. Motion to suppress. The defendant contends that the motion judge erred in denying his motion to suppress the evidence found during the search of his car. When reviewing the denial of a motion to suppress, "we accept the motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), citing Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses...." Commonwealth v. Yesilciman, supra.

The defendant has not shown clear error in any of the motion judge's factual findings, and we will not disturb them.

The motion judge found as follows. On August 12, 1995, Trooper Mark Blanchard of the Massachusetts State police was conducting stationary patrol on Route 129 in Lynn. The posted speed limit on that section of Route 129 was thirty-five miles an hour. At approximately 10:15 A.M., a gray Subaru automobile drove by at a speed of fifty miles per hour, and then failed to stop at a red light. Trooper Blanchard pulled his cruiser out onto Route 129, activated his blue lights, and followed the Subaru. He observed two people in the vehicle. The defendant was the driver. The passenger (later identified as Franklin Melo Pena) looked back at the cruiser several times.

When the Subaru pulled over, Trooper Blanchard approached the driver's side window and asked the defendant for his license and registration. The defendant produced a valid driver's license and registration, which indicated that the car was registered to a Santiago Baez. While the trooper was obtaining the license and registration, he noticed two large knives and a club on the floor in the front compartment.¹ Both the defendant and Pena looked very nervous. They kept looking at each other, and both were sweating profusely.² Trooper Blanchard returned to his cruiser to conduct a license and warrant check on both men. Concerned for his safety after observing the weapons, Trooper Blanchard also radioed for backup.

When another trooper arrived, Trooper Blanchard approached the car again, and ordered the defendant and Pena out of the car. They were both pat frisked for weapons.³ Trooper Blanchard asked the defendant and Pena where they were coming from and where they were going. They gave conflicting responses to that basic inquiry.

Trooper Blanchard then went to retrieve the weapons. Trooper Blanchard at that time noticed a switch under the driver's side of the dashboard that did not appear to be a factory-installed feature. Based on his training in the use of hidden compartments for concealing drugs or weapons and on a prior arrest he had made involving the use of such a hidden compartment, Trooper Blanchard suspected that the switch on the dashboard might operate a hidden compartment of the Subaru. He then looked around the exterior of the car to see whether there were any other signs of such a compartment, and saw that the gas tank was lowered and affixed with a piece of wood, further suggesting that the car had been altered to create a hidden compartment. Trooper Blanchard asked the defendant "if there was anything in the vehicle [the troopers] should know about." Both the defendant and Pena responded, "You can check." Trooper Blanchard then placed the defendant and Pena in separate cruisers.

Trooper Blanchard radioed to request the assistance of a narcotics detection canine team. When the canine unit arrived, the dog was taken to the rear of the Subaru. At about that time, Pena climbed out the window of the cruiser and fled on foot. The dog went inside the car and signaled the presence of narcotics in the back of the vehicle. Trooper Blanchard then opened the rear hatch of the car and found that the carpet was not secured in the area above the gas tank. He pulled up the carpet and found a secret compartment. He opened the compartment and retrieved nearly $9,000 in cash and two large, clear bags containing a white powder.⁴

a. The search of the automobile. When reviewing the legality of a search conducted during an investigatory stop, we inquire "first, whether the initiation of the investigation by the police was permissible in the circumstances, and second, whether the scope of the search was justified by the circumstances." Commonwealth v. Moses, 408 Mass. 136, 140 (1990), quoting Commonwealth v. Silva, 366 Mass. 402, 405 (1974). See Terry v. Ohio, 392 U.S. 1, 21 (1968). The first prong of this test, the legality of the stop, is not at issue here. This was a permissible traffic stop, and the defendant does not argue otherwise. Cf. Commonwealth v. Santana, 420 Mass. 205, 207 (1995).

In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion. "The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct." Commonwealth v. Williams, 422 Mass. 111, 116 (1996), citing Commonwealth v. Moses, supra at 141.

Here, the conduct of the officers was proportional to the escalating suspicion that emerged over the course of the stop. During the initial request for license and registration, Trooper Blanchard observed weapons on the floor on both the driver's side and passenger's side of the vehicle. For his own safety, he requested backup and, once backup arrived, ordered the defendant and Pena out of the car. The defendant and Pena were pat frisked, and Trooper Blanchard then entered the automobile to retrieve the weapons. All of these actions were "reasonable precautions for [Blanchard's] own safety" and thus permissible. Commonwealth v. Moses, supra at 142.

The defendant argues that once the officers secured the weapons and did not find any other weapons or evidence of illegal drugs, they were prohibited from searching any further. We disagree. When the officer entered the car to remove the weapons, he also saw the nonstandard switch under the dashboard, which, based on his training and experience, indicated that the vehicle might have had a secret compartment of the type often used to transport illegal drugs. Following up on that suspicion, Blanchard then examined the exterior of the car, and noticed in plain view the altered location of the gas tank, which added considerable weight to his suspicion that the vehicle had been modified to create a hidden compartment for carrying contraband. The facts then known to the officer (the weapons, the switch under the dashboard, the lowered gas tank, the nervous demeanor of the occupants, their inconsistent answers to basic questions, and their possession of pagers) were sufficient in combination to justify Blanchard's reasonable suspicion that there might have been illegal drugs or other contraband in a secret compartment in the car.

Based on that reasonable suspicion, the officer called for the canine unit to check the car, a less intrusive alternative to a full search of the vehicle. See United States v. Place, 462 U.S. 696, 707 (1983) (exposing luggage to trained narcotics detection dogs less intrusive than typical search). Once the dog indicated the presence of narcotics in the rear of the car, the police had probable cause to search the car. See Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998).

The conduct of this stop and search was a measured response to an evolving set of facts that, at each step, justified the officer's concerns for his safety and ultimately his suspicion that there was contraband hidden in a secret compartment in the car. The motion judge correctly ruled that the search of the vehicle was lawful b. The detention of the defendant. The defendant also alleges that his detention in the police cruiser was an unlawful arrest. According to the defendant, at the time he was placed in the cruiser, the police had not yet discovered any illegal drugs; therefore, they lacked probable cause to arrest him. Consequently, the defendant argues, the items seized after the unlawful arrest should be suppressed. We disagree.

Police are permitted to detain a suspect during an investigatory stop and such detention does not automatically become an "arrest" simply because the defendant is not free to leave. See Commonwealth v. Moses, supra at 141 (investigative stop "did not change" into arrest where police officers took defendant's keys and defendant was not free to leave); Commonwealth v. Kitchings, 40 Mass. App. Ct. 591, 596-597 (1996) (placing defendants in cruiser while lone trooper continued investigation was reasonable in circumstances and did not constitute arrest). It is a well "settled principle that `[a] justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.'" Commonwealth v. Torres, 424 Mass. 153, 162 (1997), quoting Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996).

When evaluating whether a detention during an investigatory stop is of such length...