Commonwealth v. Torres

• Decision Date: 05 February 2001
• Citation: 745 NE 2d 945,433 Mass. 669
• Parties: COMMONWEALTH v. ISMAEL TORRES, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 669

745 NE 2d 945

COMMONWEALTH v. ISMAEL TORRES, JR.

Supreme Judicial Court of Massachusetts, Essex.

February 5, 2001.

April 10, 2001.

Present: MARSHALL, C.J., GREANEY, COWIN, SOSMAN, & CORDY, JJ.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

John R. Valerio for the defendant.

CORDY, J.

A criminal complaint was issued by the Lawrence Division of the District Court Department charging the defendant, Ismael Torres, Jr., with unlicensed possession of a firearm in a vehicle, possession of a firearm and ammunition without a firearm identification card, and receiving stolen property (the firearm). The firearm and ammunition that were the subject of the complaint were seized from the defendant when an automobile in which he was traveling as a passenger was stopped for a traffic violation. In the course of that stop, the defendant was ordered out of the vehicle and pat frisked. A loaded firearm was found in his waist band.

Prior to trial, the defendant filed a motion to suppress the firearm and ammunition claiming that they were discovered and seized in circumstances amounting to an unlawful arrest. After an evidentiary hearing, the motion judge allowed the motion.

The Commonwealth filed an application for leave to appeal that was allowed by a single justice. The Appeals Court affirmed the motion judge's ruling. Commonwealth v. Torres, 49 Mass. App. Ct. 348, 351 (2000). We granted the Commonwealth's application for further appellate review. We now reverse the motion judge's order allowing the motion to suppress.

1. Facts. In reviewing the allowance of a motion to suppress, we will not disturb a judge's findings of fact absent clear error. Commonwealth v. James, 427 Mass. 312, 314 (1998). We summarize the facts as found by the judge, Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), supplemented by uncontroverted facts adduced at the hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). At 2:15 P.M. on January 10, 1998, Officer Jeffrey Hart of the Lawrence police department observed a Mazda Protege automobile, in which the defendant was a passenger, fail to stop or slow down at a stop sign at a four-way intersection. Hart activated the blue lights and siren of his cruiser. The automobile continued traveling for three blocks, at which point it made a left turn and suddenly pulled over. Hart could see six people in the vehicle. As soon as the car stopped, all four doors of the vehicle flew open. Hart got out of his vehicle and yelled to the passengers to "stay in the car." Despite that order, the passenger in the right rear seat "took off running" carrying a backpack. Hart did not pursue this individual and remained next to the driver's side of his cruiser. From that position he could see through the car's rear window. Two individuals remained in the front seat and three were in the back. He saw the three back seat passengers "bent over" and "messing with something" on the floor of the vehicle. At this point, Hart was concerned for his safety, and, based on his training and experience, believed that the back seat passengers were either hiding something or trying to retrieve a weapon. He responded by telling the occupants to place their hands on their heads. Only the two individuals sitting in the front seat complied. Those in the back seat remained bent over.

Hart immediately called for backup, drew his service weapon, and moved to the passenger side of his cruiser which afforded him a better view of the individuals in the vehicle but prevented them from seeing him. Hart continued to order the passengers to put their hands on their heads, and the back seat passengers eventually complied. Two to three minutes later, backup from the Methuen and Lawrence police departments arrived.¹ Hart reholstered his service weapon, and, as the other officers provided cover, took each of the occupants from the vehicle, one by one, beginning with the right rear passenger.

As each of the occupants was ordered out of the vehicle, Hart passed him to another officer, who placed the individual prone on the ground for a patfrisk. The last individual to be ordered from the vehicle was the defendant, who was seated in the left rear next to the door. As Hart took the defendant from the car, he patted the defendant's waistband and felt a hard object.² Hart lifted the defendant's shirt and saw the grip of a handgun and a back strap on the grip. Hart yelled "gun" several times to alert the other officers and seized the gun from the defendant. He placed the defendant on the ground, handcuffed him, and, because the gun was loaded, "cleared the weapon." The defendant was placed under arrest. The other four individuals were released; the driver was cited for failing to stop at a stop sign.

2. Discussion. When reviewing the allowance of a motion to suppress, we show substantial deference to the judge's legal conclusions, Commonwealth v. Jones, 375 Mass. 349, 354 (1978), but independently review the application of constitutional principles to the facts. Commonwealth v. James, supra at 314. The Commonwealth argues that the motion judge erred in finding that the detention and patfrisk of the defendant was an arrest.³ According to the Commonwealth, the police officer's actions were consonant with those permitted during a Terry-type investigatory stop. See generally Terry v. Ohio, 392 U.S. 1 (1968). We agree.

In "stop and frisk" cases, there is a two-step analysis: whether the initiation of the investigation by the police was permissible in the circumstances, and whether the scope of the search was justified. See Commonwealth v. Moses, 408 Mass. 136, 140 (1990); Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Both of these inquiries relate to the reasonableness of the police officer's conduct under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Gonsalves, 429 Mass. 658, 659-661 (1999), S.C., 432 Mass. 613 (2000). Stated otherwise, we consider whether the intrusiveness of the government's conduct is proportional to the degree of suspicion that prompted it. Commonwealth v. Moses, supra at 141. Because there is no bright-line rule when determining reasonableness or proportionality, we must balance the need to make the stop and conduct the search against the intrusion on the defendant. See Commonwealth v. Silva, supra at 405.

a. Initiation of the stop. For the police to initiate a permissible "stop and frisk" Terry-type investigatory stop, we require that the officer's actions be based on "specific articulable facts" and "reasonable inferences" that the defendant committed or was committing a crime. See Commonwealth v. Willis, 415 Mass. 814, 817 (1993); Commonwealth v. Moses, supra at 140. The initial stop of the vehicle was justified in this case because the police officer observed a failure to stop at a stop sign in violation of G. L. c. 89, § 9. "Where the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644 (1980).

b. The exit order. When the police are justified in stopping an automobile for a routine traffic violation, they may, for their safety and the safety of the public, order the driver or the passengers to leave the automobile, but only if they have a reasonable belief that their safety, or the safety of others, is in danger. Commonwealth v. Gonsalves, supra at 662-663.⁴ To determine whether such a belief is reasonable, we ask "whether a reasonably prudent man in the policeman's position would be warranted" in such a belief. Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997), quoting Commonwealth v. Santana, supra at 212-213.

A "mere hunch" is not enough, Commonwealth v. Silva, supra at 406, nor is nervousness or fidgeting on the part of the driver or passengers in a stopped vehicle an adequate reason to order them out of the car. Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997). See Commonwealth v. Davis, 41 Mass. App. Ct. 793, 796-797 (1996). Yet it "does not take much for a police officer to establish a reasonable basis to justify an exit order or a search based on safety concerns." Commonwealth v. Gonsalves, supra at 664. Commonwealth v. Moses, supra at 138, 142 (defendant's ducking below dashboard justified exit order).

Here, there is ample conduct that, viewed objectively, supported the reasonableness of the officer's belief that his safety and the safety of others was in danger. Indeed, the facts support not only the officer's reasonable belief that his safety and the safety of others was in danger, but also that criminal behavior in addition to the traffic violation was afoot, and was the proper subject of further police investigation. The officer was therefore justified in ordering the defendant and the other occupants out of the vehicle before conducting any further inquiry with regard to the traffic violation for which the car was initially stopped.⁵

After the officer activated his siren and blue lights, the vehicle proceeded for three blocks without stopping or slowing down. See Commonwealth v. Egan, 12 Mass. App. Ct. 658, 661 (1981) ("particularized suspicion" that crime was in progress may be deduced from, among other factors, fact that car did not stop when signaled to do so and proceeded for another quarter mile). The vehicle then made a left turn before suddenly pulling over. The four doors of the vehicle flew open, and, despite an order to remain in the car, one of the passengers fled with a backpack. These events suggested that the fleeing passenger may have had illicit goods and that the remaining occupants of the vehicle might also flee. The officer ordered the occupants to remain in the vehicle and observed the three back seat passengers "bent over" and "messing with something" on the floor, suggesting that th...