Commonwealth v. Young

• Decision Date: 06 January 2011
• Docket Number: No. 09–P–1721.,09–P–1721.
• Citation: 78 Mass.App.Ct. 548,940 N.E.2d 885
• Parties: COMMONWEALTHv.Justin L. YOUNG.
• Court: Appeals Court of Massachusetts

78 Mass.App.Ct. 548

940 N.E.2d 885

COMMONWEALTH

v.Justin L. YOUNG.

No. 09–P–1721.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 6, 2010.Decided Jan. 6, 2011.

Daniel N. Marx, Boston, for the defendant.Stephen Coppola, of North Carolina (Zachary Hillman, Assistant District Attorney, with him) for the Commonwealth.Present: CYPHER, GRASSO, & MILLS, JJ.GRASSO, J.

A judge sitting jury-waived found the defendant guilty of carrying a firearm without a license, possession of ammunition without a firearm identification card, and unlawful possession of a loaded firearm. On appeal, the defendant contends that the motion judge erred in denying his motion to suppress evidence and statements obtained during a patfrisk undertaken as a result of his response to an order to exit a motor vehicle that the police sought to search incident to the arrest of the vehicle's driver. We affirm the defendant's convictions.

1. Factual background. We recount the motion judge's factual findings, supplemented with uncontested testimony from the suppression hearing. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007); Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412 (2007). At 10:00 p.m. on May 24, 2008, Boston police Officers David Santosuosso and Brian Johnson responded to a dispatch to investigate a “shot spotter activation” ¹ at 65 Winthrop Street, Dorchester, an area known for shootings, firearms violations, and illegal drug activity. The officers arrived within minutes of the dispatch and searched for physical evidence that shots had been fired, but found nothing.

Upon returning to their patrol duties, at about 10:25 p.m., the officers heard a screeching of tires and saw a blue Cadillac automobile traveling fast on Winthrop Street. The officers signaled the Cadillac to stop, and it stopped promptly. Santosuosso approached the driver's side and, through the open window, observed the driver, later identified as James Dobson, looking towards the vehicle's two other occupants. Santosuosso also noticed a glassine baggie protruding from Dobson's left breast pocket. From his training and experience, Santosuosso recognized the baggie as the kind used to hold illegal controlled substances, and upon further examination, he noted that the baggie contained four pills. Two were orange with “Superman” logos, and two were off-white with unidentified stamps. Santosuosso immediately recognized the orange tablets as Ecstasy, a class B controlled substance. Dobson claimed that he had just taken the drugs from his younger brother at 65 Winthrop Street. Upset at discovering the drugs, he became angry and screeched the vehicle's tires as he left the area.

Santosuosso arrested Dobson. After pat frisking Dobson for weapons, handcuffing him, and placing him into the rear of the police cruiser, Santosuosso and Johnson returned to the Cadillac where the defendant remained in the front passenger seat and a female remained in the rear. Santosuosso ordered the defendant out of the car. Upon hearing the exit order, the defendant reacted by tensing up his shoulders, which “came up high.” Santosuosso again ordered the defendant from the vehicle. The defendant began to exit, but hesitated. His body was half in and half out of the car, his hands remained inside the vehicle, his back was to the officer, and he would not turn around. Santosuosso ordered him to show his hands and move away from the vehicle. When the defendant ultimately stepped completely from the vehicle and stood facing the hood of the car, Santosuosso moved him towards the back of the car and began a patfrisk. Unprompted, the defendant told Santosuosso, “I have a gun in my waistband.... [M]y summer's gone.” Santosuosso retrieved the gun from the right side of the defendant's waistband.

2. Discussion. In his motion to suppress, the defendant argued that the police lacked a basis to order him from the vehicle because the discovery of drugs on Dobson's person did not justify a search of the passengers or of the vehicle itself for drugs.² The Commonwealth countered that the police could properly order the defendant to exit the vehicle in conjunction with a search of the vehicle incident to Dobson's arrest and that the defendant's subsequent behavior justified the patfrisk leading to discovery of the gun. ³

In ruling, the judge reasoned that the exit order was permissiblebecause a vehicle search incident to Dobson's arrest was proper when the defendant and a female passenger remained inside the vehicle. Because the defendant's behavior subsequent to the exit order raised a reasonable apprehension of danger, the police were justified in conducting the patfrisk of the defendant's person that led to discovery of the gun.

On appeal, the defendant maintains that the exit order leading to the frisk of his person and discovery of the gun was unlawful because (1) there was no basis for stopping the vehicle initially and (2) the justification for the exit order, a search of the vehicle's interior incident to Dobson's arrest, was impermissible under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Arizona v. Gant, ––– U.S. ––––, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009); Commonwealth v. Santiago, 410 Mass. 737, 743, 575 N.E.2d 350 (1991). We disagree.

A. The vehicle stop and arrest of Dobson. While the defendant's status as a passenger permits him to challenge the initial stop of the vehicle, the propriety of that stop requires little discussion. See Brendlin v. California, 551 U.S. 249, 251, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (defendant passenger may challenge stop of motor vehicle); Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 787, 172 L.Ed.2d 694 (2009). The stop was lawful because the police observed a civil motor vehicle infraction, the screeching of tires. See G.L. c. 90, § 16, as appearing in St.1971, c. 1032 (prohibiting the operation of a motor vehicle “so as to make a harsh, objectionable or unreasonable noise”). See also Commonwealth v. Santana, 420 Mass. 205, 209, 649 N.E.2d 717 (1995) (reasonable belief that civil motor vehicle infraction has occurred provides lawful basis for stop); Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 642–643, 747 N.E.2d 1253 (2001).

Had more not developed, there would have been no basis to order either Dobson, the driver, or the defendant, a passenger, from the vehicle. See Commonwealth v. Gonsalves, 429 Mass. 658, 662–663, 711 N.E.2d 108 (1999) (under art. 14 police officer engaged in routine traffic stop must have reasonable belief that officer's safety or safety of others is in danger before ordering driver or passenger from vehicle). Compare Pennsylvania v. Mimms, 434 U.S. 106, 111 & n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (under Fourth Amendment police officer may, as matter of course, order driver out of vehicle lawfully stopped for traffic violation), and Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (under Fourth Amendment exit order to passenger permissible in routine traffic stop). However, what began as a routine stop for a civil motor vehicle infraction quickly developed into a nonroutine encounter when Santosuosso made a plain view observation of a glassine baggie protruding from Dobson's pocket. See Commonwealth v. Ciaramitaro, supra at 642, 747 N.E.2d 1253. The discovery of drugs on Dobson's person changed the nature of the encounter and provided probable cause to arrest Dobson for a narcotics violation. See G.L. c. 94C, § 31.⁴

B. The exit order to the defendant. The motion judge found that nothing the defendant or the female passenger did prior to the initial exit order raised a reasonable apprehension of danger. It was what followed the exit order that gave rise to safety concerns and, therefore, justified a frisk of the defendant for weapons. We agree with this aspect of the judge's analysis. The propriety of the exit order to the defendant, and the subsequent patfrisk of his person, depends entirely on the ability of the police to conduct a vehicle search incident to Dobson's arrest.

To the extent that the police could lawfully conduct a vehicle search incident to Dobson's arrest, they were not required to do so with passengers inside the vehicle. See Commonwealth v. Correia, 66 Mass.App.Ct. 174, 177–179, 845 N.E.2d 1210 (2006) (search of vehicle for narcotics could reasonably include issuing exit order to passenger to facilitate search of the vehicle). Conversely, to the extent that the police lacked lawful grounds to conduct a vehicle search incident to Dobson's arrest, their order to the defendant to exit the vehicle amounted to a prolonging of the stop and seizure of the defendant's person that the defendant may challenge under art. 14. See Brendlin v. California, supra. See also Commonwealth v. Washington, 449 Mass. 476, 479 n. 3, 869 N.E.2d 605 (2007) (passengers in stopped motor vehicle not free to leave or to decline officer's request); Commonwealth v. Quintos Q., 457 Mass. 107, 110, 928 N.E.2d 320 (2010). We focus then on whether the police could permissibly conduct a vehicle search incident to Dobson's arrest.

“The purpose, long established, of a search incident to an arrest is to prevent an individual from destroying or concealing evidence of the crime for which the police have probable cause to arrest, or to prevent an individual from acquiring a weapon to resist arrest or to facilitate an escape. A search incident to arrest ... generally is limited ... to the body of the person arrested and the area and items within his ... immediate possession and control at the time.” Commonwealth v. Santiago, 410 Mass. 737, 743, 575 N.E.2d 350 (1991). Had Dobson been the sole occupant of the vehicle, we agree with the defendant that under the Fourth Amendment and art. 14 a vehicle search incident to Dobson's arrest would not be justified in order to prevent his accessing a...