Commonweath Of Mass. v. Rivas
| Decision Date | 30 May 2006 |
| Docket Number | 20050353 |
| Citation | 2006 MBAR 148 |
| Parties | Commonweath of Massachusetts v. Felix Rivas |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Agnes, Peter W., J.
The defendant Felix Rivas is charged by indictment with Trafficking in Cocaine, a Class B controlled substance, a school zone violation and filing a false motor vehicle application arising out of the stop of a motor vehicle which he was operating in the Berkeley Street area of Lawrence, Massachusetts on January 31, 2005. Based on the credible evidence presented at a hearing on the motion to suppress held on April 21, 2006, I make the following findings of fact and rulings of law.
At approximately 3: 20 p.m. on January 31, 2005, Lawrence Police Detective Darren Fraser, a member of the New England Fugitive and High Intensity Drug Unit, a collaboration between the Lawrence and Lowell police departments along with the United States Marshall's service, was operating an unmarked Chevrolet Trailblazer in or on Berkeley Street in Lawrence, Mass. At the time, he was not actively looking for any suspects. However, his routine involves regularly stopping motor vehicles when violations are observed and in his experience drugs and/or guns are found in them 10-15% of the time. Detective Fraser observed a 1988 green Oldsmobile sedan motor vehicle ahead of him. He did not observe any traffic violations or improper operation, but he did observe a red colored sticker on the vehicle's windshield. Based on his training and experience, he recognized the sticker as a "rejection sticker" of the type that issued following an inspection in which the vehicle fails to meet the requirements of the inspection program due to safety problems. So-called black "rejection stickers, on the other hand, in the experience of detective Fraser, indicate that the vehicle also failed to pass inspection but as a result of emission control problems and not safety problems.
Believing that the red sticker prohibited operation of the vehicle, Detective Fraser activated his blue lights and directed the operator of the other vehicle to pull over. The defendant safely pulled over and stopped his car. As Detective Fraser approached the other vehicle, he made an observation that the defendant moved forward and for a moment his body was out of view. Detective Fraser called for a tow truck. He approached the driver's side, told the defendant to produce his license and registration, and then to keep his hands on the wheel. The defendant had a temporary, paper license which had expired.[1] The defendant was unable to produce a registration. The defendant was ordered to exit the vehicle. A pat frisk of his person led to the discovery of a cell phone and $85.00 in United States currency. As he reached inside the vehicle to locate the vehicle's registration from the center console, but while still standing outside the vehicle, Detective Fraser observed a black pouch on the driver's side floor which he was able to see contained a plastic see-through bag containing a white, chalk-like substance. Detective Fraser seized the pouch and found that it contained a digital scale, a plastic spoon and what later proved to be 35 grams of cocaine.
"A police officer is warranted in making 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. That action must be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. Random stops to check the vehicle's equipment or the status of the operator's license are not permitted. Delaware v. Prouse, 440 U.S. 648 (1979).[2] A mere hunch that a crime or a violation has been committed is not enough. Simple good faith on the part of the officer is not enough. "The test is an objective one." Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (citations and quotations omitted). Accord, Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). See, e.g., Commonwealth v. Feyenord, 445 Mass. 72 (2005) (Operating during the daytime with one defective headlight); Commonwealth v. Sinforoso, 434 Mass. 320 (2001) (); Commonwealth v. Torres, 433 Mass. 669, 673 (2001) (); Commonwealth v. Santos, 65 Mass.App.Ct. 122 (2005) (); Commonwealth v. Stack, 49 Mass.App.Ct. 227, 233 (2000) (); Commonwealth v. Robles, 48 Mass.App.Ct. 490, 493 (2000) (same); Commonwealth v. Williams, 46 Mass.App.Ct. 181, 182, rev. den. 429 Mass. 1109 (1999) (unsafe lane change); Commonwealth v. Garcia, 34 Mass.App.Ct. 645, 649, rev. den. 416 Mass. 1102 (1993) (defective license plate).[3],[4]
The Legislature has directed the Registrar "to establish rules and regulations providing for a periodic staggered inspection of all motor vehicles..." G.L.c. 90, §7A. This section goes on to provide that the inspection program shall deal with both emissions requirements and safety issues. "[T]he rules and regulations for periodic staggered inspection established hereunder shall include, but not be limited to, an annual maintenance inspection to determine the proper and safe condition of the following: brakes, stop lamps, lights, directional signals, horn, vehicle identification number, steering and suspension systems, glazing, windshield wipers and cleaner, number plates, tires, fenders, bumpers, external sheet metal, reflectors, splash guards, chock blocks, safety belts and exhaust systems." G.L.c. 90, §7A. If a motor vehicle meets the inspection requirements established by the Registrar under §7A, it receives a certificate of inspection which in turn is proof that the vehicle has passed inspection. G.L.c. 90, §7V(a). A motor vehicle which fails inspection, whether due to failing the emission standards promulgated by the Commissioner of Environmental Protection under G.L.c. 111, §142J or the safety standards established by the Registrar, receives "a certificate of rejection indicating that the motor vehicle has failed the initial emissions inspection or safety inspection as required by said section 7A." G.L.c. 90, §7V(b). In the case of a rejection, the Registrar is required to adopt by regulation "a procedure for permitting the reinspection of any motor vehicle that has been issued a certificate of rejection and has all necessary repairs performed on said vehicle; provided, however, that said reinspection be performed by the original inspection station without payment of any additional fee." There is no provision in the legislative scheme that states that a rejection, whether for safety or emission problems, means that the vehicle may not be operated.
The Regulations adopted by the Registrar pursuant to G.L.c. 90, §7A are found in Chapter 4.00 et seq. of the Code of Massachusetts Regulations. See 540 C.M.R. §4: 01 (2006). A fair reading of these regulations establishes that the system adopted by the Registry of Motor Vehicles to implement the Legislature's requirement of an inspection program for vehicles does not immediately forbid a motorist from operating a vehicle which has failed the inspection, whether due to an emission problem or a safety problem, but rather imposes on the motorist a duty to fix the problem and present the vehicle to the same inspection station for reinspection without additional cost. See 540 C.M.R. §4.07(3)(a), (b) and (c). If a motorist fails to correct the deficiency within sixty days of the issuance of the rejection sticker, whether due to a safety problem or an emission problem, the motor vehicle's registration is suspended. 540 C.M.R. §4.07(4).
The Registrar of Motor Vehicles has adopted a regulation that provides that a motor vehicle which fails to meet "all applicable inspection requirements shall be issued a Certificate of Rejection." 540 C.M.R. §4.07(3)(a). The regulations provide further that 540 C.M.R. §4.07(3)(b).[5] Finally, the regulations provide that if a motorist does not comply with the regulations, the vehicle's registration will be suspended pursuant to G.L.c. 90, §22. 540 C.M.R. §4.07(4). See also 540 C.M.R. §4.00.
The effect of these regulations is that a motorist whose vehicle fails inspection for safety related reasons and is issued a Certificate of Rejection may address the failures and continue to operate for up to 60 calendar days while the rejection sticker is affixed to the vehicle without the issuance of a new inspection sticker. If the motorist fails to address the safety problems, the vehicle's registration will be suspended.
The Commonwealth argues that the operation of a motor vehicle that does not meet the safety standards established by the Registrar is a crime under G.L.c. 90, §20. That reasoning is faulty because the law permits a motorist to operate a vehicle with a red rejection sticker for 60 days provided the safety defects have been corrected. However, the state and federal constitutions do not...
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