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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
No. 95‑P‑2063.
Appeals Court of Massachusetts, Hampden.
Argued
Decided
Michael J. Hickson,
Assistant District Attorney, for the Commonwealth.
Steven L. Winniman,
Before SMITH, PORADA and FLANNERY, JJ.
FLANNERY, Justice.
The
defendant was charged with possession of marihuana in violation of G.L. c. 94C,
§ 34; possession of a firearm without a
firearm identification card, in violation of c. 269, § 10(h ); possession of
ammunition without a firearm identification card, in violation of c. 140, §
129C; possession of a firearm with an
obliterated serial number while in the attempted commission of a felony, in
violation of c. 269, § 11B; and
speeding, a civil infraction, under c. 90, § 17. The Commonwealth later brought an additional
charge against the defendant[41 Mass.App.Ct. 794] for possession of a firearm in a vehicle
without a license, in violation of c. 269, § 10(a ). (FN1)
A District
Court judge held an evidentiary hearing on the defendant's motion to suppress
from evidence a plastic baggie containing a leafy substance alleged to be
marihuana, an item alleged to be a .22 caliber
The
relevant facts found by the judge are as follows. On
As the
trooper returned to her cruiser after this encounter, she noticed that the
defendant drove away at an excessive rate of speed. Larose pursued the defendant onto Interstate
91 and clocked her going eighty‑five miles per hour in a fifty‑five
mile per hour speed zone. She activated
her lights again, and the defendant stopped immediately. As Larose approached the defendant's vehicle,
she noticed that the defendant was hitting the steering wheel and moving about
in the seat in an agitated manner. When
Larose asked the defendant why she was speeding, the defendant replied that she
was trying to get home. At this time the
trooper noticed that the defendant's eyes appeared glassy and bloodshot. Larose asked the defendant to perform four
field sobriety tests, which she completed successfully. The trooper did not contemplate arresting[41 Mass.App.Ct.
795]
the defendant for driving under the influence or for any other crime.
Larose
then asked the defendant if she had any sharp objects on her. When the defendant responded in the negative,
Larose decided to pat frisk the defendant because she felt concern for her own
safety on account of the defendant's jittery behavior. As Larose began a pat frisk of the defendant,
the defendant removed a bag from her coat pocket and stated: "That's my pot." The trooper arrested the defendant and
proceeded to perform an inventory search of the defendant's car, whereupon
Larose discovered a firearm and ammunition.
[1] [2] In
reviewing a ruling on a motion to suppress, we accept the motion judge's
subsidiary findings unless there is clear error, and we give substantial
deference to the judge's ultimate findings.
Commonwealth v. Colon‑Cruz, 408 Mass. 533, 538, 562 N.E.2d 797
(1990). We make an independent
determination of the judge's application of constitutional principles to the
facts as found. Commonwealth v. Mercado, 422 Mass. 367,
369, 663 N.E.2d 243 (1996).
[3] [4]
[5] [6] On this appeal, the Commonwealth argues that the motion judge erred in
allowing the defendant's motion to suppress evidence on the ground that the
State trooper's pat frisk of the defendant violated the Fourth Amendment to the
United States Constitution. In Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), the Court stated
that a pat‑down is "a serious intrusion upon the sanctity of the
person ... and ... is not to be undertaken lightly." A trooper has a right to make a threshold
inquiry where a suspect's conduct gives the trooper reason to suspect that
person has committed, is committing, or is about to commit a crime.
Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895
(1974). In determining whether a pat
frisk was constitutionally initiated, the issue is "whether a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger." Terry v. Ohio, 392 U.S. at
27, 88 S.Ct. at 1883. There must be a narrowly drawn authority to
permit a reasonable search for weapons for the protection of the trooper where
she has reason to believe that she is dealing with an armed and dangerous
individual, regardless of whether she has probable cause to arrest the
individual for a crime. Ibid. See Commonwealth v. Silva, 366 Mass. at 405, 318 N.E.2d 895;
Commonwealth v. Crowley, 13 Mass.App.Ct.
915, 430 N.E.2d 450 (1982). The right to
search a person may not be based on a mere hunch, and simple good faith on the
part of the arresting officer[41 Mass.App.Ct. 796] is not enough to justify a search.
Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at
1880‑81. Commonwealth v. Silva, 366 Mass. at 406,
318 N.E.2d 895.
[7] The
judge determined that this case presented an automobile stop for a civil motor
vehicle infraction, with no cause before the initiation of the frisk to believe
any criminal offense had occurred. He
further found that the defendant's conduct in the operation of her car was
sufficient to cause concern and that her demeanor was nervous and
agitated. The judge concluded, however,
that no gesture or conduct indicated the presence of a weapon on her person or
in her immediate vicinity. In sum, the
judge found that the trooper's decision to frisk was based upon a hunch rather
than reasonable suspicion that the trooper's safety was endangered. He concluded that evidence resulting from the
unlawful search must be suppressed. We
agree.
The
Commonwealth argues that Larose's decision to initiate a pat frisk of the
defendant was warranted by a combination of factors that, taken together,
amounted to the requisite reasonable belief that her safety was in danger. These facts are (1) the defendant had driven
her car in a hazardous manner; (2) the
trooper had stopped the defendant for tailgating the trooper's cruiser, which
is highly unusual behavior; (3) the
defendant's account of her travels did not make sense and was contradicted by
facts known to the officer; and (4) the
defendant was emotionally agitated when Larose encountered her on both
occasions.
[8] In
weighing these factors against the defendant's rights under the Fourth
Amendment, we disagree with the Commonwealth's contention that the pat frisk
was justified in order to protect Larose from harm by the defendant. Mere nervousness is an insufficient basis on
which to establish probable cause to search an individual. Commonwealth v. Gutierrez,
26 Mass.App.Ct. 42, 46, 522 N.E.2d 1002 (1988). During both stops by Larose, the defendant
cooperated and complied peaceably with the trooper's requests. Compare
Commonwealth v. Johnson, 413 Mass. 598, 601, 602 N.E.2d 555 (1992). The defendant had a valid license and
registration. Nothing about her clothing
or movements suggested that she might be armed and dangerous. Contrast
Commonwealth v. Fraser, 410 Mass. 541, 545, 573 N.E.2d 979 (1991). Larose had no knowledge of any facts about
the defendant before the frisk that reasonably could have put the officer in
fear for her safety. Cf. Commonwealth v. Crowley, [41 Mass.App.Ct.
797] 13 Mass.App.Ct.
at 915,
430 N.E.2d 450. As a result
of the illegality, the fruits of the search must be suppressed.
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978).
Commonwealth v. Ellsworth, 41 Mass.App.Ct.
554, 557, 671 N.E.2d 1001 (1996).
Accordingly, we affirm the judge's order.
[9] Also
raised on this appeal is a contention by the defendant that the Commonwealth
has improperly brought this interlocutory appeal directly to the Appeals Court,
rather than first obtaining leave from a single justice of the Supreme Judicial
Court, as required by Mass.R.Crim.P. 15(b)(2), 378
Mass. 884 (1979) (applicable to District Court jury sessions) (as then in
effect). We hold that the Commonwealth
properly presented this appeal pursuant to Mass.R.Crim.P.
15(a), 378 Mass. 882 (1979) (as then in effect).
The
Commonwealth instituted the criminal proceedings at hand against the defendant
in March 1994, subsequent to the adoption of the "one‑trial
system" in the District Courts. At
that time, however, Mass.R.Crim.P. 15(a)(2), 378
Mass. 882 (1979) (applicable to District Court nonjury
sessions) provided that the Commonwealth could prosecute an interlocutory
appeal to the Appeals Court from a District Court judge's decision granting a
motion to suppress. The defendant
brought her motion to suppress in the District Court, i.e., the first tier of
the one‑trial system. Because a
District Court judge hears this type of motion before a defendant is
transferred to the second tier of the system, the jury session, rule 15(a)
applied to the circumstances of this case.
Therefore, the defendant's contention that the Commonwealth should have
proceeded under rule 15(b), which at the time of this appeal applied to
interlocutory appeals from the Superior Court and jury sessions in the District
Court, is incorrect. (FN2)
Order allowing motion to suppress affirmed.
FN1. A nolle prosequi was subsequently
entered on the charge under c. 269, § 10(h
).
FN2. We note that a recent amendment of Mass.R.Crim.P. 15, 422 Mass. 1501 (effective March 1, 1996),
makes it less likely that the confusion engendered in this case will recur.