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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. Gutierrez, 26 Mass.App.Ct.
42 (1988)
Appeals Court of Massachusetts,
No. 87‑393.
Argued
Decided
Kevin J. Ross, Asst. Dist. Atty., for Com.
John B. Glynn,
Before KAPLAN and DREBEN, JJ.
BROWN, Justice.
The
Commonwealth appeals pursuant to Mass.R.Crim. P.
15(b)(2), 378 Mass. 884 (1979), from the order of a Superior Court judge
suppressing evidence seized from the defendant's person during a warrantless search conducted at Logan Airport.
[26 Mass.App.Ct.
43] The relevant facts found by the
judge are as follows. At approximately
Palombo signalled to Troopers Grassia and Johnson, who were jointly conducting the
surveillance with him. The defendant,
glancing around constantly, headed directly for the escalator to the baggage
claim area. He boarded the escalator
and, while descending, looked over his shoulder as if to see who was behind
him. Palombo
followed him, using the stairway adjacent to the escalator. When Gutierrez arrived at the bottom, he got
off the escalator, turned left and immediately got on the escalator ascending
to the upper level, where he got off and headed directly, at an oblique angle,
toward an exit to his right. He walked
hurriedly across the terminal and out that door. Palombo
followed. Once outside, the defendant
walked around the small barrier between the two automatic doors and immediately
reentered through the entrance door. Palombo followed him back into the terminal.
Noting
that the defendant was looking behind every few steps, was wearing an oversized
coat which could be used to carry contraband, and was engaging in other
seemingly suspicious activities, Palombo decided to
investigate further, that is to say, conduct a threshold inquiry. (FN1) Palombo came up behind the defendant, put his hand on his
left shoulder, showed his badge and identified himself as a police
officer. Palombo
asked [26 Mass.App.Ct.
44] the defendant if he had just
come from New York City. Gutierrez said
that he had. Palombo
then asked Gutierrez if he would speak with him; Gutierrez said that he would. Palombo asked for
identification and Gutierrez gave him a plastic identification card which
listed an address in the Jamaica Plain area.
Palombo asked for another form of
identification. Gutierrez handed him a
learner's permit, which listed an address in the Roxbury
section. On a later produced third form
of identification a different Jamaica Plain address was listed. Gutierrez then stated that the Registry must
have made a mistake on the address because he had never lived in Roxbury.
Gutierrez
appeared very nervous. Palombo then told Gutierrez that he was a suspect in a drug
investigation and asked for permission to search his gym bag. The defendant handed the bag over to Palombo. Palombo searched the bag and found nothing. Palombo directed
Gutierrez to move out of the open area over to a corner. The defendant complied. Gutierrez then had been with the troopers for
about seven minutes.
Palombo told Grassia to search
the defendant's pockets. The officer
began to search the pockets of Gutierrez's topcoat when he felt a hard object
near the belt line of Gutierrez's pants.
Grassia grabbed Gutierrez by the hand, pulled
his revolver and shouted, "Look out, he's got a gun." The hard object was removed from the crotch
area. The trooper unwrapped paper towels
uncovering a plastic bag containing a nearly symmetrical, solid, rock‑like,
white substance, 6 inches long, 4 1/2 inches wide, and 1 1/2 inches thick.
We also
are told by the judge that Gutierrez has been in the United States for eight
years; he speaks English well and works
as a dental technician for his parents.
Trooper Palombo has been involved in hundreds
of drug investigations in his fifteen years as a State trooper. He has, during that period, made eighty
seizures of drugs from people debarking from the Eastern shuttle.
The judge
concluded that, based upon the defendant's suspicious actions in the airport,
coupled with his four‑hour round trip to New York City, Officer Palombo had articulable reasons,
founded on reasonable suspicions, which warranted an investigatory[26 Mass.App.Ct.
45]
stop of the defendant. (FN2) See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Borges,
395 Mass. 788, 790, 482 N.E.2d 314 (1985); United States v. Gallego‑Zapata,
630 F.Supp. 665, 668 (D.Mass.1986).
[1] Where,
as here, the evidence consists solely of oral testimony, the determination of
the weight and credibility of the testimony is the function and responsibility
of the motion judge, and the subsidiary findings of fact made by him in support
of the allowance of a motion to suppress "will be accepted by an appellate
court absent clear error." Commonwealth v. Jones, 375 Mass. 349,
354, 377 N.E.2d 903 (1978). Commonwealth v. Moon, 380 Mass. 751, 755‑756,
405 N.E.2d 947 (1980). See also
Commonwealth v. Bottari, 395 Mass. 777,
780, 482 N.E.2d 321 (1985). The judge
had the opportunity to listen to and evaluate the testimony of Gutierrez and
the various police officers. The judge
determined that the police officers had no reason to fear that Gutierrez was
armed or posed a threat to them. He
further found that the evidence was discovered during a search of Gutierrez's
topcoat pockets.
The
Commonwealth argues that the motion judge's finding that the troopers did not
discover the bulge in the defendant's pants until Trooper Grassia
felt it while "delving into the pockets of [the defendant's] topcoat"
is not based on the evidence and is clearly erroneous. We do not agree. Palombo testified
that the defendant consented to Grassia's search of
his topcoat pockets, (FN3) but the defendant contradicted this. It is clear from his ruling that the judge
did not find the testimony of the troopers credible. Significant additional record support for the
judge's implicit finding undercutting the officers' credibility is provided by
the seemingly inexplicable nature of their admitted conduct in the instant
circumstances. Query: If the defendant already had been detained by
the
officers for five to ten [26 Mass.App.Ct.
46] minutes before they searched his
topcoat pockets and if the troopers were well aware of a bulge in his pants, as
they have claimed, prior to the intrusion into his topcoat pockets, why then
did they not pat him down sooner, or
move more directly to the crotch area?
The judge reasonably could conclude that certain critical portions of
the officers' testimony lacked credibility.
The
judge's refusal to credit these critical portions of the officers' testimony
cuts away the underpinnings of the Commonwealth's argument that, at some point
in the course of the threshold inquiry, Palombo's
suspicions ripened into probable cause to search for controlled
substances. We agree with the motion
judge that, without the prior awareness of the bulge, mere nervousness and
somewhat inconsistent identification documents would be an insufficient basis
on which to establish probable cause to search.
[2] The
Commonwealth argues, in the alternative, that, even if the troopers did not
have probable cause to conduct a full search of the defendant for drugs, the
judge erred in allowing the motion to suppress because the cocaine was
discovered during a lawful frisk of the defendant for a weapon. (FN4)
The motion
judge ruled that a pat frisk of Gutierrez was not warranted, as the officers
knew that he had just flown in from New York City and had presumably been
through a metal detector. In addition,
the judge found that the officers were not concerned for their safety as shown
by their engaging the defendant in conversation for many minutes without
frisking [26 Mass.App.Ct.
47] him. We need not pause to discuss those rulings,
as we conclude the motion was properly allowed for a different reason.
"In
the case of the self‑protective search for weapons, [an officer] must be
able to point to particular facts from which he reasonably inferred that the
individual was armed and dangerous." Sibron v. New
York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20
L.Ed.2d 917 (1968). In the instant case,
the troopers have pointed to no particular facts from which they reasonably could infer that the
defendant was armed and dangerous. The
officers testified to having seen the bulge well before the search began (i.e.,
each time the defendant reached for identification, "[h]e swept aside"
the long overcoat he was wearing and exposed the bulge), yet it was not until
the defendant supposedly reached for the bulge that the troopers became fearful
for their lives. (FN5) This testimony the judge deemed not credible,
and as mentioned earlier, credibility is the call of the motion judge. See Commonwealth v. Meehan, 377 Mass. 552,
557, 387 N.E.2d 527 (1979); Commonwealth v. Bottari,
395 Mass. at 780, 482 N.E.2d 321.
The
reasonable inference drawn by the judge is that the troopers did not become
aware of the bulge until they delved into the pockets of the defendant's
topcoat. See and compare Sibron v. New
York, 392 U.S. at 45, 88 S.Ct. at 1893. It appears that the subsequent histrionics
associated with Grassia's exclamation that "he's
got a gun" were a ruse, developed as an afterthought, to enable the
troopers to search the defendant and seize the object. See Commonwealth v. Borges, 395 Mass. at 798,
482 N.E.2d 314 (Hennessey, C.J., concurring). Such an intrusion exceeded the permissible
scope of a pat frisk. See
Terry v. Ohio, 392 U.S. at 30‑31, 88 S.Ct.
at 1884‑85. See also Commonwealth v. Lehan, 347 Mass. 197, 204‑205, 196 N.E.2d 840
(1964). As the judge did not find that
there was probable cause to search, and the record does not require us so to
conclude (see Commonwealth v. Moon, 380 Mass. at 756,
405 N.E.2d 947), we are constrained to affirm the order allowing the motion to
suppress.
So ordered.
(FN1.) For an excellent discussion, cautioning
as to the constitutional limitations placed upon the so‑called "drug
courier profile," see United States v. Sokolow,
831 F.2d 1413, 1418‑1420 (9th Cir.1987) (en banc).
(FN2.)
The judge correctly ruled that:
"When Officer Palombo placed his hand on
the suspect's shoulder, he did so to stop Gutierrez. Such minimal contact did not constitute a
seizure. Although Terry type detentions should be brief, a further investigation,
because of the inconsistent identification provided by Gutierrez, was
warranted."
(FN3.)
The motion judge did find the search of the defendant's gym bag to have been
consensual.
(FN4.)
The Commonwealth also attempts to argue that, even if the search of defendant's
topcoat pockets was not justified, the cocaine was discovered not as the result
of searching the topcoat pockets but as the result of the defendant's own
intervening act of reaching for the bulge and causing Trooper Grassia to think that he was reaching for a gun. As support for this proposition, the
Commonwealth cites Commonwealth v. King, 389 Mass. 233, 245‑246,
449 N.E.2d 1217 (1983). There, despite a
trooper's exceeding the scope of a permissible threshold inquiry, the
intervening conduct by the defendant rendered the trooper's subsequent actions
appropriate. The short answer is that
here the motion judge did not credit the officers' testimony. Nor did he believe that the defendant took
any action which would warrant such a response or reaction by the officers.
(FN5.)
Palombo testified in this regard: "When he dove his hands into his pants
for the lump that we all knew was there."