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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Kimball, 37 Mass.App.Ct.
604 (1994)
Appeals Court of Massachusetts, Worcester.
No. 93‑P‑1194.
Argued
Decided
Peter M. Onek, Committee
for Public Counsel Services, for defendant.
James P. McKenna, Asst. Dist. Atty., for the Com.
Before BROWN, KASS and
FINE, JJ.
KASS, Justice.
This much
is common ground: the defendant's
We take
the pertinent facts from helpful findings of fact made by the judge who acted
on the motion to suppress. Trooper Viel's cruiser was stopped perpendicular to the flow of
eastbound traffic when he noticed the defendant's car. What caught Viel's
attention was that a side window just rear of the driver's window was smashed
out and covered by cloth; there was a
hole where the trunk lock should have been;
and the rear license plate was askew and held by only one screw. These faults disposed Trooper Viel to think the car had been stolen, a suspicion that he
said was heightened because neither the driver nor the passenger (who was the
defendant) in the
Trooper Viel pulled the car over. The way it came to a stop in the breakdown
lane was normal. As Trooper Viel approached the vehicle, the two men in it sat still,
facing forward; they did not look at
him. Trooper Viel
thought this peculiar and became sufficiently concerned about his safety so
that he unlatched the holster on his side arm.
He asked the driver for his license and registration and the driver, who
was John Kimball, the brother of the defendant William J. Kimball, produced a
facially valid Connecticut operator's license and a Maine registration that was
consistent with the Maine plates that the car carried. The car was registered to William
Kimball. After glancing at the
documents, Trooper Viel put them in his pocket. The motion judge inferred that the police
officer did so to have the papers when making a stolen car check by radio. That inference, however, is contrary to the
trooper's testimony at the suppression hearing.
When asked why he pocketed the license and registration that John
Kimball had displayed, Trooper Viel testified,
"I put them in my pocket in case something happened, I would [37 Mass.App.Ct.
606] have‑‑I would have
the identity of whoever I stopped in my pocket, or at least the
driver." Trooper Veil then asked
the passenger, William Kimball, for some identification. William responded that he did not have
any. Veil thought the two men in the
Pontiac were in a nervous and fidgety state.
Still
convinced from the appearance of things that something felonious was going on,
Trooper Viel consecutively ordered William Kimball
and John Kimball out of the car, pat frisked them, and ordered them to step
over
the highway guardrail at a distance of about fifteen feet ahead of
their automobile. The pat frisks had not
turned up weapons or anything else out of the ordinary, although the officer
noticed white powder on William's work boots.
He thought the powder "possibly could have been a controlled
substance." Trooper Viel asked John Kimball if there were any drugs in the
car. Kimball said he did not know; it was not his car.
[1][2][3]
1. The stop. In the absence of a traffic violation or
visible unlawful vehicular defect, (FN1) we do not think that a broken window
and missing trunk lock on a generally old dilapidated car add up to a basis for
a threshold stop. The circumstances are
unlike those in Commonwealth v.
Valentine, 18 Mass.App.Ct. 965, 966, 470 N.E.2d
384 (1984), in which the car lacked rear lights and had a "popped‑out"
trunk lock. There the vehicular defect
in and of itself constituted a violation of law and justified a stop. The "popped‑out" lock was a
stimulus for additional investigation of a car that was going to be stopped in
any event. Here, there was of course no
visible violation of law and, it is worth nothing, Trooper Viel
did not speak of a "popped‑out" lock but of a hole where the
trunk lock would have been, a condition consistent with the generally
deteriorated character of the automobile.
A third ground for Viel's suspicion was that
the occupants of the Pontiac looked straight ahead rather than making eye
contact. Surely minding one's business
does not display consciousness of guilt, and one easily imagines that had the
Kimball brothers looked at [37 Mass.App.Ct. 607]
the trooper and then away, they would have been thought to have acted
furtively. As to the fleeting
disappearance from view of William Kimball, that occurred before the trooper
had signalled any intention to stop the car. None of the grounds articulated for the stop
makes the grade as specific facts warranting a car stop and inquiry. Contrast
Commonwealth v. Cavanaugh, 366 Mass. 277, 278, 317 N.E.2d 480 (1974) (car
stopped after going wrong way down a one‑way street and then leading
police on a chase); Commonwealth v. Wren, 391 Mass. 705, 707‑708,
463 N.E.2d 344 (1984) (van had stopped inexplicably at night by a vacant lot in
a residential neighborhood and, then, moved very slowly until a police cruiser
approached it, whereupon it sped up); Commonwealth v. Owens, 414 Mass. 595,
597, 609 N.E.2d 1208 (1993) (owner of the car stopped was wanted on an
outstanding warrant for his arrest on serious felony charges and officer could
reasonably suppose the car was being driven by its owner). A hunch, as we said at the beginning of this
opinion, is an insufficient basis for a threshold inquiry. Commonwealth v. Silva, 366
Mass. 402, 406, 318 N.E.2d 895 (1974). Commonwealth v. Wren, supra 391 Mass. at
707, 463 N.E.2d 344.
[4][5] 2. The search after the stop. Supposing justification for a stop on
suspicion that the Pontiac was stolen, Trooper Viel
could make a threshold inquiry and take reasonable precautions for his
protection. Commonwealth v. Ferrara, 376 Mass. 502,
505, 381 N.E.2d 141 (1978). See also Commonwealth v. Owens, 414 Mass. at
600, 609 N.E.2d 1208. The routine
generally begins with a request for license and registration. Here, those were delivered and appeared to be
in order. The name on the registration
was the same family name (Kimball) as that of the properly licensed
driver. It stretches coincidence that a
thief would be so lucky as to find in the car he stole a registration bearing
the same surname as his. When persons
stopped produce a valid license and registration, there is no basis for further
interrogation. Commonwealth v. Ferrara, 376 Mass. at
505, 381 N.E.2d 141. As in the Ferrara case, "no reason appears
why they should not have been permitted to continue on their way."
Ibid.
[6] Let us
suppose further, for purposes of discussion, the highly dubious proposition
that the inability of William Kimball[37
Mass.App.Ct. 608] to produce personal identification to confirm
the motor vehicle registration that had
been produced justified Trooper Viel in pursuing his
stolen car theory. The officer could
then, for his protection, order the occupants out
of the car and pat frisk them. Commonwealth v. Owens, 414 Mass. at 600,
609 N.E.2d 1208, and cases there cited.
Trooper Viel did so, and his search produced
no weapons or anything else unlawful. It
will be recalled that the officer then ordered the Kimball brothers to stand
fifteen feet away and over a barrier. At
that point the officer could have made a radio stolen car check. Instead, Trooper Viel
chose to radio for backup. Even if one
ascribes the call for support to sensible prudence, it is more difficult to
explain why, while another police cruiser was on its way, Trooper Viel proceeded to rummage through the Kimball automobile in
which he did, indeed, ultimately find contraband drugs in a jacket. (FN2)
There was no lawful basis for that search. Trooper Viel had
secured his safety and was simply continuing to play his hunch. Contrast
Commonwealth v. Little, 16 Mass.App.Ct. 959, 960,
451 N.E.2d 1173 (1983), in which the police had probable cause to believe there
was a weapon concealed in the automobile in question. The drugs seized were the product of an
unlawful search and, as evidence, should have been suppressed.
Police do
challenging and dangerous work. See the
celebrated observation of Harlan, J., concurring in Terry v. Ohio, 392 U.S. 1, 33, 88 S.Ct.
1868, 1886, 20 L.Ed.2d 889 (1968), that in threshold police inquiries,
"the answer might be a bullet."
The police and the public may wonder why the end product of a hunch,
sharpened by experience, should be undone by what the media like to call
"a technicality." One of the
factors that most differentiates a free society based on law from an
authoritarian society is that police may not act on mere suspicion or by random
dragnet. As a people we have been
instructed by colonial experience, refreshed by repeated experience elsewhere
in the world, that in the absence of standards‑‑"technicalities"‑‑there
is soon no protection from arbitrary invasion of home, [37 Mass.App.Ct. 609] automobile, or other places where men and women are entitled to
think themselves safe. Disregard those
standards, and law enforcement officers will be as vulnerable as the ordinary
citizen to the knock in the night. See Commonwealth v. Garcia, 34 Mass.App.Ct. 645, 651 n. 8, 614 N.E.2d 1031 (1993).
The order
denying the defendant's motion to suppress is reversed. The judgment is reversed and the verdict set
aside.
So ordered.
(FN1.) Although Trooper Viel
later issued a citation for failure to display a front license plate, the
motion judge found that there was a front plate and, consequently, that there
was no violation for failure to display a plate.
(FN2.) He
thought he had also found a baggie of drugs in the glove compartment of the
Pontiac, but that material tested as sodium bicarbonate.