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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. Kitchings,
40 Mass.App.Ct. 591 (1996)
Appeals Court of Massachusetts, Middlesex.
Nos. 95‑P‑1578, 95‑P‑1579
and 95‑P‑1642.
Argued
Decided
Further Appellate Review Denied
Lisa J. Steele,
Mark R. Meehan, Somerville, for Leon L. Dorch.
[40 Mass.App.Ct.
592] James M. Hankin,
Topsfield, for John Rudolph.
Peter Schlossman,
Assistant District Attorney, for the Commonwealth.
Before ARMSTRONG, GILLERMAN
and LENK, JJ.
GILLERMAN, Justice.
On the
evening of
After a
hearing, the judge denied the defendants' motions to suppress all evidence
obtained as a result of a warrantless search of the
van in which the defendants were riding, and a jury subsequently returned
guilty verdicts against the three defendants on all charges. The defendants were each sentenced to a term
of one year in the
[1] After
the hearing on the defendants' suppression motions, the judge filed his
findings of fact and decision. Absent a
showing of clear error, we accept the motion judge's findings and give
substantial deference to his rulings of law based on those findings.
Commonwealth v. Cast, 407
All the
defendants argue that the judge erred in denying their suppression
motions. The defendant Rudolph also
contends that the judge erred in denying his motion to suppress a statement
made by him, and the defendant Kitchings contends
that his motion for a required finding of not guilty should have been
allowed. We agree with the judge's
conclusions (although not his precise reasoning) in each instance, (FN3) and
affirm.
[40 Mass.App.Ct.
593] The motion hearing. On September 4, 1994, at approximately 5:05
P.M., a Dodge van drove past Massachusetts State Trooper John Barrett on Route
110 in Lawrence. Barrett was alone on a
routine patrol in a marked cruiser. He
noticed that affixed to the vehicle was a plastic dealership tag, "M &
M Motors," but an official State registration plate appeared to be
missing. Barrett followed the van into a
Burger King parking lot. After the van
parked, Barrett pulled up behind the van.
Barrett
approached Moore, the driver of the vehicle, who had stepped out of the
van. In response to Barrett's requests,
Moore produced a Massachusetts driver's license, and Moore obtained from the
defendant Tirrell Kitchings,
who was seated in the front passenger seat of the van, a copy of a rental
agreement for the van. The rental
agreement stated that David Johnson was the approved
driver of the van. Moore also told
Barrett that Kitchings was the person who had rented
the van.
Barrett,
proceeding to the passenger side of the van, asked Kitchings
for his license. Kitchings
produced a South Carolina driver's license, and he told Barrett that Johnson
was a friend who had rented the van as a favor to Kitchings.
There were
two additional passengers in the van who were later identified as the
defendants John Rudolph and Leon L. Dorch. Both were seated in the row of seats behind
the driver. Turning to these passengers,
Barrett asked for identification. They
had none. No one in the van claimed to
be Johnson, the only authorized driver.
While
questioning Moore and the three defendants, Barrett, who had training and
experience in narcotics detection as a member of a drug task force, noticed a
"very strong odor of burnt marijuana," and he observed that the van
"absolutely reeked of it ... it had to be fresh." (FN4)
Barrett asked the four men to step out of the van. They did so, and appeared to be "in a
nervous state." Barrett, alone and
concerned for his [40 Mass.App.Ct. 594]
own safety, proceeded to pat‑frisk each of the four men. He found a large sum of cash in Dorch's front pocket.
Barrett
then placed both Dorch and Rudolph, uncuffed, in the back of his cruiser. He turned to Moore and Kitchings
who by now had returned to the van and were again seated in the front seats.
As Barrett
approached the van from the passenger side, he looked through the window and
saw a loaded ammunition clip for a semi‑automatic pistol in the van's
open glove compartment. Seeing the clip,
Barrett promptly placed Moore and Kitchings, uncuffed, in the rear of his cruiser along with Rudolph and
Dorch.
Outnumbered
four to one, and exceedingly concerned for his own safety, Barrett called for
back‑up assistance. The judge
credited Barrett's testimony that he was "scared shitless"‑‑a
concern which the judge found was fully justified. It was at this point that Barrett turned to
the four men in his cruiser and shouted, "Where is the fucking
gun?" Rudolph said, "The
gun's on the back seat."
In the
back of the van underneath a sweatshirt Barrett found a Glock
40‑caliber semiautomatic pistol, which was loaded with fifteen yellow
jacket hollow point bullets, (FN5) and an unloaded nine millimeter
semiautomatic pistol. Barrett also found
a second loaded clip right beside it.
The backup
trooper was Trooper Day; she arrived
minutes after Barrett's call. Barrett
then turned to the four men in his cruiser and asked whether anybody had a
permit for the guns; no one
answered. (FN6)
Meanwhile,
Day found some empty baggies and one full "dime bag" of marijuana in
the van. Barrett then transported Dorch and Rudolph to the Concord barracks; they were in the back seat. Trooper Day transported Moore and Kitchings. Later,
when Barrett searched the back seat of his cruiser to see if it was clear, he
found some marijuana. (FN7)
Each of
the defendants was booked and advised of his
Miranda [40 Mass.App.Ct.
595] rights.
Before questioning each defendant, Barrett again read each man his Miranda rights. Thereafter,
Dorch, Rudolph, and Kitchings
each stated, separately, that David Johnson had rented the vehicle on their
behalf and that they did not have to pay him back. Each one explained that they had driven from
South Carolina to Delaware then to New York before reaching Lowell. They all admitted to smoking marijuana, and
each one admitted knowing about either one or both of the guns in the van.
The trial. At trial, Barrett's testimony was
substantially the same as his testimony at the suppression hearing. Two additional witnesses testified for the
Commonwealth at trial who did not testify at the motion hearing: Trooper Day, who was the back‑up
trooper and Robert Moore, the driver of the van. None of the defendants testified or called
any witnesses.
The two
guns, ammunition, corresponding certificates of analysis, ammunition clips, the
bag of marijuana, a cigarette "joint," and the analysis of the
marijuana were all admitted in evidence without objection by the defendants.
[2] Discussion‑‑the motion to
suppress. There being no stop of
the van by Barrett‑‑the van was already parked in the Burger King
lot‑‑the mere questioning of Moore and Kitchings
following Barrett's observation that a State registration plate appeared to be
absent, was a routine inquiry that required no justification. There was no show of force and no restraint
of anyone's liberty. See Commonwealth v. Leonard, 422 Mass. 504,
508, 663 N.E.2d 828 (1996), citing Terry
v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878‑79,
20 L.Ed.2d 889 (1968); Commonwealth v. Fraser, 410 Mass. 541,
543 ‑544, 573 N.E.2d 979
(1991).
Barrett's
additional questions to Rudolph and Dorch were also
routine inquiries, given the fact that the rental agreement named a David
Johnson as the only authorized driver.
As noted above, David Johnson was not to be found inside the van.
[3]
However, matters quickly became more serious when, during his questioning, the
officer noticed a "very strong odor of burnt marijuana." The van reeked of the odor, and it was
fresh. At this point, Barrett was
confronted with the suspected unlawful presence of marijuana in the van, the
absence of any recognizable registration plate, the absence of the authorized
driver for the van, the nervous state of the defendants, the discovery of a
large amount of cash in Dorch's front pocket, [40 Mass.App.Ct.
596] and the fact that he was alone,
facing four men. These circumstances
were sufficient to justify Barrett's reasonable suspicion, based on articulable facts, that the defendants may have been
unlawfully in possession of a controlled substance in violation of G.L. c. 94C, § 34, with the result that Barrett was
justified in imposing an investigative stop upon the defendants, provided the
degree of intrusion was reasonable under the circumstances. See
Commonwealth v. Varnum, 39 Mass.App.Ct.
571, 574‑575, 658 N.E.2d 702 (1995); Commonwealth v. Andrews, 34 Mass.App.Ct. 324, 328, 611 N.E.2d 252 (1993).
[4][5] Placing
Dorch and Rudolph, uncuffed,
in the cruiser in order to permit Barrett to continue his investigation was
reasonable under the circumstances.
There was the immediate need to search the van for contraband, (FN8)
Barrett was alone and [40 Mass.App.Ct.
597] understandably anxious, and the
four men were visibly nervous. Placing Dorch and Rudolph in the rear of his cruiser while the
investigation continued involved a degree of intrusion which was
"proportional to the degree of suspicion that prompted the intrusion"
and did exceed the scope of an investigative stop. See id.
at 328‑329, 658 N.E.2d 702.
Moreover, securing Dorch and Rudolph was a
reasonable precaution for Barrett's safety.
See Commonwealth v. Willis,
415 Mass. 814, 819‑820, 616 N.E.2d 62 (1993) (in assessing the degree of
intrusiveness as it relates to the degree of suspicion, the "most
important" factor is the degree of danger to the safety of the officers or
the public or both); Commonwealth v. Moses, 408 Mass. 136,
144, 557 N.E.2d 14 (1990); Commonwealth v. Varnum,
supra at 575, 658 N.E.2d 702.
[6] The
circumstances facing Barrett continued to deteriorate rapidly after he secured Dorch and Rudolph.
Returning to the van, he saw (through the passenger window) a loaded
ammunition clip for a semi‑automatic pistol in the van's open glove
compartment in plain view.
Understandably, he was now concerned for his safety. Immediately, he called for back‑up
assistance and placed Moore and Kitchings in the
cruiser, uncuffed, and shouted, "Where is the
fucking gun?" No one could mistake
the meaning or seriousness of that question, and Rudolph answered, "The
gun's on the back seat." No
mention was made of a license for the gun.
In the
circumstances recited above, now made even more menacing with the sight of the
loaded clip and the verbal exchange about the whereabouts of the gun, Barrett
had probable cause to believe that the three defendants were unlawfully in
possession of a firearm, and that the firearm was in the van. (FN9)
He was entitled to search every part of the vehicle and its contents in
his effort to find and seize the weapon. Commonwealth v. Moses, 408 Mass. at 145,
557 N.E.2d 14 (Under art. 14 and the Fourth Amendment, there may be a lawful warrantless search of a motor vehicle if based on probable
cause to search the vehicle, and the search may extend to all containers,[40 Mass.App.Ct.
598]
open and closed). See also Commonwealth v. Owens, 414 Mass. 595,
600, 609 N.E.2d 1208 (1993) ("If a reasonably prudent police officer
believes his safety or the public's safety is in danger, regardless of probable
cause to arrest, he is warranted in conducting a search to discover weapons or
other hidden instruments that could be used for assault"). In short order, Barrett found a loaded Glock 40‑caliber semi‑automatic pistol and an
unloaded nine millimeter semi‑automatic pistol. He also found a second, loaded ammunition
clip. Trooper Day found one full
"dime bag" of marijuana in the course of her search of the van.
[7] As to
Rudolph's motion to suppress his statement ("The gun's on the back
seat"), the judge found that Barrett's prior forceful question was
motivated by his concern for his own safety, which the judge found was entirely
justified, and was not an attempt to avoid the rights of any of the
defendants. Having seen the loaded
ammunition clip in the van‑‑which conveyed the clear message that one or more guns were probably in the van‑‑Barrett's
question to Rudolph related "to an objectively reasonable need to protect
the police ... from any immediate danger associated with the weapon,"
thereby excusing his failure to give
Miranda warnings. New York v. Quarles, 467 U.S. 649, 659 n.
8, 104 S.Ct. 2626, 2633 n. 8, 81 L.Ed.2d 550
(1984). See United States v. Eaton, 676 F.Supp. 362,
365‑366 (D.Me.1988); United States v. Thurston, 774 F.Supp. 666, 667‑668 (D.Me.1991), quoting from United States v. Doe, 878 F.2d 1546,
1552 (1st Cir.1989). See also Commonwealth v. Bourgeois, 404 Mass.
61, 66 & n. 2, 533 N.E.2d 638 (1989), citing New York v. Quarles, 467 U.S. at 657, 104 S.Ct.
at 2632, for the suggestion that objectively warranted concerns for police
safety as well as for public safety might justify not applying the Miranda rule.
In this
case, we hold that Barrett was not required to give the Miranda warnings before demanding to know where the guns were
located. As we said in Commonwealth v. Varnum,
supra at 576, 658 N.E.2d 702, quoting from Commonwealth v. Robbins, 407 Mass. 147, 152, 552 N.E.2d 77 (1990),
"[p]olice officers are 'not required to gamble
with their personal safety.' " We
should not be "penalizing officers for asking the very questions which are
the most crucial to their efforts to protect themselves and the public."
Quarles, supra at 658 n. 7, 104 S.Ct. at
2632 n. 7.
Finally,
the judge found that each defendant was informed of and understood his Miranda rights, and that the waiver by [40 Mass.App.Ct.
599] each defendant of hisMiranda rights
was knowing, intelligently done, and voluntary, all beyond a reasonable doubt.
There was
no error in the judge's denial of the defendants' motions to suppress.
Discussion‑‑motion for required
finding. The defendant Kitchings claims that the evidence was insufficient to
permit a finding that he knowingly had in his possession, or knowingly had
under his control in a vehicle, a firearm, loaded or unloaded, see G.L. c. 269, § 10.
(FN10) The established standard
of review is whether the evidence offered by the Commonwealth, together with
reasonable inferences therefrom, when viewed in its
light most favorable to the Commonwealth, was sufficient to persuade a rational
jury beyond a reasonable doubt of the existence of every element of the crime
charged.
Commonwealth v. Latimore, 378 Mass. 671,
676‑677, 393 N.E.2d 370 (1979).
[8]
"Possession implies control and power [citations omitted], exclusive or
joint [citation omitted], or, in the case of 'constructive possession,'
knowledge coupled with the ability and intention to exercise dominion and
control [citations omitted]. Possession
may often be inferred from proximity conjoined with knowledge; but the reasonableness of such an inference
depends upon the circumstances." Commonwealth v. Deagle,
10 Mass.App.Ct. 563, 567‑568, 409 N.E.2d 1347
(1980).
[9] Kitchings admitted to the police that he knew that the Glock was in the van and that it was needed for protection
during the trip north. The evidence also
showed that the three defendants had been in the van together since they
departed from South Carolina two days earlier, that Kitchings
had driven the van a portion of the way, that his friend had rented it for him,
and that he had slept in the van overnight in New York City. He slept between the seats behind the driver,
where the weapons were found. These
facts were sufficient to permit a reasonable juror to conclude beyond a
reasonable doubt that Kitchings knowingly had in his
possession, actual or constructive, or under his control in a [40 Mass.App.Ct.
600] vehicle, either alone or
jointly with others, a loaded or unloaded firearm.
There was
no error in the denial of the motion for a required finding of not guilty.
Judgments affirmed.
(FN1.) Commonwealth vs. Leon L. Dorch; Commonwealth vs. John Rudolph.
(FN2.)
Identical complaints issued against all four men; the charges against Moore were later dropped.
(FN3.)
"[Since the admissible evidence] and the facts found by the judge support
the theory relied upon by the court, it is of no consequence whether the
precise reasons assigned by the judge are accurate." Commonwealth v. Cast, 407
Mass. at 897, 556 N.E.2d 69.
(FN4.)
The judge made no explicit finding that Barrett observed that the van
"reeked" of marihuana, and that it was "fresh." Nevertheless, Barrett was the only witness
at the hearing on the motion to suppress, and the judge plainly credited
Barrett's testimony. Thus we adopt
Barrett's testimony as to certain additional facts. See
Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 562, 633 N.E.2d 1058 (1994);
Commonwealth v. Harding, 27 Mass.App.Ct.
430, 431, 539 N.E.2d 83 (1989).
(FN5.)
The judge found that yellow jacket hollow point bullets are designed to inflict
severe damage to the human body.
(FN6.)
See note 4, supra, as to this
statement by Barrett.
(FN7.)
There was also testimony, but no findings, to the effect that, as a result of a
later search of the van and the men, Barrett found $1,400 on Dorch, $800 on Kitchings, and
$600 in a pair of pants that Rudolph said were his. The four men were then placed under
arrest. They were givenMiranda warnings as they were
being transported to the barracks.
(FN8.) The judge concluded, and we agree, that
the detection of a strong, fresh odor of burnt marijuana emerging from a motor
vehicle provided probable cause to search the vehicle. See
Commonwealth v. Skea, 18 Mass.App.Ct.
685, 690 n. 8, 470 N.E.2d 385 (1984) ("It is widely accepted that the
discovery of some controlled substances gives probable cause to search for
additional controlled substances in the vicinity."); Commonwealth v. Monterosso, 33 Mass.App.Ct.
765, 769, 604 N.E.2d 1338 (1992) (probable cause established where smell of
burning marijuana is detected in a common hallway outside an apartment, and an
informant's prediction that the odor would be detected by standing immediately
outside of the suspected apartment).
Many
jurisdictions have determined that the smell of marijuana alone provides
probable cause to search an entire automobile. U.S. v. Padron,
657 F.Supp. 840 (D.Del.1987), aff'd,
857 F.2d 1466 (3d Cir.), cert. denied sub nom. Rubio v. United States, 488 U.S. 974, 109 S.Ct.
512, 102 L.Ed.2d 547 (1988). State v. Harrison, 111 Ariz. 508, 533
P.2d 1143, 1144 (1975) (officer who properly stopped car and smelled marijuana
had probable cause to make further search and to arrest driver).
State v. MacDonald, 253 Kan. 320, 856 P.2d 116, 120 (1993)
(detection of odor of fresh marijuana or marijuana smoke, standing alone,
provided probable cause for motor vehicle search following traffic checklane stop). State v. Fuente,
871 S.W.2d 438, 441 (Mo.1994) (where trooper had legitimate reason for stopping
vehicle and detected marijuana odor, trooper had probable cause to search
vehicle).
Hart v. State, 639 So.2d 1313, 1316 (Miss.1994) (police officers had
probable cause to search automobile of driver stopped for speeding, where
strong odor of marijuana was present in automobile). See also 2 LaFave,
Search and Seizure § 3.6(b), at 290‑291 (3d ed. 1996) ("the courts
have found probable cause to search when the distinctive odor of marijuana is
found emanating from a particular place and have likewise found probable cause
to arrest when the odor was detected coming from a particular
person."); Annot.,
Odor of Narcotics as Providing Probable Cause for Warrantless
Search, 5 A.L.R. 4th 681, 685 ("it frequently
has been held that detection of the odor of fresh marijuana or marijuana smoke,
standing alone, provided probable cause for searches of motor vehicles
following stops ... for investigation of possible traffic or equipment
violations"). But see People v. Hilber,
403 Mich. 312, 321‑329, 269 N.W.2d 159 (1978), upon which the defendants
rely (distinguishing among the odors of unburned, burning, and burnt marijuana,
and finding the aroma of burned marijuana to be the least probative and
insufficient to sustain probable cause in the circumstances).
(FN9.)
Commonwealth v. Couture, 407 Mass. 178, 181, 552 N.E.2d 538 (1990), cited
by Dorch, has no relevance to the facts of this case.
(FN10.) Although Kitchings
argues the sufficiency of the evidence as to all of the convictions, we do not
review his convictions for possession of ammunition and marijuana which were
placed on file. Commonwealth v. Hrycenko,
417 Mass. 309, 311‑312 & n. 2, 630 N.E.2d 258 (1994).
Commonwealth v. Mulero, 38 Mass.App.Ct. 963, 650 N.E.2d 360 (1995).