|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Lantigua, 38 Mass.App.Ct.
526 (1995)
Appeals Court of Massachusetts, Essex.
No. 93‑P‑1386.
Argued
Decided
Further Appellate Review Denied
Ronald Ian Segal,
Margaret J. Perry, Asst. Dist. Atty., for the Com.
Present:
ARMSTRONG, SMITH and LAURENCE, JJ.
ARMSTRONG, Judge.
Two police
officers on patrol in an unmarked cruiser drove by the defendant's car and the
car of a person known to them parked at the roadside. The person whom the officers knew, and of
whom they were suspicious for reasons not put in evidence, was walking toward
the defendant's car. The officers
reversed direction to return to the scene and saw the defendant's car pulling
away "at a fairly good rate of speed." They followed the defendant's car in the
cruiser and observed it drive through a stop sign at an intersection, slowing
but not stopping, and turn into the parking
[38 Mass.App.Ct. 527] lot of an apartment building.
The two officers, now pursuing with the intent of stopping the
defendant's car for the traffic violation, drove into the lot after him. The defendant parked his car. The officers, pulling up behind him, saw the
defendant lean forward and down to the right before he got out of the car. The officers, who were not in uniform,
identified themselves as police and asked to see the defendant driver's license
and registration. The defendant was
unable to produce a license. He offered
to get the registration from the glove compartment, but one of the officers, as
a safety precaution, wanted to look into the car first. The officer opened the driver's door, leaned
across the seat toward the glove compartment and observed plastic bags
containing white powder on the floor.
The powder appeared to the officer, an experienced narcotics
investigator, to be cocaine‑‑a fact verified by subsequent
testing. He then opened the console and
found another bag of white powder. From
the glove compartment, he obtained the registration which was in the name of a
person other than the defendant. The
officers then formally arrested the defendant for possession of cocaine, citing
him also for operating without a license and failing to stop at a stop sign. The facts set out above are, in essence,
those found by the judge, warrantably, on the
evidence introduced at the suppression hearing.
After the
powder was tested and weighed, the defendant was indicted for trafficking in
cocaine and was convicted. The appeal,
raises, as the principal issue, the judge's denial of the defendant's motion
to suppress the cocaine.
[1][2] The
entry into the car was lawful. The case
comes within the authority of such cases as
Commonwealth v. Almeida, 373 Mass. 266, 270‑273, 366 N.E.2d 756
(1977);
Commonwealth v. Ferrara, 376 Mass. 502, 504‑505, 381 N.E.2d
141 (1978); Commonwealth v. Sumerlin,
393 Mass. 127, 129‑131, 469 N.E.2d 826 (1984), cert. denied, 469 U.S.
1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985); and
Commonwealth v. Robbins, 407 Mass. 147, 151‑152, 552 N.E.2d 77
(1990). See also Commonwealth v. Silva, 366 Mass. 402, 405‑410, 318 N.E.2d
895 (1974). The officers had seen a
traffic violation, which justified stopping the defendant's car and asking to
see the defendant's driver's license and automobile registration. [38 Mass.App.Ct.
528]
(The fact that he had already stopped and had exited from the car did
not terminate their authority in this regard.)
The defendant's inability to produce a license was itself a criminal
offense (see G.L. c. 90, § 11 [operating without a
license in possession]; § 10 [operating
without having been issued a license]; §
23 [operating after suspension or revocation of license] ) and gave the
officers probable cause to arrest him (see G.L. c.
90, § 21). See generally Nolan &
Henry, Criminal Law §§ 582, 583 (2d ed. 1988).
Inability to produce a license or a registration reasonably gives rise
to a suspicion of other offenses, such as automobile theft, and justifies
heightened precautions for the officers' own safety.
[3] Faced
with this situation, the officer's entry into the car was justified on either
of two rationales. First, prior to
allowing the defendant to reenter the car to obtain the registration, the
officers could properly effect a Terry‑type
search of the areas of the car which would be readily accessible to the
defendant on reentering. The purpose of
the search would be protective only, analogous to a pat frisk of the
defendant's person for weapons. The
reasonableness of a scan for weapons turns, we think, not so much on the
finding that the defendant bent down and to the right before leaving the car,
(FN1) but on the particular danger to an officer when the person he is
investigating is seated in a car with his movements concealed from the
officer's view. The same concerns that
allow an officer investigating a traffic violation to order the driver out of
the car for the officer's safety,
Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), also allow a limited
search of the passenger compartment for weapons before the passenger reenters
the car to obtain the registration.
Courts [38 Mass.App.Ct. 529]
cannot be oblivious to the recent escalation in the numbers of incidents
reported wherein police officers have been killed or wounded while performing
routine traffic functions. "[W]e
think it crucial to remember that, as shown by many staged climaxes to
threshold police inquiries, 'the answer might be a bullet' " Commonwealth v. Silva, supra at 407,
318 N.E.2d 895, quoting from Terry v.
Ohio, 392 U.S. 1, 33, 88 S.Ct. 1868, 1886, 20
L.Ed.2d 889 (1968) (Harlan, J., concurring).
In such encounters officers must be allowed to take reasonable
precautions for their own safety. Commonwealth v. Ferrara, 376 Mass. 502,
505, 381 N.E.2d 141 (1978).
[4]
Second, the officers could properly have entered the passenger compartment,
including the glove compartment, to retrieve the registration themselves. In
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469,
77 L.Ed.2d 1201 (1983), where the court approved the extension of Terry searches for weapons into the
passenger compartment of a stopped car, Justice Brennan, a dissenter, suggested
that, rather than permitting a driver already outside the car to reenter for
the purpose of obtaining the registration, an investigating officer, as a less
intrusive alternative to a Terry
search of the car, could determine from the driver where in the vehicle the
registration was located and then enter the car for the limited purpose of
getting it himself. Id. at 1065 n. 7, 103 S.Ct.
at 3489 n. 7. Compare Cotton v. United States, 371 F.2d 385,
393 (9th Cir.1967), United States v.
Powers, 439 F.2d 373, 375 (4th Cir.), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971), and Commonwealth v. Navarro, 2 Mass.App.Ct.
214, 217‑221, 310 N.E.2d 372 (1974), all decisions approving police
entries into vehicles for the limited purpose of ascertaining vehicle ownership
or place of origin through the vehicle identification number or the inspection
sticker.
[5] On
either rationale the officer's entry into the car was justified. When he observed bags of cocaine powder
partially visible on the floor, the officer was justified in seizing them and
in searching for additional contraband.
See Commonwealth v. Skea, 18 Mass.App.Ct. 685,
688, 689‑690 & n. 8, 470 N.E.2d 385 (1984). The motion to suppress the cocaine was
correctly denied.
[6] [38 Mass.App.Ct.
530] There is no merit to the
defendant's further contention that his motion for a required finding of not
guilty should have been allowed. The
judge, as finder of fact, was not required to believe the defendant's story
that he had borrowed the car and that the cocaine belonged to its owner. The evidence that some of the cocaine was
located in areas of the car within the driver's easy reach, partially in plain
view, brings this case within the authority of Commonwealth v. Albano, 373 Mass. 132,
135‑136, 365 N.E.2d 808 (1977).
Contrast facts in Commonwealth v.
Garcia, 409 Mass. 675, 687, 569 N.E.2d 385 (1991).
Judgment affirmed.
(FN1.) The reason we do not give weight to
this finding is that the defendant seems not to have realized that he was being
pursued by the police until after he got out of the car. Therefore, the line of decisions that suggest
that furtive movements in response to a stop or chase may give a police officer
particular reason for concern, see
Commonwealth v. Silva, 366 Mass. at 407, 318 N.E.2d 895;
Commonwealth v. Moses, 408 Mass. 136, 138, 143, 557 N.E.2d 14
(1990);
Commonwealth v. Tompert, 27 Mass.App.Ct. 804, 805, 809, 544 N.E.2d 226 (1989), may not
be relevant.