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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. Moses, 408
Supreme Judicial Court of Massachusetts,
Argued
Decided
Joseph J. Balliro,
Roger A. Cox,
Daniel M. Marposon, Asst.
Dist. Atty., for Com.
Before [408
ABRAMS, Justice.
The
defendants each were indicted for trafficking in cocaine (more than 200 grams),
conspiracy to violate the controlled substances laws, unlawful possession of a
Class "C" controlled substance with intent to distribute, and four
counts of unlawfully carrying a firearm in a motor vehicle. After a hearing, a Superior Court judge
denied the defendants' motions to suppress evidence (firearms and drugs) seized
in a warrantless search of an automobile. A single justice of this court allowed the
defendants' applications for interlocutory appeal. See Mass.R.Crim.P.
15(b)(2), 378
We
summarize the findings of fact from the judge's decision and order. Officer Robert F. Butler of the
From fifty
feet away,
Continuing
his patrol, from twenty‑five to thirty feet away,
Butler
approached the driver's side of the automobile for the purpose of "mak [ing] an inquiry," and
demanded that the driver, Joseph I. Laterra, shut off
the engine and give him (Butler) the keys.
Laterra complied. Butler then ordered all of the men to keep
their hands in sight.
Coincidentally,
two other police officers also on routine patrol, Daniel J. Coleman and Kevin Roddy, arrived at the scene. Coleman parked his cruiser behind the Mercury
in such a way that the Mercury could not back up. Butler told Coleman to remove Moses from the
front passenger seat. When Moses rose
from the seat, Coleman observed a small plastic envelope containing a white
powder, which Coleman believed to be cocaine, lying on the seat where Moses had
been sitting. Coleman moved Moses away
from the Mercury, patted down the exterior of his clothing, and handcuffed him.
The judge
found that "Butler suspected that Moses' gesture below the dashboard was
an attempt to conceal an object" and he feared that the object might be a
weapon. Butler looked in the area where
Moses was sitting and found a loaded .357 magnum handgun under the seat. He seized the weapon and informed Moses that
he was under arrest. Laterra
and Robert P. Cohn, the back seat passenger were removed from the automobile,
patted down, and placed [408 Mass.
139] under arrest. The defendants were handcuffed and moved away
from the automobile.
Assisted
by Ben Leong and Ed Walsh, both members of the Boston
police department's drug task force who stopped while passing by, the officers
opened the Mercury's trunk by releasing an electronic latch in the glove
compartment. In the trunk, the officers
found several containers and a man's suit covered with what appeared to be
paint chips. An open box contained an
electronic scale of the type commonly associated with drug sales.
Three
closed containers were visible in the trunk.
A closed, but unlocked, briefcase contained nine large plastic bags
containing a white rock‑like substance, three plastic bags of pills, and
a plastic container. When the officers
opened the plastic container, they found another bag containing a rock‑like
substance and a .38 caliber handgun. A
black, unlocked briefcase contained personal papers of Laterra. The officers pried a locked grey case open
one to one and one half inches and observed a gun inside. Subsequently, the lock was cut at the
station.
The
defendants argue that "Butler lacked the reasonable, articulable
suspicion of criminal conduct required for a threshold inquiry of the occupants
of the Mercury." They claim that
Butler "had only seen activity which was completely consistent with lawful
and innocent behavior and was, at most, operating on a hunch in investigating
the Mercury." (FN2) They conclude that Butler's initiation of an
investigatory inquiry was not reasonable.
We do not agree.
[408 Mass. 140] [1][2][3] "In 'stop and frisk' cases our inquiry is two‑fold: first, whether the initiation of the investigation
by the police was permissible in the circumstances, and, second, whether the
scope of the search was justified by the circumstances."
Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895
(1974). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct.
1868, 1879, 20 L.Ed.2d 889 (1968).
"A police officer may stop a vehicle in order to conduct a
threshold inquiry if he has a reasonable suspicion that the occupants have
committed, are committing, or are about to commit, a crime. His suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom. A hunch
will not suffice." Commonwealth v. Wren, 391 Mass. 705, 707,
463 N.E.2d 344 (1984), and cases cited.
See Terry, supra 392 U.S. at
21, 88 S.Ct. at 1879; Commonwealth v. Helme, 399 Mass. 298, 301, 503 N.E.2d 1287 (1987);
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141
(1978). The motion judge ruled that
"[Butler] had reason to suspect that a drug transaction was taking place."
We agree. Butler knew from his
own experience that Washington Street was in a high crime area. He saw four black or Latino men standing near
an automobile parked next to the sidewalk with its motor running. The men on the sidewalk appeared to be
interacting in some way with three white men who sat in the automobile. On making eye contact with Butler, (FN3) all
four of the black or Latino men quickly dispersed in two different
directions. One of the occupants of the
automobile, on making eye contact with Butler, immediately ducked under the
dashboard, completely out of Butler's sight.
The facts were sufficient for a threshold inquiry and as ample as those
in other cases in which we have upheld threshold inquiries. See, e.g.,
Commonwealth v. Wren, 391 Mass. 705, 707‑708, 463 N.E.2d 344 (1984);
Commonwealth v. Moynihan, 376 Mass. 468, 470‑471, 381 N.E.2d
575 (1978); Commonwealth v. Almeida, 373 Mass. 266,
268, 366 N.E.2d 756 (1977).
[408 Mass. 141] [4] The defendants argue that "when Officer Butler seized
the car keys from the defendants, he arrested them without probable
cause." (FN4) The motion judge stated that "[t]his
court does not ignore the fact that the action by the police of taking the car
keys from Laterra may be interpreted as tantamount to
arrest. See Commonwealth v. Brillante, 399 Mass.
152, 503 N.E.2d 459 (1987); Commonwealth v. O'Connor, 21 Mass.App.Ct. 404, 487 N.E.2d 238 (1986). By taking the car keys at the moment of the
initial inquiry, the police exerted complete control over the defendants, and
may have created an impression in their eyes, as in the eyes of any reasonable
person in this situation, that they were not free to leave. [Citations omitted.] However, it is common knowledge that a person
who wants to avoid police questioning, very often will recklessly drive away,
resulting in serious injury to the police officer and bystanders. See
United States v. Harley, 682 F.2d 398 (2d Cir.1982). When Butler ordered Laterra
to turn off the ignition and surrender the keys, he was acting as a reasonably
prudent police officer, and his actions were similar to and consistent with the
protective measures that have been sanctioned in Terry and Silva." We agree with the judge. The taking of the keys in the circumstances
was a reasonably prudent protective measure and did not change the
investigative stop into an arrest.
The
pertinent inquiry is whether the degree of intrusion is reasonable in the
circumstances. The degree of
intrusiveness that is permitted is that which is "proportional to the
degree of suspicion that prompted the intrusion." Commonwealth v. Borges, 395
Mass. 788, 794, 482 N.E.2d 314 (1985).
As he approached the [408
Mass. 142] car, Butler feared that
Moses had access to a weapon. Butler
kept his own gun holstered, although he rested his hand on the gun's
handle. (FN5) See
Commonwealth v. Bottari, supra 395 Mass. at
781, 482 N.E.2d 321. At the moment when
Butler asked for the keys, he was outnumbered by the defendants, three to
one. He suspected that Moses's furtive movement was an attempt to conceal a
weapon. Butler testified that he told
Moses to turn the automobile's engine off and to give him the keys "[b]ecause [he] had a fear at that time that there may be
possibly a weapon involved here."
We conclude that Butler's action in asking for and taking the keys was
proportionate to the circumstances and involved no more intrusion than would
have occurred had he ordered the defendants out of the automobile or blocked it
with his cruiser. The effect was the
same: the defendants temporarily could
not move the car.
We
recognize that car stops present special public safety considerations. "[W]hen approaching a stopped car, a
police officer is to some degree impaired in seeing whether a person therein
may be drawing a gun." Commonwealth v. Fitzgibbons, 23 Mass.App.Ct. 301, 306, 502 N.E.2d 142 (1986), citing United States v. Harley, 682 F.2d 398
(2d Cir.1982). In a justified stop,
officers may take reasonable precautions for their own safety, including
"ordering occupants out of a car for questioning."
Commonwealth v. Robbins, 407 Mass. 147, 151‑152, 552 N.E.2d 77
(1990), quoting Commonwealth v. Ferrara,
376 Mass. 502, 505, 381 N.E.2d 141 (1978), citing Pennsylvania v. Mimms, 434 U.S. 106,
111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977). Police officers are "not required to
gamble with their personal safety." Id. 407 Mass. at 152, 552 N.E.2d 77.
[5]
Moreover, in some circumstances, the blocking of a suspect's automobile with
one or more cruisers so that the automobile[408
Mass. 143] cannot move would not be, by itself, so
intrusive as to change an otherwise lawful
Terry stop into an arrest.
(FN6) See Commonwealth v. Wren, 391
Mass. 705, 707, 463 N.E.2d 344 (1984); Commonwealth v. Riggins, 366 Mass. 81,
86‑87, 315 N.E.2d 525 (1974).
"We think the police could act on a probability that the occupants
of the car, conscious of guilt and fearing imminent exposure, would, unless
blocked [or otherwise temporarily immobilized], attempt flight, with danger to
the public, the police racing in pursuit, and the occupants themselves. Examples of these dangers appear in the
cases. See Commonwealth v. Fitzgibbons [23 Mass.App.Ct.],
301, 305‑306 [502 N.E.2d 142] (1986); United States v. Harley, 682 F.2d 398,
401‑402 (2d Cir.1982); [United States] v.
Jones, 759 F.2d 633, 638 (8th Cir.), cert. denied [474 U.S. 837], 106 S.Ct. 113 [88 L.Ed.2d 92] (1985)." Commonwealth v. Blake, 23 Mass.App.Ct. 456, 460, 503 N.E.2d 467 (1987). See Commonwealth v. Reed, 23 Mass.App.Ct. 294, 298, 502 N.E.2d 147 (1986). See also United States v. Vargas, 633 F.2d 891,
896 (1st Cir.1980); United States v. Marin, 669 F.2d 73, 81
(2d Cir.1982).
[6] The
defendants argue that the warrantless search of the
passenger compartment and the trunk of the Mercury and the containers found
inside the trunk was unsupported by probable cause and therefore violated the
Fourth and Fourteenth Amendments to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights.
The motion judge concluded that "[b]ased
on Butler's observations of the apparent transaction between the parties,
seeing the passenger make a possible gesture of concealment and knowing drug
trafficking is fraught with violence, ... Butler was also justified in
conducting a protective search of the suspects and the area from which they
might obtain a weapon. Silva, 366 [Mass] at 408 [318 N.E.2d
895]." The judge's findings and
rulings
are amply supported by the
evidence. Thus, there is no merit to the
defendants' argument.
[408 Mass. 144] "[T]he officers could take reasonable precautions for their
own protection. Such precautions may
include ordering occupants out of a car for questioning. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct.
330, 333, 54 L.Ed.2d 331 (1977). They
also may include a search extending into the interior of an automobile, but
they are 'confined to what is minimally necessary to learn whether the suspect
is armed and to disarm him once the weapon is discovered.' " (FN7) Robbins, supra 407 Mass. at 151‑152,
552 N.E.2d 77, citing Ferrara, supra
376 Mass. at 505, 381 N.E.2d 141, quoting
Almeida, supra 373 Mass. at 272, 366 N.E.2d 756. Further, the protective search here was
"confined in scope to an intrusion reasonably designed to discover" a
weapon that could have been concealed by Moses beneath the dashboard.
Silva, supra 366 Mass. at 408, 318 N.E.2d 895. See
Robbins, supra; Brillante, supra 399 Mass. at
155, 503 N.E.2d 459; Commonwealth v. Sumerlin,
393 Mass. 127, 130, 469 N.E.2d 826 (1984).
While removing Moses from the car in order to conduct the protective
search, Coleman saw a packet of cocaine in plain view on the passenger seat
where Moses had been sitting. Butler, in
investigating the object that he had observed Moses concealing, found a loaded
handgun.
[7] The
motion judge ruled that because "the officers had justification to conduct
the threshold inquiry and the subsequent protective search of the car and its
occupants, the contraband they discovered was lawfully seized. Although a protective search must be limited
in scope, the discovery of illegally possessed firearms and drugs justified the
further search of every portion of the vehicle, including the parts capable of
concealing other contraband or weapons....
The police therefore were justified in searching the trunk and the
containers and the drugs and weapons discovered there were lawfully
seized." See Commonwealth v. Jiminez, 22 Mass.App.Ct. 286, 290‑291, 493 N.E.2d 501 (1986),
citing United States v. Ross, [408 Mass. 145] 456 U.S. 798, 825, 102 S.Ct. 2157,
2173, 72 L.Ed.2d 572 (1982). Once the
officers discovered the cocaine and the handgun pursuant to the protective
search, they had probable cause to search the entire automobile, including the
passenger compartment and the trunk, for contraband and weapons. See
Commonwealth v. Bongarzone, 390 Mass. 326, 350,
455 N.E.2d 1183 (1983). (FN8)
[8] The warrantless search of the closed containers found in the
trunk under the "automobile exception" to the warrant requirement of
the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights was
lawful. "'[I]f probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its
contents that may conceal the object of the search.' (Emphasis added.) United States v. Ross, supra
[456 U.S.] at 825 [102 S.Ct. at 2173]. See
Commonwealth v. Cast, supra [407 Mass. 891] at 906‑908 [556 N.E.2d 69
(1990)]; Commonwealth v. King, 389
Mass. 233, 247 [449 N.E.2d 1217] (1983); Commonwealth v. Jiminez,
22 Mass.App.Ct. 286, 291 [493 N.E.2d 501]
(1986)." Commonwealth v. Wunder,
407 Mass. 909, 913, 556 N.E.2d 65 (1990).
"[U]nder art. 14, as under the Fourth
Amendment, a lawful warrantless search of a motor
vehicle, based on probable cause to search the vehicle, [lawfully stopped]
extends to all containers, open or closed, found within."
Commonwealth v. Cast, supra 407 Mass. at 908, 556 N.E.2d 69. See
Commonwealth v. Wunder, supra 407 Mass. at 915,
556 N.E.2d 65. (FN9)
[408 Mass. 146] [9] Butler testified that "[t]here was a gray plastic case
... in the trunk of the vehicle. [He]
took that out. It was locked ... [with
a] combination lock on it. [Butler] was
able to open up the case maybe an inch, an inch and a half" so that he
could look inside and he "was able to see at least one more gun.... As a result of that, [he] took custody of
[the case] and placed [it] at [his] foot [along with the other containers].... The vehicle was brought back to the police
station where it was thoroughly searched ... [and] subsequently towed
away.... [B]ack
at the station ... Roddy obtained a bolt cutter ...
[and they] cut the combination lock and opened up the gray plastic
case." Inside they found two
handguns and ammunition. Butler partially
opened the case and saw one gun.
Although the case was not completely opened until it was at the police
station, because the search began at the automobile, it was still governed by
the automobile exception. A reasonable
delay in a warrantless automobile search does not
violate the Fourth Amendment or art. 14.
See United States v. Johns,
469 U.S. 478, 485‑487, 105 S.Ct. 881, 885‑87,
83 L.Ed.2d 890 (1985); Chambers v. Maroney,
399 U.S. at 46‑52, 90 S.Ct. at 1978‑81,
26 L.Ed.2d 419 (1970). "The practical
effect of the opposite conclusion would only be to direct police officers to
search immediately all containers
that they discover in the course of a vehicle search" (emphasis supplied).
Johns, supra 469 U.S. at 486, 105 S.Ct. at
886.
We affirm
the judge's decision and order denying the motion to suppress. (FN10)
We remand the case to the Superior Court for trial.
So ordered.
(FN1.) The other defendants are Robert P. Cohn
and Joseph I. Laterra.
(FN2.)
The defendants note that Butler did not actually see anything pass between the
defendants or the men standing outside the car.
They claim that the actions of the men standing near the automobile were
consistent with any number of innocent activities; that "after sighting Officer Butler
approaching, these individuals did not run, but walked away in different
directions, in a fashion inconsistent with any involvement in criminal
activity, and displaying no consciousness of guilt"; that when Moses leaned forward so that he was
completely out of Butler's sight, "he may or may not have been attempting
to conceal anything"; that none of
the other defendants made any movement;
and that the Mercury was parked on Washington Street at rush hour,
"not at a time consistent with suspicious or criminal activity."
(FN3.)
Of course, "[a]n attempt to avoid contact with an observation by the
police, while not enough in itself to justify a suspicion, may be considered
along with other facts; an attempt to
elude the police once pursuit begins may not be considered. See
Commonwealth v. Thibeau, 384 Mass. 762, 764 [429
N.E.2d 1009] (1981); Commonwealth v. Bacon, 381 Mass. 642 [411
N.E.2d 772] (1980)." Commonwealth v. Wren, 391 Mass. 705, 708
n. 2, 463 N.E.2d 344 (1984).
(FN4.)
Relying principally on Commonwealth v. Bottari, 395 Mass. 777, 482 N.E.2d 321 (1985), Cohn and
Laterra argue that when Coleman and Roddy positioned the second police cruiser at the rear of
the Mercury, the defendants were under arrest.
We do not agree. We concluded
that an arrest occurred in Bottari when the officers blocked a suspect's car; approached it with their guns drawn and
ordered the suspects out of the car at gun point, although their use of force
was not precipitated by any actions of the defendant; and the officers did not fear for their
safety or the safety of others. Bottari, supra
at 782, 482 N.E.2d 321. Here, the
officers did not draw their guns, did not order the defendants out at gun point
and at least one officer, Butler, feared for his safety.
(FN5.)
The defendants claim that Butler "displayed a show of force in support of
his authority by placing his hand on his gun." We do not agree. We have found a show of force where officers
have drawn their guns. See, e.g., Bottari, supra
395 Mass. at 781‑782, 482 N.E.2d 321.
Rather than constituting a show of police force, Butler's action in
resting his hand on his holstered gun indicates that he was aware of the risk
that he found himself in as he approached the car and that he feared that Moses
may have been armed. See Commonwealth v. Ballou,
350 Mass. 751, 756‑757, 217 N.E.2d 187 (1966), cert. denied, 385 U.S.
1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967);
United States v. Jackson, 652 F.2d 244, 249‑250 (2d Cir.1981).
(FN6.)
" '[B]locking generally will be
reasonable when the suspect is in a vehicle because of the chance that the
suspect may flee upon the approach of police with resulting danger to the
public as well as to the officers involved.' " Commonwealth v. Fitzgibbons,
23 Mass.App.Ct. 301, 304, 502 N.E.2d 142 (1986),
quoting United States v. Jones, supra .
(FN7.) The defendants Cohn and Laterra argue that Butler should have requested
identification from the defendants and "[o]nce
that identification was verified, the officer's investigation should have been
completed forbidding further restraint and search." Commonwealth v. Loughlin, 385 Mass. 60, 430 N.E.2d 823 (1982), on which
the defendants rely, does not prohibit a police officer from conducting a valid
protective search prior to conducting a justifiable threshold inquiry.
(FN8.) The defendants Cohn and Laterra argue that "the discovery of contraband and a
weapon in the front seat passenger side of the vehicle could not have given
rise to a reasonable inference that the search of the trunk of the vehicle ...
[c]ould be a lawful threshold inquiry." They conclude that the search exceeded the
scope of a valid Terry stop. They also claim that the search of the trunk
was not a lawful search incident to an arrest.
See G.L. c. 276, § 1 (1988 ed.). Their arguments fail because the search of
the trunk was not made pursuant to Terry
or the statute, but was a valid search pursuant to the automobile exception to
the warrant requirement after having found contraband and therefore was based
in probable cause. See Chambers v. Maroney,
399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970);
Carroll v. United States, 267 U.S. 132, 45 S.Ct.
280, 69 L.Ed. 543 (1925).
(FN9.) "We note that a different question
arises under art. 14 upon the warrantless opening of
a closed, locked or unlocked, container found during an inventory search of a
motor vehicle." Cast, supra 407 Mass. at 908, n. 5, 556
N.E.2d 69.
(FN10.) Citing United States v. Ross, 456 U.S. 798, 102 S.Ct.
2157, 72 L.Ed.2d 572 (1982), the defendants Cohn and Laterra
argue that the search of the trunk and containers found therein required
"the existence of probable cause to believe that the vehicle contained
drugs and/or weapons prior to the stop."
We do not agree. We read Ross to require that probable cause
exist prior to the search of a lawfully stopped vehicle, but it does not
require that probable cause exist prior to the stop itself. See
Ross, supra at 825, 102 S.Ct. at 2173;
Commonwealth v. King, 389 Mass. 233, 243‑247, 449 N.E.2d 1217
(1983);
Commonwealth v. Jiminez, 22 Mass.App.Ct. 286, 290‑291, 493 N.E.2d 501 (1986).