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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. Rivera, 33 Mass.App.Ct.
311 (1992)
Appeals Court of Massachusetts, Middlesex.
No. 91‑P‑1299.
Argued
Decided
Further
Appellate Review Denied
Kevin S. Nixon,
Jennifer Petersen, Sp. Asst. Dist. Atty., for Com.
Before WARNER, C.J., and KASS and LAURENCE, JJ.
KASS, Justice.
Very
aptly, the defendant has identified the question to be decided as whether a
State trooper's claimed concern for his safety was objectively reasonable in
light of the whole picture at the time he frisk‑searched the defendant. [33
Mass.App.Ct. 312]
See
We state
those facts, sometimes supplemented by uncontested testimony at the suppression
hearing, in some detail because nuance and atmospherics are important in
deciding cases of this kind.
On
Trooper
Cahill approached the stopped car from the rear. There were two men in the back seat, each
with his hands in his lap, and two in the front seat. The police officer asked the driver for his
license and registration. The driver
produced a registration which matched the license plate, but told the trooper
that he did not have his operator's license with him. Thereupon, Trooper Cahill asked the driver to
step out of the car so that he could question him further. (FN1)
As soon as they [33 Mass.App.Ct. 313]
were out of earshot of the other occupants of the car, Trooper Cahill asked the
driver his name and other identifying information. The name given by the driver (Pablo Vega)
matched the name on the car registration.
Vega told the trooper that the front seat passenger could identify him.
Trooper
Cahill returned to the car to confirm the information provided to him by the
driver. He stood beside the front door
on the passenger's side of the car to inquire further. The front seat passenger produced a
Massachusetts welfare card in response to a request for identification. He also confirmed the driver's name. While he was questioning the front seat
passenger, Trooper Cahill observed that there was an aluminum baseball bat
sticking out from under the seat between the passenger's legs. He saw no other sporting equipment in the
car. Remembering that two weeks earlier
a police officer in Lawrence had been beaten to death with an aluminum baseball
bat during a routine traffic stop, Trooper Cahill became concerned for his
safety. He called for a backup
cruiser. He also asked the front seat
passenger to step out of the car and conducted a pat frisk of that
passenger. The officer felt nothing
suggesting a weapon on that passenger and asked him to sit on the guard rail.
Rivera,
the defendant, who was sitting behind the front seat passenger, was now
clutching a "boom box" (a large radio) in his lap; it had not been on his lap previously. Again, concerned for his safety, Trooper
Cahill requested that Rivera step out of the car and attempted to conduct a pat
frisk. Although instructed (in Spanish)
by Trooper Cahill and by one of the occupants of the car to place both hands on
the trunk of the car, Rivera kept taking one of his hands off the trunk and clutching
his jacket. When the trooper managed to
conduct the pat frisk, he felt what he thought was a weapon in Rivera's
jacket. Because he was unable to locate
the item he felt in any pocket, the trooper removed the jacket and placed it on
the bumper of his police cruiser.
By this
time, Trooper Mark A. Caponette responded to the call
for backup. He searched the jacket and
found the buck knife and a large number of packets containing what he [33 Mass.App.Ct.
314] thought was heroin between the
lining and the outer shell of the jacket.
Meanwhile, Trooper Cahill pat frisked the fourth occupant of the
car. After what appeared to be heroin
was found in Rivera's jacket, all four occupants of the car were placed under
arrest.
Rivera
does not take issue with the legality of the stop. Trooper Cahill had a right to stop the car
after observing the driver speeding. See Commonwealth v. Sumerlin,
393 Mass. 127, 131, 469 N.E.2d 826 (1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985); Commonwealth v. Figueroa,
18 Mass.App.Ct. 967, 469 N.E.2d 1294 (1984). Nor does Rivera dispute that the trooper had
the authority to proceed with his investigation by approaching the passengers
after the driver failed to produce a valid license. Contrast . Commonwealth v. Ferrara, 376 Mass. 502,
381 N.E.2d 141 (1978); Commonwealth v. Loughlin,
385 Mass. 60, 430 N.E.2d 823 (1982).
[1] What
Rivera does contest is the legality of the frisk itself. A frisk is permissible when a police officer
has reason to believe, based on specific and articulable
facts, that the defendant is armed and dangerous. See
Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868,
1883, 20 L.Ed.2d 889 (1968). Commonwealth v. Silva, 366 Mass. 402, 405‑406,
318 N.E.2d 895 (1974). Commonwealth v. Cheek, 413 Mass. 492, 494‑495,
597 N.E.2d 1029 (1992). (FN2) Rivera argues that the presence of the
baseball bat in the car was not enough to cause a reasonably prudent police
officer to believe the defendant was armed and dangerous; he, therefore, contends that the frisk was
unreasonable.
[2]
Evaluation of the propriety of a frisk search, as we said at the beginning of
this opinion, involves the whole picture.
While one factor by itself may appear innocent‑‑e.g., the presence of a baseball bat‑‑and,
therefore, insufficient to support a frisk, taken in combination with other
factors, there may be the requisite reasonable apprehension about [33 Mass.App.Ct.
315] safety or a crime having been
committed. See Commonwealth v. Fraser, 410 Mass. at 545, 573 N.E.2d 979.
[3] In
addition to the baseball bat, there were several other factors which the motion
judge could have taken into account in concluding that the trooper reasonably
feared for his safety. That there were
four men in the car while Trooper Cahill was acting alone reasonably raised his
anxiety level. See Commonwealth v. Sumerlin, 393 Mass. at
131, 469 N.E.2d 826. There was no other
sporting equipment visible in the car.
(FN3) Trooper Cahill was
conscious of the recent fatal bludgeoning of a police officer with an aluminum
baseball bat while the officer had been making an apparently routine traffic
stop. There had been more than one
person in the car stopped by the slain police officer. Finally, the bat was underneath the seat in
front of Rivera who: (1) had looked
around at the trooper as soon as he put his lights on; (2) had bent forward, as if to place
something on the floor, as the trooper approached the car; (3) had access to the bat and posed a threat
to the trooper; and, (4) had placed in
his lap a boom box, in the battery compartment of which a small weapon could
have been concealed. All these factors,
taken in combination, support the judge's ultimate finding that the trooper's
fear was reasonable and, therefore, the pat frisk of Rivera outside the car was
constitutionally permissible. Compare Commonwealth v. Cheek, 413 Mass. at
492, 597 N.E.2d 1029.
As a
result, the heroin found in Rivera's jacket was not the fruit of an unlawful
search and need not have been suppressed.
See Wong Sun v. United States,
371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963). Contrast Commonwealth v. Ferrara, 376 Mass. at 505, 381 N.E.2d 141;
Commonwealth v. Loughlin, 385 Mass. at 63,
430 N.E.2d 823.
Judgment affirmed.
(FN1.) Contrast Commonwealth v. King, 389 Mass. 233, 449 N.E.2d 1217 (1983), in
which the initial stop was investigatory, and the driver's papers were in
order.
(FN2.)
The defendant asks us to consider whether, assuming the frisk was lawful under
the Fourth Amendment to the United States Constitution, the frisk violates
"the stricter requirements of art. 14 of the Massachusetts Declaration of
Rights." However, our appellate
courts have never held that the State Constitution affords the individual more
(or less) protection with respect to
Terry‑type stops and frisks. Commonwealth v. Fraser, 410 Mass. at 543
n. 3, 573 N.E.2d 979. We decline the
defendant's invitation to read art. 14 differently from the Fourth Amendment in
the circumstances of this case.
(FN3.)
When officers later opened the trunk of the car for an inventory search, they
found baseball mitts, a softball, another baseball bat, volleyballs, and
badminton racquets.