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CPS Commonwealth
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Commonwealth v. Robles, 48 Mass.App.Ct.
490 (2000)
Appeals Court of Massachusetts, Hampden.
No. 98‑P‑1902.
Argued
Decided
Thomas F. McGuire for the defendant.
Sidney E. Reavey,
Assistant District Attorney, for the Commonwealth.
Present:
ARMSTRONG, SMITH, & BROWN, JJ.
SMITH, J.
In
January, 1996, the defendant, Ricardo Robles, was indicted for unlawful
possession of a firearm (third offense), and unlawful possession of
ammunition. After a jury‑waived
trial, the defendant was found guilty of so much of the firearm indictment as
charged a second offense, and guilty of possession of ammunition.
Prior to
trial, the defendant filed a motion to suppress the firearm which had been
seized from a vehicle in which he was a passenger. The defendant had been ordered out of the
vehicle by the police after they had stopped it for a traffic violation. The defendant was pat frisked and the police
discovered an [48 Mass.App.Ct. 491]
empty shoulder holster. As a result of a
search of the vehicle a firearm was found near where the defendant had been
sitting. The defendant thereafter fled
on foot, but was subsequently arrested.
The
suppression motion and accompanying affidavit, which were both drafted in
general terms, (FN1) claimed that the stop of the vehicle, the order of the
police to exit the vehicle, the frisk of the defendant, and his arrest,
violated both the Federal and Massachusetts Constitutions. After an evidentiary hearing, the judge
denied the motion. On appeal, the
defendant raises one issue‑‑the denial of his suppression motion.
We
summarize the facts as found by the motion judge after the hearing on the
defendant's suppression motion, supplemented by uncontested facts.
Commonwealth v. Sullo, 26 Mass.App.Ct. 766, 767 n. 1, 532 N.E.2d 1219 (1989).
On
December 23, 1995, at approximately 8:00 P.M., a Holyoke police officer, Brian Chirgwin, observed a vehicle in which the defendant was a
passenger run a stop sign at the corner of Commercial and Cabot Streets. He activated his cruiser's overhead lights
and stopped the vehicle about two blocks away.
As the officer approached the driver's side, he saw that four men were
in the vehicle, two in the front and two in the back. The officer requested the driver's license and
vehicle's registration. Upon receiving
the items he noticed that the passenger in the left rear seat had his hands
hidden from view and that the other passengers were moving about within the
vehicle. Conscious that the location
where the vehicle had stopped was a high crime area that had been the scene of
several shootings, the officer instructed all of the occupants to show their
hands, while he checked the driver's license and registration.
Another
Holyoke police officer, Paul Kelly, then arrived to assist Chirgwin. Kelly recognized the vehicle as one he had
previously seen in a location near where the police had conducted a search of a
number of persons as part of an [48 Mass.App.Ct.
492] unrelated incident. He had seen the vehicle drive away from that
scene with its lights off, but was unable to follow the car because he had to
respond to another radio dispatch.
Kelly
approached the passenger side of the vehicle.
He noticed that the front seat passenger, the defendant, appeared
nervous and was leaning forward, reaching between his legs to the floor. Upon observing this activity, Kelly told the
defendant to keep his hands on the dashboard where Kelly could see them. The defendant replied "I am, I
am." Meanwhile, a crowd began to
gather around the car. The occupants of
the car spoke to members of the crowd in a language which the officers did not
understand.
Kelly
again noticed that the defendant was leaning forward in the same manner as
before. Kelly became concerned that the
defendant might have a weapon. Because
of (1) the gathering crowd, (2) the conversation between the occupants and the
crowd in a language which neither officer understood, (3) the officers'
knowledge of prior shootings in the area, and (4) the movements of the defendant
and the others in the car, both officers became concerned for their safety and
decided to be certain that none of the occupants were armed while the validity
of the driver's license and vehicle's registration were being checked.
Chirgwin requested the occupants to leave the vehicle one
by one so they could be pat frisked at the rear of the car. The two passengers in the rear of the vehicle
were the first ones frisked, and nothing was found on either. They were allowed to get back into the
car. Because of Kelly's observations of
the defendant's movements (leaning forward, reaching down between his legs and
moving his hands from the officer's sight), he was requested to back out from
his seat and walk to the rear of the vehicle.
The defendant complied. Both
officers frisked the defendant. Chirgwin felt something bulky under the defendant's left
arm. He called Kelly's attention to
it. Kelly felt it and recognized it as a
shoulder holster. They opened the
defendant's jacket and saw an empty shoulder holster. Kelly then went back to the vehicle and using
his flashlight, observed the butt of a handgun in the front passenger
area. To warn Chirgwin,
Kelly yelled "gun," at which point the defendant fled. A pursuit ensued and the defendant was apprehended
in a nearby dumpster. A semi‑automatic
pistol was removed from the floor of the vehicle near where the defendant had
been seated.
[48 Mass.App.Ct.
493] The main thrust of the
defendant's argument is that the police did not have a reasonable belief that
they were in danger when they ordered the defendant to leave the vehicle.
[1][2] The
initial stop of the vehicle was justified because Chirgwin
had observed it drive through a stop sign in violation of G.L.
c. 89, § 9. "Where the police have
observed a traffic violation, they are warranted in stopping a vehicle."
Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E.2d 717 (1995),
quoting from Commonwealth v. Bacon,
381 Mass. 642, 644, 411 N.E.2d 772 (1980).
[3][4][5]
"When police are justified in stopping an automobile, they may, for their
safety and the safety of the public, order the occupants to exit the
automobile.... To determine whether the
order was justified, we ask 'whether a reasonably prudent man in the
policeman's position would be warranted in the belief that the safety of the
police or that of other persons was in danger.' " Commonwealth v. Williams,
46 Mass.App.Ct. 181, 182‑183, 704 N.E.2d 212
(1999), quoting from Commonwealth v.
Santana, 420 Mass. at 212‑213, 649 N.E.2d 717. Commonwealth v. Vazquez,
426 Mass. 99, 102‑103, 686 N.E.2d 993 (1997). Therefore, we must consider whether a
reasonable belief existed in this matter, recognizing that "[w]hile a mere hunch is not enough, see Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974),
it does not take much for a police officer to establish a
reasonable basis to justify an exit order or search based on safety
concerns." Commonwealth v. Gonsalves,
429 Mass. 658, 664, 711 N.E.2d 108 (1999).
[6] Here,
the officers pointed to specific and articulable
facts which demonstrate the reasonableness of their action in ordering the
defendant out of the car. The police
were aware that there had been several shootings in the area, the defendant
failed to obey Kelly's instructions to keep his hands in sight, and the
occupants of the vehicle were speaking in a language that the officers did not
understand to members of a crowd that had gathered. In these circumstances, reasonably prudent
persons in the police officers' position would have believed that they were in
danger. Therefore, the officers were
justified in ordering the defendant out of the vehicle for the purpose of pat
frisking him. (FN2)
[7][8] As
a result of finding the empty holster, the police had [48 Mass.App.Ct. 494] justification for searching the vehicle for the missing gun. The discovery of the firearm and its location
near where the defendant had been sitting, coupled with the defendant's flight
provided probable cause to arrest the defendant.
Order denying defendant's motion to suppress
affirmed.
(FN1.) Counsel are reminded that Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979), requires
that a suppression motion "shall state the grounds on which it is based
and shall include in separately numbered paragraphs all reasons, defenses, or
objections then available, which shall be set forth with particularity.... In addition, an affidavit detailing all facts
relied upon in support of the motion and signed by a person with personal
knowledge of the factual basis of the motion shall be attached." Here, if we look at the motion and the
affidavit with an indulgent view, they barely pass the requirements set forth
in the rule.
(FN2.)
The defendant argues that once the police had verified the driver's license and
the vehicle's registration, they had no further basis to detain the vehicle
and, therefore, there was no reason to issue exit orders to the
passengers. He cites Commonwealth v. Torres, 424 Mass. 153, 154‑155, 157‑164,
674 N.E.2d 638 (1997), and Commonwealth
v. Ellsworth, 41 Mass.App.Ct. 554, 556‑557,
671 N.E.2d 1001 (1996), in support of his arguments.
Those
decisions are not relevant here because the undisputed facts show that the
police were not able, because of the on‑going situation before them, to
check the driver's license and vehicle's registration until after the defendant's arrest.
See Commonwealth v. Santana,
420 Mass. at 213, 649 N.E.2d 717 (in the circumstances, police officer was
justified in ordering driver out of vehicle before verifying license and
registration).