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Opinions of The and the Court of Appeals To be used in conjunction
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Commonwealth v. Santana, 420
Supreme Judicial Court of
Massachusetts,
Argued
Decided
Daniel W. Rice, Westwood, for Hector R. Santana.
Jane E. Ross,
John E. Bradley, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS,
ABRAMS, LYNCH and GREANEY, JJ
ABRAMS, Justice.
On the
afternoon of
After the
automobile stopped, Brooks approached the driver's side, where Santana was
sitting, and Gordon approached the passenger's side, where Suozo was sitting. The vehicle's ignition was hanging from its
damaged steering column. When Brooks
asked about the ignition, Santana responded that he owned the automobile. Because Brooks thought that the vehicle could
be a stolen automobile and did not want to risk a chase, Brooks told Santana to
get out of the vehicle. Brooks and
Santana went to the back of the automobile.
Brooks thereafter verified Santana's license and registration.
[420
Both
defendants were charged with trafficking in cocaine. The defendants filed identical motions to
suppress the evidence found in the automobile.
The same judge heard both motions and denied them. He issued identical findings on both
motions. The defendants were tried
separately. Both defendants were
convicted. The defendants appealed. We transferred the cases here on our own
motions and have now consolidated the appeals.
We affirm the judgments.
[1] 1. Pretext. The defendants argue that the judge erred in
admitting in evidence items seized from the automobile because the troopers
used the broken taillight as a pretext to stop and search the automobile. The motion judge determined that "the
stop of the vehicle for defective equipment was a matter of routine standard
police procedure." The stop thus
was lawful. "Where the police have
observed a traffic violation, they are warranted in stopping a vehicle."
Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772
(1980). The operation of an automobile
with a broken taillight lens is such a violation. G.L. c. 90, § 7 (1992 ed.). 540 Code Mass. Regs. § 4.04(8)(d) (1994
ed.). (FN1)
[420 Mass. 208] [2] The fact that the troopers may have believed that the
defendants were engaging in illegal drug activity does not limit their power to make an authorized stop. (FN2)
See Commonwealth v. Petrillo,
399 Mass. 487, 490, 505 N.E.2d 169 (1987) (arrest for motor vehicle trespass
which allowed search of automobile was not attackable based on fact that police
officer was aware that arrestee was suspected of dealing drugs);
Commonwealth v. Matchett, 386 Mass. 492, 510, 436 N.E.2d 400 (1982),
quoting Commonwealth v. Tisserand, 5
Mass.App.Ct. 383, 386‑387, 363 N.E.2d 530 (1977) ("taking an
inventory of the contents of a car about to be towed or impounded is a
reasonable procedure; and the fact that
the searching officer may have harbored a suspicion that evidence of criminal
activity might be uncovered as a result of the search should not vitiate his
obligation to conduct the inventory"); Commonwealth v. Ceria, 13 Mass.App.Ct.
230, 235, 431 N.E.2d 608 (1982) ("The legitimacy of an arrest for one
offense ordinarily will not depend on whether the officer subjectively believed
that the arrest might lead to incriminating information regarding another
offense"). "[P]olice conduct
is to be judged 'under a standard of objective reasonableness without regard to
the underlying intent or motivation of the officers involved.' " Id.,
quoting Scott v. United States, 436
U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). See
Petrillo, supra at 491, 505 N.E.2d 169, quoting United States v. McCambridge, 551 F.2d 865, 870 (1st
Cir.1977). It was reasonable for the
police to pull over an automobile that violated a motor vehicle law.
[3] The
defendants argue that, even though the police had the authority to stop the
automobile, the stop was invalid because a reasonable police officer would not
have made the stop in the absence of the motive of searching for drugs. In [420
Mass. 209] so arguing, the
defendants ask us to adopt the "reasonable police officer" test to
determine whether stops are invalid because they are a pretext. Under this test, courts ask "not whether
the officer could validly have made
the stop, but whether [in] the same circumstances a reasonable officer would have made the stop in the absence
of the invalid purpose" (emphasis in original). United States v. Rivera,
867 F.2d 1261, 1263 (10th Cir.1989), quoting
United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir.1988). While some courts follow this approach,
others use the "authorization" test. United States v. Cummins,
920 F.2d 498, 501 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428,
116 L.Ed.2d 448, 116 L.Ed.2d 449 (1991). United States v. Guzman, supra. Under this test, it is irrelevant whether a
reasonable police officer would have made the stop but for the unlawful
motive; the stop is valid "so long
as the police are doing no more than they are legally permitted and objectively
authorized to do." United States v. Trigg, 878 F.2d 1037,
1041 (7th Cir.1989), cert. denied sub nom.
Cummins v. United States, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 116
L.Ed.2d 449 (1991). Massachusetts cases
follow the "authorization" approach.
See Petrillo, supra at 490,
505 N.E.2d 169; Ceria, supra at 235, 431 N.E.2d 608;
Tisserand, supra at 386‑387, 363 N.E.2d 530. Under this approach, the stop was proper.
[4] The
stop also was valid under the "usual police practices" approach. The motion judge found that "the stop of
the vehicle for defective equipment was a matter of routine standard police
procedure." See Matchett, supra at 510‑511, 436
N.E.2d 400 (in the absence of clear error we defer to finding by motion judge
that "search was conducted as a matter of routine, standard police
procedure" and was "not a mere pretext concealing an investigatory
police motive"). Because it was
standard police procedure, a reasonable police officer would have stopped the
defendants' automobile even in the absence of an ulterior purpose.
[5]
Further, the record does not support the contention that the troopers stopped
the automobile in order to search it or to interrogate the defendants regarding
illegal drug activities. See Guzman, supra at 1515 ("A pretextual
stop occurs when the police use a legal justification to make the stop in order [420 Mass. 210] to search a person or place, or interrogate a person, for an unrelated serious crime for
which they do not have the reasonable suspicion necessary to support a
stop"). See also Rivera, supra at 1263. The troopers were assigned to look for
traffic violations and for illegal drug activities. In pulling over the defendants, the troopers
were carrying out the former part of their assignment. By driving an automobile with a broken
taillight, the defendants took the risk of being stopped. (FN3)
[6][7] 2. Discovery of cocaine. The defendants (FN4) argue that their
motions to suppress should have been granted because the bag of cocaine was not
in plain view and Lieutenant Gordon did not have probable cause to search (FN5)
when he leaned into the automobile. The
motion judge determined that the evidence was discovered in plain view as the
officer placed the bag containing the milk back into the vehicle. The motions to suppress were properly denied
because the evidence was properly obtained under the plain view doctrine.
[420 Mass. 211] "Under [the plain view] doctrine, if police are lawfully in
a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the
object, they may seize it without a warrant." Minnesota v. Dickerson, 508
U.S. 366, ‑‑‑‑ ‑ ‑‑‑‑,
113 S.Ct. 2130, 2136‑2137, 124 L.Ed.2d 334 (1993). See, e.g.,
Horton v. California, 496 U.S. 128, 136‑137, 110 S.Ct. 2301, 2307‑2308,
110 L.Ed.2d 112 (1990); Commonwealth v. Doulette, 414 Mass. 653,
657, 609 N.E.2d 473 (1993); Commonwealth v. Figueroa, 412 Mass. 745,
750 n. 9, 592 N.E.2d 1309 (1992).
Massachusetts cases also have required that the police officers come
across the item inadvertently. E.g., Commonwealth v. Sergienko, 399 Mass.
291, 293, 503 N.E.2d 1282 (1987); Commonwealth v. Cefalo, 381 Mass. 319,
331, 409 N.E.2d 719 (1980). Assuming,
without deciding, that inadvertence is still required in the Commonwealth,
(FN6) that requirement was met.
Lieutenant Gordon was not looking for evidence, but was merely returning
the bag containing the milk to the place from where Suozo took it, when he
inadvertently came across the bag of cocaine.
(FN7)
[8] Once Gordon saw the bag of cocaine, its
incriminating character was "immediately apparent."
Commonwealth v. Figueroa, supra at 750‑751 n. 9, 592 N.E.2d
1309. The judge determined that Gordon
was reasonable in leaning into the automobile where he saw and accessed the
evidence. "The plain view doctrine
requires prior police justification for an intrusion in the course of which an
officer inadvertently comes across incriminatingevidence. [420 Mass. 212]
The 'prior justification' language is merely another way of articulating
the necessity for 'some ... legitimate reason for being present unconnected
with a search directed against [an] accused.' " Commonwealth v. Walker, 370
Mass. 548, 557, 350 N.E.2d 678 (1976), quoting Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038,
29 L.Ed.2d 564 (1971). The
constitutionality of the seizure hinges on the objective reasonableness of the
officer's actions. See Scott v. United States, 436 U.S. 128,
137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); Commonwealth v. Ford, 394
Mass. 421, 423‑424, 476 N.E.2d 560 (1985).
Because
Gordon's actions were reasonable, the seizure was lawful. For no apparent reason, he was handed a bag
containing milk. Confused by Suozo's
actions, and desiring to remain alert to danger by keeping his hands free, the
trooper returned the milk to the place from which it was taken. While Gordon could have placed the bag
elsewhere, returning it to the place from which it was taken was a reasonable
reaction to the situation. Because
Gordon's leaning into the automobile was reasonable in order to return the
milk, and the bag of cocaine was in plain view when he did so, the denial of
the motion to suppress was proper. See Ford, supra at 424 n. 1, 476 N.E.2d 560
(entry into vehicle "to secure property in plain view with the resulting
discovery of other property in plain view within the passenger
compartment" would be reasonable;
"the other property could be seized reasonably and its admission in
evidence would be proper").
3. The order to leave the automobile. The defendants argue that their motions to
suppress should have been allowed because the seizure of the evidence resulted
from unlawful conduct by Trooper Brooks in ordering Santana out of the
automobile. Trooper Brooks was within
his powers in ordering Santana to exit the automobile.
[9][10]
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. E.g.,
Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331
(1977);
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141
(1978). To determine whether the order
was justified, we ask "whether a reasonably prudent [420 Mass. 213] 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. Almeida,
373 Mass. 266, 271, 366 N.E.2d 756 (1977), quoting Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895
(1974). See Commonwealth v. Loughlin, 385 Mass. 60, 62, 430 N.E.2d 823 (1982).
[11] In
the instant case, the defendants continued driving for approximately one and
one‑half miles after the troopers activated the flashing blue lights on
their cruiser and did not stop until the troopers pulled alongside and
physically signaled them to pull over;
the ignition on the defendants' vehicle was "popped," causing
the troopers to believe that the vehicle could be a stolen automobile; the automobile's engine was still
running; and Trooper Brooks had not yet
verified Santana's license and registration at the time of the order to leave
the vehicle. In these circumstances, a
reasonably prudent person in the troopers' position would have been warranted
in believing that the defendants would have posed a threat to the troopers or
the public, for example, by fleeing and becoming a vehicular danger on the
highway. Trooper Brooks was therefore justified
in ordering Santana out of the vehicle.
See Commonwealth v. McCleery,
345 Mass. 151, 153, 186 N.E.2d 469 (1962) (police officer could order driver
out of automobile so that license and registration could be verified);
Commonwealth v. Valentine, 18 Mass.App.Ct. 965, 966, 470 N.E.2d 384
(1984) ("The 'popped‑out' trunk lock [indicative of stolen cars] and the absence of rear lights provided
the officer with sufficient justification to stop the vehicle, request a
license and registration from [the driver], and order him out of the automobile");
Commonwealth v. Farmer, 12 Mass.App.Ct. 961, 962, 428 N.E.2d 143
(1981), cited in Loughlin, supra at
62, 430 N.E.2d 823 ("In the instant case there was reason to suspect the
defendants were engaged in a burglary and it was, therefore, reasonable to
question them outside their car, where they would not have access to weapons or
means of escape"). (FN8)
[420 Mass. 214] 4. Required finding of not
guilty. At the close of the
Commonwealth's case, Santana moved for a required finding of not guilty on the
ground that the Commonwealth failed to present sufficient evidence linking him
to the cocaine. See Mass.R.Crim.P.
25(a), 378 Mass. 896 (1979). The judge
denied the motion. Santana argues that
this was an error of law. (FN9)
"[T]he
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt" (emphasis in original). Commonwealth v. Merola, 405
Mass. 529, 533, 542 N.E.2d 249 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370
(1979). "The Government ... need
not exclude every reasonable hypothesis of innocence, provided the record as a
whole supports a conclusion of guilt beyond a reasonable doubt."
Merola, supra at 533, 542 N.E.2d 249, quoting United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st
Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). We conclude that the evidence is sufficient
and that there was no error in the denial of Santana's motion.
[420 Mass. 215] [12][13][14] To withstand the motion, the Commonwealth had to
present evidence proving that Santana possessed the cocaine. See
Commonwealth v. Garcia, 409 Mass. 675, 686, 569 N.E.2d 385 (1991). Possession consists of exclusive or joint
control and power, "or, in the case of 'constructive possession,'
knowledge coupled with the ability and intention to exercise dominion and
control." Id., quoting Commonwealth v. Deagle, 10 Mass.App.Ct. 563, 567, 409 N.E.2d 1347
(1980). The Commonwealth may prove
possession by circumstantial evidence. Garcia, supra. "Discovery of contraband in the same
automobile with the defendant, without more, is not sufficient evidence to
warrant a finding of possession....
Presence in the same vehicle supplemented by other incriminating
evidence, however, may suffice to show knowledge or intent to
control." (Citations omitted.) Id.
at 686‑687, 569 N.E.2d 385.
[15] The
evidence was sufficient: Santana owned
the automobile; the automobile's
ignition was "popped," see
Alicea v. Commonwealth, 410 Mass. 384, 388, 573 N.E.2d 487 (1991)
("The fact that the defendant was operating a vehicle with a 'popped'
ignition and containing heroin worth thousands of dollars tends to show his
knowledge of the presence of the drugs");
the cocaine was in a clear bag;
there was an electronic scale in a bag in the back seat of the car; Santana failed to stop when the troopers put
on their flashing blue lights; and there
was evidence that, while Trooper Brooks was verifying his license and
registration, Santana repeatedly looked over his shoulder at the automobile,
see id. at 387‑388, 573 N.E.2d
487 (demeanor can show that defendant was alarmed and knew that there was
something incriminating to be found).
Together, this evidence was sufficient for a jury to conclude that
Santana knew that the cocaine was in the automobile and had the ability and
intention to exercise dominion and control over it. Thus, there was no error in the judge's
denial of Santana's motion for a required finding of not guilty.
Judgments affirmed.
(FN1.) The defendants argue that the police
should not have pulled onto the highway and followed them. The motion judge found that the troopers did
not notice the broken taillight until they pulled in behind the
automobile. By pulling in behind the
defendants, the troopers demonstrate that they were suspicious that there may
have been unlawful activity in connection with the automobile, be it traffic
violations or drug activity. "We
will not scrutinize police activity based on hunch or suspicion ... until such
time as that activity clashes with individual rights." Commonwealth v. Nutile, 31
Mass.App.Ct. 614, 618, 582 N.E.2d 547 (1991) (there "can be no question
that the detectives had the right to follow ... the defendant as [he]
drove"), quoting Commonwealth v.
Wooden, 13 Mass.App.Ct. 417, 419, 433 N.E.2d 1234 (1982).
(FN2.)
The record does not support the defendants' claim that the troopers had such a
belief, and the motion judge did not so find.
(FN3.)
We note that the defendants' contention might yield the illogical result of
allowing stops of nonsuspect drivers who violate motor vehicle laws, but
forbidding stops of suspected criminals who violate motor vehicle laws. See
United States v. Villamonte‑Marquez, 462 U.S. 579, 584 n. 3, 103
S.Ct. 2573, 2577 n. 3, 77 L.Ed.2d 22 (1983) (rejecting argument that police and
customs officers could not rely on statute authorizing boarding of vessels to
inspect documentation where they were following tip that the vessel contained
marihuana).
(FN4.)
The Commonwealth concedes that, under the automatic standing rule, Suozo had a
reasonable expectation of privacy in the area under his seat. See
Commonwealth v. Amendola, 406 Mass. 592, 601, 550 N.E.2d 121 (1990). Santana, as owner of the vehicle, also had a
reasonable expectation of privacy.
(FN5.)
Ordinarily, the leaning into an automobile is a search for constitutional
purposes. "[W]hatever a police
officer's intentions may be, when he intrudes into an area in which a person
had a reasonable expectation of privacy, it is a search for constitutional
purposes." Commonwealth v. Ford, 394 Mass. 421, 423,
476 N.E.2d 560 (1985). There is an
expectation of privacy in "those areas which would be otherwise free from
observation except by physical intrusion of some sort ... includ [ing] ... the
area under [automobile] seats" (citations omitted). Commonwealth v. Podgurski,
386 Mass. 385, 389, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103
S.Ct. 1167, 75 L.Ed.2d 464 (1983). The
judge determined, however, that Lieutenant Gordon's leaning into the automobile
to return the bag containing the milk was not a search. There was no error.
(FN6.)
This requirement was adopted from the Supreme Court case of Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038,
29 L.Ed.2d 564 (1971). See Commonwealth v. Sergienko, 399 Mass.
291, 293, 503 N.E.2d 1282 (1987); Commonwealth v. Cefalo, 381 Mass. 319,
331, 409 N.E.2d 719 (1980). In 1990, the
Supreme Court rejected this requirement. Horton v. California, 496 U.S. 128, 130,
110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990).
We have noted the change but have not considered whether to retain the
inadvertence requirement. Commonwealth v. A Juvenile (No. 2), 411
Mass. 157, 164 n. 8, 580 N.E.2d 1014 (1991).
See Commonwealth v. LaPlante,
416 Mass. 433, 440 & n. 9, 622 N.E.2d 1357 (1993). The parties have treated inadvertence as a
requirement and we decide this issue on that basis.
(FN7.)
Contrary to the assertions of the defendants, this was not part of a calculated
ploy by the trooper to look under the seat.
The motion judge found that Gordon was "confounded" by
defendant Suozo's handing him the bag and leaned into the vehicle for the
purpose of putting it back on the floor.
(FN8.)
In their briefs, the defendants erroneously rely on cases where the police had
completed their inquiry and check of the driver's license and registration at
the time of the exit order and therefore had no reason for further detention or
protective measures. E.g., Commonwealth v. King, 389 Mass. 233,
237‑238, 244, 449 N.E.2d 1217 (1983); Commonwealth v. Loughlin, 385 Mass. 60,
61‑62, 430 N.E.2d 823 (1982); Commonwealth v. Dellinger, 383 Mass. 780,
783, 422 N.E.2d 1346 (1981); Commonwealth v. Ferrara, 376 Mass. 502,
505, 381 N.E.2d 141 (1978). In the
present case, the troopers had not verified Santana's license or registration
at the time they ordered him out of the automobile. See
Loughlin, supra at 62‑63 n. 3, 430 N.E.2d 823 (had the exit order
preceded the license and registration inquiry, the lower court would have to
examine the reasonableness of the precautions); Commonwealth v. McCleery,
345 Mass. 151, 153, 186 N.E.2d 469 (1962) (properly could order defendant out
of automobile so that license and registration papers could be verified, but
"once that purpose had been accomplished, there appears no reason ... why
the defendant should not have been permitted to resume his seat and continue on
his way").
(FN9.)
Suozo did not make a motion for a required finding of not guilty and he
correctly does not argue that the evidence to convict was insufficient under
the "substantial risk of a miscarriage of justice" standard. See
Commonwealth v. Pares‑Ramirez, 400 Mass. 604, 609, 511 N.E.2d 344
(1987);
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3
(1967).