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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
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Commonwealth v. Vazquez, 426
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert J. Bender, Assistant District Attorney, for
the Commonwealth.
Jerry B. Wittenberg,
Before LYNCH, GREANEY,
MARSHALL, Justice.
The
Commonwealth appeals from an order of a judge sitting in the Salem Division of
the District Court Department allowing the defendant's motion to suppress
evidence, a handgun allegedly used by the defendant in an assault. A police officer had searched a vehicle,
found the gun, and seized it. The judge
ruled that there was no probable cause for the vehicle search.
A single
justice of this court allowed the Commonwealth's request for an interlocutory
appeal and ordered that the appeal be entered in this court. We conclude that the officer lawfully [426
1. On
March 14, 1994, the Salem District Court issued a criminal complaint against
Carlos Vazquez alleging two counts:
carrying a firearm without a license in violation of G.L.
c. 269, § 10 (a ), and assault by
means of a dangerous weapon, in violation of G.L. c.
265, § 15B. The charges stem from an incident
that occurred on
The
officer pulled up behind the Mazda, left his vehicle and motioned to Vazquez to
approach him. The officer frisked him,
but located no weapon. During the frisk,
the Mazda pulled away. The officer put
Vazquez in his cruiser and pursued the Mazda.
After a short distance, the Mazda turned into a gasoline station,
followed by the officer. Two women
occupied the front seats, with two young children in the back seat.
The
officer approached the driver and told the women to put their hands on the
dashboard. The women complied. He asked each in turn, whether they knew
Vazquez. Both denied knowing him. Both women said they had not seen Vazquez put
anything in the car, although they acknowledged that he had been at the passenger
window before they left. The officer
ordered the passenger to step out of the car.
The officer then looked under her seat and found a handgun. The passenger was arrested. When a check of the driver's license and
registration revealed an outstanding warrant for her arrest, the driver also
was placed in custody. On the discovery
of the gun, Vazquez said that the gun was his.
Both occupants of the automobile were subsequently charged with carrying
a firearm without a license.
On
September 28 and 29, 1994, a hearing was held on a motion filed by the driver
and passenger to suppress the gun seized from the Mazda. The judge allowed the motion and issued a [426 Mass. 101] memorandum with detailed findings of fact. On July 11, 1995, Vazquez filed his own
motion to suppress the gun. The judge,
without a hearing, allowed that motion, incorporating in his memorandum the
findings of fact from his earlier order in the case of the two women
defendants. (FN2) He proceeded to address the sole additional question before him, whether Vazquez had
standing to contest the seizure of the gun.
On ruling that Vazquez did have standing, the judge allowed his motion
to suppress the gun.
2. The
Commonwealth argues that Vazquez did not have standing to contest the seizure
of the gun, and that in any event the motion judge erred in his determination
that the officer's search of the Mazda was unlawful. Because we decide that the search was lawful,
we do not address the issue of standing.
[1] The
judge asked first whether the officer had a right to stop and detain the two
women codefendants, justified by a reasonable suspicion of the commission of a
crime by them. Commonwealth v. Willis, 415 Mass. 814,
817, 616 N.E.2d 62 (1993). The judge
determined that the officer had information from multiple witnesses that a man
had been brandishing a gun and chasing a person down the street, that two or
three of those witnesses pointed out Vazquez as the armed assailant, that the
officer was entitled to rely in the circumstances on the information from the
bystander witnesses, (FN3) and that the officer therefore had a right to [426 Mass. 102] stop and frisk Vazquez.
(FN4) Finding no gun when he
searched Vazquez, the judge determined that the officer could infer that
Vazquez had dropped the gun in the Mazda, because he was standing by the
passenger window.
[2] The
judge concluded that this chain of facts and inferences supported the officer's
right to stop and detain the women.
Following on that, the officer was entitled, the judge ruled, to inquire
whether the women knew Vazquez and whether he had given them a gun or dropped
one into the car. The judge further
ruled that the officer had, in the circumstances, a right to protect himself
and order the women to place their hands on the dashboard. The judge found the officer's actions proper
until this moment in the progression of actions.
We concur
with the judge's conclusions to this point.
We differ with the judge's view of the officer's next action. The judge concluded that the officer could go
no further than stopping the vehicle and questioning the occupants, and that he
exceeded his authority by ordering the passenger out of the car and searching
it. The judge found that the search of
the Mazda was not for the protection of his own and others' safety, although he
did not explain the basis for this finding.
The judge determined that the search was conducted "for contraband qua contraband," and that the
officer did not have probable cause for a search for the gun as contraband.
[3][4]
"It is settled that in appropriate circumstances a Terry type search may extend into the interior of an
automobile." Commonwealth v. Almeida, 373 Mass. 266,
270, 366 N.E.2d 756 (1977). Furthermore,
"[w]hen 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." Commonwealth v. Santana, 420 Mass. 205,
212, 649 N.E.2d 717 (1995), citing
Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333‑334, 54 L.Ed.2d 331 (1977) (FN5);
Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141
(1978). To justify either the search or
the order to the [426 Mass. 103] occupants to exit the automobile,
"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.' " Santana, supra at 212‑213, 649
N.E.2d 717, quoting Almeida, supra at
271, 366 N.E.2d 756. See Commonwealth v. Owens, 414 Mass. 595,
600, 609 N.E.2d 1208 (1993). At the time
the police officer ordered the passenger out of the Mazda, looked under the
seat and found the gun, he already had reliable information from multiple
witnesses that the public in a public thoroughfare had been exposed to danger,
that a specific individual allegedly had been assaulted, that the alleged
assailant no longer had a gun on his person, but that a gun may well have been
in the Mazda. Having seen the
interaction on the street between Vazquez and the passenger in the Mazda, the
officer was not required to accept at face value the Mazda occupants' denial of
any connection with Vazquez or the gun.
We have
upheld searches and orders for occupants to leave an automobile when, given
other suspicious circumstances which justified a stop, an officer had no
information whatsoever that a gun may have been in the vehicle, but still had
reason to be concerned with his and others' safety. See
Santana, supra at 213, 649 N.E.2d 717; Commonwealth v. Moses, 408 Mass. 136, 141‑142,
557 N.E.2d 14 (1990); Almeida, supra at 272, 366 N.E.2d 756. See also
Maryland v. Wilson, 519 U.S. 408, ‑‑‑‑, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997), citing Mimms, supra
at 109‑110, 98 S.Ct. at 332‑333. Here, the officer confined his search to
what "was minimally necessary to learn whether the suspect [was]
armed." Almeida, supra, quoting Commonwealth v. Silva, 366 Mass. 402,
408, 318 N.E.2d 895 (1974). In these
circumstances this officer had the right to order the passenger to leave the
Mazda and conduct a minimal search at least.
[5] We
also conclude that the police had probable cause to search the automobile. Because the officer had probable cause to
believe a crime had been committed by Vazquez and therefore was justified in
his arrest of Vazquez, see note 4, supra,
the question then becomes whether the officer had probable cause to believe
that the evidence of Vazquez's crime, the gun (the "contrabandqua contraband"), was in the
Mazda. Probable cause to justify a
search depends on a sufficient nexus between time, the criminal activity, the
thing to be seized, and the place to be searched. 2 W. LaFave, Search
and Seizure § 3.7(d), at 372 (3d ed.
1996 & 1998 Supp.). When he
first approached [426 Mass. 104] Vazquez standing next to the Mazda,
the officer had reason to believe he was arriving in the immediate aftermath of
the commission of a crime. A disturbance
drew the officer to the scene of the alleged crime, he reacted expeditiously to
the street disturbance, and both the alleged assailant and the witnesses were
still in the vicinity where the crime had been committed. The proximity in time between the alleged
crime and the officer's investigation significantly narrowed the likelihood of
finding the gun to the immediate vicinity of the suspect. Moreover, the officer was relying on his own
firsthand knowledge that, wherever else Vazquez had been in the preceding
minutes, he was indubitably standing next to the Mazda at that moment. At that moment Vazquez had the greatest
incentive to rid himself of the gun, as only then had the police cruiser pulled
up to him. (FN6)
Once the
officer had probable cause to search the Mazda for the gun "qua contraband," he had a right to
stop the Mazda. The only other
impediment to a lawful search of the vehicle was the lack of a warrant, unless
an exception to the warrant requirement applied. Because the automobile was stopped in a
public place, with probable cause, the warrantless
search of the vehicle was justified. Commonwealth v. Motta,
424 Mass. 117, 124, 676 N.E.2d 795 (1997).
The order
allowing the motion to suppress is vacated.
An order shall be entered in the Salem District Court denying the motion
to suppress.
So ordered.
(FN1.) As is our custom, we spell the
defendant's name as it appears on the complaint.
(FN2.)
Prior to the judge's order on Vazquez's motion to suppress, Vazquez filed a
motion to adopt the findings on the motion to suppress evidence of the two
women. In that motion, Vazquez's counsel
stated that he had not been notified of the hearing on the women codefendants'
motion to suppress, nor was he made aware that the codefendants' cases had been
severed from his; otherwise, he said, he
would have joined the codefendants' motion to suppress. Because Vazquez's attorney did not
participate in that hearing and the judge made his initial findings of fact as
to the women codefendants only, the findings as subsequently incorporated into
the judge's order on Vazquez's motion to suppress lack some specificity as
applied to Vazquez.
(FN3.)
Before concluding that the officer had reliable information to suspect
commission of a crime, the judge reviewed elements of possible
unreliability. The judge stated that
"there is some question about whether Vazquez might not have been entitled
to carry a gun," citing Commonwealth
v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990), that carrying a handgun,
in and of itself, does not furnish probable cause to believe that the
individual is illegally carrying that gun, nor even give reasonable suspicion
justifying a Terry stop (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ). See
Commonwealth v. Nowells, 390 Mass. 621, 627, 458
N.E.2d 1186 (1983). We agree. Vazquez's alleged crime, however, was not
only illegal possession of a firearm, but also armed assault. Whether Vazquez had a firearm license or not,
the alleged assault would have been criminal.
What the officer assumed, justifiably or not, about whether Vazquez was
licensed to carry a firearm is not germane to the officer's suspicion that an armed
assault had occurred.
(FN4.)
The judge did not make a ruling as to whether the officer had probable cause to
arrest Vazquez, in all likelihood because issues unique to Vazquez were not
relevant to the ruling that the judge made, in the first instance, on the
motion to suppress of the two women. On
our review of the judge's findings and the record we conclude that the officer
did have probable cause to arrest Vazquez.
(FN5.) Pennsylvania v. Mimms,
434 U.S. 106, 109‑110, 98 S.Ct. 330, 332‑333,
54 L.Ed.2d 331 (1977), established the rule that in a routine stop a police
officer may order a driver out of a vehicle to protect the officer's
safety. In Maryland v. Wilson, 519 U.S. 408, ‑‑‑‑,
117 S.Ct. 882, 884, 137 L.Ed.2d 41 (1997), the
Supreme Court held that the rule extended to automobile passengers.
(FN6.)
The judge found this case similar to the facts in Commonwealth v. Ferguson, 410 Mass. 611, 574 N.E.2d 990
(1991). We reversed Ferguson's
conviction of trafficking in cocaine because the judge had improperly denied
the defendant's motion to suppress the cocaine evidence. The similarity with this case is that, while
on patrol, an officer was flagged down by an alleged victim who told the
officer that Ferguson had pointed a gun at her.
The officer had suspicion sufficient only for a stop of Ferguson, while
the many more witnesses and the immediate identification of Vazquez provided
probable cause to arrest Vazquez. More
important though was that the officer in
Ferguson was searching for a weapon, found instead a black plastic bag,
opened the bag, and found cocaine. The
officer had no probable cause to search for cocaine, to believe that Ferguson
was in possession of an illegal substance, or to open the bag once he knew it
did not contain a gun. In this case, the
officer had probable cause to search for a gun, which was the object that he
found.