Commonwealth v. Damon

971 N.E.2d 809, 82 Mass. App. Ct. 164, 2012 WL 2866129, 2012 Mass. App. LEXIS 218
CourtMassachusetts Appeals Court
DecidedJuly 16, 2012
DocketNo. 11-P-60
StatusPublished
Cited by1 cases

This text of 971 N.E.2d 809 (Commonwealth v. Damon) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Damon, 971 N.E.2d 809, 82 Mass. App. Ct. 164, 2012 WL 2866129, 2012 Mass. App. LEXIS 218 (Mass. Ct. App. 2012).

Opinion

Graham, J.

The defendants, Andre Lee Damon and Nicholas Loring, were indicted in the Superior Court for trafficking in heroin in an amount of twenty-eight grams or more, but less than one hundred grams, in violation of G. L. c. 94C, § 32E(c). Damon was also indicted for breaking and entering in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16. State police stopped a motor vehicle owned and operated by Damon for a civil infraction. After detecting the odor of burnt marijuana, the police ordered the defendants out of the vehicle, conducted a search of a closed compartment in the motor vehicle, and recovered the heroin.

Prior to trial, the defendants each filed a motion to suppress the heroin and any statements made to the police. In denying the motions to suppress, the judge concluded that the exit orders were justified by the fact that the driver could not produce a license and appeared nervous, the officers detected the odor of burnt marijuana, and the driver acknowledged he had smoked marijuana in the car “at some point.” The judge concluded that the search of the vehicle was permissible under the so-called “automobile exception” because the officers had probable cause to believe that contraband (i.e., marijuana) was present in the vehicle. The defendants’ interlocutory appeal was allowed by a single justice of the Supreme Judicial Court, and the matter was transferred to this court for review.

The defendants contend that the stop of Damon’s vehicle for an alleged civil infraction (failure to use a directional signal prior to turning) was improper. In addition, they argue that, after the passage of G. L. c. 94C, § 32L (the amended Act),2 [166]*166which decriminalized possession of one ounce or less of marijuana, the exit orders and subsequent search of the vehicle, based solely on the odor of burnt marijuana, were improper. We conclude that the stop of the vehicle was justified, but agree that the exit orders and search of the vehicle were improper. Accordingly, we reverse the order denying the motions to suppress.

Facts. We summarize the detailed and comprehensive facts as found by the judge, with minor supplementation by uncontro-verted facts from the record of the hearing, noting that all of the judge’s findings are supported by the evidence that he found credible. Consequently, we accept those findings. Commonwealth v. Sparks, 433 Mass. 654, 656 (2001). We accord deference to the judge’s factual findings, “but independently review[] the correctness of the judge’s application of constitutional principles to the facts found.” Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995).

On January 16, 2009, Brockton police had a warrant for the arrest of Manuel Barbosa for murder. The police believed Bar-bosa might be found at 85 Wyman Street in Brockton, and a contingent of Brockton and State police went to that address to conduct surveillance. Sergeant Lopes, one of the officers at the scene, radioed Troopers Steven Connolly and Richard Long to assist in the surveillance. Connolly arrived and parked his unmarked vehicle on Walnut Street around the comer from the Wyman Street address. Long, driving a marked cruiser, arrived and parked at a location a few streets from the Wyman Street address.

At approximately 7:45 p.m., Lopes radioed Connolly and informed him that two men had just left 85 Wyman Street and entered a red Nissan automobile. Lopes instructed Connolly to follow the vehicle and stop it. Shortly thereafter, Connolly observed the red Nissan and followed it onto North Main Street. The operator of the Nissan made two turns in light traffic without using a directional signal. Connolly signaled for the Nissan to [167]*167stop, then parked his vehicle directly behind it. Shortly thereafter, Long arrived at the scene to assist Connolly.

Trooper Connolly approached the driver’s side of the Nissan, where Damon was seated in the driver’s seat, and Long approached Loring, who sat in the front passenger seat. Neither officer had his weapon drawn. Connolly asked Damon for his license and Damon responded that he did not have his license with him.3 Both defendants appeared to be “nervous” and Damon avoided eye contact with Connolly. Trooper Long noted that Loring was not wearing a seatbelt and asked him for his license, which Loring produced. As this was occurring, Long smelled the odor of burnt marijuana emanating from inside the vehicle. He leaned his head inside the window and asked Damon if he had smoked marijuana in the car. Damon responded, “Not for a while,” whereupon Connolly ordered Damon out of the car.4 At that point, the troopers had not seen any contraband or weapons in the car or in the possession of either defendant, nor had they observed either defendant make any furtive gestures or threatening movements. Trooper Connolly testified that his reasons for the exit order were Damon’s nervousness; Connolly’s wish to secure identification information; and the burnt marijuana odor that Long detected. Connolly also testified that part of the reason for the exit order was a concern for officer safety based on his fear that one of the occupants could be Barbosa, the murder suspect. The motion judge, however, discredited the latter reason, determining that officers at the surveillance scene knew that Bar-bosa was black, and had seen the defendants, who were white, leave 85 Wyman Street and walk to the Nissan.

Trooper Long ordered Loring to step out of the car. Both defendants complied with the exit orders and were then pat frisked for weapons (no weapons were found). Following the patftisks, Long opened the front door of the Nissan and searched the vehicle’s interior, beginning with the area under the front [168]*168passenger seat. He then continued his search by unlatching and opening the closed center console, which he found to contain a tray. He lifted the tray and then saw a brick of brown substance, which measured about six by three inches, inside shrink-wrap.

Believing the brown substance to be heroin, Long removed it and walked back to Connolly and the defendants at the rear of the vehicle. He held it out for Connolly to see, remarking, “What do you think this is?” The defendants bolted, running in opposite directions. Long pursued Loring and apprehended him after a short foot chase. Damon successfully fled the scene but was apprehended later that evening.

Discussion. 1. Initiation of the stop. The defendants contend that Damon’s failure to use his directional signal when making turns did not constitute a civil traffic violation5 because that failure did not affect other vehicles on the road. General Laws c. 90, § 14B, inserted by St. 1951, c. 649, provides, in pertinent part, that “[e]very person operating a motor vehicle, before stopping said vehicle or making any turning movement which would affect the operation of any other vehicle, shall give a plainly visible signal by activating the brake lights or directional lights or signal as provided on said vehicle” (emphasis added). The defendants contend that the evidence fails to establish that another vehicle was actually affected.

Trooper Connolly testified that on the evening in question, at approximately 7:45 p.m., he followed Damon’s vehicle as it traveled on Walnut Street and took a right onto Prospect Street and a left onto North Main Street.

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Cite This Page — Counsel Stack

Bluebook (online)
971 N.E.2d 809, 82 Mass. App. Ct. 164, 2012 WL 2866129, 2012 Mass. App. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-damon-massappct-2012.