Commonwealth v. Feyenord

833 N.E.2d 590, 445 Mass. 72, 2005 Mass. LEXIS 489

• Court: Massachusetts Supreme Judicial Court
• Decided: September 2, 2005
• Status: Published

Opinions

Cordy, J.

A jury convicted the defendant, Kenton W. Feyenord, of trafficking between one hundred and 200 grams of cocaine in violation of G. L. c. 94C, § 32E (b) (3). A divided panel of the Appeals Court affirmed the conviction. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200 (2004). We granted further appellate review, limited to consideration of two issues: the denial of Feyenord’s motion to suppress cocaine found by the police in the vehicle he was driving; and the sufficiency of the evidence.¹ We conclude that the exterior sniff of a properly stopped motor vehicle, by a dog trained in drug detection, is not a search within the meaning of the Massachusetts Declaration of Rights. We also conclude that Feyenord’s extended detention, after his motor vehicle was stopped for a traffic violation, for the purpose of summoning a canine unit, was reasonable and proportional to the unfolding circumstances that suggested his involvement in criminal activity beyond the violation for which he was initially detained. Consequently, Feyenord’s motion to suppress was properly denied. We finally conclude that the evidence at trial was sufficient to support the jury’s verdict and affirm the conviction.

1. Motion to suppress. We accept the motion judge’s findings of fact and the undisputed evidence consistent with those findings adduced at the hearing on Feyenord’s motion to suppress.² See Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990). On May 4, 2000, at approximately 5:45 p.m., State Trooper William Pinkes was traveling on Route 395 in Auburn when he noticed a vehicle traveling behind him with one headlight out. The weather did not require the use of headlights, and it was daylight. After Pinkes allowed the vehicle to pass his marked police cruiser, he activated the cruiser’s blue lights, and the driver pulled over. Inside were Feyenord and a passenger. Pinkes approached the vehicle and asked Feyenord for his driver’s license and automobile registration. Feyenord was visibly nervous, and his hands were shaking. He was unable to produce a license but did hand Pinkes a Massachusetts registration that was apparently valid but not in his name. Pinkes asked the passenger for identification, and the passenger produced a photographic identification card from the country of Jamaica that identified him as a Jamaican national named Junior Cox. When Feyenord did not provide an intelligible response to Pinkes’s request for his name, Pinkes ordered him out of the vehicle. Cox remained in the passenger seat.

Having separated Feyenord from Cox, Pinkes went back and forth between them to ask basic questions about their identities and destination. Standing outside the vehicle, Feyenord told Pinkes that his name was Kadari Bowen and his birthday was June 6, 1978. When asked his age, however, Feyenord struggled with the answer, providing one age and then another. Feyenord told Pinkes that Cox was his brother-in-law and the father of his sister’s child, and that he had known Cox for twelve years. Feyenord also said that he had a New York driver’s license and he and Cox were traveling to visit a friend in Putnam, Connecticut, for whom he could produce neither an address nor a telephone number. In contrast, Cox, still seated in the vehicle, told Pinkes that he had known Feyenord for two to three years, knew him only as “Pat,” did not know his last name, and was not acquainted with any members of his family. Cox also said that they were headed to Brooklyn, New York.

These prehminaries lasted between five and ten minutes. At this point, Pinkes ordered Feyenord to sit in the back seat of the cruiser (unhandcuffed), telling him that he was not under arrest but was not free to leave. Pinkes then radioed for assistance from a canine officer, State Trooper James Devlin, who arrived at the scene within fifteen to twenty minutes with a drug-sniffing dog. Devlin proceeded to direct the dog around the vehicle. The dog displayed a heightened interest in an area near the left rear of the vehicle’s trunk. The officers proceeded to open the trunk and place the dog inside.³ The dog again became excited in the area of the trunk near the left taillight. Pinkes then searched the trunk, discovering an access panel in the area that had caused the dog’s agitation. Once he removed this-panel, Pinkes found a gray plastic bag and, within, a digital scale and small black plastic bags each containing a quantity of a substance that appeared to be crack cocaine.

a. The traffic stop. Feyenord first argues that the judge should have granted his motion to suppress the cocaine because the police had no justification to stop him for driving a vehicle with one inoperable headlight in daylight. We disagree. General Laws c. 90, § 7, provides that “[ejvery motor vehicle operated in or upon any way . . . shall be provided with . . . suitable lamps.” We interpret this language to mean that a motor vehicle’s headlamps must be suitable at all times so that they are capable of being illuminated whenever road conditions might warrant.⁴ Neither the time of day nor the weather conditions during the operation of the motor vehicle has any bearing on this requirement. Although some vehicles driven during daylight may have defective headlights but escape detection by police, Feyenord was nonetheless operating his vehicle in violation of the statute. Pinkes’s stop of Feyenord’s vehicle was lawful. Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) (“Where the police have observed a traffic violation, they are warranted in stopping a vehicle”).

b. The exit order. Feyenord next argues that the judge should have granted his motion to suppress because Pinkes ordered him to leave the vehicle without a reasonable suspicion of danger. We conclude that the exit order was proper.

Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, “a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle.” Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). However, “[wjhile a mere hunch is not enough ... 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, and, if the basis is there, a court will uphold the order.” Id. at 664.

Here, Feyenord could not produce his driver’s license, and Pinkes had been unable to ascertain his identity. Commonwealth v. Santana, supra at 213-214 n.8, and cases cited. Feyenord was visibly nervous and with a companion. Pinkes was alone. Although the exit order was not predicated on suspicious movements or the visible presence of a weapon or possible contraband, police officers need not “gamble with their personal safety,” and the course of events after the stop sufficiently gave “rise to legitimate safety concerns” to justify the taking of the reasonable precaution of separating Feyenord from Cox and ordering Feyenord from the vehicle. Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), quoting Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). See Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) (“justification for an exit order does not depend on the presence of an ‘immediate threat’ at the precise moment of the order, but rather on the safety concerns raised by the entire circumstances of the encounter”). The order also served a valid investigatory purpose. See Commonwealth v. Torres, 433 Mass. 669, 675 (2001) (“officer acted reasonably and within the limits of both Fourth Amendment and art. 14” because exit order was “no more intrusive than necessary . . . to effectuate both the safe conclusion to the traffic stop and the further investigation of the suspicious conduct”). See also Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833-834 (2001) (exit order justified where “tender of a registration not crediting ownership of the vehicle to any occupant raised a question whether the car was stolen,” and order served “special practical purpose” of “separating those in a stopped car from each other to frustrate interchange or collaboration among them”). Feyenord’s claim that the fruits of the subsequent investigation should be suppressed because the exit order was unlawful is without merit.

c. Feyenord.’s further detention. Feyenord next argues that his motion to suppress should have been granted because he was unreasonably detained while the police, without reasonable suspicion of drug-related activity, summoned a canine officer with a drag-sniffing dog to the scene, thereby impermissibly broadening the scope of the inquiry under art. 14 and the Fourth Amendment. We have not had occasion to decide what type of suspicion police officers must have to escalate a general inquiry of a motorist in connection with a violation of traffic laws to an investigation that utilizes a drag-sniffing dog and justifies the prearrest detention of a motorist for such purpose. We are, however, aided by the progeny of Terry v. Ohio, 392 U.S. 1 (1968), applicable to traffic stops and temporary detentions. Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (investigative stop of a vehicle by police is “analogous to a so-called ‘Terry stop’ ”).

In considering the temporary detention of a motorist, we begin with the “settled principle that ‘[a] justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.’ ” Commonwealth v. Torres, 424 Mass. 153, 162 (1997), quoting Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996). “In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion. ‘The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct.’ ” Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), quoting Commonwealth v. Williams, 422 Mass. 111, 116 (1996). In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on “specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer’s experience.” Commonwealth v. King, 389 Mass. 233, 243 (1983), quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). See Commonwealth v. Williams, supra at 116 (“We view the facts and circumstances as a whole in assessing the reasonableness of the officer[’s] conduct”); Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) (“a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief”); Commonwealth v. Wren, 391 Mass. 705, 707 (1984), and cases cited (“A hunch will not suffice”).

In this case, Pinkes conducted a threshold inquiry in which Feyenord could not produce a valid driver’s license, produced a registration in another person’s name, failed to identify himself, and appeared nervous. As discussed above, these circumstances justified an exit order and further inquiry.⁵ After additional questioning of Feyenord and Cox, Pinkes made several decisions: (1) he chose not to arrest Feyenord, as an out-of-State driver without a license, despite having probable cause to do so, see G. L. c. 90, §§ 10, 21; (2) he focused his investigation on the possibility that the vehicle contained drugs by summoning a canine unit; and (3) he opted to detain Feyenord in the rear of his cruiser for fifteen to twenty minutes while awaiting the arrival of the canine unit.⁶ Feyenord contends that this set of actions constituted a violation of his Fourth Amendment and art. 14 rights. We disagree.

In the course of questioning Feyenord and Cox about their identities and destination, Pinkes uncovered significant inconsistencies. Given Feyenord’s inability to produce a valid driver’s license, his nervous behavior, and these unsettling inconsistencies, Pinkes could reasonably have concluded, based on “specific and articulable facts and the specific reasonable inferences which follow from such facts,” that Feyenord and Cox were engaged in criminal activity beyond Feyenord’s non-possession of a license and the vehicle’s malfunctioning headlight. Commonwealth v. King, supra at 243. Pinkes was thus justified in further detaining Feyenord and Cox and expanding the scope of his investigation beyond mere motor vehicle violations. See Commonwealth v. Wilson, 360 Mass. 557, 559-560 (1971) (defendant’s incredible claim of ignorance about provenance of water pistol in vehicle justified further inquiry); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995) (“Inability to produce a license or a registration reasonably gives rise to a suspicion of other offenses, such as automobile theft . . .”). See also 4 W. R. LaFave, Search and Seizure § 9.2(f), at 334-335 (4th ed. 2004), and cases cited (“if the suspect’s explanation needs to be checked out, and in particular if his explanation is known to be false in some respects, there is reason to continue the detention somewhat longer while the investigation continues”).

Having concluded that Pinkes was entitled to extend Feyenord’s detention and expand the scope of his investigation, we must consider whether his decision to summon and employ a drug-sniffing dog required additional facts that specifically pointed to Feyenord’s involvement in drug-related activity.⁷ See, e.g., Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 213 (2004) (Greenberg, J., dissenting) (facts must specifically arouse suspicion of narcotics trafficking in order to justify detaining the driver for the purpose of calling canine unit to conduct drug sniff), citing United States v. Perkins, 348 F.3d 965, 970-971 (11th Cir. 2003)⁸ and People v. Caballes, 207 Ill. 2d 504, 509-510 (2003), vacated, 543 U.S. 405 (2005). See also State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002) (“reasonable, articulable suspicion of drug-related criminal activity” necessary to conduct dog sniff after vehicle stopped for routine equipment violation). Because we conclude that Pinkes’s course of action was reasonable, it did not impermissibly expand the scope of his investigation.

Although the facts supported the trooper’s suspicion that criminal activity was “afoot,” Terry v. Ohio, 392 U.S. 1, 30 (1968), the specific type of criminal activity that might be “afoot” was decidedly uncertain. The facts were consistent with a number of possibilities, including automobile theft, fugitive flight, and the transportation of contraband, to list just a few. “An expeditious collateral inquiry which might result in the suspect[’s] arrest or prompt release is not unreasonable when done to meet ‘the practical demands of effective criminal investigation and law enforcement.’ ” Commonwealth v. Barros, 425 Mass. 572, 585 (1997), quoting Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). Faced with facts such as those presented here, an officer must make judgments about what resources are readily available to him that might quickly dispel or confirm his suspicion that the driver is involved in some form of criminal activity.⁹ Such judgments should not be second guessed by courts, particularly where “the police are acting in a swiftly developing situation.” Commonwealth v. Sinforoso, supra at 325, quoting United States v. Sharpe, 470 U.S. 675, 686 (1985). We are disinclined to promulgate a rule artificially prioritizing or limiting the investigative methods that an officer may utilize in these circumstances. The test is one of reasonableness, and the decision to call a canine officer and drug-sniffing dog stationed nearby to confirm or dispel the possibility of drug transportation was far from unreasonable in this case.¹⁰

Equally important, the detention of Feyenord (while potentially embarassing) was not overly prolonged or onerous in duration. As with all investigative stops of this nature, the police had a responsibility to proceed expeditiously with their investigation. “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, supra. In this case, Pinkes followed his inquiry of the occupants of the vehicle by promptly summoning the canine unit, and the total detention lasted no longer than thirty minutes.¹¹ See Commonwealth v. Sinforoso, supra at 325-326.

In sum, we conclude that “the conduct of the officerQ was proportional to the escalating suspicion that emerged over the course of the stop.” Commonwealth v. Sinforoso, supra at 323. Consequently, Feyenord’s detention for the purpose of summoning a canine unit with a drug-sniffing dog was not contrary to either the Fourth Amendment or art. 14.

d. The dog sniff of the vehicle. Finally, Feyenord argues that the motion to suppress was improperly denied because the use of the dog to ascertain the presence of drugs in the vehicle was an unreasonable “search” contrary to the Fourth Amendment and art. 14. Feyenord’s Fourth Amendment argument is foreclosed by decisions of the Supreme Court, including Illinois v. Caballes, 543 U.S. 405, 410 (2005) (“dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment”), and Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (while vehicle stop effectuates Fourth Amendment seizure, use of narcotics-detection dog around vehicle’s exterior does not transform seizure into search). It remains for us to consider whether such a canine sniff is a search under art. 14. See, e.g., Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999), and cases cited (“[w]e have expressly granted . . . protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment”).

“When we confront the question whether police activities amount to a search or seizure within the meaning of art. 14, we ask ‘whether the defendants’ expectation of privacy [in the circumstances] is one which society could recognize as reasonable.’ ” Commonwealth v. Blood, 400 Mass. 61, 68 (1987), quoting Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982). See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). We agree with the Appeals Court that “the dog’s sniff and resulting ‘alert’ would constitute a search only if society were prepared to say that the defendant was reasonable in his subjective expectation of privacy in the odor of cocaine emanating from his car. We think that society is wholly unprepared and unwilling to take that step.” Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 207-208 (2004). Accordingly, we conclude that a dog sniff of a properly stopped vehicle is not a search under art. 14.¹² See Illinois v. Caballes, supra at 409; Indianapolis v. Edmond, supra at 40; Commonwealth v. Sinforoso, supra at 324, citing United States v. Place, supra at 707. See also State v. Wiegand, 645 N.W.2d 125, 132-133 (Minn. 2002) (canine sniff of automobile not “search” under Minnesota Constitution; “we perceive no sound basis on which to reject the U.S. Supreme Court’s approach to the Fourth Amendment issue presented in this case”).¹³

After “the dog indicated the presence of narcotics in the rear of the car, the police had probable cause to search the car.” Commonwealth v. Sinforoso, supra at 324, citing Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). Consequently, the discovery and seizure of the contraband was proper and Feyenord’s motion to suppress was correctly denied.

2. Sufficiency of the evidence. Feyenord argues that the judge erred in denying his motion for a required finding of not guilty, which he made at the close of the Commonwealth’s case and at the close of all the evidence, because the evidence did not demonstrate his participation in a joint venture to traffic in cocaine. “The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury ‘might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.’ ” Commonwealth v. Pope, 406 Mass. 581, 584 (1990), quoting Commonwealth v. Clary, 388 Mass. 583, 588 (1983). “It is not essential that the inferences drawn from facts or circumstances be necessary inferences. . . . It is enough if the inferences drawn from the circumstances be reasonable and possible. . . . The weight of the evidence is for the jury.” (Citations omitted.) Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968), cert. denied sub nom. Bernier v. Massachusetts, 393 U.S. 1058 (1969).

State Troopers Pinkes and Devlin testified at trial, providing much the same account as offered at the hearing on Feyenord’s motion to suppress and credited by the judge in his findings on the motion.¹⁴ After the troopers arrested Feyenord, they discovered $510 on his person, including twenty-five twenty dollar bills and one ten dollar bill. A State trooper specializing in narcotics investigations testified that later testing of the substance discovered in the vehicle revealed that the bags contained 163 grams of sixty-one per cent concentration crack cocaine, the street value of which was more than $16,000. The State trooper testified that the purity and packaging of the cocaine and the discovery of a scale with the drugs were consistent with drug dealing.

In Feyenord’s defense, a former girl friend of Feyenord’s uncle testified that Feyenord had stayed in her Worcester home the night before his arrest, after he arrived on a bus from New York City. She also testified that she gave Feyenord permission to drive her vehicle back to New York so long as he returned it the same day, but indicated that there were no drugs in the vehicle when she lent it to him. Feyenord testified in his own defense and denied that he had any knowledge of the cocaine found in the vehicle. He claimed that he was in Massachusetts investigating the possibility of moving here from New York.¹⁵ On the day of his arrest, he borrowed the vehicle to help his friend Junior Cox, with whom he had traveled from New York City, transport numerous shopping bags back home. Feyenord asserted that, while Cox had placed his parcels in the trunk, he had not looked in the trunk himself. He explained that he gave a false name, the name of a cousin, to Pinkes at the traffic stop because he was wanted on an outstanding default arrest warrant from 1995, which he did not want discovered. Feyenord also testified that the large sum of cash on his person had been wired to him for work he performed as an auto detailer while in New York City, although the defense did not further substantiate the claim.

At trial, the Commonwealth argued alternatively that Feyenord was guilty of cocaine trafficking as a principal or as a participant in a joint venture. The jury found Feyenord guilty solely as a joint venturer.¹⁶ In order to succeed on a theory of joint venture, the Commonwealth must prove that the defendant was “(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary.” Commonwealth v. Charros, 443 Mass. 752, 758-759 (2005), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983). We conclude that the evidence was sufficient to support the jury’s verdict. See Commonwealth v. Charros, supra at 759; Commonwealth v. Sabetti, 411 Mass. 770, 780 (1992).

The jury could have reasonably concluded that Feyenord knew of the large quantity of drugs stored in the vehicle he was driving because Feyenord appeared nervous when approached by Pinkes and provided false, evasive, and implausible answers to police questions. See Commonwealth v. Sinforoso, 434 Mass. 320, 328-329 (2001) (nervousness and responses to police questions that are inconsistent and implausible suggest defendant’s connection to drugs); Alicea v. Commonwealth, 410 Mass. 384, 387-388 (1991) (defendant’s agitation may support inference that he knew drugs were present). In addition, Feyenord possessed a large sum of cash when arrested, in denominations consistent with his involvement with drug dealing. See, e.g., Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989). From this evidence, the jury could have inferred that Feyenord was at least assisting Cox with the enterprise of trafficking cocaine.

As Feyenord was driving a vehicle containing a large quantity of cocaine and the Commonwealth’s case permitted a reasonable inference that Feyenord knew of the cocaine and intended to assist Cox with trafficking it, the evidence supports the jury’s verdict of Feyenord’s guilt as a joint venturer. We see no error in the denial of Feyenord’s motions for a required finding of not guilty.

Judgment affirmed.

1 Given this limitation, we do not consider the challenge by the defendant to the judge’s instructions to the jury on joint venture, which, the Appeals Court concluded, adequately explained the applicable law. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 201 n.2 (2004).

2 Feyenord makes no challenge on appeal to the judge’s findings about the circumstances surrounding the discovery of drugs in the vehicle he was driving.

3 The canine officer testified at the hearing on the motion to suppress that he obtained consent from Feyenord to search the vehicle with the dog immediately after the dog became agitated during the initial exterior sweep. The judge made no finding of fact to this effect, and neither the Commonwealth nor Feyenord suggest that consent is at issue in this case.

4 With specific reference to “headlamps,” the statute provides that “[e]very automobile operated during the period from one half an hour after sunset to one half an hour before sunrise, and during any other period when visibility is reduced by atmospheric conditions so as to render dangerous further operation without lights being displayed, shall display at least two lighted white headlamps with at least one mounted at each side of the front of the vehicle . . . .” G. L. c. 90, § 7.

5 It is important to distinguish this case from cases in which the driver of a vehicle stopped for a traffic violation produces a valid driver’s license and registration. See, e.g., Commonwealth v. Loughlin, 385 Mass. 60, 61-62 (1982); Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978). Where an officer conducts an uneventful threshold inquiry giving rise to no further suspicion of criminal activity, he may not prolong the detention or expand the inquiry. See Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997); Commonwealth v. King, 389 Mass. 233, 243-244 (1983).

6 The total investigative detention of Feyenord, from the time of the stop to the sniff by the dog was between twenty-five and thirty minutes.

7 We do not decide, as the Supreme Court did in Illinois v. Caballes, 543 U.S. 405 (2005), whether the police may initiate a canine sniff of a vehicle stopped for a traffic violation, in the absence of any suspicion of criminal activity beyond the violation. In that case, the Court “proceed[ed] on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding.” Id. at 407. To the extent such a tactic raises art. 14 concerns, we need not consider them here, as Pinkes’s conduct was based on a reasonable suspicion of additional criminal activity.

8 In United States v. Perkins, 348 F.3d 965, 967-968 (11th Cir. 2003), a police officer stopped a motorist for a marked lanes violation, and the driver produced a valid out-of-State driver’s license and insurance information, which revealed nothing remarkable during a routine driver’s license and warrant check. After giving the driver a warning for the traffic violation, the officer continued to detain the driver to await the arrival of a drug-sniffing dog, which subsequently discovered narcotics in the vehicle. Id. at 968. The case squarely falls within the category of cases discussed in note 5, supra, involving an improper detention and expanded investigation after an uneventful threshold inquiry, and its reasoning is therefore inapplicable to this case, where the officer’s initial inquiry raised reasonable suspicions of “other illegal activity beyond the traffic offense.” United States v. Perkins, supra at 970.

9 It goes without saying that the driver cannot be held indefinitely until all avenues of possible inquiry have been tried and exhausted. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (“Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop”); 4 W.R. LaFave, Search and Seizure § 9.2(f), at 337 (4th ed. 2004), and cases cited (“There is no general rule that the detention may continue so long as the reasonable suspicion giving rise to the stop remains, for if this were the rule some stops could be continued indefinitely”).

10 Given Feyenord’s lack of identification and Cox’s identification as a foreign national, Pinkes may have had few other investigative avenues to address his escalating suspicions, aside from arresting Feyenord and impounding the vehicle. Pinkes did question Feyenord about the ownership of the vehicle at some point during the stop, although it does not appear from the record that Pinkes conducted any records check with respect to Feyenord’s false name (which Pinkes likely suspected was false given his questioning of Cox) or the vehicle’s registration plate number. The use of such investigative methods is uniformly approved by State and Federal courts but, ironically, may have the effect of expanding the scope and the duration of an investigation incident to a traffic stop far more than a canine sniff. 4 W. R. LaFave, Search and Seizure, supra at § 9.3(c), at 378, and cases cited.

11 Few jurisdictions have found detentions of thirty minutes or less unreasonable. See, e.g., United States v. Orsolini, 300 F.3d 724, 730 (6th Cir. 2002) (fifty-minute detention, thirty-five minutes of which spent awaiting drug dog, reasonable); United States v. Shareef, 100 F.3d 1491, 1501-1502 (10th Cir. 1996) (thirty-minute wait for computer check during traffic stop reasonable); United States v. McCarthy, 77 F.3d 522, 532 (1st Cir.), cert. denied, 519 U.S. 991 (1996), and cert. denied sub nom. Hunter v. United States, 519 U.S. 1093 (1997) (seventy-five minutes reasonable where defendant gave evasive responses to official inquiries); State v. Moffatt, 450 N.W.2d 116, 118-119 (Minn. 1990) (sixty-one minute stop permissible). Cf. United States v. Sharpe, 470 U.S. 675, 686 (1985) (declining to deem unreasonable, as matter of law, all Terry stops exceeding twenty minutes); United States v. Place, 462 U.S. 696, 699, 709 (1983) (ninety-minute stop unreasonable); People v. Cox, 202 Ill. 2d 462, 469-470 (2002), cert. denied, 539 U.S. 937 (2003) (fifteen-minute detention pending arrival of drug dog unreasonable where police stopped vehicle for rear registration plate light malfunction and summoned canine unit before speaking with driver).

12 The use of dogs in other settings (e.g., to sniff the body of a person or the odors emanating from private homes) is not at issue in this case, and would have to be evaluated based on whether the privacy expectation in each of those settings is one society is willing to deem reasonable. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 208 (2004). See State v. Wiegand, 645 N.W.2d 125, 130-131 n.5 (Minn. 2002). For example, we note the heightened protection afforded homes in our search and seizure jurisprudence. Commonwealth v. Balicki, 436 Mass. 1, 12 n.14 (2002) (“Nowhere are expectations of privacy greater than in the home . . .”). Commonwealth v. Blood, 400 Mass. 61, 68-70 & n.9 (1987) (expectation that conversational exchange in private home will not be invaded surreptitiously is reasonable).

13 Interpreting their State Constitutions, several State courts have held that the use of a drug dog to sniff the exterior of a vehicle constitutes a “search.” See, e.g., People v. Haley, 41 P.3d 666, 672 (Colo. 2001); State v. Tackitt, 315 Mont. 59, 66 (2003); State v. Pellicci, 133 N.H. 523, 533 (1990); Commonwealth v. Rogers, 578 Pa. 127, 135 (2004). Other State courts have concluded that such canine sniffs are not “searches” under their respective State Constitutions. See, e.g., O’Keefe v. State, 189 Ga. App. 519, 526 (1988); State v. Wiegand, supra at 133; State v. Waldroup, 100 Ohio App. 3d 508, 514 (1995). Regardless of the State constitutional status of canine sniffs, many State courts require an officer to have some form of reasonable suspicion before using a drug dog to sniff the exterior of a vehicle, but none requires that an officer obtain a warrant or have probable cause to believe that there is contraband in the vehicle. See Fitzgerald v. State, 384 Md. 484, 511-512 n.14 (Ct. App. 2004), and cases cited.

14 The jury did not learn of Cox’s responses to Pinkes’s questions, as those responses were excluded as hearsay prior to trial. Cox apparently posted bail after his arrest, and his whereabouts were unknown at the time of trial.

15 Feyenord also testified that he had been in Worcester the previous week and had driven the motor vehicle during that visit as well. The former girl friend of Feyenord’s uncle did not corroborate this detail.

16 Given this result, we need not reach Feyenord’s argument that the judge erred in denying his motions for a required finding of not guilty on the theory of principal liability.