Commonwealth v. Mercedes

9 Mass. L. Rptr. 588
CourtMassachusetts Superior Court
DecidedFebruary 9, 1999
DocketNo. 920173
StatusPublished

This text of 9 Mass. L. Rptr. 588 (Commonwealth v. Mercedes) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Mercedes, 9 Mass. L. Rptr. 588 (Mass. Ct. App. 1999).

Opinion

Toomey, J.

INTRODUCTION

Defendant was accused by the Worcester County-Grand Juiy ofTrafficking in Cocaine (100-200 grams) and Conspiracy to Traffick in Cocaine. He has offered a motion to suppress the fruits of a warrantless search and seizure which occurred after the vehicle in which he was a passenger was stopped by the Massachusetts [589]*589State Police on Route 84 in Sturbridge. Those fruits comprise the underpinnings of his indictments.

An evidentiary hearing upon the motion was conducted and the testimonial and documentary submissions received at that hearing have prompted the following findings of fact.

FINDINGS OF FACT

1. On June 12, 1991, SGT Sean Baxter was assigned to traffic patrol duties, which included opportunistic drug interdiction actions, along Route 84 in the vicinity of Sturbridge. He was positioned on the eastbound side of Route 84 when, at about 9:15 p.m., he observed a Mercury automobile proceeding at a rate of speed in excess of the posted limit and in an erratic manner.1 SGT Baxter triggered his signal lights and followed the Mercury for a short distance until it stopped on the right shoulder of Route 84 between the Route 20 and Massachusetts Turnpike exits.

2. While following the Mercury, SGT Baxter saw the front passenger (defendant, hereinafter “Pedro”) moving about and the rear passenger (Pedro’s brother, hereinafter, “Jose”) turning to look at the pursuing cruiser and leaning forward toward the front seat.

3. SGT Baxter approached the Mercury on foot and conversed with the operator. In response to the officer’s request, the operator produced a license and registration which, because they bore different names, piqued SGT Baxter’s attention. He learned that the operator was a taxi driver2 and had been engaged by his two passengers to transport them to Boston in exchange for three hundred dollars.

4. During his inquiry of the operator, SGT Baxter noted that the two passengers continued to “move about” in the Mercury. The SGT was particularly attentive to the rear passenger, Jose, who was “fidgety,” “rubbing his hands” and repeatedly inserting a hand under his bib overalls. SGT Baxter walked to the right rear door of the Mercury, inquired of Jose and learned from him his name, his intended itinerary (from La Guardia airport, New York, to Jamaica Plain) and his purpose (to visit his grandmother). Jose also told SGT Baxter that the front passenger was his cousin. Moving to the right front door, SGT Baxter spoke with Pedro who, after he verbally identified himself, informed the SGT that Jose was his brother and that the two were going to Jamaica Plain for the grandmother’s funeral. SGT Baxter observed that Pedro was “nervous,” rubbed his hands along his legs and held his hands at his waist.

5. The circumstances caused SGT Baxter to feel concern for his safely. He retreated to his cruiser and called for back-up. When the Trooper arrived, SGT Baxter returned to the Mercury, directed the operator to exit the vehicle and asked him whether he would permit the vehicle to be searched. The operator acquiesced and signed a “consent form” to that effect. SGT Baxter did not inform him of the purpose of the search.

6. SGT Baxter also ordered the passengers to exit the vehicle. They complied and the Mercury was searched. The search produced nothing.

7. Turning his attention to the passengers, SGT Baxter advised them that he had noted inconsistencies in their earlier responses to him. He mentioned, in particular, their differing accounts with respect to the grandmother in Jamaica Plain. Pedro and Jose then argued with each other about the grandmother aspect of their respective statements to SGT Baxter. At this point Pedro, at least, was, in SGT Baxter’s view, free to leave. Baxter conceded that he had no reason to arrest Pedro. As a practical matter and in the circumstances, however, Pedro was detained by Baxter.

8. SGT Baxter pat-frisked Jose and felt a large object in Jose’s pocket and a hard object in the area of his groin. Baxter extracted the large object (one thousand dollars in bills) and the hard object (four packets of one thousand dollar bills flat wrapped in plastic). He also seized a pager from Jose’s person. A pat-frisk of Pedro produced nothing.

9. The State Police next summoned a canine unit and the dog signalled a link between the currency seized from Jose and the rear seat of the Mercury.

10. As the canine was performing its function, SGT Baxter observed Pedro, who was facing away from SGT Baxter, make a throwing motion to his right. The SGT said “What are you doing?” Pedro did not respond verbally, but did lower his pants to the ground.3 As he approached Pedro, SGT Baxter observed three packets of a white powder substance on the ground three or four feet to Pedro’s right. Baxter seized the packets, and both Pedro and Jose were placed under arrest.

11. At the Sturbridge Barracks, SGT Baxter delivered certain advisements to Pedro4 and interrogated him. Pedro’s responses were self-incriminating.5 Although SGT Baxter did not employ an interpreter in delivering his warnings to Pedro or in conducting the interrogation, the weight of the evidence established that Pedro comprehended SGT Baxter’s words.

DISCUSSION

1. The Search and Seizure Issue

Pedro seeks to suppress the cocaine seized by the police at the scene of the automobile stop. Pedro acknowledges that the original traffic stop of the automobile in which he was a passenger and the threshold inquiry of the driver in connection with that violation were valid. He argues, however, that SGT Baxter’s subsequent actions in ordering the occupants out of the vehicle and conducting pat frisks of the passengers were improper and that, therefore, the court should suppress the packets of cocaine Pedro allegedly threw on the ground after the pat frisk of him had revealed no contraband.

When an officer stops a car for an apparent traffic violation and receives a valid license and registration, the police inquiry must end, unless the officer has [590]*590grounds for inferring that “either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct.” Commonwealth v. Torres, 424 Mass. 153, 159 (1997), quoting Commonwealth v. Torres, 40 Mass.App.Ct. 6 (1996). See also Terry v. Ohio, 392 U.S. 1,21 (1968).

Because SGT Baxter’s initial stop of the car for speeding and his threshold inquiry of the driver were valid, the question for this court is whether his subsequent pat frisks of the defendants were contrary to law. Defendant maintains that the police conduct subsequent to the presentation of the license and registration was not properly grounded and requires suppression of the cocaine, allegedly discarded by Pedro, as the fruits of an illegal search. The Commonwealth contends to the contrary.

A) The Exit Order and the Threshold Inquiry

SGT Baxter had reasonable grounds for making threshold inquiries of the passengers after he had ascertained that the driver’s license and registration were valid. He had observed several “articulable facts” suggesting that the occupants of the car were engaged in suspicious conduct within the Torres doctrine.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Commonwealth v. Borges
482 N.E.2d 314 (Massachusetts Supreme Judicial Court, 1985)
Commonwealth v. Crowley
556 N.E.2d 1043 (Massachusetts Appeals Court, 1990)
Commonwealth v. King
449 N.E.2d 1217 (Massachusetts Supreme Judicial Court, 1983)
Commonwealth v. Santaliz
596 N.E.2d 337 (Massachusetts Supreme Judicial Court, 1992)
Commonwealth v. Fredette
486 N.E.2d 1112 (Massachusetts Supreme Judicial Court, 1985)
Commonwealth v. Torres
674 N.E.2d 638 (Massachusetts Supreme Judicial Court, 1997)
Commonwealth v. Torres
660 N.E.2d 387 (Massachusetts Appeals Court, 1996)
Commonwealth v. Bartlett
671 N.E.2d 515 (Massachusetts Appeals Court, 1996)
Commonwealth v. Williams
704 N.E.2d 212 (Massachusetts Appeals Court, 1999)

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Bluebook (online)
9 Mass. L. Rptr. 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mercedes-masssuperct-1999.