Commonwealth v. Rivera

5 Mass. L. Rptr. 565
CourtMassachusetts Superior Court
DecidedAugust 16, 1996
DocketNo. Other Docket Numbers:9577CR284042
StatusPublished

This text of 5 Mass. L. Rptr. 565 (Commonwealth v. Rivera) 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. Rivera, 5 Mass. L. Rptr. 565 (Mass. Ct. App. 1996).

Opinion

Welch, J.

Stripped to its essentials, the present motion presents the issue of whether defendant Wilberto Rivera freely and voluntarily consented to the search of his automobile. The facts as I find them are as follows.

At 2:20 a.m. onAugust9, 1995, Trooper Kelly Secrest was proceeding alone in a State Police cruiser heading northward along Route 1 in Danvers, Massachusetts. Trooper Secrest observed a vehicle weaving over the marked lanes of Route 1. This lane violation was more than a technicality. The vehicle, an Oldsmobile station wagon with New York license plates, crossed over the solid line and into the “break down” lane on the right side of Route 1 and then proceeded to weave across the dotted line on the left hand side of their lane of travel and into the so-called “passing lane.” Thereafter, the vehicle weaved back into the right hand lane of travel. Upon seeing this, Trooper Secrest activated her emergency lights and began the process of pulling over the Oldsmobile. As she was pulling over the Oldsmobile, she observed two individuals in the front seat of the car. As the lights were activated, she observed the operator look towards the passenger and the passenger look toward the operator. She assumed that this activity of the two occupants looking at each other was consistent with the driver passing the passenger some object. Thereafter, she observed the passenger bending forward to the glove compartment area. She assumed that this gesture was consistent with the passenger concealing some object.

The operator of the Oldsmobile pulled the car over and in a prompt fashion. The Trooper then exited her vehicle, without calling for any back-up, and approached the operator. The operator was an individual in the name of Juan Reyes. The Trooper asked for the operator’s license and registration. Juan Reyes thereupon handed Trooper Secrest a license from Puerto Rico. Trooper Secrest was unsure whether a Puerto [566]*566Rican license was valid in Massachusetts. She was aware, however, that the Massachusetts State Police computer would not be able to determine the validity of a license issued in Puerto Rico. The passenger, the defendant Wilberto Rivera, then upon request passed the car’s registration to the Trooper. The Trooper does not recall from where defendant Rivera obtained the registration. The registration was facially valid and listed defendant Rivera’s name on the registration. The registration, just as the plates on the car, was issued by the State of New York. Defendant Rivera also passed his license to the Trooper. The license was a New York license bearing his name. Although Trooper Secrest had not yet had an opportunity to check the validity of the registration or the New York license, both appeared facially valid.

Trooper Secrest then asked the operator, Juan Reyes, his destination. He responded that they were in route to Lynn, Massachusetts. The Trooper asked how long they were staying in Lynn and Mr. Reyes responded one night and offered the information that he was coming to Lynn to visit a girlfriend and that he and Rivera were looking for a hotel to stay in the night before they visited the girlfriend in Lynn. Trooper Secrest understandably found this explanation suspicious. Given her knowledge of the Route 1 area she knew that this vehicle had already passed three or four motels along Route 1 before being stopped. Indeed she had observed this vehicle pass the Marriot Residence Inn shortly prior to the lane violation. She also recognized that this vehicle was heading north and away from the City of Lynn. More important, she had observed that the station wagon contained absolutely no luggage of any kind. She understandably was dubious that two individuals, who were allegedly from New York and searching for a hotel did not carry any luggage whatsoever.

All the conversation up to this point had been in English. The driver, Juan Reyes, was fluent in English and the passenger, defendant Rivera, responded to Trooper Secrest’s English questions in English and evidenced no difficulty in understanding her questions. As soon as Mr. Reyes provided this suspicious stoiy about looking for a motel, he began to speak to Rivera in Spanish and Rivera responded in Spanish. Trooper Secrest did not speak Spanish and could not understand this conversation. Thereupon, Trooper Secrest ordered the driver, Juan Reyes, to get out of the vehicle. At this time, Trooper Secrest had not radioed for back-up or had time to run the license or registration. Trooper Secret’s reason for requesting the driver to get out of the vehicle was to pat frisk the driver for weapons. At this point, she had the subjective belief that her personal safety was at risk and that the occupants of the vehicle might be armed. The driver of the vehicle complied and Mr. Reyes was patted down and frisked while standing at the back of the Oldsmobile. As he was being frisked, a Police Officer from the Town of Middleton stopped to offer assistance. The frisk did not reveal any weapons but did reveal a large bulge in the front pants pocket. This large bulge turned out to be $460.00 of cash. Thereupon, Trooper Secrest requested that the passenger, defendant Rivera, to get out of the vehicle. He complied. He was also pat frisked for weapons and none were found.

The Trooper then asked both defendant Rivera and Juan Reyes whether they would mind if she searched the vehicle. She did not inform the two men of their right to refuse to consent to such a search. First Mr. Reyes responded in the words to the effect “no, go ahead." Thereafter Rivera responded in the same fashion. Defendant Rivera evidenced no difficulty understanding Trooper Secrest’s question and he responded in English. Defendant Rivera responded to a number of Trooper Secrest’s questions in English both during the stop and later during the booking procedure at the State Police barracks. Defendant Rivera’s command in the English language is not as great as that of the car’s driver Juan Reyes. On occasion, Mr. Reyes acted as an interpreter for Trooper Secrest when certain questions were asked of defendant Rivera. Mr. Reyes, however, did not attempt to interpret the trooper’s request for permission to search the vehicle. Instead, Mr. Reyes responded that he had no objection and Mr. Rivera, who evidenced substantial comprehension of English, responded without difficulty that he had no objection to the search.

Trooper Secrest began to search the vehicle. She began her search at the glove compartment. This is the same location where she saw the defendant Rivera gestures toward once she activated her lights. Upon looking into the glove compartment she observed a hole approximately the size of a quarter in the back of the glove compartment. Through this hole she could observe a wad of currency. Upon removing the glove compartment, she (now with the aid of another State Trooper who arrived upon the scene) found a substantial amount of money and a quantity of cocaine wrapped in tin foil.

Mr. Reyes and defendant Rivera were then arrested and subsequently booked at the State Police barracks.

DISCUSSION

Although it is a close question, upon weighing all the evidence I conclude that the pat frisk was not valid and that the consent which was obtained almost immediately at the conclusion of the pat frisk was likewise invalid. This Court reaches this conclusion with some hesitation because Trooper Secrest was a completely credible witness. It is, of course, easy to make legal determinations regarding reasonable and articulable suspicions in the security of a courtroom and with the luxury of time for reflection.

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Related

Commonwealth v. Ferrara
381 N.E.2d 141 (Massachusetts Supreme Judicial Court, 1978)
Commonwealth v. Loughlin
430 N.E.2d 823 (Massachusetts Supreme Judicial Court, 1982)
Commonwealth v. Owens
609 N.E.2d 1208 (Massachusetts Supreme Judicial Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
5 Mass. L. Rptr. 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rivera-masssuperct-1996.