Commonwealth v. Rosado

995 N.E.2d 95, 84 Mass. App. Ct. 208, 2013 WL 4566010, 2013 Mass. App. LEXIS 140

• Court: Massachusetts Appeals Court
• Decided: August 30, 2013
• Docket: No. 11-P-1778
• Status: Published

Opinions

Grasso, J.

Before us is the Commonwealth’s interlocutory appeal from an order of a District Court judge allowing the defendant’s motion to suppress evidence seized during a warrantless stop of a motor vehicle. After an evidentiary hearing at which State Trooper David Pinkham was the sole witness, the judge concluded that Pinkham lacked constitutional justification to (1) open the door to the defendant’s vehicle, (2) seize an item that was not an illegal weapon, and (3) remove the defendant from the vehicle and restrain him. We conclude that the judge erred in applying the law to the facts found and reverse.

1. Background. Charged with various drug and other offenses, the defendant moved to suppress the evidence seized during a motor vehicle stop that occurred in the early morning hours of January 2, 2011, in Holyoke. The defendant contended that Pinkham (1) impermissibly opened the door to his vehicle based on the observation of an item Pinkham believed was an illegal weapon, (2) improperly removed the defendant from the vehicle, and (3) used more force than the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights permit in a Terry-type stop.¹

2. Facts. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).² The assessment of witness credibility is the exclusive province of the motion judge. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 (2007); Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 639 (2001).

We recount the judge’s factual findings, which mirror the testimony of Pinkham in all respects:³

“On January 2, 2011 at approximately 1:55 AM, Trooper David Pinkham, a Massachusetts State Police officer for five years, was on the drunk driving detail in Holyoke. He was patrolling southbound on Route 116 (Race Street) when he saw a motor vehicle (Acura coupe) driving northbound on Main Street without a front license plate. Trooper Pinkham proceeded to follow the Acura, at which point he saw that the motor vehicle’s back plate was a ‘red’ plate. [If cars have a ‘red’ plate then by law they are to have a plate both in the back and in the front.] He also noticed the plate light was out. At this point, the Trooper activated his lights and pulled the motor vehicle over on Mosher Street.

“Once the car stopped, the Trooper noticed the driver’s head duck out of sight for a moment and then re-appear. The Trooper left his spot light on in his unmarked cruiser lighting the Defendant’s car. He approached the driver’s side of the car and noticed the Defendant was smoking. He asked the Defendant to put out the cigarette, which the Defendant did. At this point, the Defendant told the Trooper he knew why he was being stopped — it was because he did not have an inspection sticker. [The Defendant claimed he had been stopped earlier in the day for that same problem.] While speaking with the Defendant, the Trooper noticed that the front license plate was actually on the driver side dash window. The Trooper explained why he had stopped the Defendant — missing front plate and the non-illuminated back plate.

“The Trooper asked the Defendant where he was coming from that night. As the Defendant answered the question (he was coming from his brother’s house), he handed the Trooper his driver’s license. At this point the Defendant leaned over to the glove box to retrieve the registration. While the Defendant was leaning over, the Trooper noticed either a wooden or leather handle in the area between the driver’s door and seat. [There was no additional description given to the Court. No other ‘identifying’ marks consistent with a nunchaku[⁴] was [sic] seen. In fact, the Trooper stated on cross examination that he wasn’t sure it was a nunchaku and that is why he opened the door to retrieve the item and make a ‘positive Id.’] Based on this quick visual, he believed that he saw a nunchaku, a per se dangerous weapon, but was not sure. The Trooper told the Defendant to put his hands on the steering wheel where he could see them. He had to tell the Defendant twice, as the first time he commanded it, the Defendant was in the process of handing over the car’s registration. Once his hands were on the steering wheel, to further investigate precisely the item seen, the Trooper opened the car door and retrieved the ‘weapon.’ While opening the door, the Trooper saw the Defendant pull his right hand off the steering wheel and reach towards his right hip. The Trooper again told the Defendant to keep his hands on the wheel. The Trooper finally retrieved the item, which turned out to be a bull whip. He put the bull whip on the roof of the car, and told the Defendant to get out of the car all while physically escorting him out of the car. [The Trooper held the Defendant by the left arm as he was removing him from the car.]

“Once out of the car, the Defendant again tried to reach back with his right hand towards his right hip. The Trooper at this time told him to place his right hand on top of his head. Instead, the Defendant held his right arm up and away from his body. The Trooper again told him to put his right hand on his head. The Defendant complied. At this time, the Trooper noticed the Defendant’s body started to tense-up. The Trooper increased his grip on his left arm and secured it in hand cuffs. He then took the Defendant’s right arm and attempted to secure in the handcuffs, ultimately succeeding. As he was checking the tightness of the left handcuff, he could again feel the Defendant trying to reach to his right side. He noticed the Defendant had something cupped in his right hand. He told the Defendant to drop it, which he did. It was eight packets of heroin rubber banded together. At this point the Defendant was under arrest for heroin. A search incident to arrest was performed. In the car, the Trooper found 2 vials of lidocane [ízc] commonly used as a cutting agent for cocaine, a box of about 50 pirated DVDs, and 80 packets of heroin. In the Defendant’s back pocket $1,950.00 was found.”[⁵]

3. Discussion. As we have noted in the past, analysis of events in the stop and frisk context “is not only fact intensive and time dependent, Commonwealth v. Torres, 424 Mass. 153, 163 n.8 (1997), but also interconnected and dynamic.” Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. at 642. We examine the facts not in isolation, but as they reasonably and objectively appeared in the context of the ongoing encounter. See ibid. We assess “whether there were facts and circumstances in the course of [the] particular traffic stop that, viewed objectively, would give rise to ‘a heightened awareness of danger’ on the part of the trooper, . . . recognizing that law enforcement officials may have little time in which to avert ‘the sometimes lethal dangers of routine traffic stops.’ ” Commonwealth v. Stampley, 437 Mass. 323, 326 (2002), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 665, 671 (1999), S.C., 432 Mass. 613 (2000). A police officer need point only to some fact or facts in the totality of the circumstances that would create a heightened awareness of danger as to warrant an objectively reasonable officer in securing the scene in a more effective manner. See Commonwealth v. Gonsalves, 429 Mass, at 665.

With these principles in mind, we consider the facts found by the judge. Here, Pinkham’s observations that the vehicle lacked a front license plate and an illuminated rear license plate supported a stop of the vehicle for civil motor vehicle infractions, and the defendant does not claim otherwise. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995); Commonwealth v. Ciaramitaro, supra. At the outset of that stop, and prior to its ordinary conclusion, Pinkham made observations that provided a specific and articulable factual basis to believe (1) the defendant was in possession of a nunchuck, a prohibited dangerous weapon, and (2) the weapon posed a safety threat. See Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011) (exit order justified if police possess particularized suspicion of criminal activity or reasonable apprehension of danger). It was 1:55 a.m., Pinkham was alone, and prior to reaching the defendant’s vehicle, he saw the defendant duck out of sight momentarily before reappearing. As he stood next to the vehicle, Pinkham saw a wooden or leather handle in the area between the driver’s seat and door next to the defendant’s leg. Based on his training and experience, Pinkham believed the item was a nunchuck, a prohibited dangerous weapon, as he had seen nunchucks fashioned similarly.⁶ Given the dual concerns raised by these observations, Pinkham was fully justified in investigating further and securing any such weapons. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997); Commonwealth v. Johnson, 454 Mass. 159, 162 (2009). The police are “not required to gamble with their personal safety,” Commonwealth v. Robbins, 407 Mass. 147, 152 (1990), and are entitled to take reasonable precautions for their protection. Commonwealth v. Willis, 415 Mass. 814, 817 (1993).

Contrary to the defendant’s claim, Pinkham was not required first to inquire regarding the item rather than opening the door and removing it himself. See Commonwealth v. Stephens, 451 Mass. 370, 383-384 (2008). Neither the Federal Constitution nor the Massachusetts Declaration of Rights is so inflexible as to prohibit Pinkham from removing the weapon from the defendant’s reach before ordering him to get out of the vehicle — especially when the item lay between the defendant and the driver’s side door to the vehicle. Given the item’s location and proximity to the defendant, Pinkham’s assessment of the safest manner of securing it is a matter of judgment that we will not second guess. See Commonwealth v. Stampley, 437 Mass, at 328-329 (in analyzing danger posed during ongoing encounter with someone who may be armed, “split-second precision” not required); Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 350 (2010).

We do not agree with the motion judge that Pinkham’s lack of certainty that the item was a nunchuck precluded him from opening the door to investigate further and secure it. Central to the judge’s determination was her observation that Pinkham’s testimony provided no additional description or identifying marks beyond the object’s wooden or leather handle. The judge noted that Pinkham acknowledged “that he wasn’t sure it was a nunchaku and that is why he opened the door to retrieve the item and make a ‘positive [identification].’ ”⁷ The governing standard is reasonable suspicion, not certainty, and the scenario encountered by Pinkham presented both a reasonable suspicion of criminal activity and a reasonable apprehension of danger. “While 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.” Commonwealth v. Gonsalves, 429 Mass, at 664. Viewed from that vantage, we con-elude that Pinkham’s opening the vehicle’s door to gain immediate access to what he believed was an illegal weapon was a reasonable and proportional measure necessary to confirm or dispel his suspicion and secure the weapon if necessary.

Pinkham’s authority to investigate did not end when he opened the vehicle’s door and discovered that the item was not a nunchuk, but a bull whip. Although his discovery of this unusual item⁸ dispelled the suspicion that the defendant was in possession of an unlawful weapon, when viewed together with the defendant’s pulling his right hand off the steering wheel and reaching toward his right hip as Pinkham opened the vehicle’s door, the discovery heightened rather than alleviated safety concerns. “The 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.” Commonwealth v. Stampley, supra at 328. Pinkham had ordered the defendant to keep his hands on the steering wheel, and as Pinkham opened the door, the defendant moved his right hand toward his right hip. “[C]ertain conduct may cause an officer to become concerned that an occupant of a vehicle has access to a weapon. That the occupant is not reaching for a weapon at the exact moment of the exit order does not lessen the danger posed by an officer’s ongoing encounter.” Id. at 328-329.

Nor did Pinkham’s safety concerns end when he placed the bullwhip on the roof of the vehicle. Rather, the defendant’s ignoring of Pinkham’s commands to keep his hands on the steering wheel and his movement of his right hand toward his right hip necessitated escalating protective measures that were reasonable, measured, and proportional to the rapidly unfolding encounter. See Commonwealth v. Sinforoso, 434 Mass. 320, 323-324 (2001). We discern no disproportionality in Pinkham’s escorting the defendant from the vehicle by holding his left arm. See Commonwealth v. Johnson, 454 Mass, at 163-164 (officers “not required to accept the risk of . . . ambiguity” posed by defendant’s disregard of commands). Nor do we take issue with Pinkham’s subsequent command that the defendant put his right hand on his head. That command was a reasonable and proportional response to the defendant’s further attempt to reach back with his right hand toward his waist as Pinkham escorted him from the vehicle. See Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. at 644, citing Commonwealth v. Borges, 395 Mass. 788, 794 (1985) (degree of intrusion on defendant must be proportional to degree of suspicion prompting intrusion). Given the defendant’s continued ignoring of commands to keep his right hand on his head, his movement of his right arm up and away from his body, and his tensing of his body, Pinkham’s securing the defendant in handcuffs was a reasonable and proportional measure for safely ascertaining whether the defendant had access to other weapons. Finally, the defendant’s continued attempt to reach to his right side, even when in handcuffs, and Pinkham’s observation that the defendant had something cupped in his right hand, supported his order for the defendant to drop what was cupped in his hand.

In sum, we view the safety measures employed by Pinkham to be reasonable and proportional to the escalating risk he faced at each passing moment in this rapidly unfolding encounter. See Commonwealth v. Willis, 415 Mass, at 819-820; Commonwealth v. Williams, 422 Mass. 111, 117-119 (1996); Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992) (“use of cuffs, if necessary to accomplish a permissible inquiry, does not convert a Terry stop to an arrest”). We reverse the order allowing the defendant’s motion to suppress evidence because we conclude, as matter of law, that Pinkham’s actions, including his opening the door to the defendant’s vehicle, his removal of the bullwhip and the defendant from the vehicle, and the subsequent protective measures he employed were reasonable and proportional to the risks encountered and permissible under art. 14. See Commonwealth v. Rivera, 61 Mass. App. Ct. 362, 366-367 (2006).

Order allowing motion to suppress reversed.

1 See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Because the Fourth Amendment permits an exit order to a driver as a matter of course in a routine motor vehicle stop, see Pennsylvania v. Mimms, 434 U.S. 106, 109-110 (1977), we focus on the greater protections afforded under art. 14. See Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999) (under art. 14, police must have reasonable belief that officer’s safety, or safety of others, is in danger before ordering driver out of motor vehicle in routine traffic stop).

2 Neither the Commonwealth nor the defendant takes issue with any of the facts found by the motion judge. The parties’ dispute relates solely to whether, on the facts found, Pinkham’s actions met constitutional strictures.

3 We place in brackets those findings the judge relegated to footnotes.

4 See G. L. c. 269, § 10(b), inserted by St. 1975, c. 585, § 1, making it unlawful for a person to carry on his person, or under his control in a vehicle, certain dangerous weapons, including, inter alia, “nunchaku, zoobow, also known as klackers or kung fu sticks.” Case law often refers to nunchaku as “nunchucks.” See, e.g., Commonwealth v. Bush, 71 Mass. App. Ct. 130, 131 (2008); Commonwealth v. Carr, 76 Mass. App. Ct. 41, 43 n.3 (2009). See also Commonwealth v. Perry, 455 Mass. 1010, 1010-1011 (2009).

5 The defendant raised no challenge to the plain view seizure of the heroin that fell from his hand, his arrest, or the search of his person and vehicle and recovery of other evidence incident to that arrest. See Arizona v. Gant, 556 U.S. 332, 343-344 (2009); Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 796-797 (2011).

6 Pinkham related, “I observed the handle of what I believed to be a nun-chuck ... or a similar type weapon like clackers. ... I have seen nun-chucks that were fashioned similarly to the handle which I observed.”

7 We do not consider the judge’s statement to be an adverse finding as to Pinkham’s credibility but an erroneous view of the level of legal certainty required before Pinkham could permissibly open the vehicle’s door. The judge explicitly found that Pinkham “believed that he saw a nunchaku . . . but was not sure.”

8 As Pinkham testified, the discovery of the bullwhip “heightened my concern that in the area of Holyoke you probably do not raise oxen or drive bull.”