Commonwealth v. Santos

837 N.E.2d 296, 65 Mass. App. Ct. 122, 2005 Mass. App. LEXIS 1068
CourtMassachusetts Appeals Court
DecidedNovember 14, 2005
DocketNo. 04-P-631
StatusPublished
Cited by17 cases

This text of 837 N.E.2d 296 (Commonwealth v. Santos) 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. Santos, 837 N.E.2d 296, 65 Mass. App. Ct. 122, 2005 Mass. App. LEXIS 1068 (Mass. Ct. App. 2005).

Opinion

Kafker, J.

The defendant, Antonio A. Santos, Jr., appeals from his convictions of carrying a firearm without a license, G. L. c. 269, § 10(a), and possession of a firearm without a firearm identification card, G. L. c. 269, § 10(h). He argues that his waiver of a jury trial was ineffective and that his motion to suppress the firearm, a handgun seized from the vehicle he was driving, was improperly denied. We accept the Commonwealth’s concession that a new trial is required, as the defendant neither executed nor filed a written waiver, and the motion judge failed to conduct a waiver colloquy. The only disputed issue is the propriety of the motion to suppress the handgun. We conclude that the search of the vehicle was unlawful and, therefore, reverse the order denying the motion to suppress.

[123]*123We summarize the facts found by the motion judge and supplement those findings with undisputed facts from the record specifically identified below. On January 27, 2002, during the day shift, a Taunton police officer stopped the defendant for a motor vehicle violation. The defendant had run a stop sign and cut off a vehicle that had the right of way. As he approached the vehicle driven by the defendant, the officer observed the defendant sit upright from the reclined position in which he had been driving and lean forward in the driver’s seat.

Upon the officer’s request, the defendant identified himself, but was unable to produce a driver’s license or vehicle registration. He also informed the officer that he had an active license, and he provided the officer with his date of birth.1 With the officer observing, the defendant looked unsuccessfully through the glove compartment for the vehicle registration.

The officer was concerned that the defendant “was not who he said he was.” After informing the defendant he was not under arrest, the officer handcuffed the defendant and secured him in the rear of the police cruiser.2 The officer then approached the empty vehicle “to attempt to identify the owner thereof.”3 Immediately upon opening the driver’s door, the officer observed the white handle of a handgun protruding from beneath the driver’s seat. The officer secured the weapon and then arrested the defendant, transported him to the police station, and charged him with the aforementioned firearm offenses. As the officer testified, upon returning to the station he learned that the defendant did in fact have an active license and that the car belonged to the defendant’s mother.

1. Ineffective waiver. The record shows no evidence that the [124]*124defendant signed any written waiver of a jury trial or received the required jury waiver colloquy. See Commonwealth v. Hardy, 427 Mass. 379, 381-382 (1998). The Commonwealth concedes that these fatal errors mandate a new trial. Our review confirms the necessity of this concession. See Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975 (1993). Accordingly, we turn our attention to the defendant’s motion to suppress the handgun.

2. Motion to suppress. There is no dispute that the initial stop of the defendant’s car and request for identification were proper in this case. The officer, as noted supra, had just observed the defendant run a stop sign and cut off a vehicle that had the right of way. “Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting from Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Because “[t]he nature of the stop, i.e., for a traffic offense, defines the scope of the initial inquiry by a police officer,” Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996), the officer was entitled to request the driver’s license and the vehicle registration. Id. at 470-471. When the defendant produced neither a license nor a vehicle registration, the officer became suspicious about the defendant’s identity and the car’s ownership. The Commonwealth argues, as the motion judge found, that the subsequent exit order, handcuffing, and search of the vehicle were justified as a Terry-type stop and search. Terry v. Ohio, 392 U.S. 1 (1968). We disagree.

“ ‘It is settled that in appropriate circumstances a Terry type search may extend into the interior of an automobile.’ Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). Furthermore, ‘ [wjhen the police are justified in stopping an automobile, they may, for their safety and the safety of the public, order the occupants to exit the automobile.’ Commonwealth v. Santana, 420 Mass. 205, 212 (1995). ... To justify either the search or the order to the occupants to exit the automobile, ‘we ask “whether a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” ’ ” Commonwealth v. Vazquez, 426 Mass. 99, 102-103 (1997), quoting from Commonwealth v. [125]*125Santana, supra at 212-213. See Commonwealth v. Gonsalves, 429 Mass. 658, 661-662, 662-663 (1999).4

Such a search of the automobile must be “limited in scope to a protective end.” Commonwealth v. Silva, 366 Mass. 402, 408 (1974). A search of the automobile for evidence as opposed to weapons is not authorized by Terry principles. See id. at 410; Commonwealth v. Almeida, 373 Mass, at 272; Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 570 (2002).

The Supreme Judicial Court has emphasized that, given the risks officers confront in automobile stops, “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.” Commonwealth v. Gonsalves, 429 Mass. at 664. See Commonwealth v. Torres, 433 Mass. 669, 673 (2001). Nevertheless, more than a “hunch” is required. Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 688 (2001). “[T]o permit an officer, in the absence of any specific and articulable facts [establishing a reasonable apprehension of harm] to order the driver of a vehicle ... to step out of the vehicle [and then conduct a search] would be to invite random and unequal treatment of motorists.” Commonwealth v. Gonsalves, supra. See Commonwealth v. Stampley, 437 Mass. 323, 326 (2002).

With the exception of the defendant’s failure to produce a license or registration, the officer was confronted with an unremarkable traffic stop. The fact that the traffic stop took place in a high crime area, while relevant to an objective assessment of the officer’s safety, must be “considered with some caution because many honest, law-abiding citizens live and work in high crime areas.” Commonwealth v. Holley, 52 Mass. App. Ct. 659, 663 (2001). Similarly, the defendant’s movement — “sit[ting] up erect from a reclined position [in which he was driving] and lean[ing] forward” — adds little to the analysis.5 The motion judge did not find the gesture to be furtive, nor did he rely on it in denying the motion to suppress. Id. [126]*126at 665.

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Bluebook (online)
837 N.E.2d 296, 65 Mass. App. Ct. 122, 2005 Mass. App. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-santos-massappct-2005.