Commonwealth v. Soriano-Lara

• Court: Massachusetts Appeals Court
• Decided: May 7, 2021
• Docket: AC 19-P-1311
• Status: Published

Opinion

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19-P-1311 Appeals Court

COMMONWEALTH vs. JOHAN SORIANO-LARA.

No. 19-P-1311.

Suffolk. March 4, 2021. - May 7, 2021.

Present: Milkey, Kinder, & Sacks, JJ.

Controlled Substances. Motor Vehicle. Search and Seizure, Automobile, Probable cause, Reasonable suspicion, Threshold police inquiry. Constitutional Law, Probable cause, Reasonable suspicion, Search and seizure. Probable Cause. Threshold Police Inquiry. Practice, Criminal, Motion to suppress.

Indictments found and returned in the Superior Court Department on November 16, 2016.

A pretrial motion to suppress evidence was heard by Diane C. Freniere, J., and a conditional plea of guilty was accepted by Robert L. Ullman, J.

Robert L. Sheketoff for the defendant. Ian MacLean, Assistant District Attorney, for the Commonwealth.

SACKS, J. The defendant appeals from a Superior Court

judge's order denying a motion to suppress all evidence obtained

during a traffic stop of the vehicle the defendant was driving. 2

The defendant argues, among other things, that the stop was

unreasonably prolonged, so that any evidence obtained after the

stop should have ended must be suppressed as the fruit of a

poisonous tree. We agree and therefore reverse.

Background. We summarize the judge's pertinent findings of

fact, supplementing with additional facts from testimony that

the judge explicitly or implicitly credited. See Commonwealth

v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818

(2008).

Trooper James Farrell has served as a State trooper for

approximately twenty-five years and has extensive,

particularized training in narcotics enforcement, including

training on identifying hidden compartments in motor vehicles.

He has made more than 250 arrests for drug-related offenses,

including approximately thirty arrests that involved identifying

hidden compartments during a motor vehicle stop.

At approximately 2:55 P.M. on September 13, 2016, Farrell

was on uniformed patrol on Route 1A in Lynn.1 As he approached a

left-turn-only lane, Farrell noticed that a vehicle traveling in

front of him, a Volvo XC-90 with Massachusetts license plates,

moved from a travel lane into the left-turn-only lane without

1 Route 1A was known to Farrell as a drug transportation route between Boston and the cities of Revere, Chelsea, and Lynn. 3

first signaling. After both vehicles turned left onto a side

street, Farrell pulled the Volvo over.

Farrell approached the Volvo and observed two occupants in

the front seats. Farrell asked the driver, later identified as

the defendant, for his license and registration. The defendant

provided a Rhode Island driver's license. The passenger stated

that her mother owned the vehicle and that she (the passenger)

regularly drove it. The vehicle's registration indicated that

it was registered to a third party in Foxborough.

The Rhode Island license that the defendant handed to

Farrell was for a Carlos Pina-Garay and listed a residential

address in Cranston, Rhode Island. However, when Farrell asked

the defendant where he lived, he replied, "Providence." Farrell

observed that both the defendant and the passenger appeared to

be very nervous; they were breathing heavily and their carotid

arteries were visibly pulsing in their necks.

Farrell returned to his cruiser and determined that the

proffered license was valid and active, that the registration

was active, and that the Volvo had not been reported stolen.

However, based on his observations, Farrell decided to call for

backup. In addition to the apparent discrepancy in the

residence information provided by the defendant,2 Farrell had

2 Farrell was aware that persons with information on their Massachusetts records that they wish to conceal, such as a 4

observed that when the defendant opened his wallet to retrieve

his license, the wallet contained "religious icons, small

pictures of saints." Moreover, there was a set of rosary beads

hanging from the rearview mirror. Farrell testified that, based

on his training and experience, "religious icons and good luck

symbols, in and of themselves may not mean anything, but

combined with all other indicators could be a[n] indicator of

criminal activity."3

Farrell then returned to the Volvo4 and asked the defendant

where he was coming from. The defendant replied that he was

coming from an auto repair shop where a friend had just repaired

his brakes. In response to further questioning by Farrell, the

defendant could not provide the name of the shop, its location,

or his friend's name. Believing the defendant to be lying,

Farrell then inspected the Volvo's wheel lug nuts and rims and

observed that they were covered in dust, which was inconsistent

with recent brake work. Thereafter, Farrell again asked the

defendant where he lived, to which the defendant replied,

revoked license or an outstanding warrant, will often obtain false identification from a neighboring State.

3 The judge explicitly declined to credit Farrell's testimony regarding the significance of the religious items.

4 Farrell did so without waiting for backup. Ten to fifteen minutes passed before another trooper arrived. 5

"Cranston." Farrell pointed out that the defendant had

initially said he lived in Providence. The defendant replied

that Providence and Cranston were the same place.

At that time, Farrell observed significant wear on the

center console panel near the temperature controls. He further

observed that a carpeted panel around the center console area

had been pulled out of place. On a previous occasion, Farrell

had located a hidden compartment containing drugs in that exact

location in a Volvo XC-90.

Farrell observed that the defendant was becoming agitated.

By this time, a backup trooper had arrived, and Farrell asked

the defendant to step out of the Volvo. The defendant complied,

and Farrell moved him to behind the Volvo, where the defendant

began yelling out in Spanish to the passenger. Farrell asked

the defendant if he could identify any streets around his

proffered license address in Cranston, but the defendant was

unable to do so.5 Farrell asked his age and the defendant said

he was thirty-four, whereas the proffered license indicated that

the holder was thirty-two. The defendant was also asked his

social security number and did not answer. At that point,

5 While in his cruiser, Farrell had checked the Internet for the names of streets near the Cranston address listed on the license. 6

Farrell placed the defendant in the rear of his cruiser and then

asked the passenger to step out of the Volvo, which she did.

Farrell then returned to the Volvo's center console, pulled

on the out-of-place carpeted piece, and uncovered a hidden

compartment containing a metal box. Farrell opened the box and

found a bundle of currency and a substance later identified as

cocaine. Farrell arrested both the defendant and the passenger.

After the motion judge denied the defendant's motion to

suppress, the defendant entered a conditional guilty plea to an

indictment for cocaine trafficking; an indictment for money

laundering was dismissed at the Commonwealth's request. See

Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499

(2019). The defendant appealed.

Discussion. We accept the judge's subsidiary findings

unless clearly erroneous, see Commonwealth v. White, 374 Mass.

132, 137 (1977), aff'd by an equally divided Court, 439 U.S. 280

(1978), and we make an "independent determination on the

correctness of the judge's application of constitutional

principles to the facts as found" (quotation and citation

omitted), Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C.,

398 Mass. 806 (1986). 7

We will assume without deciding that the traffic stop was

valid at its inception6 and proceed directly to the question

whether the stop was unreasonably prolonged. "[T]he tolerable

duration of police inquiries in the traffic-stop context is

determined by the seizure's 'mission' to address the traffic

violation that warranted the stop." Commonwealth v. Cordero,

477 Mass. 237, 241 (2017), quoting Rodriguez v. United States,

575 U.S. 348, 354 (2015). "Police authority to seize an

individual ends 'when tasks tied to the traffic infraction are

–- or reasonably should have been -- completed'" (emphasis

added). Cordero, supra, at 242, quoting Rodriguez, supra. The

Supreme Judicial Court recently summarized the principles

governing this issue as follows:

"A valid investigatory stop cannot last longer than reasonably necessary to effectuate the purpose of the stop. The scope of a stop may only extend beyond its initial purpose if the officer is confronted with facts giving rise to a reasonable suspicion that further criminal conduct is afoot. 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" (quotations and citations omitted).

Commonwealth v. Tavares, 482 Mass. 694, 703 (2019).

Here, based on Farrell's initial conversation with the

Volvo's occupants, he knew that there was an apparent

6 We pass over the defendant's claim that he was not required to activate his turn signal before moving into a left- turn-only lane. 8

discrepancy between the defendant's claimed residence in

Providence and the proffered license's listing of a Cranston

address, calling into some question the defendant's true

identity.7 The judge reasoned that this information, "[c]oupled

with the fact that the vehicle's registration was not in either

of the defendants' names and their nervous demeanors and

physical manifestations, [gave Farrell] reasonable suspicion

that [the defendant] was lying about his identity." Thus, the

judge reasoned, "Farrell was justified in briefly further

detaining [the defendant and the passenger] and expanding the

scope of his investigation to confirm the identity of the

driver."8

Farrell was of course justified in returning to his cruiser

to try to verify the information he had received. Upon doing

so, Farrell learned that the license was valid, the registration

7 There is at least some force to the defendant's suggestion that someone might mention his out-of-State residence by reference to a known city there, i.e., a Chelsea resident, while in another State, might tell someone that he lived in Boston.

8 The Commonwealth suggests that the calculus should also include Farrell's knowledge that Route 1A is a drug transportation route between Boston and cities to the north. This factor was entitled to little if any weight. Cf. Cordero, 477 Mass. at 244-245. When Farrell approached the Volvo for the second time, he had at most a hunch, but not a reasonable suspicion, that the defendant was engaged in transporting drugs, and the prolongation of the stop cannot be justified on that ground. 9

was valid, and the Volvo had not been reported stolen.9 Farrell

then approached the Volvo for a second time.

We agree that Farrell still had reason to question the

defendant further in order to ascertain his identity and address

so that Farrell could issue him a citation for the traffic

violation. The problem is that Farrell did not do so. Instead,

he proceeded to question the defendant about where the defendant

was coming from. Upon hearing the defendant's reply -- that he

was coming from a repair shop where a friend had performed brake

work on the Volvo -- Farrell continued to question the defendant

about the name of the shop, the address of the shop, and the

name of the friend who had performed the work. Further,

believing that the defendant's inability to answer these

questions meant he was lying, Farrell proceeded to inspect the

Volvo's four wheels, to see if their rims or lug nuts showed any

signs of recent work. Finding no such signs, Farrell resumed

the questioning. Only at this point did Farrell turn back to

questions that touched on the defendant's identity by asking,

9 The judge concluded that the totality of the information Farrell initially obtained created a reasonable suspicion that the defendant was furnishing false information. See G. L. c. 268, § 34A. Even if the uncertainty initially rose to that level, it dissipated somewhat once Farrell returned to his cruiser and learned these additional facts. 10

once again, where he lived. Farrell then saw the displaced

carpeting that led to his discovery of the hidden compartment.

Farrell's digression into general investigative questioning

of the defendant was constitutionally impermissible. "Citizens

do not expect that police officers handling a routine traffic

violation will engage, in the absence of justification, in

stalling tactics, obfuscation, strained conversation, or

unjustified exit orders, to prolong the seizure in the hope

that, sooner or later, the stop might yield up some evidence of

an arrestable crime." Commonwealth v. Gonsalves, 429 Mass. 658,

663 (1999). See Tavares, 482 Mass. at 703. Farrell's authority

to detain the defendant and his passenger ended when the process

of ascertaining the defendant's identity and address to the

extent required to write him a traffic citation "reasonably

should have been" completed.10 Cordero, 477 Mass. at 242,

quoting Rodriguez, 575 U.S. at 349. "The initial stop was

therefore unreasonably extended and constituted an illegal

seizure." Tavares, supra at 704. "As this prolonged detention

was unconstitutional, and the evidence at issue flowed

10Even if Farrell's verification of the validity of the license and registration was relatively expeditious, he did "not [thereby] earn 'bonus time' to conduct additional investigations." Cordero, 477 Mass. at 242. 11

therefrom," such evidence "should have been suppressed as the

fruit of the poisonous tree." Id. at 706, 708.

We do not suggest that any detour from ascertaining a

motorist's identity unreasonably prolongs a stop and thus

requires suppression. But that is not what occurred here. And

even a detour into more general investigative questioning need

not always require suppression. Here, the Commonwealth might

have attempted to show that the evidence in question would have

been "inevitably discovered" once the trooper returned to

questioning the defendant about where he lived and events

unfolded from there. See Commonwealth v. O'Connor, 406 Mass.

112, 115-119 (1989) (discussing inevitable discovery rule and

Commonwealth's burden of proving its applicability). The

Commonwealth did not attempt to do so here, however, nor did the

judge make findings relevant to that issue.

This case is unlike Commonwealth v. Feyenord, 445 Mass. 72

(2005), cert. denied, 546 U.S. 1187 (2006), relied upon by the

judge. In that case, during a traffic stop, the driver "could

not produce a valid driver's license, produced a registration in

another person's name, failed to identify himself, and appeared

nervous." Id. at 78. Those circumstances "justified an exit

order and further inquiry" into whether the driver was "engaged

in criminal activity beyond [his] nonpossession of a license and

the vehicle's malfunctioning headlight." Id. Here, in 12

contrast, (1) the defendant produced a license that Farrell

ascertained was valid; (2) although the registration was not in

the defendant's name, the passenger offered a reasonable

explanation (the Volvo belonged to her mother), and Farrell

ascertained that the registration was valid and the Volvo had

not been reported stolen; and (3) the defendant identified

himself. The fourth factor present in Feyenord was nervousness,

but, "in the context of an involuntary police encounter," this

factor, alone or combined with other weak indicia of criminal

activity, cannot generate reasonable suspicion. Cordero, 477

Mass. at 243-246 (motorist's nervousness, evasiveness in

answering questions about trip's starting point and destination,

travel from drug "source city," and record of prior convictions

did not combine to create reasonable suspicion).11

Farrell would have been justified in extending the

encounter in order to resolve the apparent discrepancy between

the defendant's stated city of residence and the one shown on

the proffered license. But Farrell had no reasonable suspicion

of illegal drug activity, and thus he could not permissibly

extend the encounter with questions aimed at pursuing his hunch

that such activity was afoot. As Feyenord itself stated, in

11Cf. Gonsalves, 429 Mass. at 660, 669 (motorist's extreme nervousness, trembling hands, and heavy breathing did not establish reasonable suspicion justifying exit order). 13

assessing whether a detention has been unreasonably prolonged, a

court must "examine whether the police diligently pursued a

means of investigation that was likely to confirm or dispel

their suspicions quickly." Feyenord, 445 Mass. at 81, quoting

United States v. Sharpe, 470 U.S. 675, 686 (1985). Even if

Farrell had a reasonable suspicion that the defendant had

proffered false identification, Farrell did not diligently

pursue questioning to confirm or dispel that suspicion quickly.

"This was no 'swiftly developing situation' that prevented

verification or disproof of the officer's suspicions regarding

the defendant's identity . . . through routine computer or radio

checks. . . . Officers' actions must be no more intrusive than

necessary at each step to effectuate both the safe conclusion to

the traffic stop and the further investigation of the suspicious

conduct" (quotations and citations omitted). Commonwealth v.

Brown, 75 Mass. App. Ct. 528, 537 (2009). Here, Farrell's

actions exceeded the latter limitation.

Relying on Commonwealth v. D'Agostino, 38 Mass. App. Ct.

206, S.C., 421 Mass. 281 (1995), the Commonwealth argues that

asking a driver where he is coming from is always permissible in

a routine traffic stop. But there the court stated only that

such questioning need not be preceded by Miranda warnings. Id.

at 208. Nothing in D'Agostino suggests that an officer may

pursue such questioning without regard to whether it 14

unreasonably prolongs a traffic stop. Rather, questioning

during a traffic stop "should pertain to operation of the motor

vehicle: inquiry into the status of the driver as a licensed

operator and the registration of the automobile." Commonwealth

v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996). In Bartlett,

questions about "where [the defendant] was coming from and where

he was going" were held to constitute "investigatory

conversation for which the officer had no lawful basis once he

had received a valid license and registration."12 Id. at 469,

472. See Commonwealth v. Harris, 93 Mass. 56, 63 (2018) (noting

that in Cordero, "police prolonged the stop by questioning the

driver about his travel history that day").

Order denying motion to suppress reversed.

The Commonwealth also asks us to consider the 12

unreasonable-delay analysis in Commonwealth v. Martin, 91 Mass. App. Ct. 733 (2017). But that case did not involve a traffic stop, id. at 734, and thus is not particularly helpful here.