COMMONWEALTH v. JOSEPH (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of carrying a firearm without a license, pursuant to G. L. c. 269, § 10 (a). On appeal, the defendant asserts that his motion to suppress the firearm recovered from his backpack during a traffic stop was erroneously denied. We affirm.

Background. We summarize the facts as found by the motion judge, supplemented by uncontroverted testimony from the hearing. See Commonwealth v. Cordero, 477 Mass. 237, 238 (2017), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On March 31, 2014, at approximately 7:40 p.m., an Everett Police Department officer stopped the defendant's vehicle for driving through a red light. The officer asked the defendant for his driver's license and the vehicle's registration. The defendant informed the officer that he did not have his license on him and asked the officer if he could call his mother.² The defendant also did not have the registration. The officer told the defendant to wait in the vehicle; the officer went back to his own vehicle to conduct a license check on the defendant, which revealed that the defendant had an active driver's license and no warrants, and that the vehicle's registration was revoked for a lack of insurance. The officer determined that the vehicle had to be towed because of the revoked registration and informed the defendant of the same. He issued the defendant citations for operating a vehicle with a revoked registration, a red light violation, and for not having his driver's license and the vehicle registration in his possession.

The officer asked the defendant and his passenger to exit the vehicle in light of the need to tow the vehicle; the defendant asked if he could remove his backpack from the vehicle, and the officer allowed the removal. The officer then informed the defendant that it would ease the towing process and his inventory search of the vehicle if the defendant left the ignition key and kept the doors unlocked. The defendant and the passenger exited the vehicle. The defendant asked if he could leave. The officer, who noticed that the defendant had not left the ignition key or unlocked the vehicle, again asked the defendant if he wanted to do that.³

The defendant returned to the vehicle. Instead of unlocking the doors and leaving the key, he started the vehicle, placed it into gear, and began to move it forward. The officer, who had not instructed the defendant to move the vehicle, banged on the hood and asked the defendant to place the vehicle in park and exit. Instead, the defendant moved the vehicle backwards a few feet. The officer again instructed the defendant to place the car in park and exit the vehicle. Again, the defendant ignored the officer and began removing items from the glove box and placing them in his backpack. From his vantage point, the officer could not identify the items.

Concerned for his safety and outnumbered, the officer removed the defendant from the vehicle, took the backpack from him, and pat frisked the backpack.⁴ The officer felt a hard object and was concerned that it might be a weapon. The officer opened the backpack and found a black handgun. The defendant was arrested.

The defendant moved to suppress the physical evidence seized and his statements following his arrest. The motion judge allowed the defendant's motion to suppress the statements as involuntary and denied the defendant's motion with regard to the physical evidence seized. At trial, the jury found the defendant guilty of carrying a firearm without a license; he was sentenced to eighteen months committed in the house of correction. This timely appeal followed.

Discussion. Standard of review. “When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error.” Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011), citing Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009). We conduct an “independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Tremblay, supra, citing Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

Request to leave ignition key and unlock doors. The defendant acknowledges that the officer validly stopped the car for running the red light, a civil traffic violation. See Commonwealth v. Cruz, 459 Mass. 459, 465 (2011). He asserts, however, that the officer unnecessarily prolonged the stop when, after issuing the citations and in response to the defendant's inquiry as to whether he could leave, the officer asked him again whether he could leave the ignition key and unlock the vehicle to ease the tow process and the officer's inventory search. We disagree.

Unlike in the cases upon which the defendant relies, here the officer did not extend the routine traffic stop beyond that which was necessary to complete its purpose because, during the stop, the officer learned that the registration was revoked and determined that it needed to be towed. “The pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances.” Commonwealth v. Moses, 408 Mass. 136, 141 (1990). The officer's request, if complied with, would facilitate the purely administrative function of conducting the inventory search and tow, which was needed due to the vehicle's revoked registration. Contrast Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997) (after stopping vehicle for speeding and confirming validity of license and registration and purpose of traffic stop complete, officer impermissibly extended scope of stop by making inquiries of passenger whom he ordered to stand at rear of vehicle).

Pat frisk of backpack. Once the defendant reentered the car, inexplicably moved it forward and backward, and placed items from the glove compartment into the backpack, the officer, who was outnumbered, had reasonable suspicion to detain the defendant and pat frisk the backpack for officer safety. See Commonwealth v. Daniel, 464 Mass. 746, 752 (2013). Once the officer felt a hard object within the backpack that he believed to be a weapon, he was justified in opening the backpack to “confirm or dispel” that belief. See Commonwealth v. Pagan, 440 Mass. 62, 68 (2003). The defendant's arguments to the contrary rely on the incorrect proposition that the officer's request that the defendant unlock the doors and leave the ignition key constituted an unlawful detention beyond that which was necessary to complete the traffic stop. As set forth above, it does not.

Accordingly, the defendant's motion to suppress was properly denied, and the defendant's conviction is affirmed.

Judgment affirmed.

FOOTNOTES

2.   The defendant was nineteen years old.

3.   The officer's testimony on this exchange ranged from describing it as a request to ease the towing process to an instruction to the defendant to unlock the car and leave the key.

4.   As he was attending to the defendant, the officer saw that the passenger's sweatshirt pocket was sagging and that the passenger reached his hands into the pocket. A subsequent search of the passenger revealed the passenger had a magazine with ammunition and some loose rounds of ammunition in his pocket.