COMMONWEALTH v. FERNANDES (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth brings this interlocutory appeal from a Superior Court order allowing the defendant's motion to suppress evidence. The appeal centers on whether an exit order following a valid motor vehicle stop was justified. Where the totality of circumstances known to the police officer issuing the exit order, viewed objectively and credited by the motion judge, gave rise to a reasonable belief that the officer's safety was in danger, the exit order was justified. See Commonwealth v. Stampley, 437 Mass. 323, 325-326 (2002). Accordingly, we reverse the order allowing the motion to suppress.

Background. 1. Facts. We summarize the facts found by the motion judge, supplemented by uncontroverted testimony that he implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). Around 10 p.m. on December 21, 2016, two police officers of the Bourne Police Department were on routine patrol in a marked cruiser traveling toward the Bourne Bridge. The operator of the cruiser (the officer) observed a vehicle traveling at least ten miles per hour over the posted speed limit,² driving over the fog line, “over-correcting,” and proceeding over the yellow line. He activated his blue lights, and the vehicle pulled over. He approached the driver's side of the vehicle, while the other officer (the second officer) approached the passenger's side.³ The defendant, an African-American man,⁴ occupied the driver's seat, while a woman occupied the passenger's seat. The officer informed the defendant of the reason for the stop and asked for his license and registration, which the defendant produced. The officer also asked the defendant where he had been coming from, to which the defendant responded that it was none of the officer's business.

The officer returned to his cruiser and checked the defendant's license, registration, and board of probation records. The check revealed that the defendant “had multiple criminal entries as to firearms and drugs.” More specifically, as the officer testified, the defendant had “multiple convictions of possession to distribute narcotics and firearms convictions.” ⁵ In addition, the officer testified that, while conducting the records check, he “observed the defendant duck down out of sight, as if he was leaning forward” and then “quickly come back up, lean towards the middle and lift his buttocks off the seat, as if he was reaching under himself.” Consistent with this testimony the judge found that the officer made “an observation that suggests a reaching toward [the defendant's] buttocks and some movement toward the console.”

The officer approached the vehicle and ordered the defendant to leave the vehicle. The defendant stated, “You're just doing it because I'm black and I'm in a Mercedes.” The defendant complied after the officer ordered him a second time to get out of the car. The officer directed the defendant to the rear of the vehicle and pat frisked him. “The pat-frisk moved to the area of the [defendant's] buttocks and upper leg,” the area the defendant had reached toward inside the vehicle, whereupon the officer “briefly felt a hard object.” The defendant pushed the officer and ran away. The officer pursued the defendant, “caught up with him,” and grabbed his arm. The defendant punched the officer. With the assistance of the second officer, the defendant was handcuffed. The defendant continued to kick and resist arrest, and attempted to reach “down into his pants.” The officer “was able to feel the object. It felt hard, the size of a baseball.” The defendant stood up and “was kicking [the officer] in the shins. [The defendant] was pepper-sprayed and eventually subdued.” The hard object was “removed from down in his pants, [and] was found to be a quantity of narcotics.” The defendant was arrested and charged with trafficking in fentanyl,⁶ trafficking in heroin, possession with intent to distribute cocaine, assault and battery on a police officer, assault and battery by means of a dangerous weapon, and resisting arrest.

Prior to trial, the defendant moved to suppress the evidence seized during the traffic stop. Two witnesses testified at the motion hearing -- the officer and the passenger in the vehicle driven by the defendant. The judge credited the officer's testimony, as delineated above. By contrast, the passenger testified that she “didn't think [the defendant] got pulled over for any reason”; she did not think that the defendant had done anything wrong; the defendant did not reach for anything, other than his license and registration; and she did not see him move in his seat. The judge did not credit her testimony.⁷

2. Judge's rulings. Despite crediting the officer's observations of the defendant's movements in the vehicle and knowledge of the defendant's criminal history involving firearms and drugs, the judge allowed the motion to suppress. With respect to the defendant's movements, the judge determined that although they “suggest[ed] a reaching toward [the defendant's] buttocks and some movement toward the console ․ it's equivocal in that it's wholly consistent with someone replacing a wallet after retrieving a license. It could be more sinister, a transfer of something, a movement of something.” With respect to the defendant's firearms and drug history, the judge ruled that the defendant's criminal record, standing “alone,” did not provide “cause for the immediate exit order.” In the judge's view, it only provided “cause for caution,” such as “[s]how me your hands.” According to the judge, “If the concern is paramount one of safety, the obvious action is to tell [the passenger and the defendant] both to put their hands up on the dashboard. That's the first step.”

The judge concluded his rulings by stating, “The movement within the car is unequivocal[⁸ ] now. The officer should certainly proceed with caution, yet under Massachusetts jurisprudence, as I see it, as it's evolved post-Gonsalves,[⁹ ] I don't think the immediate exit order was warranted.” A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported it to this court.

Discussion. The Commonwealth contends that the exit order was justified because the totality of unfolding circumstances, including the officer's observation of the defendant's suspicious movements and the officer's knowledge of the defendant's firearm and drug convictions, established a reasonable basis to believe that the officer's safety was in danger. We agree.

1. Standard of review. In reviewing a decision on a motion to suppress, “we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).

2. Analysis. a. The stop. Although the judge's allowance of the motion to suppress focused on the propriety of the exit order, the defendant does not concede the legitimacy of the initial stop of his vehicle. We need not dwell long on this issue. “Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting Commonwealth v. Santana, 420 Mass. 205, 207 (1995). Here, the officer and the passenger presented competing accounts of the stop of the motor vehicle. The judge credited the officer and found that he had observed the defendant traveling “at least 10 miles per hour over the posted speed limit. He observed the Mercedes go over the fog line on the passenger's tire side and come back, as the officer described, over-correcting, to go over the yellow line.” As the judge's findings make clear, the officer's observations of multiple traffic violations justified the stop of the vehicle. See Santana, supra.

b. The exit order. The judge recognized that “[i]f the exit order is appropriate, then all that followed thereafter was lawful.” We agree that this appeal hinges on the constitutionality of the exit order, and thus review controlling principles. Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, “a police officer, in a routine traffic stop, must have a reasonable belief that [his] safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle.” Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999). “[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns.” Id. at 664. See Commonwealth v. Goewey, 452 Mass. 399, 407 (2008) (characterizing basis for exit order as “lenient standard”). “[T]he officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.” Stampley, 437 Mass. at 326, quoting Gonsalves, supra at 665. See generally E.B. Cypher, Criminal Practice and Procedure § 6:15 (4th ed. 2014).

With these guiding principles in mind, we turn to the constitutionality of the exit order. The officer knew of the defendant's serious criminal history, which included firearm convictions. This was a relevant factor to consider under the Gonsalves test.¹⁰ Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841-842 (2010). Cf. Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 687 (2001) (exit order improper where defendant moved shoulders but “did not duck out of sight, lean forward, or move back and forth in his seat” and where officer knew defendant had prior arrests, but not involving firearms or other weapons).

Furthermore, the judge credited the officer's observations of the defendant's movements within the vehicle. “Numerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop.” Stampley, 437 Mass. at 327. Indeed, the present case is factually similar to myriad cases in which our courts have upheld the reasonableness of an exit order. See, e.g., Goewey, 452 Mass. at 407 (“defendant's production of an expired identification with a questionable photograph, his nervousness, and what reasonably appeared to be furtive movements [as if to hide or retrieve something], warranted the officer's concern for his safety”); Stampley, supra at 325 (passenger leaned forward as if “doing something underneath the front seat”); Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (observation of passengers “bent over” and “messing with something” on floor of stopped vehicle suggested “that they might be concealing or retrieving a weapon”); Commonwealth v. Moses, 408 Mass. 136, 140, 142 (1990) (passenger ducking under dashboard made officer reasonably suspect passenger concealing weapon); Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 452 (2016) (“defendant's unusual action of lifting himself off the seat by six inches in a manner consistent with concealing something was sufficient to justify the exit order and patfrisk”); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992) (observation that passenger bent forward “as if [to place] something on the floor” contributed to officer's justification for exit order and patfrisk); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1104 (1989) (passenger reached into well between seats during stop for speeding; exit order lawful because officers “were justified in fearing that [the passenger's] purpose in reaching into the well might be to obtain a gun”).

The judge recognized the suspicious nature of the defendant's conduct, and found that it “suggests a reaching toward [the defendant's] buttocks and some movement toward the console.” However, the judge found that the movement was “equivocal in that it's wholly consistent with someone replacing a wallet after retrieving a license. It could be more sinister, a transfer of something, a movement of something.” The judge concluded that the defendant's movements authorized the officer to order the parties to show their hands or put their hands on the dashboard, but did not warrant an exit order. We disagree.

First, characterizing the defendant's movements as “equivocal” ¹¹ neither detracts from their serious nature nor diminishes the potential danger to an officer. See Stampley, 437 Mass. at 327 n.3 (“A form of behavior that is reasonably interpreted as suspicious may, in some cases, be corroborated by additional suspicious circumstances, but the absence of additional corroboration does not detract from the suspicious nature of the conduct itself”). Rather, the officer's reasonable concern that a plausible explanation for the defendant's movements was the securing of a weapon is what justifies an exit order. Second, the exit order must be viewed in the totality of the circumstances -- here, in light of both the defendant's movements within the vehicle and his firearm and drug convictions. See id. at 326. Third, “[w]e must assess the reasonableness of a police officer's actions based upon the circumstances confronting the officer in the field, not those facing the judge in the tranquility of the courtroom” (quotations and citation omitted). Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 405 (2014), S.C., 472 Mass. 439 (2015). See Goewey, 452 Mass. at 407-408 (judge's heavy reliance on “potentially innocent explanation for what appeared to be furtive movements” misplaced because innocent explanation “did not necessarily render unreasonable the officer's otherwise legitimate concerns about a weapon”). The standard for an exit order is an objective one and thus the critical issue is “whether a reasonably prudent [person] in the [police officer's] position would [have been] warranted in the belief that the safety of the police or that of other persons was in danger.” Gonsalves, 429 Mass. at 661. Here, where the judge credited the officer's observations of the defendant's suspicious movements and the officer's knowledge of the defendant's firearm and drug history, a reasonably prudent person in the officer's position was warranted in the belief that his safety was in danger. See Goewey, 452 Mass. at 407. Therefore, the exit order was justified and the motion to suppress should have been denied.

Finally, the defendant cites to various articles and studies discussing racial profiling, and essentially contends that the judge's ruling was consistent with the spirit of Justice Ireland's concurring opinion in Gonsalves. Although the judge referenced Justice Ireland's concurring opinion in Gonsalves, the judge explicitly credited the officer's testimony that he observed the defendant commit multiple traffic violations; that the officer checked the defendant's license and criminal history; that the officer learned of the defendant's firearm and drug convictions; and that the officer observed the defendant “reaching toward [his] buttocks and some movement toward the console.” As an appellate court, we are bound by those credibility determinations. See Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007). “A judge disbelieving testimony, as either inadvertent error or intentional misstatement, must make the discrediting finding or risk a misunderstanding by the reviewing court.” Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50 n.2 (2014), quoting Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 221 n.4 (2013) (Sikora, J., dissenting). Here, the judge credited the officer's testimony and did not credit the passenger's contradictory testimony. Where, as here, the judge's findings and credibility determinations have ample support in the record, we do not disturb them. These findings and determinations compel the legal conclusion that the exit order was constitutionally permissible.¹²

Order allowing motion to suppress reversed.

FOOTNOTES

2.   The officer testified that he clocked the vehicle “between 35 and 45 miles per hour” in a “25 miles [per] hour” zone.

3.   The second officer did not testify at the hearing on the motion to suppress.

4.   The judge noted in his findings that the defendant is African-American and the officer is Caucasian.

5.   The judge noted that the officer did not specify the age of the firearm or drug convictions.

6.   The Commonwealth subsequently entered a nolle prosequi as to a portion of the charge of trafficking in fentanyl, which resulted in a remaining charge of possession with intent to distribute a class B substance, fentanyl, subsequent offense.

7.   The judge may have implicitly credited one aspect of the passenger's testimony, as he found that “tak[ing] the passenger's testimony at its face worth -- at face worth, the passenger is never told to show hands, to do anything.” Otherwise, the judge implicitly rejected the passenger's testimony, which was in direct contrast to that of the officer. See Commonwealth v. Dowdy, 36 Mass. App. Ct. 495, 497 n.1 (1994) (“in crediting the officer's testimony, the judge implicitly rejected the defendant's version of the incident”).

8.   The judge characterized the defendant's movements within the vehicle at one point as “equivocal” and later as “unequivocal.” This inconsistency is of no moment as the Supreme Judicial Court has recognized that “[a] form of behavior that is reasonably interpreted as suspicious may, in some cases, be corroborated by additional suspicious circumstances, but the absence of additional corroboration does not detract from the suspicious nature of the conduct itself.” Stampley, 437 Mass. at 327 n.3.

9.   Commonwealth v. Gonsalves, 429 Mass. 658 (1999).

10.   In his ruling, the judge stated that he was unaware of any case law “that the fact alone of [a driver's criminal] record is cause for the immediate exit order ․ it is certainly cause for caution. It is certainly cause for further steps, if necessary, such as ‘Show me your hands.’ ” However, the defendant's criminal history was not the only fact known to the officer. He had also observed the defendant's movements in the stopped vehicle. See Stampley, 437 Mass. at 326 (reasonableness of exit order considered under “totality of circumstances”).

11.   As discussed above, the judge's inconsistent characterization of the defendant's movements as “equivocal” and “unequivocal” does not affect our analysis. See note 7, supra. See also Stampley, 437 Mass. at 327 n.3.

12.   The defendant's motion to suppress was brought pursuant to arts. 12 and 14 of the Massachusetts Declaration of Rights, but not pursuant to arts. 1 or 10. Thus, there is no equal protection claim before us, and our analysis centers on the art. 14 reasonableness standard. See Commonwealth v. Buckley, 478 Mass. 861, 870-871 (2018) (art. 14 reasonableness standard governs where defendant did not challenge traffic stop on equal protection grounds under arts. 1 and 10 of the Massachusetts Declaration of Rights).