COMMONWEALTH v. DARGAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23

The defendants were charged with a variety of gun, ammunition, and drug-related offenses. After an evidentiary hearing, a District Court judge denied their motions to suppress. This is the defendants' interlocutory appeal from the denial of those motions.³ On appeal, the defendants make a variety of claims relative to the exit orders, the patfrisks, the duration of the stop, and the search of the car. As none of these claims has merit, we affirm the orders denying the motions to suppress.

Neither defendant disputes the motion judge's conclusion that the stop of the car was lawful on the trooper's observations of an equipment violation (loud exhaust) and littering from the car. Instead, this case turns on the validity of the exit order. “[A]n exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), citing Commonwealth v. Amado, 474 Mass. 147, 151-152 (2016). “[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.” Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). The test is objective and must consider the totality of the circumstances. Id. at 665. To determine whether the officer's view of the circumstances is reasonable, the reviewing court will ask “whether a reasonably prudent man in the policeman's position would be warranted” in holding this belief. Commonwealth v. Torres, 433 Mass. 669, 673 (2001), quoting Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997).

Once the car was stopped, the trooper approached and saw ammunition in the car, which immediately led to that objective concern. In the trooper's experience, when there is ammunition present, there is likely a weapon close by. Given that it was 1:25 a.m., the trooper was alone on the highway, he was outnumbered by the three occupants in the car, and given the trooper's articulated, factually, and experientially based concern of a weapon being present, the exit orders were justified.⁴ See Torres-Pagan, 484 at 38-39. See also Commonwealth v. Almeida, 373 Mass. 266, 272-273 (1977) (observation of gun holster justified protective frisk); Commonwealth v. Silva, 366 Mass. 402, 406 (1974) (“While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake”). Contrast Commonwealth v. DeJesus, 72 Mass. App. Ct. 117, 119-121 (2008) (unidentified caller reported seeing possibly Hispanic male with gun in car in mid-day; police not outnumbered; no ammunition seen in car, patfrisk of occupants not justified).⁵

Once Tuttle was removed from the car, and pat frisked, no weapon was discovered, which left open the trooper's concern of a weapon being present. Once Tuttle was out of the car, the trooper saw a live shotgun shell in the console, which only heightened that concern. This justified the exit orders of Dargan and the female passenger, as well as the separation of all three.⁶ When a patfrisk of Dargan and the female passenger revealed no weapons, the trooper was justified in concluding that a weapon may remain in the car, and he was permitted to do a limited, protective frisk of the car's interior. See Silva, 366 Mass. at 408-409. See also Commonwealth v. Gouse, 461 Mass. 787, 792-793 (2012) (when firearm not located on defendant, reasonable for police to conclude that weapon would be found in defendant's car). Thus, contrary to Tuttle's claim, the stop was not unnecessarily prolonged as the trooper had encountered specific articulable grounds for an exit order and to extend the stop to investigate further. Contrast Commonwealth v. Tavares, 482 Mass. 694, 703-705 (2019) (police should have released car and occupants when they realized they had mistakenly identified passenger and there were no other concerns).

Once the three occupants were removed from the car and separated, they began telling conflicting stories about where they had been that evening. When the trooper questioned the female passenger at the front of the car, she disclosed that Dargan, her boyfriend, had a drug problem, and that the three of them had not gone to the casino at all, but instead had gone to a house to purchase drugs. Considering this, the trooper had probable cause for a search of the vehicle for drugs. See Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997). The search of the backseat revealed the drugs to be under the seat where Dargan had been sitting.

Orders denying motions to suppress affirmed.

FOOTNOTES

3.   The defendants properly received leave from a single justice of the Supreme Judicial Court to pursue their interlocutory appeals in this court.

4.   The trooper also noted that Dargan was wearing a “jumpsuit” in which he could have concealed a weapon.

5.   The trooper's concern for his safety was not invalidated because the ammunition turned out to be lawful. See G. L. c. 140, § 129C (h). The threat posed by a weapon, which the trooper believed would accompany the ammunition, does not turn on the legality of the ammunition that a gun would fire.

6.   Tuttle claims, for the first time on appeal, that handcuffing him and securing him in the cruiser for safety purposes, while the trooper pat frisked the other passengers, constituted an arrest. Because the issue was not raised in his motion to suppress, it is waived. See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). Even if it had been raised, it is without merit. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556 (2015), quoting Commonwealth v. Williams, 422 Mass. 111, 117 (1996) (“ ‘An officer is entitled to take reasonable steps to ensure his safety. Such steps do not automatically turn a stop into an arrest.’ The use of handcuffs is also not dispositive”). The handcuffing was a proportional response to the safety risk presented, and did not transform the investigatory inquiry into an arrest. See Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001); Williams, supra at 118-119; Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 744 (2018). Probable cause was not required.