COMMONWEALTH v. WORNUM (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Rufus Wornum, was charged in the Superior Court with possession of a firearm as an armed career criminal, carrying a loaded firearm, and possession of ammunition without a Federal identification (FID) card. The defendant filed a motion to suppress, which was denied, and a single justice of the Supreme Judicial Court granted his application for leave to pursue an interlocutory appeal. The Commonwealth concedes that the motion to suppress should have been allowed. We agree.²

Discussion. In reviewing a denial of a motion to suppress, we accept the motion judge's findings of fact, absent clear error, and independently review the judge's application of constitutional principles. See Commonwealth v. Pinto, 476 Mass. 361, 363 (2017); Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). The defendant argues, and the Commonwealth concedes, that the motion to suppress was wrongly denied because the officers could not lawfully arrest the defendant or search the vehicle in which he was a passenger for an open container violation, and the officers lacked reasonable suspicion that the defendant was armed and dangerous. We agree.

The motion judge held that the search of the vehicle was justified, pursuant to the motor vehicle exception to the warrant requirement, because the officers had probable cause to conduct a warrantless search for further evidence of the “misdemeanor” of having an open container of alcohol in the vehicle. However, the motion judge did not have the benefit of the Supreme Judicial Court's decision in Commonwealth v. Mansur, 484 Mass. 172, 178-179 (2020), which held that an open container violation is a civil infraction, not a crime. Without probable cause to believe that a crime had been committed, the officers lacked justification to search the vehicle without a warrant. See Commonwealth v. Sheridan, 470 Mass. 752, 756-757 (2015) (for warrantless search to be valid, police must have probable cause to believe crime being committed).

In addition, the officers lacked grounds to order the defendant from the vehicle. “[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). Under Mansur, 484 Mass. at 178-179, the police lacked suspicion of criminal activity, and they were not conducting a search on other grounds. Accordingly, the exit order could only be justified for officer safety.

The judge's finding that the defendant gave different answers about his identity was not supported by the testimony at the suppression hearing and was therefore clearly erroneous, as the Commonwealth concedes. The only remaining justifications for the exit order were that the stop occurred in a high crime area and that the defendant was nervous and restless during the stop.

“The term ‘high crime area’ is itself a general and conclusory term that should not be used to justify a stop or a frisk, or both, without requiring the articulation of specific facts demonstrating the reasonableness of the intrusion.” Commonwealth v. Johnson, 454 Mass. 159, 163 (2009). See Commonwealth v. Gomes, 453 Mass. 506, 513 (2009). And although the defendant appeared nervous during the stop and alternately looked at the floor near his feet and at the officers through the vehicle's side mirror, he did not reach down or make any furtive movements to warrant the suspicion that he was hiding or retrieving a firearm. “It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police.” Commonwealth v. Cruz, 459 Mass. 459, 468 (2011). Contrast Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 555, 556 (1996) (officer reasonably feared for safety after passenger appeared to bend forward and place something under seat).

For the same reasons that the exit order was improper, the officers lacked justification to “pat frisk” the interior of the vehicle for weapons. See Michigan v. Long, 463 U.S. 1032, 1049 (1983) (police must have reasonable suspicion “that the suspect is dangerous and the suspect may gain immediate control of weapons” to search passenger compartment of automobile).

Conclusion. The order denying the motion to suppress is reversed, and an order shall enter allowing the motion.

So ordered.

FOOTNOTES

2.   Although the Commonwealth's concession is commendable, “it does not relieve us of our appellate function of determining whether error was committed.” Commonwealth v. Clark, 23 Mass. App. Ct. 375, 379 (1987).