COMMONWEALTH v. GARNER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is the Commonwealth's interlocutory appeal from a Superior Court judge's order, after an evidentiary hearing, allowing the defendant's motion to suppress.² The Commonwealth argues that it was error to allow the motion because the State troopers had reasonable suspicion that the defendant was armed and dangerous. We agree, and reverse.

“When reviewing a ruling on a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Almonor, 482 Mass. 35, 40 (2019), quoting Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018). We also accept the motion judge's determination of the weight and credibility of the evidence. Commonwealth v. Contos, 435 Mass. 19, 32 (2001).

The judge found the following facts, supplemented by the testimony of the police witnesses, all of which the judge found credible “except where they speculate about the defendant's thoughts.” See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) (“Appellate courts may supplement a judge's finding[s] of fact[ ] ․ where the judge explicitly or implicitly credited the witness's testimony”). On May 6, 2017 at approximately 10:30 p.m., State Troopers Paul Dunderdale and Keith Ledin and Sergeant Frank Walls were on patrol in an unmarked police car in Taunton. They saw a car with tinted windows, driven by someone later identified as the defendant, make an abrupt right turn. The troopers followed the car as it made a left turn on to a dead end street; the driver then abruptly turned the car to the right, part way through the turn. The troopers stopped the car in the middle of the street, in part for excessive window tint. As Dunderdale approached the driver's side window, the defendant said “Dunderdale. Dunderdale.” The two recognized each other as this was the fifth time that Dunderdale stopped the defendant in the last few years.³ Despite this, the two had a “really good rapport” over the years.

As Dunderdale asked the defendant some questions, the defendant's right hand was on his leg, shaking. The defendant also had a telephone in his left hand and was continuously trying to call someone while the two spoke. He told Dunderdale that his license was “good” and kept repeating “Come on, Dunderdale.” This caused Dunderdale's concern for his “level of safety to ․ ris[e] a little bit.” The defendant told Dunderdale that he was in Taunton to buy marijuana from a friend but that he got “a little lost.”⁴ In stark contrast to their prior encounters, Dunderdale found the defendant to be “excessively nervous” and described his behavior as markedly different from their prior encounters which caused Dunderale some concern.

As a result of his rising sense of unease, Dunderdale asked the defendant if he “mess[ed] with firearms anymore,” to which the defendant said “no” and volunteered “[t]ake a look if you want.” Dunderdale responded “Ok. Hop out!” Dunderdale considered this offer insincere and described the defendant as nervous, “not much eye contact. And it was just sudden.” Dunderdale felt as though the defendant did not “really want him to take a look.”

As the defendant got out of the car, he was “kind of blading away from [Dunderdale] and start[ed] walking backwards across the street.” Dunderdale responded “Whoa, whoa, whoa” and “hey come back to the car.” Dunderdale said the defendant was looking around “in like a panicked manner.”

Based on his training and experience, Dunderdale thought the defendant was in “flight or fight mode.”⁵ The defendant glanced backward towards Ledin who had asked him to “come over here towards the rear of the vehicle.” Ledin described the defendant as “extremely nervous, almost like he had that look of him and his body movement, his body expressions were showing me that he was either getting ready to fight or flight. He was gonna run.” The defendant turned and yelled to one house, “Yo, LT, Yo LT, come outside.” No one responded. Ledin guided the defendant toward the rear of the car. A patfrisk of the defendant revealed a loaded firearm with a defaced serial number in the defendant's waistband.

“An officer needs more than safety concerns” to conduct a patfrisk. Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020).⁶ To justify a patfrisk, police must have a “reasonable suspicion,” based on articulable facts, “that the suspect is dangerous and has a weapon.” Id. at 39. The standard is an objective one. Commonwealth v. Meneus, 476 Mass. 231, 235 (2017).

In all the previous encounters with Dunderale, the defendant was cooperative. By contrast, on this day, the defendant acted completely out of character. Cf. Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 371, 373 (2010) (defendant's odd behavior supported police questioning and contributed to reasonable suspicion calculus). He was extremely nervous, see Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 268-269 (2010) (patfrisk justified where defendant nervously shaking and sitting on hand), and volunteered to get out of the car. This is evidence of the defendant's effort to redirect the trooper's attention to the car and away from him, as the defendant had a loaded firearm in his waistband. Commonwealth v. Amado, 474 Mass. 147, 151-152 (2016) (police knowledge of defendant's prior arrest for firearm possession factor in reasonable suspicion analysis). He also “bladed”⁷ his body as he stepped from the car, evincing an attempt to shield the firearm in his waistband from the troopers' view. Compare Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007) (“officers' suspicion that the odd way of walking was a sign of a firearm was not a mere hunch, but was the result of the application of their experience and training ․ to their detailed observations of the defendant”).

Moreover, the defendant called out to an unknown person in an area in which he said he was trying to buy marijuana. This suggested the possibility of others in the area who could be helpful to the defendant or who might pose a threat to the troopers. Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999) (officer safety is factor in patfrisk). Finally, the defendant backed away from the car which caused the troopers to believe the defendant might flee. Commonwealth v. Gomes, 453 Mass. 506, 513 (2009) (flight a factor in protective patfrisk). Viewing the evidence through the lens of experienced troopers, see Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 346 (2010), Dunderdale had reasonable suspicion that the defendant was armed and dangerous; thus the patfrisk was proper to ensure officer safety. See Torres-Pagan, 484 Mass. at 36-39.

The troopers were also entitled to detain the defendant until they completed the process of issuing a citation for the tinted window civil infraction, which was a basis for the initial stop. See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 57 (2013).

Order allowing motion to suppress reversed.

FOOTNOTES

2.   The defendant was indicted for unlawfully carrying a firearm, second or subsequent offense, and carrying a loaded firearm.

3.   Dunderdale first encountered the defendant in 2011 where, as a result of a stop, the defendant was charged, convicted and served State prison time for firearm offenses. The two next met in 2014 when Dunderdale stopped the defendant for a traffic violation and charged him with operating after suspension. Dunderdale stopped the defendant on two more occasions.

4.   The houses on the street where the defendant's car stopped were completely dark. One house appeared to be abandoned.

5.   As previously noted, the judge credited the testimony of the troopers, “except where they speculate[d] about the defendant's thoughts.” This is not central to our determination.

6.   The judge did not have the benefit of this decision at the time of the hearing.

7.   Blading can be characterized as “hiding one side of the body from the other person's view.” Commonwealth v. Resende, 474 Mass. 455, 459 n.8, S.C., 475 Mass. 1 (2016). See Commonwealth v. DePeiza, 449 Mass. 367, 372-374 (2007) (“straight arm” walk is one factor considered for reasonable suspicion).