Commonwealth v. Justin L. Young
Massachusetts Court of Appeals
January 6, 2010
Docket No. 09-P-1721
Search and Seizure, Automobile, Arrest, Controlled Substances, Firearms
A judge sitting jury-waived found the defendant guilty of carrying a firearm without a license, possession of ammunition without a firearm identification card, and unlawful possession of a loaded firearm. The defendant appeals this decision, arguing that the trial judge erred in denying his motion to suppress evidence and statements obtained during a pat frisk taken as a result of his physical response to an exit order by the arresting police officers. Defendant contends that the exit order leading to the frisk of his person and discovery of the handgun was unlawful because 1) there was no basis for stopping the vehicle initially and 2) the Fourth Amendment and art. 14 of the MA Declaration of Rights forbid the exit order given to him as a passenger in the vehicle.
Facts
Police officers responded at 10:00 P.M. to the activation of a "shot spotter" located at 65 Winthrop St. in Dorchester, MA, an area known for shooting, firearm violations and illegal drug activity. After investigating the area and finding nothing, the officers returned to their patrol and at 10:25 P.M. heard the screeching of tires and saw a blue Cadillac traveling fast on Winthrop Street. After stopping the vehicle, the officers observed three occupants in the vehicle: the driver, the defendant in the passenger seat, and a female passenger in the backseat. Through the open driver side window, one of the officers noticed a glassine baggie protruding from the driver's left breast pocket and recognized it as the type that is often used for storing illegal controlled substances. The officer discovered four pills in this baggie upon examination and recognized that at least two of them were Ecstasy. Upon this discovery the officer arrested the driver, pat frisked him for weapons, handcuffed him, and secured him into the rear of the police cruiser.
After placing the driver in the police cruiser, the arresting officer ordered the defendant out of the vehicle. Upon hearing this order, the defendant reacted by tensing up his shoulders "up high" and upon a second exit order, the defendant began to exit but hesitated. In exiting the vehicle, the defendant kept his back to the officers, had half of his body in the vehicle and half outside the vehicle, and had his hands inside the vehicle. After the officer ordered him to show his hands and move away from the vehicle, the defendant stepped away and stood facing the hood. The officer moved the defendant to the trunk of the vehicle and began a pat frisk. The defendant, unprompted, told the officer "I have a gun in my waistband...[M]y summer's gone." The officer retrieved the gun from the right side of the defendant's waistband.
Issue 1: Was there a proper basis for stopping the vehicle and arresting the driver?
This issue is relevant to the defendant's case under Brendlin v. California, 551 U.S. 249, 251 (2007), because as a passenger in the vehicle, he has standing to challenge the initial stop of the vehicle. This particular stop was lawful because under Commonwealth v. Santana, 420 Mass. 205, 209 (1995), having a reasonable belief that a motor vehicle infraction occurred provides a lawful basis for a stop. In this particular situation, the police officers observed the blue Cadillac screech its tires, a civil motor vehicle infraction and therefore had a legal basis for the vehicle stop.
Issue 2: Was the exit order given to the defendant barred by the Fourth Amendment or art. 14 of the MA Constitution?
The court recognized that if the driver had been the only occupant of the vehicle, then under the Fourth Amendment and art. 14 a search of the vehicle would not be justified in order to prevent the destruction of evidence or accesses of a weapon, as the driver was properly secured in the police cruiser at the time of the search. However, the court found that the same concern regarding the hiding or destruction of evidence that exists when the arrestee is not secured also exits when others with whom the arrestee is traveling with remain unsecured inside the vehicle, regardless of whether the passengers are involved with the particular crime being charged. This situation required the police officers to act "now or never" to preserve evidence of the crime of arrest that remained inside the vehicle, which remained near the vehicle's unsecured occupants.
In its discussion, the court mentions that the specific offense of drug possession seen in this situation may itself give the police a reasonable expectation that such evidence is available in the passenger compartment and the ability to search controlled substances in the vicinity as in Commonwealth v. Washington, 449 Mass. 476, 483 (2007). However, the court declared it did not need to resolve this issue because it concluded the concern regarding the destruction of evidence by the hands of the passengers was sufficient to allow the search of the vehicle under the primary rationale in Arizona v. Gant.
Lastly, the court recognizes that the police did not initially have a basis to perform a pat frisk on the defendant when the officer gave the first exit order on the basis of the driver's arrest. However, this dramatically changed due to the defendant's behavior in response to the exit order and the entire nature of the encounter changed. The defendant's actions after the exit order gave a "reasonable apprehension of danger" to the officers that justified a frisk; the defendant does not argue otherwise. Importantly, the court looked at all the circumstances at hand in the matter, the time at night, the high crime area where the events occurred, and activation of the shot spotter a short time earlier, and the defendant's physical movements that showed signs of nervousness. These circumstances showed the apprehension of danger was real and that a frisk of the defendant was justified.
Judgments affirmed.
Prepared by AAO
