Opinion
23-P-548
08-09-2024
COMMONWEALTH v. JASON JOHNSON-RIVERA.
Chaleunphone Nokham for the defendant. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.
Heard: March 12, 2024.
Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop, Stop and frisk. Motor Vehicle, Firearms. Firearms. Indictment found and returned in the Superior Court Department on April 28, 2022.
Following transfer to the Bristol County Division of the Juvenile Court Department, a pretrial motion to suppress evidence was heard by James P. Harrington, J., and a conditional plea was accepted by Siobhan E. Foley, J.
Chaleunphone Nokham for the defendant.
Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Sacks, & Smyth, JJ.
SACKS, J.
The defendant was indicted as a youthful offender, see G. L. c. 119, § 54, on a single charge of carrying a firearm without a license. G. L. c. 269, § 10 (a.) . After a Juvenile Court judge denied a pretrial motion to suppress evidence of the firearm, the defendant conditionally admitted to sufficient facts to be found a youthful offender, reserving his right to appeal the suppression decision. We conclude that a State trooper's exit order to and patfrisk of the defendant during a traffic stop were justified by the defendant's nervous behavior, his attempt to conceal a type of bag that the trooper knew from experience could be used to carry a firearm, and the trooper's knowledge that the defendant had an open charge for assault and battery with a firearm. These factors combined to create a reasonable suspicion that the defendant was armed and dangerous. We therefore affirm the order denying the motion to suppress.
Background.
Following his indictment, the defendant filed a motion to suppress evidence of the firearm found in the "cross-body bag" he was wearing, asserting that the trooper, after making the traffic stop, lacked reasonable suspicion to justify either the exit order to the defendant or the patfrisk that followed. The judge held an evidentiary hearing at which he heard testimony from State Trooper Cody Smith, the arresting officer, and New Bedford Police Officer Jenna Touchette, who assisted Smith at the scene. The judge also viewed audio-video footage from Smith's body-worn camera. We summarize the judge's findings of fact, supplemented by testimony that the judge explicitly or implicitly credited, see Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), and by "our independent review of the video footage from the body-worn camera," Commonwealth v. Yusuf, 488 Mass. 379, 380-381 (2021).
On March 14, 2022, Trooper Smith, with eight years of experience as a police officer, was on patrol in his cruiser in New Bedford. At 5:36 P.M., Smith conducted a registration query on a passing sedan and learned that it had not been inspected as required after having been registered to a new owner. Smith pulled the sedan over, approached it from the passenger side, and saw that none of the four occupants was wearing a seatbelt. He began collecting their identifying information in order to issue citations.
While Smith was doing so, he saw that the defendant, who was in the right rear seat and thus closest to Smith, was showing signs of nervousness, including sighing, taking deep breaths, and running his hand through his hair. The defendant told Smith that he had a GPS-enforced curfew and needed to return to his home before 6 P.M.
Smith also noticed that the defendant was wearing a small Nike brand cross-body style fanny pack. During his previous service in the narcotics unit of the New Bedford police department, Smith had experience with approximately five cross-body bags containing firearms. Smith did not have any formal training on the issue, but he had had discussions within the narcotics unit and had been told to have a heightened awareness that this type of bag may be used to carry firearms and narcotics. Their use was becoming more common during his time as a State trooper.
Smith further saw that bag was "positioned to [the defendant's] left side," i.e., away from Smith, and the defendant seemed to be "tucking it to the left side away from my line of sight as if it were in between his body and the rear of the seat back rest." The defendant appeared stiff, "as if he didn't want to move this part of his body where the bag was positioned." Smith testified that he had received training about such "pinning" (as he described it), as a sign that a person might be carrying a firearm.
Meanwhile, the driver of the sedan also caught Smith's attention, by reaching several times toward the car floor in front of her despite Smith's repeated instructions to stop doing so. Smith testified that this behavior heightened his concern for his own safety. Officer Touchette, who had seen the stop while driving by and had pulled over to assist Smith, also saw the driver reaching after being instructed not to do so. Smith ordered the driver out of the sedan and saw a backpack on the floor where she had been sitting. Smith then instructed the three passengers to keep their hands up and out in front of them. He asked the driver if there was anything illegal in the backpack, and she told him that it contained marijuana. Smith handcuffed her and searched the backpack, finding marijuana, cash, and a scale. Smith then placed her in the back of his cruiser.
The amount of marijuana was "small" and was ultimately returned to the driver without her being charged in connection with it.
While in the cruiser, Smith ran a background check on the defendant and learned that he had a charge of assault and battery with a firearm pending against him in the Juvenile Court.
Upon returning to the sedan, Smith saw two young women on the sidewalk arguing with Officer Touchette, who was watching the sedan's three passengers. The women said that they were members of the same family as some of the passengers. Smith and Touchette both believed that the women were trying to divert attention away from the passengers; Touchette later testified that she was, in fact, distracted. This encounter heightened the officers' concern for their safety. Touchette called for backup, because the officers "were outnumbered."
Smith then ordered the defendant out of the sedan. By this point the bag was situated slightly behind the defendant's left side. As the defendant got out, Smith quickly pat frisked the bag and felt an object inside it that was consistent with a handgun. Smith then handcuffed the defendant, removed the bag, and found a handgun inside.
Discussion.
In reviewing a ruling on a motion to suppress, "we adopt the motion judge's factual findings absent clear error," but we "independently determine whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). Where police observe a traffic violation, a category that includes at least some violations related to inspection stickers, a traffic stop is lawful. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020). "[A]n exit order is justified during a traffic stop if [among other things] officers have a reasonable suspicion of a threat to safety" or a "reasonable suspicion of criminal activity." Id. at 38. To conduct a lawful patfrisk, "police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous." Id. at 38-39.
Here, the traffic stop was lawful based on Smith's knowledge of the inspection sticker violation. See Torres-Pagan, 484 Mass. at 36. See also G. L. c. 90, §§ 7A, 20; 540 Code Mass. Regs. § 4.03(1) (a) (2018). Smith also acted lawfully in expanding the scope of the stop in order to issue citations for failure to wear seatbelts. See Commonwealth v. Washington, 459 Mass. 32, 38-40 (2011). See also G. L. c. 90, § 13A. And the defendant makes no focused argument that the stop in this case was prolonged beyond constitutional limits.
Under G. L. c. 90, § 20, "any person who operates . . . without a certificate of inspection . . . displayed in accordance with the provisions of said section 7A . . . and the rules and regulations promulgated thereunder shall be punished by a fine of $50."
The defendant's brief cites some of the standards governing the permissible duration of traffic stops but makes no real effort to apply those standards to the facts of his own case. Nor did the judge make findings regarding whether the stop had been unduly prolonged at the time of the exit order.
During the stop, Smith became aware of facts, summarized below, giving rise to a reasonable suspicion that the defendant was carrying a firearm, which was illegal per se because the defendant was a juvenile. See Commonwealth v. Karen K., 491 Mass. 165, 178-179 (2023). These facts created both a safety concern and a reasonable suspicion of illegal activity, justifying the exit order. They also created a reasonable suspicion that the defendant was armed and dangerous, justifying the patfrisk.
First, Smith recognized the type of cross-body bag worn by the defendant as a potential indicator that he was carrying a firearm. Officers may properly rely on their experience to draw an inference or conclusion from an observation, so long as they explain the specific experience that they relied on and how it correlates to the observations made; no formal training is necessary. See Commonwealth v. Matta, 483 Mass. 357, 366 n.8 (2019). At the motion hearing, Smith testified that he was aware of bags like the defendant's being used to carry firearms or narcotics, both from discussions with fellow officers and from his personal experience with similar bags in at least five and likely more than ten separate instances. To be sure, the mere presence of this type of bag, which Smith agreed is available for purchase at retail stores, would fall far short of creating reasonable suspicion when considered in isolation. However, "[t]hat there may be innocent explanations for the [suspect's behavior] does not remove it from consideration in the reasonable suspicion analysis" when the officer provides an adequate basis for its inclusion as a factor. Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007).
Here, it was not just Smith's experience with such bags, but the defendant's apparent effort to conceal the bag from Smith -- regardless of Smith's unhelpful use of the word "pinning" to describe that behavior -- that contributed to reasonable suspicion that the bag contained an illegal firearm or other contraband. See Karen K., 491 Mass. at 185 (Budd, CJ, concurring) (juvenile's turning her body so as to conceal something on her person contributed to reasonable suspicion); DePeiza, 449 Mass. at 373-374 (defendant's continuing attempt to hide his pocket from officers' view contributed to reasonable suspicion). Cf. Torres-Pagan, 484 Mass. at 39-40 (suggesting that effort to hide something from sight would be "furtive" movement).
Our dissenting colleague concludes that, because the strap of the bag would have been visible to Smith in any event, the defendant had no reason to hide the bag itself from Smith's view, and thus we should discount the trooper's testimony that the defendant was trying to hide it. Post at . But there is nothing irrational about moving an item out of view to reduce the chance that an officer will notice it. The judge found that "it was reasonable for [Trooper] Smith to consider that the juvenile was attempting to secret[] the pouch portion of the bag because it contained a weapon."
If the footage gave a clear and continuous view of the defendant and yet failed to show any movements to hide the bag, this would be a different case. But the footage we have contains only a few brief passages showing, from an angle, the defendant's upper body as he sat in the car. That those snippets do not show any actions that seem suspicious to us is no reason to diminish the weight given the trooper's testimony of what he saw with his own eyes.
Second, Smith could consider the defendant's nervous behavior: sighing, taking deep breaths, and running his hand through his hair. "Although nervous or furtive movements do not supply reasonable suspicion when considered in isolation, they are properly considered together with other details to find reasonable suspicion." DePeiza, 449 Mass. at 372.
Third, Smith learned that the defendant had an open charge against him for assault and battery with a firearm. "Of course, the fact that a person has a criminal history is not 'suspicious' automatically .... However, in appropriate circumstances, it is a factor that may be considered." Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 751 (2021), cert, denied, 143 S.Ct. 135 (2022). "[A]n individual's criminal history may weigh more heavily in the analysis if it involves an offense close to the conduct at issue." Id. (knowledge of defendant's three year old juvenile adjudication for firearm offense was factor supporting reasonable suspicion). See Commonwealth v. Dasilva, 66 Mass.App.Ct. 556, 561 (2006) (knowledge of suspect's pending firearm charge contributed to reasonable suspicion that he was carrying gun). Here, the defendant's criminal history helped support a reasonable suspicion not only that he was carrying an illegal firearm but also that he might be prepared to use it.
Accordingly, as in DePeiza, "the officer[] reasonably believed that the defendant was carrying a concealed, unlicensed firearm, and that he was therefore armed and dangerous." DePeiza, 449 Mass. at 374. See Karen K., 491 Mass. at 179 (suspected presence of illegal firearm "contributed significantly to the analysis whether there was reasonable suspicion that the juvenile was armed and dangerous"); Commonwealth v. Narcisse, 457 Mass. 1, 10 n.7 (2010) (where there is reasonable suspicion that person stopped is committing crime such as unlawfully carrying firearm, "little more is required after the stop to justify a protective frisk") .
Although the court has on at least one occasion emphasized the importance of separating the "armed" and "dangerous" elements of the standard for conducting a patfrisk, see Commonwealth v. Knowles, 451 Mass. 91, 99 (2008), several other decisions, including DePeiza and postKnowles cases like Narcisse and Karen K., seem essentially to equate being armed with an illegal firearm with being dangerous. Whether this is because Knowles involved a baseball bat, rather than a firearm or other weapon that is dangerous per se, is unclear. See Knowles, supra. See also Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) (firearm generally "dangerous weapon per se").
Finally, we cannot ignore the other circumstances that reasonably heightened Smith's concern, if only slightly. The driver kept reaching for something on the floor, despite Smith's instructions that she remain still, causing Smith to order her out of the sedan and to direct the three passengers to keep their hands up and in front of them. Another factor was the appearance on the scene of the two argumentative young women, who said they were related to some of the passengers, who Smith and Touchette believed were trying to distract them, and who succeeded in distracting Touchette. See Sweeting-Bailey, 488 Mass. at 745-750, 755 (attempt by defendant's friend to distract officers contributed to reasonable suspicion that defendant was armed and dangerous). Touchette called for backup "because [the officers] were outnumbered," and Smith told the defendant that the situation was making Smith nervous because "there's four of you and two of us." See Commonwealth v. Cabrera, 7 6 Mass.App.Ct. 341, 349 (2010) (that officers were outnumbered during rapidly developing situation contributed to reasonable suspicion justifying patfrisk). These considerations may not add much, but they are relevant.
The distracting actions of the driver and passersby would not contribute to a reasonable suspicion that the defendant was armed unless there were reason to suspect the driver and passersby themselves knew he was armed (or was otherwise trying to hide something). The judge made no finding on that issue. Regardless, the distracting actions of the others could reasonably heighten police concern that the defendant, if armed, also posed a danger, in the over-all circumstances the police were facing.
This is a close case, and no one factor standing alone would have provided justification for the exit order or the patfrisk. But "[t]he facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of [the officer's] acts. Thus, a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable [suspicion] . . . ." (Quotations and citations omitted.) Karen K., 491 Mass. at 175. We conclude, "in light of the totality of the circumstances," id. at 184, that Smith could reasonably suspect that the defendant was armed and dangerous.
Order denying motion to suppress affirmed.
MILKEY, J. (dissenting). The defendant, a juvenile, was riding in the rear seat of a car with three teenage friends. A State trooper stopped the car, because its registered owner had failed to have the car inspected in a timely manner. Even though the defendant cooperated fully with the trooper and took no threatening actions, the majority nevertheless concludes that the police had an adequate constitutional basis to order him out of the car and to pat frisk him. For the reasons that follow, I respectfully disagree.
At approximately 5:36 P.M. on the afternoon of March 14, 2022, Trooper Cody Smith was on routine traffic patrol in New Bedford. In that capacity, he was using his onboard computer system linked to motor vehicle records to "conduct queries of multiple vehicles that [were] traveling in front of [him], to the side of [him]." In common parlance, Smith randomly was "running" the license plates of the cars around him. Through doing so, Smith discovered that the Ford Fusion in which the defendant was riding had not been inspected since its "re-registration" in May of 2021. See 540 Code Mass. Regs. § 4.03(1)(a) (2018) (requiring registered owners to have their cars inspected within seven days of registration, regardless of whether car had been inspected by prior owner within previous year and regardless of whether car had seemingly current inspection sticker affixed to its window).
The sticker violation was established entirely by motor vehicle records, not from anything that Smith observed in the field. Smith could have referred the matter to the registry of motor vehicles for enforcement, e.g., for that agency to send the registered owner a notice that the car's registration would be suspended if the car were not reinspected. See G. L. c. 90, § 20 (car registration may be suspended for lack of valid inspection sticker); § 22 (setting forth procedures for suspension of registration). Instead, viewing the lack of a timely inspection as a traffic violation by the car's driver, Smith ordered the driver to pull the car over so that he could conduct what he tellingly termed an "investigation."
The defendant does not challenge the validity of the traffic stop, and I therefore accept arguendo that Smith was authorized to initiate it. Moreover, once Smith stopped the car, he quickly learned that the driver was not properly licensed and that all of the car's occupants were not wearing seat belts. This, of course, provided Smith some leeway in wrapping up the traffic stop. See Commonwealth v. Elysee, 77 Mass.App.Ct. 833, 843-844 (2010) .
The extent to which a driver can be cited for this type of inspection sticker violation thus is not presented. I note, however, that compliance with the inspection sticker law falls at least primarily on the car's registered owner. In Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020), the Supreme Judicial Court treated an inspection sticker infraction as a traffic violation that provided a valid basis for a stop. It did so without discussion, however, and, in any event, the violation there involved an expired sticker, that is, one that would have been apparent to the driver. Where a car has a seemingly valid inspection sticker "displayed" on the windshield, whether someone other than the registered owner can be penalized for operating it is less clear. See G. L. c. 90, § 20.
Still, "[i]t is well settled that a police inquiry in a routine traffic stop must end [when the purpose of the stop is accomplished] unless the police have grounds for inferring that 'either the operator or [her] passengers were involved in the commission of a crime ... or engaged in other suspicious conduct." Commonwealth v. Cordero, 477 Mass. 237, 241 (2017), quoting Commonwealth v. Torres, 424 Mass. 153, 158 (1997). A traffic stop cannot otherwise be extended in the hope that police investigation will turn up additional violations. Cordero, supra.
Smith had no authority to detain the car's passengers apart from doing what was necessary to issue them a citation or warning for violating the seat belt law. After Smith demanded biographical information from the car's occupants, the defendant immediately complied. Nothing suggested that the information that the defendant provided was inaccurate. At that point, Smith's "investigation" of any traffic violations by the defendant was complete, and all that remained was for him to issue to the defendant a citation or warning for the seat belt violation. There was no other valid basis for detaining the defendant further.
The defendant even volunteered to Smith that he was concerned about missing his 6 £.M. curfew. Smith pointed out to the defendant that the car, when stopped, was traveling away from the defendant's home, suggesting that Smith found the defendant's expression of concern about potentially missing his curfew suspicious. There was nothing in the record to suggest that the defendant could not have gotten home before his curfew, except of course if the traffic stop became prolonged.
The Commonwealth sought to justify Smith's actions based on escalating safety concerns. In this regard, it emphasized that Smith and the city police officer who assisted were "outnumbered" by the car's four occupants. While that statement literally is true, it inaccurately tends to suggest that by being outnumbered, the officers were facing a chaotic scene that posed grave apparent dangers. The body camera footage paints a very different picture: two well-armed police officers stationed outside an immobile sedan inside which four seated, unimposing teenagers were being detained as part of an exceedingly ordinary traffic stop.
To be sure, Smith became concerned when the driver kept reaching toward the floor despite Smith's admonitions to the car's occupants that they "just sit still" and not "reach around." Although one of the passengers can be heard on the video saying that the driver was merely putting on her shoes, Smith, of course, was not required to believe her. Because the driver's behavior established a reasonable concern that the driver might be reaching for a weapon, I do not question Smith's actions with respect to her. See Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 350 (2010) ("police are not required to gamble with their personal safety . . . and are entitled to take reasonable precautions for their protection" [quotation omitted]).
For present purposes, however, the issue with respect to the driver is simply whether her actions provided any support for Smith to believe that the defendant, a back seat passenger, was carrying a firearm. By the time Smith ordered the defendant out of the car, the driver had been removed from it, placed in handcuffs, and detained in the back of Smith's cruiser. In addition, a search of her backpack and of the driver's area of the car revealed no dangers. Thus, any safety concerns related to the driver's earlier actions had been thoroughly dispelled by the time Smith issued the exit order to the defendant and pat frisked him.
Perhaps because of the timing issues, the judge himself appears to have placed little reliance on any safety concerns related to the driver. However, the judge sua sponte offered the suggestion that perhaps the police could have believed that the driver, by her actions, was trying to distract the police from paying attention to the defendant in the back seat. There are three problems with this: (1) the Commonwealth never offered that potential ground for justifying the constitutionality of its search, (2) it is based on pure speculation, and (3) it assumes that the driver would have acted in a patently irrational manner. Compare Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 743-747 (2021), cert, denied, 143 S.Ct. 135 (2022) (three officers testified that they believed that angry, erratic outburst by one of car's former occupants outside car was to distract them from whether firearm was hidden inside it), with Id. at 771 (Gaziano, J., dissenting) (stating his view that even under facts there, which are quite different from facts presented here, the Sweeting-Bailey majority found "reasonable suspicion that the defendant was armed and dangerous, based on the actions of another individual, without any of the narrow indicia that [they] might have been acting jointly, which this court previously has required be established, as it must to pass constitutional muster, that a suspicion is particularized and individual").
Nor is Smith's exit order to the defendant supported by the fact that two teenagers -- one of whom had some family connection to one of the car's occupants -- made a cameo appearance to voice their concern about what the police were doing. The Commonwealth seeks to portray this as a significant event in which the pedestrians variously were seeking to "instigat[e]" the car's occupants or to create a distraction that placed the officers in danger. That portrayal is belied by the body camera video footage, which reveals just how slight a role the two pedestrians played. As the Commonwealth concedes, "the video shows that the women calmed down," and, in any event, it is indisputable that they began to leave even before Smith asked them to do so. Accordingly, as with the evanescent safety concerns related to the driver, any safety concerns related to the two pedestrians plainly had been resolved by the time Smith ordered the defendant out of the car.
To the extent the judge found otherwise, the video reveals those findings to be clearly erroneous.
In seeking to explain why he was suspicious of the defendant, Smith initially focused on the defendant's "running . . . his [left] hand through his hair and [his] taking deep breaths and sighing." Based on those actions, Smith described the defendant as "uneasy." But evidence that someone stopped by the police might be nervous adds next to nothing to the calculus. See Commonwealth v. Martin, 457 Mass. 14, 21 (2010), quoting United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) ("Nervousness is a common and entirely natural reaction to police presence").
Smith also focused on the fact that the defendant was wearing a bag, consisting of a strap and a pouch, that Smith variously called a "cross-body bag" or a "fanny pack." Smith testified that he knew from his training and experience that this type of bag sometimes had been used to carry firearms or drugs. The majority describes this as evidence that Smith "recognized the type of cross-body bag worn by the defendant as a potential indicator that he was carrying a firearm." That claim warrants scrutiny.
There was no evidence that cross-body bags are, like holsters, specifically made to carry guns, or even that they are particularly well suited for doing so. See Commonwealth v. Monell, 99 Mass.App.Ct. 487, 490-491 (2021) (observation of holster on floor of car justified exit order and patfrisk). To the contrary, Smith acknowledged that cross-body bags "can be purchased at any retail store," and that there was "nothing significant or exclusive about them."
It should come as no surprise that those who carry firearms might well do so in their fanny packs, cross-body bags, backpacks, pocketbooks, purses, briefcases, or whatever other form of handbag or personal luggage they may favor. That such items could be used, and have been used, to carry contraband is utterly unremarkable, not something that depends on specialized knowledge that police officers possess. And while some deference of course is owed to police training and experience, that principle does not bar us from examining the validity of the reasoning that underlies what police officers claim to have learned.
The relevant analytical inquiry here is the extent to which, if at all, a person's possession of a handbag or similar item -- whether in general or of a particular type -- increases the likelihood that that person is carrying a firearm. Whether the police have uncovered instances in which others on occasion have used such items to carry a firearm is of no appreciable moment for making such a prediction. In other words, it is a logical fallacy to suspect that someone is carrying a firearm because he is in possession of an ordinary item, such as a cross-body bag, that others have sometimes used for that purpose. See Commonwealth v. Karen K., 491 Mass. 165, 183 n.l (2023) (Budd, C.J., concurring) ("It is a fallacy to assume that because a person carrying an unlicensed firearm is likely to adjust his or her waistband, a person adjusting his or her waistband is likely to be carrying an unlicensed firearm"). This type of fallacious reasoning is referred to in the academic literature by many names, including the apt moniker "the prosecutor's fallacy." Id., citing McDaniel v. Brown, 558 U.S. 120, 127-128 (2010) (discussing prosecutor's fallacy).
Accordingly, the specific frequency with which the police may have discovered firearms inside of such bags does not actually matter. That said, Smith's testimony about whether it was common for the police to find firearms inside of such bags was hardly robust. For example, even though the patfrisk here was justified only if Smith had reasonable suspicion that the defendant was armed and dangerous, see Torres-Pagan, 484 Mass. at 38-39, Smith's testimony did not specify the number of instances that firearms had been found in cross-body bags, but spoke instead only to the number of times in which some form of contraband (either "[f]irearms or narcotics") had been found. In addition, Smith provided no information on how many cross-body bags were searched to yield the five or more instances where contraband was found. Without knowing the denominator, it is not possible to tell how common it is for the police to find contraband inside of cross-body bags.
The Commonwealth goes on to suggest that it is not the mere presence of the cross-body bag that is important, but rather the actions that the defendant took in attempting to secret its contents from the police. The majority's acceptance of the Commonwealth's claim that Smith observed the defendant's "attempt to conceal" the bag effectively serves as the cornerstone of its analysis. Again, that claim warrants scrutiny.
I begin by noting that the defendant hardly could have hidden the fact that he was wearing a cross-body bag given that it was slung over his right shoulder (which was directly in front of Smith). In addition, nothing in the record suggests that an outline of a gun was perceptible through the "pouch" portion of the bag; rather, Smith discovered the gun only after he removed the bag from the defendant and "felt the pouch." Hence, although Smith perceived that the defendant may have been trying to hide the "pouch" from his view, there is no established reason why the defendant had any incentive to do so.
Nothing in the body camera footage shows the defendant moving or hiding the pouch of the cross-body bag or taking any other furtive action. In fact, the claim that the defendant actively was trying to hide something is undercut by the actions that the defendant took in response to Smith's various requests, such as his leaning forward and placing his hands on the seat in front of him in response to Smith's order to do so, and his using his hands to go through his cell phone in search of his Social Security number. Contrast Commonwealth v. Johnson, 454 Mass. 159, 163 (2009) ("defendant's specific action of disregarding the direction to take his hands out of his pockets gave the officer a concern for his and the other police officer's safety").
To be sure, as the majority accurately points out, the video footage does not show the defendant continuously throughout the incident. This leaves open the possibility that Smith observed the defendant attempting to hide the bag through actions not recorded on camera. However, when Smith provided to officers arriving at the scene a contemporaneous explanation as to what had led him to find the gun, he repeatedly referenced his having noticed that the defendant was wearing a cross-body bag, without once making any reference to the defendant's having tried to hide it.
But what is particularly salient is the pronounced extent to which Smith was unable to articulate exactly what the juvenile defendant objectively was doing while seated inside the car that raised suspicions that he was hiding something, much less a gun. In fact, Smith acknowledged that the defendant's body was not "turned [from him] in any way." Contrast Karen K., 491 Mass. at 177 (finding significant juvenile's "turning of her body so as to avoid the officers," while she repeatedly adjusted her waistband). He also testified that after the defendant ran his left hand through his hair, he dropped it and sat motionless while tucking his arms at his side. It is not at all clear how such behavior was suspicious, especially in light of Smith's having ordered the car's occupants to "just sit still." The judge himself "acknowledge[d] that the area within which the juvenile could move was limited, and it would not be unexpected to place one's arm by one's side, similarly as the juvenile did with his right arm." And when the judge directly asked Smith whether he could see the pack after the defendant dropped his left hand into his lap, Smith answered: "I don't recall exactly what I could see at that point, sir."
In the face of Smith's actual testimony, the judge found that Smith "observed the juvenile drop his left arm on the pouch portion of the cross-body bag thereby obscuring his view of it." That finding is clearly erroneous, at least to the extent that the judge found that Smith testified to having observed the defendant take a specific affirmative action to hide the pouch.
Nevertheless, Smith testified that he came to believe that the defendant was trying to hide the bag from his view. In Smith's words,
"It just appeared as though [the defendant] was kind of tucking it to the left side away from my line of sight as if it were in between his body and the rear of the seat back rest .... It was just appeared as though [the defendant] was like in a stiff manner, like as if he didn't want to move this part of his body where the bag was positioned . . . ."
Smith attached a label to the defendant's actions, describing it as one form of "pinning," something that Smith suggested he had learned from his training was a characteristic of armed individuals. He went on to clarify that he was not claiming that the defendant was "pinning" the bag in the sense of "pinning [the bag] with an arm part," or "with his hand at any point." According to Smith, the form of "pinning" that occurred "in this specific case [was] more so just favoring that left side as far as keeping it as far away [from Smith] as possible toward his left side." What we are left with is this: without any specific objective factual basis that he could articulate, Smith was reading into the defendant's unremarkable "body language" a subjective intent to hide something from Smith's gaze. This fails to comport with the axiom that reasonable suspicion that someone is armed and dangerous exists only where it is based on "specific articulable facts." See Torres-Pagan, 484 Mass. at 39, citing Commonwealth v. Martin, 457 Mass. 14, 19 (2010) .
The Supreme Judicial Court recently cautioned against police witnesses embellishing their testimony by assigning ominous-sounding labels to types of behavior that they claim are indicative that someone may be armed and dangerous. See Karen K., 491 Mass. at 173 ("Henceforth, judges should instruct witnesses simply to describe the behavior they observed in as much detail as possible, rather than merely labeling that behavior 'blading'"). "Pinning" deserves the same fate.
Of course, it is true that when Smith ran the defendant's name and birth date on his computer, he learned that the defendant had an open firearm charge. It was directly after learning that information that Smith returned to the stopped car and ordered the defendant out of it. The Supreme Judicial Court has recognized that the police may take into account the criminal history of those stopped in cars as one factor in assessing whether there is reasonable suspicion that they are armed and dangerous. See Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 751-752 (2021), cert, denied, 143 S.Ct. 135 (2022). The fact that the defendant faced a firearm charge that had been pending for more than a year is not such a strong predictor that he was currently possessing a gun that it, on its own, established reasonable suspicion that he was armed and dangerous. Indeed, Sweeting-Bailey makes this point expressly. See Id. at 752 ("Alone, th[e] evidence of the defendant's criminal record would not be sufficient to establish reasonable suspicion that the defendant may be armed and dangerous"). See Cordero, 477 Mass. at 246 ("the defendant's prior convictions, without further specific and articulable facts indicating that criminal activity was afoot, could not create reasonable suspicion" as necessary to prolong civil traffic stop).
The fact that the defendant faced the open charge from a year earlier had limited predictive value as to whether the defendant was armed and dangerous when the car was stopped. While it can be argued that someone with an open gun charge might be more likely to have a gun on him than a random person, it also can be argued that someone with an open firearm charge might be less likely to do so because of the particularly strong sanctions that repeat offenders face.
In my view, however, there is a more fundamental problem with using the defendant's open firearm charge to justify the police actions here. The police in Sweeting-Bailey were personally familiar with the fact that the occupants of the car there both were affiliated with gangs and had past involvement in firearm violations. By contrast, Smith was unaware that the defendant had a criminal record until he searched for it, notwithstanding that the defendant was being detained only for a seat belt infraction. An investigation into the defendant's criminal record had no proper role in wrapping up that civil violation.
The record does not reveal whether Smith ran a separate criminal records check, or whether he was searching motor vehicle records and criminal records together. In the end, I do not think this matters. Whether a police officer exceeded the constitutional bounds of a civil traffic stop should not depend on how the search functions in a cruiser's computer are configured. I acknowledge that the defendant has not specifically raised whether Smith should have been searching his criminal record during the stop. He has, however, flagged the issue of the prolongation of the stop, and, in any event, it was the Commonwealth's burden to justify Smith's ordering the defendant out of the car and pat frisking him.
To be clear, I do not question Smith's integrity or competence, nor do I mean to suggest that he was motivated by improper considerations such as the defendant's race. From all indications, Smith was unfailingly polite, highly skilled, and acting in good faith. It is undeniable, however, that this enterprising trooper was content to use the most ordinary of traffic stops as an opportunity to ferret out potential criminal violations. That the police would seek to employ the full extent of whatever constitutional leeway courts provide them is neither surprising nor damning. "The question here, as always, is where to draw the line between the authority given to police to fulfill their law enforcement mission and the right of the populace to be free from unwarranted searches and seizures." Monell, supra, 99 Mass.App.Ct. at 493 n.2 (Milkey, J. concurring). I respectfully dissent, because I do not believe that the balance the majority has struck here comports with existing case law and foundational principles.
The majority laudably makes no such claim to the contrary.
See Arizona v. Gant, 556 U.S. 332, 336-337 (2009) (noting that, "[w]hen asked at the suppression hearing why the search was conducted, [the officer] responded: 'Because the law says we can do it'"); Commonwealth v. Darosa, 94 Mass.App.Ct. 635, 638 n.8 (2019) ("When asked then why he searched the minivan, [the detective] replied, 'I have that right'").