Opinion
16-P-232
05-30-2017
COMMONWEALTH v. Dennis A. KUZIA, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this interlocutory appeal, the Commonwealth challenges an order of a judge of the District Court allowing the defendant's motion to suppress. The Commonwealth argues that the judge erred because the arresting State police officer had a reasonable suspicion that the defendant was committing a traffic violation by driving while having a disability placard suspended from his vehicle's rearview mirror. We agree and reverse, although we do so for reasons slightly different from those argued by the Commonwealth.
Background. The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor (OUI), fifth offense, in violation of G. L. c. 90, § 24(1)(a )(1) ; operating a motor vehicle after his license was suspended for OUI, while OUI, in violation of G. L. c. 90, § 23 ; and unsafe operation of a motor vehicle, in violation of G. L. c. 90, § 13. After a hearing pursuant to G. L. c. 276, § 58A, he was held without bail as a dangerous person.
General Laws c. 90, § 13, as appearing in St. 2010, c. 155, § 8, provides, in pertinent part, "No person, when operating a motor vehicle, shall permit to be on or in the vehicle or on or about his person anything which may interfere with or impede the proper operation of the vehicle...."
At a hearing on the defendant's motion to suppress, the judge heard evidence from Trooper Michael O'Brien, of the Massachusetts State Police. "The following facts are taken from the judge's findings, supplemented by the uncontested and uncontroverted testimony of the only witness at the hearing...." Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 405-406 (2014). In the afternoon on August 31, 2015, O'Brien was parked, facing the roadway, in the parking lot of the Golden Eagle Restaurant located at the "hairpin turn" on Route 2 in North Adams. Around 4:30 p.m., O'Brien observed the defendant's red Hyundai traveling eastbound "up the hill" toward O'Brien's location; the trooper immediately noticed a handicap placard hanging from the vehicle's rearview mirror. The placard was hanging in front of the defendant's face, and it appeared to O'Brien that, while the defendant was maneuvering through the hairpin turn, he was leaning forward, or bending at the waist, in order to look under or around the placard so that he could see the roadway in front of him. O'Brien noted that the defendant was traveling within the speed limit and was within his marked lane, and he did not stop the defendant at that time.
It appears from his findings that, despite his judgment on the law, the judge found the trooper a credible witness.
The hairpin turn at this portion of Route 2 requires drivers to make a 180-degree turn (either coming up the hill when traveling eastbound, or going down the hill while traveling westbound) to continue traveling on the same roadway.
The judge found that the hanging handicap placard (admitted as an exhibit) measures three and one-quarter inches wide by seven inches long; "the portion of the placard that is visible once it is hung from a rearview mirror measures but 3 1/4 inches wide by 5 1/4 inches long."
Approximately ten minutes later, O'Brien observed the defendant's car, now traveling westbound, heading back down the hill toward him. Before entering the hairpin turn, the defendant's car was "swerving" back and forth in its marked lane where there are "two small bends in the roadway," "up the ways a bit" from the hairpin turn. The defendant did not appear to O'Brien to be speeding nor did his car cross over the lane markers. However, based on the defendant's actions, O'Brien believed that the handicap placard was obstructing the defendant's view of the downhill roadway in front of him. At that moment, and before the defendant actually entered into the hairpin turn, O'Brien, believing that the hanging handicap placard was obstructing the defendant's view of the roadway, determined that he would stop him. , Activating his vehicle's emergency lights, he did so after the defendant had completed the turn. The defendant was later arrested on the charges described above.
Because O'Brien did not have specific measurements of the angle of the defendant's position in the driver's seat to the hanging placard, he could not specifically testify as to whether the full area of the placard was obstructing the defendant's line of vision while driving, but emphasized that he believed the placard was, in fact, blocking the defendant's view of the roadway before he made the turn; O'Brien agreed that the defendant's view likely would not have been obstructed while making the turn when he was traveling westbound, as he would have been looking to his left.
The judge questioned the trooper as follows:
The court : "Trooper ... I heard during your direct and now your cross that that was your thought, but do you know what was causing these movements within the lane, do you know?"
The witness : "For sure, it could have been anything."
The court : "Okay."
The witness : "It could have been a bee in the car, your Honor, could have been anything. I don't know what could have caused that turn."
The court : "All right."
The witness : "Because [the defendant] ducked underneath it and looked underneath I thought on his way up."
The court : "On the way up?"
The witness : "Right, I thought that was again still affecting him on the way down."
O'Brien testified that the defendant was in violation of G. L. c. 90, § 13, while traveling both eastbound and westbound, although he did not stop the defendant for the violation until his return westbound trip.
Citing Commonwealth v. Brazeau, 64 Mass. App. Ct. 65, 69 (2005), the judge "rule[d] as a matter of law that Trooper O'Brien's observation of the defendant's vehicle as it negotiated the [h]airpin [t]urn in an eastbound direction, did not give rise to any reasonable suspicion to believe that a § 13 violation had occurred." The judge continued, "at best the trooper had a hunch or a guess that the defendant's operation (‘swerving’) was or may have been caused by the presence of the placard. As a matter of law a hunch does not give rise to reasonable, particularized suspicion to stop a vehicle."
Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact unless they are clearly erroneous but independently review the judge's ultimate findings and conclusions of law." Commonwealth v. Depiero, 473 Mass. 450, 453 (2016), quoting from Commonwealth v. Anderson, 461 Mass. 616, 619, cert. denied, 133 S. Ct. 443 (2012). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 479 (2007), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
"In order for a police investigatory stop to be justified under art. 14 [of the Massachusetts Declaration of Rights], the police must have 'reasonable suspicion' to conduct the stop." Commonwealth v. Scott, supra, quoting from Commonwealth v. Cheek, 413 Mass. 492, 494 (1992). "The subjective intentions of police are irrelevant so long as their actions were objectively reasonable." Commonwealth v. Jones, 83 Mass. App. Ct. 296, 299 (2013), quoting from Commonwealth v. Cruz, 459 Mass. 459, 462 n.7 (2011). "In determining whether an officer acts reasonably in initiating a threshold, or investigatory, stop, we view the circumstances as a whole...." Quinn, supra at 480, quoting from Commonwealth v. Stoute, 422 Mass. 782, 790 (1996). In particular, "[w]here the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting from Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). See Commonwealth v. Amado, 474 Mass. 147, 151 (2016).
Here, based on all of O'Brien's observations about the defendant's behavior while driving both eastbound and westbound on Route 2, his stop of the defendant's vehicle was reasonably based on specific and articulable facts, including: (1) when O'Brien first saw the defendant's car traveling eastbound and approaching the hairpin turn, he observed what he described as a "large" handicap placard hanging from the rearview mirror of the car, (2) the defendant appeared to lean at the waist to look under or slightly around the placard to see the roadway when entering the hairpin turn, (3) on the defendant's return trip (westbound), O'Brien observed the defendant's car making a few "small turns, left to right" within his travel lane, prior to entering the hairpin turn, and (4) at the time the defendant was observed "swerving" the placard was still affixed to his rearview mirror.
Given those observations, and because the defendant was operating his car while having the sizable placard hanging from his rearview mirror, O'Brien had reasonable grounds to believe that the defendant was operating the vehicle while his view was obstructed in violation of G. L. c. 90, § 13, that is, that he was operating the vehicle with something that might "interfere with or impede the proper operation of the vehicle" and, therefore, he had reasonable suspicion to stop the defendant's car. See Commonwealth v. Rivas, 77 Mass. App. Ct. 210, 218-219 (2010).
The Commonwealth argues in its brief, although for reasons different than argued below, that O'Brien had reasonable suspicion to stop the defendant because the trooper observed him driving with the sizable placard hanging from his rearview mirror; thus, the Commonwealth has not, as the defendant argues, waived this issue on appeal.
The defendant's reliance on Commonwealth v. Brazeau, 64 Mass. App. Ct. at 68, does not assist him. Unlike in Brazeau, where the objects dangling from the rearview mirror consisted of two small hearts and a plastic diamond (each about one to one and one-half inches wide and one inch in height) all hanging together "from a narrow piece of string of fishing line," here, the visible portion of the objectionable placard was a solid surface measuring three and one-quarter inches in width by five and one-quarter inches in length. Id. at 67. The facts here are discernably different.
Considering all of the circumstances surrounding the stop, we are satisfied that O'Brien had more than a "hunch"—that is, that he reasonably believed he had observed a traffic violation and, thus, was warranted in stopping the defendant's vehicle. See Santana, supra. " ‘The process [of determining whether an officer had reasonable suspicion] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.’ United States v. Cortez, 449 U.S. 411, 418 (1981)." Commonwealth v. Whitehead, 85 Mass. App. Ct. 134, 138 (2014). It was error to allow the defendant's motion to suppress.
The judge took judicial notice of the following: (1) "[T]he Golden Eagle Restaurant is situated in the vicinity of the tip of the U within the Hairpin Turn (‘turn’). Perhaps nowhere else in the Commonwealth is there such an abrupt turn on a busy state highway"; and (2) "Since the evidentiary hearing I have paid close attention to the display of disability placards. I have observed many vehicles operated on the public ways of Berkshire County and beyond with disability placards hanging from rear view mirrors. I take judicial notice that this is a common practice by individuals to whom disability placards have been issued."
Such frequent resort to judicial notice is concerning-particularly on facts such as these. See Mass. G. Evid. § 201 (2017). Compare Nantucket v. Beinecke, 379 Mass. 345, 352 (1979) ("Matters are judicially noticed only when they are indisputably true. Matters of common knowledge or observation within the community may be judicially noticed because they so qualify. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 27, 34-38 [4th ed. 1967], and cases cited therein. The geographical size of the town, its sparse population in September, and the existence of a weekly newspaper are clearly matters which satisfy the test of common knowledge. But the judge improperly took judicial notice of the following: the usual practice of the newspaper to cover pending litigation; the probable presence of an article in the newspaper relative to the Probate Court judge's mention of Sanguinetti's conflict of interest; and the board of selectmen's awareness of such article. Judicial notice is not to be extended to personal observations of the judge or juror. Duarte, petitioner, 331 Mass. 747, 749-750 [1954]").
Order allowing motion to suppress reversed.