Opinion
22-P-161
01-25-2023
COMMONWEALTH v. LUIS E. MIRANDA-GONZALEZ.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a District Court judge that suppressed all evidence concerning a handgun that police located during a search of the defendant's vehicle. The Commonwealth argues that the judge erred in granting the motion to suppress, because the search was justified by the officers' reasonable suspicion that the defendant was armed and dangerous. We agree with the Commonwealth, and therefore reverse the allowance of the defendant's motion.
Background.
We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing. Just after midnight on August 14, 2018, Springfield police officer Nestor Santos and his partner were in their police cruiser patrolling the Plainfield Street area of the city. They saw a white vehicle driving in the direction opposite to them, and ran a search of the vehicle's license plate number. The search returned that the vehicle was registered to the defendant, Luis Miranda-Gonzalez. The officers briefly lost sight of the vehicle but spotted it again about a minute later. As they drove up behind the vehicle, they observed that the light for illuminating the rear license plate was not functioning. The officers activated their emergency lights to stop the defendant for the faulty light. After activating the emergency lights, Officer Santos saw the defendant "kind of dip his body down and to the left," as though the defendant "was trying to hide something." Once the defendant pulled his vehicle over, Officer Santos again saw the defendant make the same dipping motion down and to the left "as if [the] [d]efendant was trying to hide or retrieve something."
Officer Santos then exited his vehicle and approached the defendant's. When Officer Santos came within a few feet of the defendant's driver side door, the defendant opened the door with his left hand and looked back towards Officer Santos, while also reaching towards the center console with his right hand. Officer Santos removed the defendant from his vehicle and conducted a patfrisk, which did not reveal anything concerning. Officer Santos's partner then moved the defendant away from the vehicle while Officer Santos searched the vehicle's center console, where he had seen the defendant reaching. Officer Santos located a black handgun. The defendant was arrested after the officers determined that he did not have a license to carry. He was charged with, among other things, two counts of possession of a firearm or ammunition without a firearm identification card, and carrying a firearm without a license.
The defendant moved to suppress the gun, arguing that the exit order, patfrisk, and vehicle search were unsupported by reasonable suspicion or probable cause. The judge initially denied the motion, finding that the exit order, patfrisk, and search of the center console were justified based upon the defendant's "furtive and unusual movements." The defendant thereafter moved for reconsideration, arguing that his movements alone did not give rise to safety concerns and therefore did not justify the exit order, patfrisk, or vehicle search. The defendant supplemented his motion after the Supreme Judicial Court handed down its decision in Commonwealth v. Torres-Pagan, 484 Mass. 34, 35 (2020).
The judge granted the motion to reconsider and suppressed the evidence of the gun. In so ruling, the judge maintained that the exit order and patfrisk were permissible, but reversed course as to the search of the vehicle, finding it "not reasonable or lawful." He reasoned that although the officers had a justifiable, reasonable belief that the defendant was armed and dangerous at the time of the patfrisk, that safety concern "dissipated" once the defendant "was removed from the vehicle, pat-frisked . . ., and then immediately removed to the rear of the vehicle with and by another police officer." A single justice of the Supreme Judicial Court granted the Commonwealth leave to pursue this interlocutory appeal.
Discussion.
The Commonwealth argues that the motion judge erred because the defendant's furtive movements that justified the patfrisk also justified the protective search of the defendant's center console. Before this court the defendant agrees that the patfrisk was permissible, because the officers had a "reasonable fear that [the defendant] was a safety threat, [and] also a more specific suspicion that he was actually armed and dangerous." The defendant nonetheless argues that the vehicle search required a "further enhanced level of proof" that was not met here, and that the officers' safety concerns dissipated when the patfrisk did not reveal a weapon. On appeal we accept the motion judge's subsidiary findings absent clear error, but conduct "an independent review of [the judge's] ultimate findings and conclusions of law" (citation omitted). Commonwealth v. Ramos, 470 Mass. 740, 742 (2015). Here, the judge's conclusion that the interior sweep of the defendant's vehicle was not justified was incorrect as a matter of law, and we accordingly reverse the suppression order.
We reject the defendant's contention that the Commonwealth has waived this argument. The Commonwealth argued below that the vehicle search was justified (1) by a "be on the lookout" (BOLO) notification concerning the defendant that was twenty-five days old as of the date of the stop, and also (2) by the defendant's various movements upon being pulled over. Because the Commonwealth has consistently argued that the defendant's furtive movements justified the vehicle sweep, that issue is properly before us even though on appeal the Commonwealth has abandoned any argument based on the BOLO. See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 256 (2022) (no waiver where argument on appeal is "not inconsistent" with that below).
The applicable search and seizure law is well developed. Where, as here, officers witness a civil motor vehicle infraction, they may stop a vehicle without violating the Fourth Amendment to the United States Constitution or Article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Amado, 474 Mass. 147, 151 (2016) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle" [citation omitted]). Once a lawful traffic stop has occurred, "an exit order is justified" where, among other reasons, "police are warranted in the belief that the safety of the officers or others is threatened" -- that is, "if officers have a reasonable suspicion of a threat to safety." Torres-Pagan, 484 Mass. at 38. To thereafter 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. See Terry v. Ohio, 392 U.S. 1, 27 (1968) ("reasonable search for weapons for the protection of the police officer" permitted "where he has reason to believe that he is dealing with an armed and dangerous individual"). Here the defendant and the Commonwealth agree that the motion judge correctly applied the above principles to find that the traffic stop, exit order, and patfrisk all were proper. The defendant's sole contention is that the subsequent search of the defendant's center console was not permissible.
The other reasons justifying exit orders are where police officers "have reasonable suspicion of criminal activity" or "are conducting a search of the vehicle on other grounds." Torres-Pagan, 484 Mass. at 38. The Commonwealth does not claim that either justification exists here.
"It is settled that in appropriate circumstances a Terry type search," like that conducted here, "may extend into the interior of an automobile." Commonwealth v. Almeida, 373 Mass. 266, 270 (1977), S.C., 381 Mass. 420 (1980). The defendant does not contest this point, but contends that such searches require a "further enhanced level of proof" beyond that needed to conduct a patfrisk. We disagree. To begin, no case suggests that a "further" or different level of reasonable suspicion is required to conduct a limited, protective sweep of a vehicle's interior, as opposed to that required to justify a patfrisk. In Commonwealth v. Monell, 99 Mass.App.Ct. 487, 491 (2021), for example, this court endorsed "a limited, protective search of [a] car interior" -- conducted after a permissible patfrisk revealed no weapon -- where "the officers were justified in their concern that a weapon might remain in the car." In so holding, we cited a long line of Supreme Judicial Court precedent recognizing that officers may conduct limited, protective searches of a car's interior under similar circumstances. See id.; Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020) (protective sweeps allowed where "defendant may access a weapon left behind upon returning to the vehicle"). None of these cases purport to apply an "enhanced level of proof," but instead analyze the protective vehicle searches using the same reasonable suspicion standard that governs patfrisks. See, e.g., Commonwealth v. Douglas, 472 Mass. 439, 447 (2015) ("officers continued to have a reasonable suspicion that there might be a weapon in the vehicle" despite "patfrisk . . . reveal[ing] no weapon" [emphasis added]).
See also Commonwealth v. Daniel, 464 Mass. 746, 752 (2013) ("An officer who does not have probable cause to search an automobile . . . may nonetheless conduct a limited search for weapons if 'a reasonably prudent man in [his] position would be warranted in the belief that the safety of the police o[r] that of other persons was in danger'" [citation omitted]); Almeida, 373 Mass. at 272-273 (interior search permissible if "confined to the area from which the suspect might gain possession of a weapon"); Commonwealth v. Silva, 366 Mass. 402, 408 (1974) ("Terry type of search may extend into the interior of an automobile so long as it is limited in scope to a protective end").
The defendant concedes that the patfrisk was lawful, acknowledging that based upon the defendant's actions when he was pulled over, the officers had a "reasonable fear" and "a specific suspicion" that he was armed and dangerous. The defendant's only remaining argument, then, is that the limited search of the vehicle was impermissible because the officers' safety concerns dissipated once the defendant had been patfrisked without incident. We are not persuaded. The justification for the officers' actions was the defendant's behavior upon being pulled over -- the defendant twice dipped down to his left and then opened the door while he also reached toward the center console -- apparently trying to hide or to retrieve something, possibly a weapon. The officers' patfrisk of the defendant ensured that the movements they witnessed were not the defendant placing a weapon on his person. The patfrisk, however, could not alleviate a concern that the defendant's furtive movements involved the defendant's hiding a weapon in his vehicle. See Monell, 99 Mass.App.Ct. at 491-492 (vehicle sweep justified where patfrisk revealed no weapon after defendant was seen in vehicle trying to "conceal" his hand). See also Douglas, 472 Mass. at 447 (reasonable suspicion continued despite patfrisk of driver revealing no weapon).
The defendant contends that, on the Commonwealth's view, any furtive gestures made during a traffic stop would justify a vehicle sweep. We do not agree. In Douglas, 472 Mass. at 445, for example, the Supreme Judicial Court explained that when patfrisks of two vehicle passengers "revealed that neither . . . had a weapon, there was no reasonable suspicion to justify a protective sweep of the automobile," because the officers did not observe them make "any motion, such as bending down out of sight, that suggested reaching for or placing a weapon on the floor." Thus, where an occupant's gestures do not suggest concealing a weapon inside a vehicle, a protective search may not be justified. As discussed supra, however, here the defendant's movements gave rise to a reasonable concern that he had hidden a weapon in his vehicle.
It is true that at the time the center console was searched the defendant had been moved away from the vehicle, which the judge below concluded helped to dissipate the officers' safety concerns. But regardless of the defendant's then-proximity to his vehicle, the officers still faced a situation in which the defendant would be "returning promptly" to the vehicle, as the stop was for a minor traffic violation. Almeida, 373 Mass. at 272-273. The caselaw acknowledges the officers' legitimate safety concern that once the defendant returned to his car, the defendant might immediately access the weapon that the officers reasonably suspected might be concealed there. See Monell, 99 Mass.App.Ct. at 491. The officers were not required to take that chance, and "risk becoming . . . victim[s] upon the [defendant]'s reentry into the vehicle." Commonwealth v. Santiago, 53 Mass.App.Ct. 567, 571 (2002). Officers have a legitimate interest "in taking steps to assure [themselves] that the person[s] with whom [they are] dealing [are] not armed with a weapon that could unexpectedly and fatally be used against [them]." Terry, 392 U.S. at 23.
That the search here was limited in scope further supports our conclusion that it was permissible. "[A] Terry type of search may extend into the interior of an automobile so long as it is limited in scope to a protective end," and is restricted to "the area 'from within which . . . [the suspect] might gain possession of a weapon.'" Silva, 366 Mass. at 408, quoting Chimel v. California, 395 U.S. 752, 763 (1969). Here, the officers limited their search to the center console -- an area where the defendant was seen reaching and to which he would have had immediate access upon returning to his vehicle. That search was no more intrusive than necessary for the officers to confirm or dispel whether the defendant had concealed a weapon.
Order allowing motion to suppress reversed.
Milkey, Ditkoff &Englander, JJ.
The panelists are listed in order of seniority.