Opinion
No. 11–P–893.
2012-10-25
COMMONWEALTH v. Omari A. PETERSON.
By the Court (KAFKER, BROWN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction of carrying a dangerous weapon (G.L. c. 269, § 10[ b ] ), arguing that the trial judge erred (1) in denying his pretrial motion to suppress, and (2) in his jury instructions. He also argues there was insufficient evidence to identify the knife as a “dangerous weapon” within the meaning of the statute. We reverse.
Concluding, as we do, that the exit order was improper, we need not reach the defendant's additional claims, as our ruling renders them moot.
I. Background. On December 5, 2008, Omari Peterson was stopped by Boston police Officers Brian Dunford and Brendan Lyons for several traffic violations at the intersection of Magnolia and Lawrence Streets in Dorchester,
an area known for its dangerousness, firearms, and gang activity. At the beginning of their shift, the officers were told to be aware of the increase of firearms in the area. Once stopped, the defendant produced his license and registration upon a request from Officer Lyons. After the license and registration proved valid, the officers questioned the occupants of the vehicle. Later, Officer Dunford would testify to knowing the reputations of all the passengers and that the front seat passenger, Ms. Cowans, looked out of place. Subsequently, the occupants were ordered out of the vehicle, whereupon the defendant was found with a knife clipped to his jeans.
The offenses included failure to signal (G.L. c. 90, § 14B); failure to illuminate rear license plate (G.L. c. 90, § 86); and window obstructed/nontransparent (G.L. c. 90, § 9D).
II. Discussion. The defendant argues that his motion to suppress should have been allowed, as the police did not have adequate grounds to issue an exit order. We agree.
When reviewing a motion to suppress, “[w]e accept the motion judge's findings of fact absent clear error, acknowledging that the weight and credibility of testimony is for the judge hearing the motion, but we review independently the motion judge's ultimate findings and conclusions of law.” Commonwealth v. Pena, 69 Mass.App.Ct. 713, 717 (2007). “[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
During a routine traffic stop, in order for the police to give an exit order, there must be evidence to show that a “reasonably prudent [person] in the [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Vasquez, 426 Mass. 99, 102–103 (1997), quoting from Commonwealth v. Santana, 420 Mass. 205, 212–213 (1995). See Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999) (“[A] police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle”). To demonstrate reasonableness, “specific and articulable facts” are required. Commonwealth v. Williams, 46 Mass.App.Ct. 181, 184 (1999), quoting from Commonwealth v. King, 389 Mass. 233, 243 (1983).
Considering the totality of the circumstances, the officers' exit order was unreasonable.
While the police had valid justifications for the traffic stop, the exit order was unlawful. When Officer Lyons activated his siren and blue lights, the defendant immediately stopped his vehicle. Before approaching the vehicle, the officers acknowledged that they had already run the vehicle's plates. Once the officers approached the vehicle, the defendant produced a valid license and registration. The inquiry should have stopped there. See Commonwealth v. Ferrara, 376 Mass. 502, 504–505 (1978); Commonwealth v. Alvarez, 44 Mass.App.Ct. 531, 534 (1998) (“If, during a routine traffic violation stop, the driver of the car produces a valid license and registration, the officer, ordinarily, may issue a citation for the traffic offense and must then allow the car to continue on its way”).
However, we are mindful that “it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns....” Commonwealth v. Gonsalves, 429 Mass. at 664.
However, according to Officer Lyons's testimony, once the documents were produced and validated, the officers began to interrogate the passengers. In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief “must be ‘based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience.’ “ Commonwealth v. King, supra, quoting from Commonwealth v. Silva, 366 Mass. 402, 406 (1974). The question, therefore, is whether the officers had reasonable suspicion to detain further the occupants after the defendant complied with the normal requirements for the traffic violation.
Here, the officers relied on the criminal history of the occupants of the vehicle to justify the interrogation and exit order .
The motion judge concluded that the mere presence of the four individuals together, coupled with their criminal history, warranted further questioning by the officers. However, this misses the mark. “A mere hunch ... on the part of the officer that there is something wrong is insufficient to satisfy the requirement of specific and articulable facts.” Commonwealth v. Williams, 46 Mass.App.Ct. at 184. See Commonwealth v. Torres, 424 Mass. 153, 158 (1997) (police may not interrogate passengers unless there is a “reasonable suspicion, grounded in specific, articulable facts” of criminal activity or suspicious behavior).
Specifically, Officer Dunford testified that his suspicion arose because the occupants did not look like they belong together and one of the passengers, Ms. Cowans, was unable to identify any of the other occupants, which caused Officer Dunford to surmise that she was a prostitute. However, inquiring about the defendant's identification was unwarranted as he had already produced his identification. Compare Commonwealth v. Feyenord, 445 Mass. 72, 76 (2005) (interrogation of the passenger regarding the driver's identification was warranted because the driver was unable to produce his driver's license).
The Commonwealth argues that the officers' exit order was reasonable because the car was stopped in a high crime area, the occupants were known criminals, and the vehicle windows were tinted. Yet, the defendant rolled down the windows when requested to do so. The officers did not testify to witnessing furtive movements or concerns about their safety. The officers did not see any visible presence of contraband or weapons. Contrast Commonwealth v. Moses, 408 Mass. 136, 138 (1990) (passenger ducked under the dashboard); Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 312 (1992) (passenger bent forward as if to place or retrieve an object); Commonwealth v. Robie, 51 Mass.App.Ct. 494, 499 (2001) (exit order appropriate based on officer's safety concerns, his observations of the defendant's demeanor, the unusual placement of driver's license, and his suspicion of the defendant committing several burglaries). Here, the officers testified that they believed that a drug transaction or prostitution may have been occurring, but had no plausible explanation of how they reached that conclusion other than relying on the reputations of the occupants. See Commonwealth v. Feyenord, 445 Mass. 72, 94 (2005) (Marshall, J., dissenting) (“In other words, even if a police officer has a legitimate basis for extending a traffic stop ..., the officer cannot order a person out of a vehicle unless the officer has a reasonable belief that removal from the vehicle is required for reasons of safety”).
In short, the exit order was a pretext, as it is devoid of any specific articulable facts on which to base a reasonable apprehension of danger or that a crime had been committed. Legitimatizing an exit order that stems from driving in a high crime area and the reputations of the passengers, without more, would set a dangerous precedent.
It was error to deny the defendant's motion to suppress. The judgment is reversed and the verdict is set aside. An order shall enter allowing the motion to suppress.
So ordered.