Opinion
20-P-246
06-22-2021
COMMONWEALTH v. Marquis A. SHAW.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On July 30, 2019, the defendant, Marquis A. Shaw, was convicted by a Superior Court jury of unlawful possession of a controlled substance with intent to distribute (class B – oxycodone). See G. L. c. 94C, § 32A (a ). He pleaded guilty to the subsequent offense portion of the indictment. On appeal he contends that the motion judge erred in denying his motion to suppress because (1) the officers lacked reasonable suspicion to conduct a motor vehicle stop or issue an exit order; (2) the exit order was not warranted based on officer safety; (3) two patfrisks were improper because the officers lacked a reasonable belief that the defendant was armed and dangerous; and (4) the subsequent search of the car was improper. We agree that there was an insufficient basis to issue an exit order, and so we reverse the order denying the motion to suppress and vacate the conviction.
Background. "We summarize the facts as found by the motion judge," Commonwealth v. Evelyn, 485 Mass. 691, 693 (2020), "supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge." Commonwealth v. Warren, 475 Mass. 530, 531 (2016). Law enforcement personnel testified at the hearing, as did the defendant. The judge credited all of the witnesses, whose testimony was consistent in many respects relevant here.
On February 13, 2018, Massachusetts State Police Sergeant Eric Telford was conducting surveillance in the city of Brockton in an unmarked police car in an area where he had previously made drug arrests. At approximately 3:20 P.M. he saw a Nissan Altima driving slowly on Waverly Street while its driver and passenger looked left and right. The car and its occupants were not the subject of the surveillance.
The car drove towards the top of the street, reversed direction, went back down, reversed direction again, parked, and drove up and down the street again. Sergeant Telford described his observations this way: "[I]t looked like they were trying to find somebody ... they were looking left and right like they were trying to find somebody or they were lost ... they could be looking for someone to sell drugs to, or ... for someone to sell them drugs." He ultimately decided, based on his training and the "location, its reputation," that the manner in which the car was driven was indicative of a drug transaction. Sergeant Telford radioed other officers that he was watching "a suspicious vehicle that could be a drug deal." He wanted "someone to try to follow it and do a traffic stop on it."
The car pulled into a driveway, backed out, and then pulled back in and remained there for roughly three minutes. Sergeant Telford saw a third person, an older Black man, in the back seat as the car left the driveway. Sergeant Telford followed the car for a few blocks as it drove to Cumberland Farms and parked in front of the store. The driver and passengers remained in the car for a few minutes and looked around, behavior which Telford believed was indicative of scanning for law enforcement. He did not see any exchange between the people in the car.
The older man got out of the car, and the car pulled out. Sergeant Telford lost sight of the car shortly after it left the Cumberland Farms parking lot.
Sergeant Steven Connolly and Trooper Christopher St. Ives were in an unmarked police car on Center Street when they heard Sergeant Telford's radio broadcast. Five or ten minutes later Sergeant Connolly saw the Nissan Altima in traffic on Center Street and followed as it approached an intersection. The driver made a left-hand turn without using a turn signal and Connolly activated the unmarked car's blue lights. At that time, he saw the passengers "moving frantically within the vehicle, turning around, looking at us, moving their torsos from side to side." The car turned slightly to the left but there was a pedestrian in the crosswalk; the car moved to the right and stopped ten to twenty seconds after the activation of the lights.
Sergeant Connolly approached the driver's side window and asked the defendant for his license and registration. After the defendant gave his license but before he could retrieve the car registration, Connolly issued an exit order. He had found firearms in cars in the past and was concerned about weapons based on previous arrests in the "area." Sergeant Connolly conducted a patfrisk and found nothing. Trooper St. Ives also ordered the passenger to get out of the car and pat frisked him, finding nothing.
When Sergeant Telford arrived, he recognized the passenger from a prior drug-related arrest. Sergeant Telford began a conversation with the passenger and, when he looked at the cellphone in the passenger's left hand, saw a bag of what appeared to be "crack" cocaine concealed by the phone. The passenger was arrested.
The motion judge found that the defendant appeared nervous when the narcotics were discovered, and quickly turned his body to one side. Sergeant Connolly decided to search the defendant again. Connolly was concerned that he might have missed something, that the defendant might have something -- either drugs or a weapon -- or might flee. Connolly felt what he believed were packaged narcotics in the defendant's inside coat pocket. Connolly retrieved a clear plastic sandwich bag containing approximately one hundred pills. The defendant was placed under arrest. Trooper St. Ives searched the car and found $4,600 in the center console.
The defendant testified, stating that while he was giving the passenger a ride, his girlfriend asked him to stop to pick up her uncle. The defendant was given an address on Waverly Street, but there was confusion about the house number, and he drove slowly up and down the street looking for the right house. According to the defendant, once they located the uncle, he asked to be dropped off at Cumberland Farms, which is across the street from his residence in Trinity Village.
After leaving the Cumberland Farms the defendant drove to the intersection where he took a left turn. He started to drive through a crosswalk but stopped to allow the pedestrian to cross because he had previously been stopped for not allowing someone to cross. He saw the blue lights at the same time he saw the pedestrian. When the defendant saw the blue lights, he turned to look behind him. He admitted to being in somewhat of a "panic" because he had been pulled over in the past for not letting a pedestrian through the crosswalk, so he looked to see if the police were attempting to stop him.
The defendant then recounted the same sequence of events as law enforcement. He was asked to get out of the car after producing his license but before producing a registration. Sergeant Connolly said, "Honestly, it looks like you just did a drug deal," and pat frisked him. Once the drugs were found on the passenger, the defendant turned to see what was happening. Sergeant Connolly pat frisked him again while others searched the car.
The motion judge ruled that the stop was permissible "based on reasonable suspicion that the defendant and the passenger were engaged in a street level drug transaction," and because there was a civil motor vehicle violation. She further ruled that the exit order was valid because this was not a routine motor vehicle stop, but a stop based on reasonable suspicion of criminal activity. She concluded that the patfrisks were permissible because the frantic movement inside the vehicle, and the fact that the defendant "appeared to make an attempt to evade the officers once the blue lights were activated," coupled with the discovery of the narcotics on the passenger and the defendant's sudden movement to one side when the drugs were found, gave rise to a reasonable suspicion that the defendant was armed. Finally, the motion judge ruled that there was probable cause for the search of the car and that the search was also valid under applicable impoundment procedures.
Discussion. The defendant contests the validity of the stop, exit order, patfrisks, and the search of the car. "In reviewing the denial of a motion to suppress, we accept the motion judge's ‘subsidiary findings absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.’ " Commonwealth v. Tavares, 482 Mass. 694, 699 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
1. Stop. a. Reasonable suspicion. The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights protect individuals from all unreasonable searches and seizures. See Tavares, 482 Mass. at 702. "The police may stop a motor vehicle to "make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime." Id., quoting Commonwealth v. Watson, 430 Mass. 725, 729 (2000). "To perform an investigatory stop of a vehicle, the police require ‘reasonable suspicion, based on specific, articulable facts and inferences therefrom, that an occupant ... had committed, was committing, or was about to commit a crime.’ " Commonwealth v. Manha, 479 Mass. 44, 46 (2018), quoting Commonwealth v. Anderson, 461 Mass. 616, 621, cert. denied, 568 U.S. 946 (2012).
The facts relevant to the existence of reasonable suspicion of criminal activity at the time of the stop are the following: (1) the car moved slowly, changing directions at least twice, while the occupants of the car appeared to look right and left; (2) the car drew in and out of a driveway two to three times and a third person joined the first two occupants in the car; (3) the car drove to and parked at Cumberland Farms for several minutes, where the occupants looked around, and the third person left; and (4) the car was in an area known for drug sales.
We conclude that at the time of the stop and the exit order the officers lacked reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. See Commonwealth v. Barreto, 483 Mass. 716, 720 (2019). Cf. Commonwealth v. Kearse, 97 Mass. App. Ct. 297, 301 (2020). At the time Sergeant Telford made his observations of the car, he did not know who the occupants were. See Barreto, supra (no reasonable suspicion where neither defendant nor pedestrian were known to officers conducting surveillance). There was no evidence that the driver, the passenger, the car, or any car bearing that license plate was associated with drug activity. See Commonwealth v. Cordero, 477 Mass. 237, 243 (2017) (no reasonable suspicion to extend investigation during routine traffic stop where defendant produced valid driver's license and registration and there were no outstanding warrants for defendant or pending criminal charges). Contrast Commonwealth v. Bostock, 450 Mass. 616, 619-620 (2008) (exit order was lawful where defendant matched description of individual involved in recent report of car break-in). The facts that the defendant drove up and down the street, stopped, parked, turned around, and picked up a passenger do not, as a matter of law, constitute reasonable suspicion that a crime was afoot. "Too many people fit this description for it to justify a reasonable suspicion of criminal activity." Commonwealth v. Matta, 483 Mass. 357, 366 (2019), quoting United States v. Gray, 213 F.3d 998, 1001 (8th Cir. 2000). As Sergeant Telford himself stated, this conduct was just as consistent with the driver being lost.
Once the car picked up the passenger it drove to a specific location. This was not a "drive to nowhere." Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018). Nor did Sergeant Telford see an exchange of anything between the people in the car. See Barreto, 483 Mass. at 721, citing Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44-45 (2005). Cf. Commonwealth v. Chin-Clarke, 97 Mass. App. Ct. 604, 609-610 (2020).
The motion judge relied on the officers’ testimony concerning what she described as "the reputation of the location as a high crime area" to conclude that the officers’ suspicion of criminal activity was reasonable. "The characterization of an area as ‘high crime’ cannot justify the diminution of the civil rights of its occupants." Evelyn, 485 Mass. at 709. "To guard against this risk, we consider this factor only if the ‘high crime’ nature of the area has a ‘direct connection with the specific location and activity being investigated.’ " Id., quoting Commonwealth v. Torres-Pagan, 484 Mass. 34, 41 (2020).
The judge did not have the benefit of the Supreme Judicial Court's opinions in Barreto, Evelyn, or Torres-Pagan at the time the motion was heard. Our previous cases had expressed caution about general reliance on neighborhood crime levels. The fact that criminal activity occurs in a "high crime" area does not mean that all activity in that area is suggestive of criminal activity. See Kearse, 97 Mass. App. Ct. at 301. See also Commonwealth v. Meneus, 476 Mass. 231, 238 (2017) ("we look beyond the term ‘high crime area’ to determine whether the inferences fairly drawn from that characterization demonstrate the reasonableness of the intrusion"); Cordero, 477 Mass. at 245 ("a suspect's connection to a location ... cannot, standing alone, support reasonable suspicion"); Jones-Pannell, 472 Mass. at 434 ("a characterization that an area is one of ‘high crime’ may be relevant in determining whether a police officer's suspicion is reasonable, [but] the accuracy of the characterization ... depends on specific facts"). "The term ‘high crime area’ is itself a general and conclusory term that should not be used to justify a stop or a frisk, or both, without requiring the articulation of specific facts demonstrating the reasonableness of the intrusion." Commonwealth v. Johnson, 454 Mass. 159, 163 (2009).
Sergeant Telford described the intersection of Main Street and Waverly Street as an area known for "drug dealing offenses, search warrants for drugs, firearms offenses, shots fired, prostitution, and other street level crime." Sergeant Connolly stated he had investigated crimes involving "[n]arcotics, firearms, shots fired, drug activity" in the Waverly Street area. However, "the dates, precise locations, and alleged perpetrators of those incidents were not identified." Evelyn, 485 Mass. at 709. Sergeant Telford's and Sergeant Connolly's testimony lacked temporal proximity or a connection to the defendant or the passenger. Without these details, a general reputation for criminal activity does not demonstrate a "direct connection" with the defendant or the stop at issue. Id. See also Jones-Pannell, 472 Mass. at 434-435 ("That one or more ‘crimes’ occurred at some point in the past somewhere on a particular street does not necessarily render the entire street a ‘high crime area,’ either at that time or in perpetuity"). Compare Torres-Pagan, 484 Mass. at 41 (detailed, specific testimony of officer created a direct connection with the specific location and activity being investigated).
A meandering car ride to pick up a passenger and a stop at a convenience store a few blocks away "in a high crime area between individuals unknown to the police, even when viewed by an experienced investigator, standing alone, does not provide more than a hunch that a drug transaction occurred." Kearse, 97 Mass. App. Ct. at 301. The police lacked reasonable suspicion of criminal conduct at the time of the stop. See Barreto, 483 Mass. at 720.
b. Traffic violation. However, the defendant made a left-hand turn without using the turn signal. It has long been the law that "[w]here the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting Commonwealth v. Santana, 420 Mass. 205, 207 (1995). See also Barreto, 483 Mass. at 721 ("police may effect a stop after observing a motor vehicle infraction regardless of the officer's underlying motivation"); Commonwealth v. Buckley, 478 Mass. 861, 869 (2018) ("the fact that a traffic law has been violated is, generally speaking, a legally sufficient basis to justify stopping a vehicle"). The stop was therefore permissible.
2. Exit order. An exit order is justified during a traffic stop where "(1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the car on other grounds." Barreto, 483 Mass. at 722. The motion judge determined that the exit order was proper because the stop was based upon reasonable suspicion that the defendant was involved in the sale or purchase of narcotics. Having determined that reasonable suspicion was lacking, this basis for the exit order no longer applies, unless something occurred after the stop which added to the calculus of criminal activity, or there was reasonable suspicion of a threat to safety. "[T]o be lawful, the exit order [following a routine traffic stop] can only be justified based on events or observations made by the officers after they stopped the defendant's vehicle." Id.
The stop began when the officers activated the blue lights. Matta, 483 Mass. at 364-365. The judge made no findings or rulings that the exit order was justified on the basis of officer safety. She did, however, find that the patfrisks were justified based on reasonable suspicion that the defendant was armed and dangerous. These findings were based in part on events that occurred after the stop, and we therefore consider those findings insofar as they pertain to events occurring after the stop and before the exit order.
The motion judge found that the officers had safety concerns due to the "unusual, frantic movement" of the defendant and passenger within the car after the blue lights were activated. Sergeant Connolly testified the defendants were "turning around, looking at us, moving their torsos from side to side." The driver of the car also "looked like he was trying to get around traffic" before the car came to a stop ten to twenty seconds after the blue lights were activated. We ask whether "a reasonably prudent [person] in the police [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger" (citation omitted). Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 452 (2016).
The answer here is no. It would not be suspicious for the driver or passenger to turn to look when the blue lights started flashing, and it certainly would not be unusual to react when the police car is unmarked. No one can turn without moving the torso. Although a defendant's movements in a car after a stop can create a reasonable suspicion of a threat to officer safety, the officers here did not describe movements that would permit an inference that the defendant or passenger were attempting to conceal or procure a weapon. Compare Torres-Pagan, 484 Mass. at 39-40. Contrast Amado, 474 Mass. at 152 (defendant's arm movements behind his back and then forward justified exit order); Commonwealth v. Goewey, 452 Mass. 399, 407 (2008) (movements as if to hide or retrieve something warranted officer's concern for safety); Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 905 (2013) (exit order proper where defendant reached into glove compartment, opened and closed it, leaned to the floor, and put his hand under his thigh).
The motion judge observed that the defendant "appeared to make an attempt to evade officers once the blue lights had been activated." This reference to appearances did not constitute a finding of attempt to evade, with good reason. The car stopped within ten to twenty seconds after the officers activated their lights, and the defendant cooperated with the officers. The defendant's behavior was indicative of nervousness, or a desire to avoid the stop, but nervousness and evasiveness are insufficient on their own to generate a reasonable basis to believe that this defendant posed a threat to officer safety. See Barreto, 483 Mass. at 723 (" ‘nervousness and fidgeting,’ without more, do[ ] not warrant a belief that the safety of the officers or others is threatened"). See also Cordero, 477 Mass. at 243-244 ("That "the defendant exhibited signs of nervousness and evasiveness in the context of an involuntary police encounter cannot, without more, generate reasonable suspicion"). ,
For the same reasons, we do not conclude that the movements in the car or the car's driving pattern created a reasonable suspicion of an unlawful drug sale or purchase.
The judge also relied on the fact that the passenger was found with drugs, a question we need not reach, see Commonwealth v. Bailey-Sweeting, 98 Mass. App. Ct. 862, further appellate review allowed, 487 Mass. 1101 (2021), and that the defendant reacted when the drugs were found. Both of these events occurred after the exit order and we do not consider them.
Accordingly, the exit order was unlawful. The evidence obtained as a result of the subsequent patfrisk and search of the vehicle should have been suppressed as fruits of the poisonous tree. See Barreto, 483 Mass. at 723. We reverse the order denying the defendant's motion to suppress, id., vacate the judgment, and set aside the verdict. Cf. Commonwealth v. Meneus, 476 Mass. 231 (2017). The matter is remanded to the Superior Court.
So ordered.
Reversed in part; vacated in part and remanded