Opinion
SUCR2016-900 137415
06-29-2017
Commonwealth of Massachusetts v. Jahmil Sheppard
MEMORANDUM OF DECISION AND ORDER ON: (1) MOTION TO SUPPRESS EVIDENCE, AND (2) MOTION TO APPLY THE EXCLUSIONARY RULE AT PROBATION REVOCATION HEARING
Paul D. Wilson, Justice.
Boston police officers pulled over Defendant Jahmil Sheppard's car for an alleged motor vehicle infraction. Before the encounter was over, the police had discovered a firearm in the car, and so they charged Mr. Sheppard with firearms-related offenses. Mr. Sheppard now moves to suppress the weapon.
Mr. Sheppard was on probation at the time he was charged with these new crimes. As a result, Mr. Sheppard now faces possible revocation of his probation for violating its terms by committing another crime. Therefore Mr. Sheppard has filed a second motion, arguing that any evidence that I rule inadmissible at trial in today's case must also be excluded from evidence at the hearing concerning the revocation of his probation in the earlier case.
I held a hearing on both motions on June 19, 2017. The only witness was Officer Taylor Small of the Youth Violence Task Force of the Boston Police Department. Five exhibits were introduced, including video taken by Officer Small's body camera, which was also played during the hearing. Counsel argued the motions both before and after the presentation of the evidence.
I will now allow the motion to suppress, as well as the motion to exclude the suppressed evidence at the probation revocation hearing.
FINDINGS OF FACT
Based on all the credible evidence and the reasonable inferences from that evidence, I find the following facts.
1. The Stop
On September 28, 2016, at approximately 9:25 P.M., Officer Small was on routine patrol in an unmarked cruiser with two partners. As is their habit when on patrol, the officers used their in-cruiser computer to query law enforcement databases about the registered owners of motor vehicles they encountered. Their purpose was to check for stolen vehicles, expired registrations, revoked insurance coverage, and the like.
On this night, their cruiser fell in behind a motor vehicle operated by Mr. Sheppard. The officers submitted a query about the auto's registration, and learned that Mr. Sheppard was the registered owner of the car. Officer Small and at least one of his partners immediately recognized the name, because they had arrested Mr. Sheppard in May 2013 for carrying an unlicensed firearm in his motor vehicle. These officers were aware that Mr. Sheppard had been convicted of a firearms violation at that time, and had one additional firearms-related conviction on his record. They were also aware that Mr. Sheppard was on probation as a result of his conviction for the firearms crime for which they had arrested him three years earlier. The officers submitted further queries, confirming that Mr. Sheppard's motor vehicle was inspected and insured and that he had a valid driver's license.
As the officers followed Mr. Sheppard down a one-way street, containing one traffic lane and parking on both sides, Mr. Sheppard pulled quickly into a parking space on the left side of the street. He did not signal before making that maneuver. The officers decided that Mr. Sheppard had acted in a way that was unsafe for following vehicles. (However, Officer Small, who was driving the vehicle closest to Mr. Sheppard's car on this one-lane street, did not testify that he was forced to take any action as a result of Mr. Sheppard pulling his car to the curb.) The officers decided to cite Mr. Sheppard civilly for failure to use a turn signal. Later in the encounter, one of the officers did write a ticket for that civil offense, which is Exhibit 1.
Officer Small activated his cruiser's blue lights and brought his cruiser to a stop. All three officers got out of the cruiser and approached Mr. Sheppard's now-parked vehicle. Mr. Sheppard was the only occupant of the car.
2. The Officers' Dealings with Mr. Sheppard About the Civil Infraction
Officer Small approached the driver's door, where he observed that Mr. Sheppard was sweating and nervous. Officer Small asked Mr. Sheppard for his driver's license and registration. Mr. Sheppard had difficulty removing the registration from a plastic envelope, asking Officer Small to assist, which Officer Small declined to do. Eventually Mr. Sheppard extracted the registration.
Because of the earlier queries, the officers knew that both the registration and the driver's license were current. Nevertheless, Officer Small returned to the cruiser to run a confirmatory check on the license and registration, and to run certain other queries that he had not run before. Among those queries was a request for Mr. Sheppard's Board of Probation criminal record (" BOP"). See Exhibit 5, a Department of Criminal Justice Information Services showing the date and time of various queries. A review of that BOP confirmed that Mr. Sheppard was on probation, a fact that Officer Small already knew. During the few minutes that this process took, one of Officer Small's partners remained with Mr. Sheppard and his motor vehicle, engaging in conversation.
The Prolongation of the Stop
Officer Small returned shortly to the driver's window of Mr. Sheppard's car. He asked Mr. Sheppard how his probation was going, and specifically whether the probationary terms included any areas from which he was to stay away, or any curfew. Mr. Sheppard answered these questions cooperatively, but was still sweating.
Officer Small asked Mr. Sheppard if there were any weapons in his car. Mr. Sheppard responded, " No, why would there be?" Officer Small reminded Mr. Sheppard that he personally had arrested Mr. Sheppard three years earlier for having a weapon in a motor vehicle. Officer Small asked if Mr. Sheppard had any weapons on him, and he said no. Officer Small asked if Mr. Sheppard would mind if he checked, and Mr. Sheppard replied that he wanted to go home.
One of the other officers asked Mr. Sheppard why he was parking where he parked. He gave two different answers: that there is no parking available near his house, so sometimes he parked here and took an Uber home; and that he was visiting a nearby friend. Officer Small believed these two answers to be inconsistent, and also believed that Mr. Sheppard was getting more nervous, as indicated by the fact that his legs were now shaking.
4. The Exit Order
Approximately seven minutes after encounter began, one of Officer Small's partners ordered Mr. Sheppard out of his car. Officer Small believed that his partner was right to do so, because of a host of factors.
One factor was environmental. The officers knew the neighborhood to be a high crime area. In fact, someone had shot at Officer Small in a nearby public park three years earlier.
Another factor had to do with their prior arrest of Mr. Sheppard. On that occasion, as on this evening, Mr. Sheppard was crossing rival gang territory. On that occasion, he had an unlicensed gun with him, and the officers thought he might be repeating that pattern.
Other factors were more specific to Mr. Sheppard's role in a Boston street gang feud. The officers knew that Mr. Sheppard was a member of the Castlegate street gang. They had just stopped him, as they had when they arrested him three years earlier, in territory controlled by the H Block street gang, which was feuding (apparently perennially) with the Castlegate street gang. On the occasion of their prior arrest of Mr. Sheppard, Officer Small had overheard Mr. Sheppard telling someone on the telephone that he had been carrying an illegal firearm then because of his " trouble" with " some people, " which Officer Small reasonably interpreted as suggesting that Mr. Sheppard felt compelled to carry a gun for self-defense in H Block territory.
Finally, some factors justifying the exit order arose from what the officers had observed in the few minutes they had been with Mr. Sheppard. He was nervous from the outset of the encounter, and became more nervous when Officer Small asked him if there was a gun in his car. He gave answers that they regarded as abnormal and inconsistent when asked why he had parked where he had parked.
In response to the exit order, Mr. Sheppard refused to get out of the driver's seat. Mr. Sheppard insisted that he did not have to get out of the car, and inquired about why he had been stopped. The officers renewed the exit order more than once, and more than once Mr. Sheppard ignored it. Finally one officer reached in from the passenger side and unbuckled Mr. Sheppard's seatbelt, and another officer guided him out the driver's door. Officer Small ordered Mr. Sheppard to sit on a ledge abutting the sidewalk.
5. The Search
Officer Small asked if Mr. Sheppard had anything that might hurt the officers. Mr. Sheppard refused to answer, looking down toward the ground. This concerned Officer Small even more, so he put handcuffs on Mr. Sheppard. Officer Small told Mr. Sheppard that he was not under arrest, but that the officer was concerned about his behavior.
While Officer Small was handcuffing Mr. Sheppard, one of his partners frisked the motor vehicle. That officer found a firearm under the floor mat on the passenger's side of the front seat.
With that discovery, the officers decided to arrest and search Mr. Sheppard. They read him his Miranda rights, which Mr. Sheppard acknowledged. Officer Small asked him more than once to produce his license for the firearm they had discovered. Mr. Sheppard did not answer this question. This was no surprise to the officers, who knew that Mr. Sheppard could not obtain a firearm license because of his past firearm convictions.
Analysis
1. Suppression of the Fruits of the Stop
In his suppression motion, Mr. Sheppard argues that the officers violated his constitutional rights in four ways. First, they used the pretext of a phantom civil infraction to stop him. Second, they then unlawfully prolonged the stop, inquiring about his probationary status and asking him about weapons, until they could find evidence of a crime. Third, they had no basis for the exit order. Fourth, they lacked probable cause to search the vehicle.
I need consider only the second argument to decide this motion. Even assuming (without deciding) that the stop itself did not violate Mr. Sheppard's constitutional rights, I conclude that the officers prolonged the stop beyond constitutional limits Had they simply issued the traffic citation and let Mr. Sheppard go on his way, there would have been no cause for an exit order or a search of the vehicle. Because the stop lasted too long, I will suppress the evidence found in the search.
The facts of today's case bear a striking resemblance to those of Commonwealth v. Cordero, 477 Mass. 237, 74 N.E.3d 1282 (2017), decided by the Supreme Judicial Court earlier this month. For that reason, I will recite in some detail the facts of that case, which make it such an apt model for the decision here.
In Cordero, a state trooper on routine patrol on Route 20 in Berkshire County observed a civil infraction, namely a vehicle with broken tail and brake lights and illegal window tint. While he followed the car, the trooper use his onboard computer to discover that Mr. Cordero was the registered owner, had a current valid driver's license, and that the vehicle was properly registered, inspected and insured. Id. at 238. The trooper also learned that Mr. Cordero lived in Holyoke, a city known for its narcotics activity--just as Mr. Sheppard lived (and was stopped) in a high crime area known for its gang violence and firearms violations. The trooper also determined that there were no warrants out for Mr. Cordero's arrest, and no pending criminal charges. The trooper checked Mr. Cordero's criminal record, which showed past firearm violations, drug offenses, and assault and battery on a police officer.
The trooper signaled Mr. Cordero to stop, and he did so. When the trooper asked for his driver's license and registration, Mr. Cordero seemed extremely nervous, and could not produce the vehicle's registration. When asked where he was going and coming from, Mr. Cordero gave answers that the trooper did not believe, some of which were inconsistent. Id. at 239. Mr. Cordero asked if he could get out of his vehicle to look at broken tail light, and the trooper permitted this. Id. at 240. Mr. Cordero's voluntary exit from his car turned out to be the functional equivalent of an exit order, because the trooper apparently never allowed Mr. Cordero back into his car, even though the night was cold.
Just as in today's case, the trooper asked Mr. Cordero for permission to search his car, and Mr. Cordero declined. By then another trooper, summoned as backup, arrived at the scene. In a departure from the facts of today's case, the troopers did not immediately search the vehicle; instead they called for a K-9 unit to sniff the car.
Meanwhile, Mr. Cordero was so cold that he asked if he could sit in the back seat of one of the cruisers. One of the troopers told him that he could, but only after he submitted to a pat frisk and cuffs. Mr. Cordero consented. The frisk revealed $1, 900 in a pocket. When Mr. Cordero was again asked for consent to a search of the car, he said--just like Mr. Sheppard here--that he only wanted to go home. A third or fourth request for consent finally yielded permission, after which the troopers discovered contraband in the car. Id.
The stop in Cordero was much longer than in today's case, lasting between 40 and 45 minutes. The Commonwealth points out that Officer Small's partners detained Mr. Sheppard for only seven minutes from the beginning of the encounter to the exit order (and then, of course, at least a few minutes longer while Mr. Sheppard was sitting on the ledge, and then being cuffed while the officers were finding the firearm in the motor vehicle). But whether a stop has been unconstitutionally prolonged is not measured simply by how many minutes the encounter takes. The test, Cordero teaches, depends on the purpose of the stop: " A routine traffic stop may not last longer than 'reasonably necessary to effectuate the purpose of the stop.'" Id. at 241, quoting Commonwealth v. Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016). Generally the interaction is brief, lasting just long enough for the officers to obtain the operator's license and registration, verify the information they contain, prepare the citation, and explain it to the driver. " Citizens do not expect that police officers handling a routine traffic violation will engage . . . in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime." Commonwealth v. Gonsalves, 429 Mass. 658, 663, 711 N.E.2d 108 (1999).
The Cordero court ruled that the trooper was authorized to stop the vehicle for the civil traffic infractions, and then to conduct a roadside investigation related to the broken lights and the impermissible window tint. The trooper already knew the identity of the registered owner of the vehicle, but he was entitled to confirm the identity of the driver. But the stop could not last longer than reasonably necessary to undertake those tasks, and to write the citation. Cordero, 477 Mass. at 243.
There is no doubt that the officers unduly prolonged the stop here. Once the officers had confirmed (twice, both before and after stopping him) that Mr. Sheppard was a licensed driver and that his car was properly registered, inspected and insured, and they had found no outstanding warrants, they did not simply write a ticket for the civil infraction. Instead of doing that and sending him on his way, Officer Small inquired into the terms of his probation. Then he asked him if there might be a weapon in the car. Then, based on what they took to be unsatisfactory answers to questions they had no right to ask, the officers pulled Mr. Sheppard out of the car and searched it.
The Commonwealth argues that the officers had a reasonable suspicion of illegal activity that justified prolonging the stop. The Commonwealth argued the same thing in Cordero, pointing to the extreme nervousness of Mr. Cordero; his evasiveness in answering questions; that he was coming from a high crime area, the city of Holyoke; and that he had prior convictions for drug and weapons crimes. The Cordero court ruled that these factors, even added together, did not support reasonable suspicion of criminal activity that would permit the troopers to prolong the stop to investigate further. Id. at 247.
In today's case, the Commonwealth argues the same four factors. But the Commonwealth suggests that Officer Small and his partners had additional information on which to base reasonable suspicion that Mr. Sheppard might have a gun in his vehicle. For one thing, Officer Small himself had arrested this Mr. Sheppard for secreting an unlicensed gun in his car three years earlier under similar circumstances. I am sympathetic to Officer Small's belief that history sometimes repeats itself on the streets of Boston. But in Cordero the trooper knew that Mr. Cordero's criminal record included previous drug offenses, just as Officer Small and his partners knew that Mr. Sheppard had committed previous gun offenses. The serendipitous fact that Officer Small and his partners had been the arresting officers as to a past offense does not provide a principled distinction between the two cases. If much weight were given to the fact that there were convictions on a driver's criminal record, convicted criminals would never be free of the specter of exit orders and searches when they were stopped for offenses such as, in this case, failure to use a turn signal.
The Commonwealth also distinguishes this case from Cordero by pointing out that the trooper stopped Mr. Cordero on a state highway in the City of Pittsfield in western Massachusetts, while Officer Small and his partners stopped Mr. Sheppard on the turf of a rival gang in a high crime area of Boston, and not far from a park where someone had taken a shot at Officer Small three years earlier. However, echoing several other recent Supreme Judicial Court decisions, the Cordero court reiterated, " We repeatedly have urged caution in the use of this consideration, pointing out that 'many honest, law-abiding citizens live and work in high-crime areas. Those citizens are entitled to the protections of the Federal and State Constitutions, despite the character of the area.'" Id. at 245, quoting Commonwealth v. Gomes, 453 Mass. 506, 512, 903 N.E.2d 567 (2009).
In his closing argument, the prosecutor incorrectly stated that Mr. Cordero was stopped in Lee, a much sleepier and presumably much safer municipality than Pittsfield. His confusion probably stems from the fact that the state trooper began following Mr. Cordero in Lee and through Lenox. Id. at 238. I infer that the stop was made in Pittsfield, the next municipality up Route 20 from Lee and Lenox, because eventually a City of Pittsfield police officer arrived on the scene to assist the troopers. Id. at 241.
Applying the law so recently set out in Cordero to the similar facts of this case, I rule that the officers violated Mr. Sheppard's constitutional rights when they unduly prolonged a stop for a civil infraction beyond the time necessary to issue a citation. Therefore the search that followed the stop was also unconstitutional, and all fruits of the search, as well as any statements made by Mr. Sheppard, must be suppressed.
2. Application of the Exclusionary Rule to the Probation Revocation Hearing
Having decided that the fruits of the search may not be used at trial in today's case, I turn to the question of whether they must also be excluded from evidence at Mr. Sheppard's probation revocation hearing. It is undisputed that the officers who stopped and searched Mr. Sheppard knew that Mr. Sheppard was on probation. Because of this fact, Mr. Sheppard argues, the evidence found during the unconstitutional search may not be admitted at Mr. Sheppard's probation revocation hearing. I agree.
This is a matter of first impression in Massachusetts. However, the stage was set for today's decision in Commonwealth v. Olsen, 405 Mass. 491, 491, 541 N.E.2d 1003 (1989). There the Supreme Judicial Court ruled that unconstitutionally obtained evidence was nonetheless admissible at a probation revocation proceeding--but only because " the police who unlawfully obtained the evidence neither knew nor had reason to know of the probationary status of the person whose property was seized." Id. at 491. The Olsen court " expressly [left] open the question whether the police officer's knowledge of the probationer's status would compel a different result." Id. at 496.
In today's case, I must answer that open question. I now hold that illegally obtained evidence should be excluded in a probation revocation hearing where the police officers who conducted the unconstitutional search knew or had reason to know that the person whose property was searched was a probationer.
Two predominant rationales underlie the suppression of evidence under the exclusionary rule: 1) deterrence of unlawful searches and seizures by the police; and 2) preservation of judicial integrity by " disassociating the courts from unlawful [police] conduct." Commonwealth v. Long, 476 Mass. 526, 535-36, 69 N.E.3d 981 (2017). My holding today is consistent with these rationales. To allow the admission of illegally obtained evidence at a probation revocation hearing while excluding it at trial might very well lead police officers to " discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation." Payne v. Robinson, 207 Conn. 565, 573, 541 A.2d 504 (1988), abrogated on other grounds by Johnson v. Comm'r of Correction, 218 Conn. 403, 589 A.2d 1214 (1991).
I do not stand alone in so resolving this issue. A number of courts have extended the exclusionary rule to probation revocation hearings under similar circumstances. See, e.g., People v. Ressin, 620 P.2d 717, 720-21 (Colo. 1980) (finding exclusion " appropriate as a deterrent" and " necessary in the interest of judicial integrity" where officers " knowingly engaged in a pretext arrest and exploratory search of the defendant because of his probationary status"); State v. Davis, 375 So.2d 69, 75 (La. 1979) (holding that the court should exercise its discretion to exclude the evidence when the illegal search and seizure was conducted by police officers in bad faith and was consciously and purposely directed at a probationer by officers with knowledge of the probationer's status).
Additional courts have stated in dicta that the exclusionary rule would apply to probation revocation hearings under similar circumstances. See, e.g., State v. Sears, 553 P.2d 907, 914 (Alaska 1976) (" In the event the lawless arrest and search or seizure is carried out by enforcement personnel with knowledge or reason to believe the suspect was a probationer, we would then apply the exclusionary rule in the probation revocation proceeding"); Ex parte Caffie, 516 So.2d 831, 835-36 (Ala. 1987) (under certain circumstances, such as where illegal conduct was specifically directed at a probationer, consideration may weigh in favor of the extension of the exclusionary rule to probation revocation proceedings).
Finally, like the Supreme Judicial Court in Olsen, some other courts have declined to exclude illegally obtained evidence from the record at a probation revocation hearing only after determining that the officers who obtained that evidence did not know that their target was on probation. See, e.g., People v. Perry, 201 Mich.App. 347, 351, 505 N.W.2d 909 (1993) (" Where there is no indication that the police knew or had reason to know that they were targeting a probationer, then the exclusionary rule should not apply to probation revocation proceedings . . ."); United States v. Vandemark, 522 F.2d 1019, 1022 (9th Cir. 1975) (" Where, as here, the officers are ignorant of the probationer's status, they also remain unaware of the possibility that he might be subject to sentencing after revocation. Consequently, the threat of exclusion at such a proceeding has little, if any, effect upon their conduct").
It is true that some courts have allowed the admission of illegally seized evidence at probation revocation hearings, even where the police knew that the subject of an illegal search was a probationer. Some of those courts have refrained from applying the exclusionary rule absent a demonstration of police harassment of the probationer. See, e.g., United States v. Wiygul, 578 F.2d 577, 578 (5th Cir. 1978); People v. Stewart, 242 Ill.App.3d 599, 612-14, 610 N.E.2d 197, 182 Ill.Dec. 773 (1993) (holding that police officer's knowledge of probationer's status did not require exclusion of illegally seized evidence at probation revocation proceeding, in absence of nexus between officer's knowledge that defendant was on probation and his actions toward defendant). Other courts require " egregious" police misconduct beyond mere knowledge of probationary status before extending the exclusionary rule. See, e.g., State v. Turner, 257 Kan. 19, 891 P.2d 317 (1995) (although mere knowledge of defendant's probationary status is insufficient to create an exception to the general rule, an exception may be warranted if, under totality of circumstances, the police misconduct was so egregious that a need for deterrence outweighed the court's need for information).
The courts that allow use of illegally obtained evidence at probation revocation hearings often do so because the officer acted in good faith. See, e.g., Harris v. State, 270 Ark. 634, 638, 606 S.W.2d 93 (Ark.Ct.App. 1980) (exclusionary rule inapplicable in revocation proceedings " at least where there has been a good-faith effort to comply with the law"). In essence, these courts are applying the Supreme Court's ruling in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), that the exclusionary rule should not be rigidly enforced; if the officers relied in good faith on search warrant later found constitutionally deficient, for example, the evidence should be admissible even if illegally obtained. Id. at 923.
Massachusetts, however, " has never adopted the 'good faith' exception" to the exclusionary rule. Commonwealth v. Valerio, 449 Mass. 562, 569, 870 N.E.2d 46 (2007). Instead, applying Article 14 of the Massachusetts Declaration of Rights, the courts of this Commonwealth broadly enforce the exclusionary rule regardless of the good faith of police officers. For example, in Commonwealth v. Hernandez, 456 Mass. 528, 924 N.E.2d 709 (2010), the court ruled that heroin and cocaine seized by Boston University police officers during a motor vehicle stop outside of their jurisdiction was properly excluded at trial. Id. at 528-30. Because the arrest was made without statutory or common-law authority, the court viewed it as an invalid exercise of official power " closely associated with the constitutional right to be free from unreasonable searches and seizures." Id. at 532. The Hernandez court rejected the Commonwealth's contention that the evidence should not be excluded because the mistake was made in " good faith." Instead the court cited the " plain[ ] prejudice" to the defendant resulting from the discovery of the contraband, and the likelihood that exclusion would deter the abuse of official power, and concluded that exclusion of the evidence was an appropriate remedy. Id. at 532-33.
As in Hernandez, the violation here--an unconstitutional search--was substantial, and Mr. Sheppard was prejudiced by it. Whether the search was carried out in good faith is irrelevant. For the sake of preserving confidence in the processes of government, the evidence must be held inadmissible at the probation revocation hearing. Such a result effectuates the twin rationales of deterrence and judicial integrity, and is consonant with Massachusetts jurisprudence under Article 14.
Conclusion
Mr. Sheppard's Motion to Suppress Evidence is ALLOWED . Mr. Sheppard's Motion to Apply the Exclusionary Rule at Probation Revocation Hearing is also ALLOWED .