Opinion
19-P-1785
10-08-2020
COMMONWEALTH v. TYMIKE SMITH.
NOTICE: 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 defendant, Tymike Smith, appeals from convictions after a jury-waived trial in the Superior Court for unlawfully carrying a firearm, G. L. c. 269, § 10 (a), and unlawfully carrying a loaded firearm, G. L. c. 269, § 10 (n). Concluding that the police lacked reasonable suspicion to conduct a protective sweep of the automobile and that, therefore, the defendant's motion to suppress should have been granted, we reverse.
The defendant was also convicted of unlawful possession of ammunition, G. L. c. 269, § 10 (h). This count was dismissed as duplicative of the loaded firearm conviction.
1. Motion to suppress. a. Standard of review. In reviewing the denial of a motion to suppress, we "accept[] the judge's subsidiary findings of fact absent clear error, give[] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996). Accord Commonwealth v. Martin, 467 Mass. 291, 301 (2014).
b. The stop. "A police officer may stop a vehicle in order to conduct a threshold inquiry if he has a reasonable suspicion that the occupants have committed, are committing, or are about to commit a crime. His suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Garden, 451 Mass. 43, 45-46 (2008), quoting Commonwealth v. Wren, 391 Mass. 705, 707 (1984). An officer who has an "articulable and reasonable suspicion that a motorist is unlicensed" may stop the vehicle and detain the driver to check his license and registration. Delaware v. Prouse, 440 U.S. 648, 663 (1979). In Garden, officers stopped a vehicle after conducting a record check and determining the registered owner, a woman, had a suspended license. 451 Mass. at 44-45. Upon approaching the vehicle, the officer realized that the driver was a man, and not the registered owner of the vehicle. Id. at 45. The Supreme Judicial Court upheld the stop, holding that the officer had reasonable suspicion that a crime was being committed at the time of the stop. Id. at 45-46.
Here, the officers who conducted the stop were members of the gang unit. Upon driving past the vehicle, one of the officers recognized the driver to be a gang member, and knew that he did not have a license to operate a motor vehicle. Based on this information, the officers conducted a motor vehicle stop. Contrary to the defendant's argument, the officers did not need to follow the vehicle until they could get a better look at the driver or run the driver's registry of motor vehicles record to confirm that he did not have a suspended license before pulling the vehicle over. The officers needed only reasonable suspicion, not confirmed evidence, to stop the automobile. Having recognized the driver and having reasonable grounds to believe that the driver was not licensed, the officers were permitted to pull over the motor vehicle, approach for investigatory purposes, and run a record check to confirm their suspicion. See Commonwealth v. Washington, 459 Mass. 32, 39 n.14 (2011) ("an officer's reasonable suspicion of a possible, but unconfirmed, motor vehicle violation sufficiently justifies an investigatory traffic stop in order to verify or dispel that suspicion"). Similar to the officer in Garden, the officer in this case properly stopped the motor vehicle where he had a reasonable suspicion that the driver was operating without a license.
The defendant was the passenger in the vehicle. The officer testified that he knew the driver did not have a license to operate a motor vehicle because the gang unit shares information regarding gang members' residences, jobs, vehicles, and license status. "The knowledge of one officer is part of 'the collective information' of other officers engaged in the same cooperative effort." Commonwealth v. Perez, 80 Mass. App. Ct. 271, 274 (2011), quoting Commonwealth v. Gullick, 386 Mass. 278, 283 (1982).
We reject the defendant's contention that the information was too stale to support reasonable suspicion. On cross examination, when asked when he learned that the driver's license was suspended, the officer stated, "I don't have an exact date." The officer then responded in the affirmative when defense counsel asked, "It could have been a month before? It could have been two months before?" When dealing with items, such as narcotics, that "are 'readily consumed or distributed,'" we recognize that "'probable cause to search for them rapidly dwindles' with the passage of time. . . . Therefore, a tip from an informant several months before a search cannot establish probable cause." Commonwealth v. Matias, 440 Mass. 787, 792 (2004), quoting Commonwealth v. Matias, 58 Mass. App. Ct. 231, 236 (2003). A suspended license, however, does not present the same ephemeral quality as narcotics, as a license suspension is likely to persist for some period of time. See Commonwealth v. Beliard, 443 Mass. 79, 85-86 (2004). The motion judge was entitled to credit the officers' testimony, and properly concluded that the stop was proper. See Commonwealth v. Weidman, 485 Mass. 679, 683 (2020) ("we defer to the motion judge as to the weight and credibility of the evidence").
c. The search of the automobile. "It is settled in law that, in appropriate circumstances, 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." Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 570 (2002), quoting Commonwealth v. Silva, 366 Mass. 402, 408 (1974). See Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010). "Essentially, the question is whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger." Commonwealth v. Pena, 69 Mass. App. Ct. 713, 718 (2007), quoting Silva, supra at 406.
Here, the circumstances simply did not provide a reasonable concern that there may be weapons in the vehicle. There was no indication of gang violence, or that the defendant and the driver were in rival gang territory. Contrast Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841 (2010) (holding gang membership of occupants within vehicle was relevant to officers' reasonable safety concerns where they had just observed passenger engaged in animated, unresolved confrontation with several rival gang members).
An officer testified that the area of the stop was not an area typically frequented by Kilby Street gang members, but did not identify it as an area typically frequented by any rival gang.
Further, although the driver's flight from the vehicle contributed to safety concerns, the defendant made no furtive movements to suggest concealment of a weapon inside of the vehicle or on his person, and the driver did not take with him a bag of any sort that might have been used to conceal "illicit goods." Contrast Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (passenger's flight with backpack relevant to safety concerns in relation to remaining occupants of vehicle). The defendant remained in the vehicle according to the officer's instructions until he was asked to exit. He exited when he was asked to do so. See Commonwealth v. Santiago, 93 Mass. App. Ct. 792, 797 (2018). He did not appear nervous throughout the encounter.
Although the officer testified at trial that the defendant appeared to be nervous, this was not his testimony at the suppression hearing. See Commonwealth v. Arias, 81 Mass. App. Ct. 342, 343 n.2 (2012) ("we do no rely on trial testimony in reviewing a motion to suppress").
Under these circumstances, the mere facts that the defendant "had been stopped in a motor vehicle with a gun prior to th[at] day" and that "the case was still pending" did not provide the reasonable belief of danger necessary to justify a protective sweep. The officer did not testify at the suppression hearing that the defendant possessed a firearm or that he was arrested for possession of a firearm. Even if we consider the evidence provided in the motion to reconsider, this prior stop continues to be inadequate to supply a reasonable belief of danger. The police report of this incident stated that the firearm was found in the center console between two other individuals, one of whom indicated that the firearm belonged to him. This is unlike the circumstances in Commonwealth v. Amado, 474 Mass. 147 (2016), where the officer knew the defendant was charged in a pending case with unlawful possession of a firearm, and the firearm was found near the passenger seat where he was sitting. Id. at 148, n.1. Here, there was no history of firearm charges that the officers were aware of, and as a result, the pending case did not provide a reasonable basis to believe that the automobile contained a weapon.
Indeed, in his motion to reconsider, the defendant established that he had been charged with possession of marijuana with the intent to distribute in the pending case.
Neither of these individuals were involved in the present case.
These facts distinguish this case from Graham. In Graham, the protective sweep followed the officers' response to recent firearms problems in the area, including a shooting. 78 Mass. App. Ct. at 128. The officers' attention was drawn to the defendants as they noticed the vehicle slow down upon passing a group of people on the sidewalk, whom they observed "shrink back and away." Id. After stopping the car, they recognized the occupants as being associated with a local gang, knew that one of the passengers had a history of firearm related offenses, noticed the driver continually reaching down between the seat and the center console after an officer told him to keep his hands in sight, and found a knife on two of the passengers after conducting a patfrisk. Id. at 128-129. This was considerably more evidence of danger than is present here. Accordingly, the motion to suppress should have been granted.
As we determine that the search of the vehicle was unreasonable, there is no need to discuss the reasonableness of the exit order.
The Commonwealth commendably conceded at oral argument that the case cannot be tried if the evidence were suppressed. Accordingly, we may enter judgment for the defendant and need not reach the defendant's claim about the sufficiency of the evidence at trial or about impairment of the grand jury process. See Commonwealth v. Forish, 61 Mass. App. Ct. 554, 561-562 (2004).
Judgments reversed.
Findings set aside.
Judgments for defendant.
By the Court (Desmond, Ditkoff & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 8, 2020.