Opinion
21-P-541
01-27-2022
COMMONWEALTH v. Elias SUDLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of carrying a firearm without a license and possession of ammunition without a firearm identification card. Thereafter, the defendant stipulated that his prior conviction for kidnapping constituted the predicate offense necessary to be an armed career criminal. Prior to trial, the motion judge denied the defendant's motion to suppress following an evidentiary hearing. On appeal, the defendant challenges the sufficiency of the evidence, and the denial of his motion to suppress. We reverse the order denying the motion to suppress, reverse the judgments, set aside the verdicts, and order the entry of judgments for the defendant.
The defendant was found not guilty of assault and battery on a police officer, and resisting arrest. Prior to trial, a charge of assault by means of a dangerous weapon was dismissed, and the Commonwealth filed a nolle prosequi on a charge of assault and battery by means of a dangerous weapon.
The Commonwealth agreed to enter a nolle prosequi on so much of the indictments that alleged two prior offenses.
Discussion. "We summarize the facts as found by the motion judge ... supplemented by evidence in the record that is uncontroverted or that was implicitly credited by the judge" (quotation and citation omitted), reserving certain details for our discussion of the issues. Commonwealth v. Jones, 100 Mass. App. 600, 601-602 (2022). At approximately 9:15 A.M. on August 29, 2018, Massachusetts State trooper Chanel Moreau was on patrol in a marked cruiser on Route 495 near the Methuen/Haverhill line, when he observed a purple Chevy S-10 pickup truck. Moreau routinely ran random license plate checks in his cruiser's on-board computer system, and had run approximately one hundred license plates that day. When he ran the pickup truck's license plate, Moreau learned that the truck was beyond the seven-day period for it to be registered, and that the truck was not inspected.
Because we do not reach the defendant's challenge to the sufficiency of the evidence, we only set forth the facts adduced at the motion to suppress hearing, and not those that the jury could have found at the trial.
Moreau stopped the truck in the breakdown lane. As he approached the truck on the passenger side, Moreau saw two men. He asked the driver for his license and the truck's registration. The driver said he was the registered owner of the truck; he produced the registration but not a driver's license. During this time, the front seat passenger, later identified as the defendant, looked straight ahead with what Moreau described as a "a blank stare, the thousand-mile stare." The defendant made no eye contact with and said nothing to Moreau. After being prompted by Moreau, the defendant said his name was Brandon Thompson; he provided a date of birth, but said that he did not have identification with him.
Moreau returned to his cruiser to check the information that the pair had provided. He confirmed that the driver was the registered owner of the truck, had a valid driver's license, and did not have outstanding warrants. Moreau was unable to find any information under the name of Brandon Thompson with the date of birth that the defendant provided. While in his cruiser, Moreau saw the defendant make two to three rapid movements toward the rear of the truck behind the driver's seat. He saw the defendant turn his torso and reach with both arms behind the driver's side front seat. Concerned for his safety, Moreau radioed for backup.
Shortly thereafter, Massachusetts State trooper Gary Comeau arrived, and Moreau described his observations of the defendant to him. As the two approached the passenger side of the truck, Moreau saw the defendant again reach behind the driver's seat. The defendant had changed his appearance -- he was now wearing a "safari-type hat" and sunglasses. The defendant complied with Moreau's request to exit the truck. After a patfrisk of the defendant yielded no weapons, Moreau allowed the defendant to reenter the truck.
Moreau next asked the defendant why he reached behind the driver's seat. The defendant said that his identification might be in the back. The defendant again reached toward the same area at which time Moreau noticed -- for the first time -- a backpack behind the driver's seat. Moreau asked the defendant what was in the backpack. The defendant said that his identification might be in it, and Moreau asked the defendant to "just grab the whole backpack and bring it forward." The defendant again reached toward the backpack, and Moreau told him not to go in the bag, but to bring the entire bag forward. Moreau could not see anything that was inside the backpack, and became concerned that it might contain a weapon. When the defendant eventually brought the backpack forward, he held it against his chest, and a struggle for control of it ensued. Moreau "could feel something swinging in the bottom, something that had some type of mass or weight to it" that he believed "had characteristics of a weapon."
During the struggle, the defendant kicked Moreau, and yelled at the driver to "get out of here." Comeau used a taser on the defendant, and Moreau gained control of the backpack. The defendant reached toward the gear shift, and the truck sped off. Moreau discovered a loaded .22 caliber handgun with a round in the chamber in the backpack. He put the gun back in the backpack, and put the backpack in the front seat of his cruiser. Both Moreau and Comeau pursued the truck. When they found the truck in a parking lot, the defendant was no longer in it. He was later found hiding in a shed, and arrested.
Discussion. "Generally, [i]n reviewing a ruling on a motion to suppress, we accept the [motion] judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.... It is then [o]ur duty ... to make an independent determination of the correctness of the [motion] judge's application of constitutional principles to the facts as found.... To the extent the motion judge made credibility determinations relevant to his subsidiary findings of fact, we adhere to the normal standard of review, affording such findings substantial deference and accepting them unless not warranted by the evidence" (citation omitted). Commonwealth v. Pereira, 100 Mass. App. Ct. 411, 413-414 (2021).
We agree with the motion judge that Moreau's initial questioning of the defendant was improper as he was neither the driver nor the registered owner of the truck. He was simply a passenger in a truck that was pulled over for a routine motor vehicle stop. Because the defendant had nothing to offer on the issues of the truck's registration and inspection, there was no noninvestigatory reason for Moreau to ask the defendant for his name and identification. See Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 535 (1998) ("Interrogation of passengers in a car stopped for a traffic offense, without an objective basis for suspicion that the passenger is involved in criminal activity, slips into the dragnet category of questioning that art. 14 [of the Massachusetts Declaration of Rights] prohibits"). But that does not end our analysis. The defendant's subsequent and intervening actions gave rise to objectively reasonable safety concerns that did not flow from the improper questioning. While completing his responsibilities in connection with the traffic stop, Moreau saw the defendant reach multiple times behind the driver's seat. These movements and the defendant's subsequent change in appearance provided an objectively reasonable basis for Moreau to take protective measures. This included the exit order, see Commonwealth v. Daniel, 464 Mass. 746, 752 (2013) ("it does not take much for a police officer to establish a reasonable basis to justify an exit order" [citation omitted]), and the patfrisk of the defendant for weapons. See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (patfrisk justified during routine traffic stop where officer observed gestures "consistent with reaching to the floor or under the seat"). Finding no weapon, Moreau allowed the defendant to return to the truck, which suggests that any concern for his safety was dispelled by the patfrisk. Indeed, seizures and searches under Terry v. Ohio, 392 U.S. 1 (1968), are "confined to what is minimally necessary to learn whether the suspect is armed and to disarm him [if a] weapon is discovered." Commonwealth v. Almeida, 373 Mass. 266, 272 (1977).
The Commonwealth cites no case in which action other than removal of the suspect from the vehicle and the officer's own patfrisk of the passenger compartment of the vehicle and the containers within it has been held justified by safety concerns in similar circumstances. Citing Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 350 (2010), the Commonwealth argues that Moreau's "graduated response to the rapidly unfolding circumstances ... was, at each step, ‘reasonable and proportional to the danger’ with which he was confronted." But this argument overlooks one key fact: Moreau did not issue a second exit order after observing the backpack. This is something he could have done to dispel any further concern for his safety. He also could have, but did not, conduct a patfrisk of the backpack where it was located on the floor behind the driver's seat. See Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020) (protective search of vehicle permitted where defendant "may access a weapon left behind upon returning to the vehicle"). However, instead of separating the defendant from any potential danger that the contents of the backpack presented, Moreau ordered the defendant to take hold of the backpack. This action was contradictory to Moreau's stated safety concerns; it did not dispel them. Indeed the directive to the defendant may have increased the risk to Moreau.
We note that the Commonwealth cites no other grounds to justify the warrantless search, and we conclude that none of the exceptions which permit a warrantless search apply. Accordingly, the order denying the motion to suppress is reversed, the judgments are reversed, the verdicts are set aside, and judgments shall enter for the defendant.
The backpack was not abandoned. See Commonwealth v. Ferguson, 410 Mass. 611, 615 (1991). This was not an inventory search nor a search incident to arrest. See Commonwealth v. Washington, 449 Mass. 476, 481-482 (2007) ; Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175-177 (2019).
So ordered.
reversed