Opinion
No. 11–P–353.
2012-05-22
COMMONWEALTH v. Mario TINSLEY.
By the Court (KATZMANN, SIKORA & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendant Mario Tinsley was convicted of possession of cocaine pursuant to G.L. c. 94C, § 34, as a result of a bag of cocaine found on his person. The defendant now argues that this cocaine and a bag of marijuana also found on his person should have been suppressed because the police pat-frisked him without a reasonable suspicion that he was armed and dangerous. We agree.
Factual and procedural background. At around midnight on March 12, 2009, West Springfield Police Officer Mark Cote checked the registry of guests, see G.L. c. 140, § 27, at the Red Roof Inn and determined that one of the guests, Tanisha Wilson, had an outstanding warrant for failure to appear for jury duty. Officer Cote called for backup and, along with fellow Officer Edmund Apostle, proceeded to Wilson's room. They knocked on the door and after a slight delay, Wilson let them into the room. The officers noted that the defendant was in the room with Wilson. At around this point, Officer Lawrence Stowell showed up. The officers could smell a strong odor of burnt marijuana. Officer Cote asked Wilson and the defendant if there were more drugs in the room and the defendant responded that they “had just finished smoking all they had.” The officers asked the defendant if he had identification and he said that his “ID” could be found in his car. The defendant gave Officer Cote permission to retrieve the ID from his car and gave him his car keys. Officer Cote did not find his ID in the car, but found other incriminating evidence that was ultimately suppressed. At the same time Officer Cote was searching the defendant's car, Officer Apostle took Wilson into custody and secured her in his police cruiser. Officer Apostle then returned to the room, where he observed a gray nylon bag. Apostle searched it and found marijuana, sandwich bags, and an electric scale. The defendant indicated the marijuana was his. Both the contents of the bag and the defendant's statement were ultimately suppressed.
At this point, the officers noted that the defendant was becoming increasingly fidgety and agitated. The defendant kept rubbing his hands against his legs. Earlier, the officers had ordered the defendant to sit at the end of one of the motel beds. The defendant either wanted or tried to stand up on a few occasions, but the officers told him to sit down and relax.
At this point, Officer Stowell ordered the defendant to stand and performed a pat frisk. Officer Stowell discovered two small plastic bags protruding from the waistband of the defendant's pants. Officer Stowell removed the bags, one of which contained marijuana and the other of which contained cocaine. At this point, the defendant was put under arrest.
The trial judge found that the defendant “stood up on one occasion and was told to remain on the bed.” There was no testimony indicating that the defendant ever actually stood up in violation of a police order and the finding that he did so was clear error. Officer Stowell was the only officer who testified that the defendant attempted to stand up and he alternately testified that the defendant “wanted” to stand up and that he “tried” to stand up. The trial judge apparently credited this testimony, as he stated in the discussion section of his memorandum of decision that the defendant made an “effort” to get up from the bed.
Discussion. The defendant argues that Officer Stowell's pat frisk was illicit because he did not have an objectively reasonable suspicion that the defendant was armed and dangerous. “[T]o proceed from a [Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Commonwealth v. Martin, 457 Mass. 14, 19, 927 N.E.2d 432 (2010), quoting from Arizona v. Johnson, 555 U.S. 323, 326–327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). To determine this, we ask whether the officer can point to specific facts which would warrant a “reasonable person to fear for his safety.” Commonwealth v. Martinez, 74 Mass.App.Ct. 240, 246, 905 N.E.2d 592 (2009). “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Lawson, 79 Mass.App.Ct. 322, 323, 945 N.E.2d 976 (2011), quoting from Commmonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).
The motion judge listed several factors which led him to the conclusion that Officer Stowell had an objectively reasonable fear for his safety. In essence, these factors were (1) that the defendant had recently been smoking marijuana; (2) that the defendant was increasingly agitated and made an effort to get up from the bed after being told by the police to sit down; and (3) that the defendant falsely stated that he and Wilson had smoked all the drugs they had.
As a preliminary matter, it was impermissible to consider the final factor. The motion judge suppressed both the marijuana seized from the gray bag and the defendant's statement which identified that marijuana as his. Absent those two pieces of evidence, the police had no reason to know that the defendant's statement that all the drugs had been consumed was false. If the falsity of the defendant's statement is required to create an objectively reasonable fear for the officers' safety, the results of the pat frisk are tainted by the suppressed evidence and must themselves be suppressed as fruit of the poisonous tree. See, e.g., Commonwealth v. King, 389 Mass. 233, 245–247, 449 N.E.2d 1217 (1983) (applying fruit of the poisonous tree analysis to pat frisks); Commonwealth v. Martin, 457 Mass. at 22–23, 927 N.E.2d 432 (same). See also Commonwealth v. White, 374 Mass. 132, 138, 371 N.E.2d 777 (1977) ( “[E]vidence obtained in violation of constitutional guaranties against illegal search and seizure may not be considered in determining whether there was probable cause to obtain a warrant”). As a result, we examine whether Officer Stowell had an objectively reasonable suspicion absent the defendant's false statement.
For the same reason, we do not, as the prosecution urges on appeal, consider the suppressed contents of the gym bag and the suppressed statement by the defendant as factors supporting Officer Stowell's reasonable suspicion.
That a person is fidgety and nervous does not, by itself, create an objectively reasonable suspicion that he or she is armed and dangerous. Commonwealth v. Martin, 457 Mass. at 21, 927 N.E.2d 432.Commonwealth v. Davis, 41 Mass.App.Ct. 793, 796, 673 N.E.2d 879 (1996) (defendant's “nervous and agitated” conduct during vehicle stop for motor vehicle infraction insufficient to create reasonable suspicion). Similarly, while the suspicion of drug activity is a relevant factor in the assessment of threats to police safety, it is not alone sufficient to create an objectively reasonable suspicion that someone is armed and dangerous. Commonwealth v. Washington, 449 Mass. 476, 482, 483, 869 N.E.2d 605 (2007). This is particularly so where the unsuppressed evidence merely suggests that the defendant recently possessed less than an ounce of marijuana for personal consumption, which is a civil offense. See G.L. c. 94C, §§ 32L–32N. See Commonwealth v. Cruz, 459 Mass. 459, 469–472, 945 N.E.2d 899 (2011) (odor of marijuana no longer basis for suspicion of criminal activity).
However, we must view these two factors together in determining whether Officer Stowell had an objectively reasonable suspicion that the defendant was armed and dangerous. To that end, the Supreme Judicial Court has noted in dicta that it does not believe that the odor of marijuana, where accompanied by a defendant's nervous demeanor and presence in a high crime area, were sufficient to create an objectively reasonable fear for officer safety. See Commonwealth v. Cruz, 459 Mass. at 467 n. 12, 945 N.E.2d 899; see also Commonwealth v. Davis, 41 Mass. at 796–797 (civil motor vehicle infraction combined with nervous and agitated state insufficient to create objectively reasonable fear for officer safety). For similar reasons, we do not think that evidence suggesting the defendant committed a civil infraction and became agitated during the course of an extended police encounter is sufficient to create an objectively reasonable suspicion that he was armed and dangerous. While the defendant's effort to stand up after being told to sit down by the officers makes this a closer case, it does not tip the scale in favor of creating a reasonable belief that he was armed and dangerous. This is especially so in light of the fact that he was alone with three police officers in a motel room. See Commonwealth v. Knowles, 451 Mass. 91, 99, 883 N.E.2d 941 (2008) (noting that officer was not outnumbered as factor in support of granting motion to suppress).
The fact that the defendant was in the company of someone arrested on an outstanding warrant for failure to appear for jury duty does not have any probative value regarding whether he was armed and dangerous. Notably, neither the police nor the trial judge in any way relied on Wilson's arrest as a factor justifying the pat frisk.
Conclusion. For the reasons stated above, the cocaine and marijuana found on the defendant was the product of an illegal search. The order denying the motion to suppress is reversed, and a new order is to enter allowing that motion. As this was the only cocaine the defendant was alleged to have possessed, the judgment of conviction of possession is reversed, the finding is set aside, and judgment is to be entered for the defendant.
So ordered.