I. The Defendant Should Be Permitted To Pursue An Interlocutory Appeal Based On The Denial Of His Motion To Suppress Where The Trooper Stopped The Defendant's Car For A Minor Traffic Offense And Thereafter Subjected Him To A Protective Frisk In The Absence Of Objectively Reasonable Grounds To Believe The Defendant Posed A Threat To His Safety
Where the police stop and seize a defendant's person or vehicle without a warrant, the burden is on the Commonwealth to show that the stop and seizure falls within a narrow class of permissible exceptions. Commonwealth v. Seng, 436 Mass. 537, 550 (2002); Commonwealth v. Ferguson, 410 Mass. 611, 614 (1991); Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 34-35 (2001). In this case, the Commonwealth cannot meet that burden. While the initial stop may have been lawful, the detention of the defendant and the subsequent search of his person and the car were illegal. The defendant is entitled to suppression of the fruits of that unlawful search, including the physical evidence and all of his statements.
For purposes of this motion, the defendant will assume that Trooper Walsh was entitled to stop the car after observing a traffic violation-in this case, marked lanes violations and speeding- and that the stop was therefore lawful. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995); Commonwealth v. Williams, 46 Mass. App. Ct. 181, 182 (1999). Pursuant to that stop, he was entitled to ask the driver for his license and registration. See Commonwealth v. Loughlin, 385 Mass. 60, 62 (1982); Commonwealth v. Figueroa, 18 Mass. App. Ct. 967 (1984). He was not, however, entitled to detain the defendant, order him out of the car, or search the vehicle absent an objective basis for believing that the defendant was engaged in criminal activity or posed a threat to the trooper's safety. Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999); Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 535 (1998).
If the police have an objective basis for believing that a suspect is armed and dangerous, they may “frisk” him for possible weapons. See Terry v. Ohio, 392 U.S. at 22-25; Commonwealth v. Grandison, 433 Mass. 135, 139 (2001). “The purpose of the limited [Terry] search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 146 (1972). “Nothing in Terry can be understood to allow a generalized 'cursory search for weapons[.]'” Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). If the police lack reasonable grounds to believe that the suspect is armed and dangerous, a frisk is improper. Id. at 92-93; Commonwealth v. Cantalupo, 380 Mass. 173, 176 (1980); Commonwealth v. Davis, 41 Mass. App. Ct. 793, 795-796 (1996); Commonwealth v. Berment, 39 Mass. App. Ct. 522, 528 (1995); Commonwealth v. Gutierrez, 26 Mass. App. Ct. 42, 47 (1988); United States v. Thomas, 844 F.2d 678, 683-685 (9th Cir. 1988).
In this case, Trooper Walsh does not suggest, nor would the facts described in the trial judge's findings, that the defendant had engaged in criminal activity. Rather, the trial judge found that the defendant's single furtive movement caused him to fear for his safety and justified a protective frisk of the car and the defendant.
Notwithstanding any subjective safety concerns the trooper might have had, the exit order and search cannot be justified where the alleged furtive movements did not give him an objectively reasonable basis to fear for his safety. Nothing in Trooper Walsh's observations suggested that the defendant might have concealed weapons. See Commonwealth v. Cardoso, 46 Mass. App. Ct. 901 (1998) (exit order to defendant, who was a passenger in a car stopped for a traffic violation, was not justified based on the fact that the officer saw the defendant moving about in the car and that the defendant avoided eye contact with the officer). Contrast Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992). The judge found that the trooper only saw the defendant “move his right arm forward to the right toward the front passenger seat.” Rather than reaching for a weapon, this observation more naturally suggests the defendant was reaching toward the glove box for his license and registration. The officer here, from this single observation, did not have an objective basis for suspecting the defendant had a weapon. If he did, then almost everyone pulled over by the police would be subject to being ordered out of their vehicles and searched. Such intrusions “without an objective basis for suspicion that the passenger is involved in criminal activity, slips into the dragnet category of questioning [and search] that art. 14 prohibits.” Commonwealth v. Alvarez, 44 Mass. App. Ct. at 535. See Commonwealth v. Torres, 424 Mass. 153, 158-161 (1997).
Further, the trooper stopped the defendant for extremely routine and minor traffic offenses. In Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999), S.C., 432 Mass. 613 (2000), the Supreme Judicial Court interpreted art. 14 to require that "a police officer, in a routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle." See also Commonwealth v. Stamply, 437 Mass. 323, 325 (2002); Commonwealth v. Torres, 433 Mass. 669, 673 (2001) (officers conducting stop for routine traffic violation may order driver or passenger to leave vehicle, "but only if they have a reasonable belief that their safety, or the safety of others, is in danger"). Trooper Walsh had no other information suggesting that the defendant might have been armed. “A 'mere hunch' is not enough, Commonwealth v. Silva, [366 Mass. 402,] at 406 [1974], nor is nervousness or fidgeting on the part of the driver or passengers in a stopped vehicle an adequate reason to order them out of the car. Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997). See Commonwealth v. Davis, 41 Mass. App. Ct. 793, 796-797 (1996).” Commonwealth v. Torres, 433 Mass. at 673. Contrast Commonwealth v. Barbosa, 49 Mass. App. Ct. 344, 346 (2000) (police investigating reported robbery involving a firearm); Commonwealth v. Stack, 49 Mass. App. Ct. 227, 234-235 (2000) (furtive movements inside car justified protective frisk in light of information known to officers that the car would be transporting armed gang members); Commonwealth v. Robles, 48 Mass. App. Ct. 490, 492-493 (2000) (police officer justified in ordering the defendant, who was a passenger in a car stopped for a motor vehicle violation, to exit the vehicle where the officer knew there had been several shootings in that area, where the defendant failed to obey the officer's instructions to keep his hands in sight, and where the occupants of the vehicle were speaking in foreign language to a crowd that was gathering).
In the absence of any reasonable basis for suspecting that the defendant might have been armed, Trooper Walsh had an obligation to complete the business at hand-i.e., to write out a citation or warning for the motor vehicle infraction-and send the car on its way. See Commonwealth v. Gonsalves, 429 Mass. at 662-663. The unlawful search following the lawful stop violated the defendant's rights under art. 14 of the Massachusetts Declaration of Rights as well as the Fourth Amendment to the United States Constitution. Id. The evidence obtained either directly or indirectly as a result of that illegal search must be suppressed. Id.; Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 536 (1998). See Wong Sun v. United States, 371 U.S. 471, 488 (1963); Commonwealth v. Bishop, 402 Mass. 449, 452 (1988). Evidence subject to suppression includes not only the physical evidence found on the person of the defendant and in the vehicle itself, but the troopers' observations and the statements made by the defendant following the illegal search. Commonwealth v. O'Connor, 21 Mass. App. Ct. 404, 406 (1986). See Commonwealth v. Badore, 47 Mass. App. Ct. 600, 601-602 (1999); Commonwealth v. Medeiros, 45 Mass. App. Ct. 240, 242-243 (1998).
The fact that the defendant ultimately allowed the troopers to search his pockets did not break the chain of the prior illegality, since the defendant's consent was a product of that illegality and since it was not freely and voluntarily given. “Police may conduct a warrantless search with the free and voluntary consent of a person possessing the ability and apparent authority to consent.” Commonwealth v. Yehudi Y., 56 Mass. App. Ct. at 816. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996). “The Commonwealth has the burden of demonstrating that the consent was 'unfettered by coercion, express or implied, and also something more than mere “acquiescence to a claim of lawful authority.”'” Id., quoting Commonwealth v. Voisine, 414 Mass. 772, 783 (1993) and Commonwealth v. Walker, 370 Mass. 548, 555 (1976). “Where consent is obtained as a result of the exploitation of a prior illegality that follows close in time, then consent is not considered to be freely given.” Id. at 817. See Commonwealth v. Torres, 424 Mass. 153, 163 (1997) (“a consent obtained during an illegal detention is ineffective to justify an otherwise invalid search”); Commonwealth v. Midi, 46 Mass. App. Ct. at 595; Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996).
Had the troopers issued a citation and allowed the defendant to go on his way, the defendant would not have been asked to consent to a search. The evidence obtained as a result of the consent search is therefore directly traceable to the illegality. Moreover, in the circumstances, the defendant would not have felt free to withhold his consent, and the permission to search was nothing more than mere acquiescence to a claim of lawful authority. Commonwealth v. Yehudi Y., 56 Mass. App. Ct. at 817. The search violated the defendant's rights under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. He is entitled to suppression of all evidence traceable to the illegal police conduct.
Finally, the defendant contends that the interests of justice require that his request for an interlocutory appeal be allowed. Because of the District Attorney's policy of not plea bargaining drug cases, there is no reasonable possibility of a plea. Rather, a trial is a virtual certainty, and in view of the denial of the motion to suppress, the defendant's conviction is also a virtual certainty. The suppression issue will ultimately have to be determined by an appellate court. Although the trial in this case would be relatively short, the case does not appear likely to be reached any time soon. Denial of the defendant's request for an interlocutory appeal would simply delay the inevitable appeal and would require the defendant and the Commonwealth to go through a trial unnecessarily. Forcing the defendant to go to trial in circumstances where the evidence should have been suppressed would not further the administration of justice no matter how short the trial. For all of these reasons, the defendant requests that this court allow the defendant's request for an interlocutory appeal.
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that his request for leave to file an interlocutory appeal be allowed.
Respectfully submitted,
Charles Chase
By his attorneys,
C. Samuel Sutter
B.B.O. # 542496
203 Plymouth Ave.
Building #7
Fall River, MA 02721
(508) 647-8633
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, MA 02110
(617) 261-3800