COMMONWEALTH OF MASSACHUSETTS
Middlesex, SS.
Marlboro District Court
______________________________
COMMONWEALTH
vs.
CHRISTOPHER -------
______________________________ )
MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS EVIDENCE
Whether the defendant is entitled to suppression of the fruits of a stop of a motor vehicle he was operating where the evidence does not support the officer's explanation as to why he stopped the car and where there was ultimately no lawful basis for stopping and detaining the defendant.
A. The Commonwealth's Expected Evidence
For purposes of this memorandum, the defendant assumes that the Commonwealth will present evidence consistent with the Statement of Probable Cause filed by Officer Brian Langelier of the Marlboro Police Department in connection with this matter. According to that statement:
On October 30, 2002, I had the occasion to observe a vehicle pass me with rear plate light not illuminated. I initiated a stop of the [vehicle] bearing MA CON#40633 and spoke with the operator later identified as Christopher -------. As we conversed I immediately detected a strong odor of an intoxicating liquor emanating directly from his breath. His eyes were red, glassy, and bloodshot. His speech was slow, slurred, and lethargic. Mr. ------- consented to field sobriety tests. He exited the vehicle to the rear and stood with his hand in his pockets. I asked him several times to remove his hands, however he would take them out and them immediately put them back in. During out conversation I observed a large bulge in his right front pocket. He was pat-frisked for my safety as well as his. During the frisk I felt a large, hard object, approximately four inches in length within the front pocket. Believing this may be a weapon, I removed [the] object from within. The object was a glass pipe with a black burnt residue still inside. Based on my training I believed this pipe to be consistent with that used for the smoking of marijuana. Mr. ------- was handcuffed (DL) and placed under arrest. A further search of his person prior to being placed into the cruiser turned up a glassine baggy with a green leafy substance, which based on my training was consistent with marijuana. At the station Mr. ------- failed three field sobriety tests; HGN, walk and turn, alphabet test and passed the one leg stand. A check of his B.O.P. revealed this to be his second OUI/liquor offense within ten years. Mr. ------- admitted after he was Mirandized that he had smoked marijuana at eight o'clock this night as well as drinking 3-4 beers. He refused his right to a breath test and his license was seized. He was charged accordingly.
B. The Defendant's Expected Evidence
Accompanying this memorandum, the defendant has presented affidavits and documentary evidence establishing the following:
On October 29, 2002 at approximately 2:00 p.m., Matthew Jackson, the owner of Greystone Painting, Inc. and the defendant's employer, brought the van in question to Hunt's Mobil station in Marlboro for a state inspection. Craig Hunt, the manager of Hunt's Mobil, inspected the van. The van passed all required safety tests, one of which was the functioning of the rear license plate light. In his affidavit, Hunt indicated that he would not have passed the vehicle if the light had not been operating.
Jackson permitted the defendant to use this van on a regular basis. Shortly after the van was inspected and received a new sticker, Jackson returned it to the defendant. He worked until 6:00 p.m. on October 29. At about 1:00 a.m. on October 30, he was driving the van in the town of Marlboro. He stopped at the stop sign at the corner of Lincoln Street and Route 20 where he saw two police cars in a parking lot with engines running stopped side by side facing in opposite directions. He proceeded onto Route 20. He drove two and a half miles and then turned right onto Route 495. After traveling northbound on Route 495 for three quarters of a mile, a Marlboro police officer pulled him over. The officer never advised him why he pulled him over, or more specifically, that he stopped him because of a nonfunctioning taillight.
At 4:00 a.m., when he was released from the police station, he was provided with a traffic citation. That citation indicated that he had been stopped for the license plate light violation. Later that morning, he picked the van up at South Street Auto where it had been impounded. He checked the rear license plate and discovered that it was working properly.
The following day, Jackson examined the van and also determined that the license plate light was working properly.
I. The Police Violated The Defendant's State And Federal Constitutional Rights By Stopping And Seizing His Person And Van Where The Stated Grounds For The Officer's Initial Stop Were Merely A Pretext For Unlawfully Detaining The Defendant
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). An officer's observation of a traffic violation will ordinarily provide grounds for an initial stop. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995) (initial stop for broken taillight lawful). Here, however, the evidence fails to support the officer's claim that he observed an inoperative taillight on the van the defendant was driving. Because the officer observed no erratic driving, no traffic violations, and no activity consistent with criminal activity, he lacked grounds for even a brief Terry-type stop. See Commonwealth v. Dasilva, 56 Mass. App. Ct. 220, 225-226 (2002); Commonwealth v. Williams, 46 Mass. App. Ct. 181, 184 (1999). Accordingly, the stop of the vehicle and resulting search violated the defendant's right to be free from unlawful seizures under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. He is entitled to suppression of all evidence found after the initial stop and any evidence either directly or indirectly derived from the unlawful search.
In determining whether an initial stop for a threshold inquiry was justified, “the primary inquiry is whether a police officer may make the stop because he has 'reason to suspect that a person has committed, is committing, or is about to commit a crime.'” Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 65-66 (1997), quoting Commonwealth v. Silva, 366 Mass. 402, 405 (1974), and citing Terry v. Ohio, 392 U.S. 1 (1968). See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001); Commonwealth v. Mercado, 422 Mass. 367, 369 (1996); Commonwealth v. Lopez, 55 Mass. App. Ct. 741, 744 (2002). “The reasonableness of the officer's suspicion depends upon the existence of 'specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience. A mere “hunch” is not enough. Simple good faith on the part of the officer is not enough. The test is an objective one,' [Commonwealth v. Silva, 366 Mass. at 406], 'view[ing] the circumstances as a whole.'” Id. at 66, quoting Commonwealth v. Stoute, 422 Mass. 782, 790 (1996). See Commonwealth v. Grandison, 433 Mass. at 139; Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998); Commonwealth v. Mercado, 422 Mass. at 369; Commonwealth v. Lopez, 55 Mass. App. Ct. at 744.
In this case, the defendant contends, and the record strongly supports, that the claimed violation observed by the officer never occurred. The evidence will show that the license plate light was working a few hours before the stop and a few hours after. It strains the imagination to believe that the light ceased to work just prior to the stop and then started working on its own after the stop concluded. The defendant submits that the claimed violation was nothing more than a pretext to stop his car and question him. See Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999); Commonwealth v. Leonard, 422 Mass. 504, 513 (1996) (Liacos, C.J., dissenting); Note, Police Officers Must Meet "Reasonable Officer" Standard to Withstand Pretext Claim, 36 S.Tex.L.Rev. 629, 633 (1995). Compare Commonwealth v. Maldonado, 55 Mass. App. Ct. 450, 453 (2002) (finding officer's explanation of why he stopped car not credible and that stop was a pretext undertaken in the hope of turning up evidence). Contrast Commonwealth v. Riche, 50 Mass. App. Ct. 830, 8 (2001) (rejecting claim of pretext where officer did in fact observe an inoperative rear license plate light).
The officer may very well have had some curiosity as to why someone would be on the road at 1:00 a.m., but the defendant's presence at that time gave him no more than an unsubstantiated hunch that something may have been up. See Commonwealth v. Dasilva, 56 Mass. App. Ct. at 225-226.
It is well-settled law that any evidence obtained through an illegal stop or seizure is a “fruit of the poisonous tree” which may not be admitted into evidence against a defendant. Wong Sun v. United States, 371 U.S. 471, 485- 486 (1963); Commonwealth v. Straw, 422 Mass. 756, 762 (1996); Commonwealth v. LeBlanc, 407 Mass. 70, 75 (1990); Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978). Evidence subject to suppression includes not only the physical evidence found on the defendant's person and the vehicle, but the officers' observations and the statements made by the defendant following the illegal stop. See Commonwealth v. O'Connor, 21 Mass. App. Ct. 404, 406 (1986). The defendant is entitled to suppression of all physical evidence, statements, and all other evidence of every name, nature, and description obtained at the scene, during the drive to the police station, and at the police station. See Commonwealth v. Badore, 47 Mass. App. Ct. 600, 601-602 (1999); Commonwealth v. Medeiros, 45 Mass. App. Ct. 240, 242-243 (1998).
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that his motion to suppress be allowed.
Respectfully submitted,
CHRISTOPHER -------,
By his attorney,
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