Com. v. Torres

Page 638

674 N.E.2d 638

424 Mass. 153

COMMONWEALTH v. Ruben Dario TORRES.

COMMONWEALTH v. Luis C. HIDALGO.

Supreme Judicial Court of Massachusetts.

Argued Dec. 5, 1996.

Decided Jan. 16, 1997.

William Bloomer, and Annemarie Relyea-Chew, Assistant District Attorneys, for the Commonwealth.

John C. McBride, Marblehead, for Ruben Dario Torres.

Steven J. Rapport, for Louis C. Hidalgo.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The defendants, Ruben Dario Torres and Luis C. Hidalgo, were each convicted, after separate jury-waived trials in the Superior Court, of trafficking in more than one hundred grams of cocaine, G.L. c. 94C, § 32E (b ) 3) (1992 ed.). ¹ Each defendant had filed a motion to suppress invoking the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution. The motions to suppress were heard together by a judge in the Superior Court, who denied them in a memorandum of decision containing findings of fact and rulings of law. The principal issue raised in the defendants' motions was whether a State trooper lawfully could, in connection with a routine traffic stop, conduct a search of an automobile driven by Hidalgo and occupied by Torres as a front seat passenger. ² During the search the trooper seized a plastic shopping bag containing a number of small "baggies" of cocaine. In the Torres case, we granted the Commonwealth's application for further appellate review after the Appeals Court's decision vacating the order denying his motion to suppress and reversing his conviction. Commonwealth v. Torres, 40 Mass.App.Ct. 6, 660 N.E.2d 387 (1996). In the Hidalgo case, we granted the Commonwealth's application for direct appellate review. We conclude, in express reliance on art. 14, that the motion to suppress filed by each defendant should have been allowed. Consequently, we vacate the orders denying the defendants' motions to suppress, reverse the judgments, and set aside the findings of guilty.

The judge's findings of fact may be summarized as follows. While on routine patrol on Route 3 in Bedford at about 10:35 A.M., Trooper Peter Cummings pursued an automobile which appeared to be speeding and signalled the automobile to pull over. The automobile, a two-door Renault, stopped in response to the trooper's signal. The trooper, who was in uniform and armed, approached the Renault from the passenger side and saw the passenger, Torres, with his back toward the passenger side window conversing with the driver, Hidalgo. About twenty seconds elapsed without a response from Torres, causing the trooper to knock on the passenger side window. Torres turned, looked at the trooper, opened the door, and started to get out. The trooper asked Torres what he was doing, and Torres responded that he did not speak English. The trooper was concerned by Torres's delayed response and his attempt to get out of the automobile, so for safety purposes, he directed Torres to go and wait at the rear of the vehicle.

Trooper Cummings then returned to the passenger side of the automobile, leaned in the open door, and asked Hidalgo for his license and registration. Hidalgo looked for the registration, opening and closing the glove compartment quickly. Hidalgo seemed nervous, but produced the necessary papers. In response to a series of questions, Hidalgo stated that the automobile belonged to his wife, that his passenger's name was Ruben Torres, and that he (Hidalgo) was coming from the Burlington Mall where he had been shopping for a radio. The license and registration furnished by Hidalgo were both from Massachusetts, neither had expired, and both appeared valid. The trooper noticed that the driver's license bore an address in Lowell known to him as an area associated with a high degree of drug activity. Trooper Cummings then asked Hidalgo where he was born, to which Hidalgo responded, Medellin, Colombia. From his training and experience, the trooper was aware that Medellin was a principal source of cocaine distribution.

The trooper then turned his attention to Torres who was still standing at the rear of the vehicle. In response to a question, Torres told the trooper, in English, that he was coming from the Burlington Mall. Trooper Cummings asked Torres for identification; Torres indicated that he did not speak English. The trooper had Torres turn around and motioned for Torres's wallet by pointing to his rear pants pocket and opening and closing his hand. Torres produced his wallet for the trooper. Trooper Cummings opened the wallet and took out three folded pieces of paper that contained apparent notes of drug transactions, directions from Lowell to New York City, and a "money wire" receipt from Lowell to Medellin, Colombia. The wallet also contained a Florida driver's license which appeared to be valid, with Torres's picture and in his name.

At or near the end of his conversation with Torres, Trooper Cummings looked through the rear window of the automobile and saw Hidalgo, who had remained in the automobile, move his right hand and arm in the area of his jacket pocket. Concerned for his safety, the trooper approached Hidalgo. The trooper patted the side of Hidalgo's jacket, felt a hard object, and recovered a telephone pager. In response to the trooper's questions, Hidalgo indicated that he was unemployed, but had received the pager as a gift. The trooper asked Hidalgo if there were drugs in the automobile. Hidalgo responded, "No, there's no drugs, search."

A search followed. Papers were seized from the glove compartment, and a plastic shopping bag was found hidden behind a hinged panel attached to the rear passenger side. The plastic bag contained a number of small baggies that contained white powder that the trooper believed was cocaine. Both defendants were arrested, informed of their Miranda rights, and transported to the State police barracks.

Based on these facts, the judge concluded that Trooper Cummings had properly asked for Hidalgo's license and registration in connection with a routine traffic stop. The production of valid papers by Hidalgo would have ended the encounter, were it not for, as the judge said, "the unusual behavior of Torres in exiting the passenger side of the vehicle without being asked to do so," an event that "was at least suspicious enough for Trooper Cummings to attempt to ascertain the passenger's identity as well." The judge considered the trooper's seizure and examination of Torres's wallet unlawful, but concluded that this part of the episode was of no legal consequence to Hidalgo who, the judge explained, lacked standing to dispute the search of Torres's wallet and the seizure of personal items that belonged to him. Hidalgo's furtive gesture occurred near the end of the wallet search, and the judge concluded that this gesture authorized the pat-down of Hidalgo that produced the telephone pager. Next came the questioning of Hidalgo about drugs in the automobile that led to Hidalgo's invitation to search. The judge ruled that the invitation constituted a valid consent to search the entire automobile. Thus, the cocaine and other papers found in the automobile were ultimately determined to have been validly seized as the product of a consensual search. Finally, the judge concluded that the contents of Torres's wallet, taken during an unlawful search and seizure, were not subject to suppression because they would have been inevitably discovered during an inventory search of the wallet at the State police barracks where Torres was taken after his arrest. We accept the judge's historical facts because they are supported by the evidence, Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990), but exercise our independent judgment on the constitutional issues, Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990).

There is no question that the original stop of the automobile for speeding, and the threshold inquiry of Hidalgo in connection with the violation, were valid. The stop and inquiry proceeded in an uneventful manner with the production by Hidalgo of license and registration papers that appeared proper and identified Hidalgo. The trooper also elicited answers from Hidalgo that identified Torres and indicated where the two men had been before the stop. The stop, however, began to change character when the trooper decided to go to the back of the automobile to interrogate Torres. As the Appeals Court noted, Torres could reasonably harbor a higher expectation of privacy. Hidalgo, not Torres, had committed the speeding violation, and a passenger like Torres, in the absence of his own individual misbehavior or suspicious conduct, could expect that the formalities involved in the traffic stop would take place solely between the driver and the trooper. Commonwealth v. Torres, supra at 13, 660 N.E.2d 387, and cases cited.

There also can be no doubt that, at the time when the trooper focused his attention on Torres, both Hidalgo and Torres were seized and would continue to be seized until some indeterminate future time. A person has been "seized" by a police officer "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See Commonwealth v. Stoute, 422 Mass. 782, 786 & n. 8, 665 N.E.2d 93 (1996), and cases cited. Reasonable persons in the position of Hidalgo and Torres would not necessarily know that Hidalgo had satisfactorily complied with the reason for the stop, and they would not feel free to walk away while the trooper persisted in questioning them. See Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984) ("Certainly few motorists would feel free either to disobey...