Commonwealth v. Dawson

81 N.E.3d 822 (Table)

COMMONWEALTH

v.Takasha D. DAWSON.

16-P-225

Appeals Court of Massachusetts.

Entered: March 2, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a hearing, a judge of the District Court allowed the defendant's motion to suppress evidence seized following her arrest. The Commonwealth appeals, arguing that, after the defendant was lawfully stopped for a traffic violation, the arresting officer's observations gave him reasonable suspicion to request assistance from the State Police canine unit. We agree, and reverse.

Background . In his thoughtful memorandum and order, the judge explicitly credited the testimony of the arresting police officer, Brennan Polidoro of the Sheffield police department.² Polidoro testified that, on August 12, 2014, the defendant's automobile was traveling south on Route 7 when Polidoro saw it drive slowly along, and then pass over, the white fog line. He stopped the car.

Polidoro checked the defendant's license status and learned that her Connecticut driver's license had been suspended since 2005;³ he also discovered that the defendant had an extensive criminal record of narcotics offenses. Polidoro requested assistance from the Great Barrington police department and, when back-up arrived, Polidoro asked the defendant to get out of the car ("exit the vehicle"). She did so, and he saw a plastic baggie fall onto the ground; the corners of the baggie had been cut off.⁴ The defendant was then arrested for the unlicensed operation of her car; cocaine paraphernalia was found in her bag in a search incident to her arrest.

Based on these facts, Polidoro requested assistance from the canine unit. Polidoro also spoke with the defendant's two passengers, and determined that neither had a valid driver's license; he decided to have the car towed because he believed it would be unsafe if left unattended on the side of the busy highway.

The two passengers were asked to sit in the rear seat of the Great Barrington police cruiser while they waited for someone to pick them up. This was done for their safety and for the safety of the officers. Polidoro conducted a patfrisk of each woman and discovered additional drug paraphernalia and suspected drugs on the person of the front-seat passenger. She was then arrested. The back-seat passenger was picked up at the scene by a third party.

Thereafter, the canine unit arrived. The dog "sniff[ed]" the exterior and interior of the defendant's car, and the "dog hit on multiple locations" where the police found approximately two grams of what they believed to be crack cocaine. An inventory search of the car was then conducted in accordance with the Sheffield police department motor vehicle inventory policy.⁵

At the hearing on the defendant's motion to suppress, the judge found that Polidoro had stopped the defendant's car lawfully for a marked lanes violation, and that he had probable cause to arrest her for unlicensed operation of a motor vehicle. The judge also found that Polidoro's decision to impound and tow the car was reasonably based on the inability of either passenger to drive it away from the scene, and that, as a result, he intended to conduct an inventory search of the car in accordance with written department policy. However, the judge also "ruled as a matter of law that the information possessed by Officer Polidoro at the time he requested State Police involvement did not rise to the level of probable cause that the vehicle contained drugs.... [He] found that at most the officer had a hunch that the vehicle might contain drugs."

Discussion . In reviewing a ruling on a motion to suppress evidence seized during a warrantless search, the issue is whether the Commonwealth met its burden to establish that the evidence was lawfully obtained. See Commonwealth v. Olivera , 474 Mass. 10, 13 (2016). "[W]e 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. Baptiste , 65 Mass. App. Ct. 511, 514 (2006), quoting from Commonwealth v. Scott , 440 Mass. 642, 646 (2004). "We are also required to conduct an independent review of the judge's application of constitutional principles to the facts found." Baptiste , supra at 515.

Here, we begin with the principle that reasonable suspicion, not probable cause, is required to support a brief detention while awaiting the arrival of a drug-sniffing dog. See Commonwealth v. Feyenord , 445 Mass. 72, 78-79 (2005), cert. denied, 546 U.S. 1187 (2006). "In Feyenord , the court concluded that, after a motor vehicle stop, detention of the defendant for a brief period in order to bring a drug-sniffing dog to the scene was permissible in light of reasonable suspicion of criminal activity." Commonwealth v. Mateo-German , 453 Mass. 838, 845 n.3 (2009).

Reasonable suspicion exists when, based on specific, articulable facts and inferences reasonably drawn therefrom, considered in light of the officer's experience, the officer has reasonable grounds to suspect "a person is committing, has committed, or is about to commit a crime" (quotation omitted). Commonwealth v. Gomes , 453 Mass. 506, 511 (2009). Reasonable suspicion is measured by an objective standard, Commonwealth v. Mercado , 422 Mass. 367, 369 (1996), and the totality of the facts on which the seizure is based must establish "an individualized suspicion that the person seized is the perpetrator of the suspected crime." Commonwealth v. Warren , 475 Mass. 530, 534 (2016).

In this case, at the time that the canine unit was summoned, the police knew that the defendant had appeared "nervous" when she was stopped for the traffic violation. When she got out of the car, she had dropped a plastic bag whose condition was consistent with illegal drug use. She was under arrest for driving without a license. She had a criminal record for drug crimes and she had in her possession paraphernalia associated with illegal...