Commonwealth v. Gil

97 Mass.App.Ct. 1108

144 N.E.3d 303 (Table)

COMMONWEALTH

v.Jared GIL.

19-P-1022

Appeals Court of Massachusetts.

Entered: April 1, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from an order of the Lawrence District Court allowing the defendant's motion to suppress evidence obtained from a search of the defendant's vehicle. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to appeal pursuant to Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). On appeal, the Commonwealth argues that the police were justified in issuing an exit order and conducting a protective sweep of the passenger compartment of the defendant's vehicle. We reverse.

Background. We recite the facts as the judge, in her thoughtful decision, found them, supplementing with undisputed testimony that the judge credited implicitly or explicitly, and reserving certain facts for later discussion. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). On April 28, 2018, shortly after 2 A.M. , police responded to 52 Monmouth Street in Lawrence to investigate a report of a person with a gun.² The neighborhood was known to police as a high crime area, and one in which the police had previously made gun- and drug-related arrests. Shortly after arriving in the area, police heard four gunshots; the gunshots sounded so close that the officers took cover behind parked vehicles. One of the officers observed a black Audi SUV, traveling in excess of the speed limit, departing the area from which the sound of the shots had come. The officer activated his emergency lights and stopped the vehicle. As the officer approached the SUV, he heard a "loud thud," which sounded like a hard object slamming against another object, from inside the vehicle. Concerned, the officer stopped and called for backup. When backup arrived, the officer approached the defendant's vehicle on the driver's side.³ The police asked the defendant for his license and registration, and permitted the defendant to "fish[ ] through" the glove box and console of the vehicle as they watched. The defendant produced a valid license and registration, but became "nervous" during his interaction with the officer, asked why he had been stopped, told the officer, "[y]ou're not getting inside my vehicle," and moved his hands out of the officer's line of sight.⁴ Concerned for his own safety, the officer ordered the defendant out of the vehicle. Asked where he had been coming from, the defendant's explanation was inconsistent with the route he had been traveling when stopped. Officers conducted a patfrisk of the defendant and did not locate any contraband.⁵

The police escorted the defendant to the back of his vehicle. While the defendant was out of the vehicle, officers walking around the SUV observed what they believed to be two bullet holes marking the front of the vehicle.⁶ An officer then searched the passenger compartment of the vehicle in the "immediate area" of where the defendant was sitting. Locating a shell casing on the floor behind the driver's seat, officers arrested the defendant. Later, having obtained a warrant authorizing a search of the SUV, the police recovered a firearm hidden inside the vehicle's dashboard.⁷

Discussion. In reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Ferreira, 481 Mass. 641, 653 (2019), quoting Wilson, supra.

A. The exit order.⁸ The police are justified in issuing an exit order when a reasonably prudent officer, in the officer's position, would be warranted in the belief that the safety of the police or that of other persons is in danger. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020). "While a mere hunch is not enough [to justify an exit order], ... it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns[,]" Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999), citing Commonwealth v. Silva, 366 Mass. 402, 406 (1974), provided the police response is proportional to the perceived danger. See Commonwealth v. Bostock, 450 Mass. 616, 622 (2008). See also Commonwealth v. Demirthshyan, 87 Mass. App. Ct. 737, 744 (2015).

The exit order in this case was a reasonable response to the facts known to the police. The stop occurred while the police were in a high crime area at 2 A.M. ,⁹ see Commonwealth v. Horton, 63 Mass. App. Ct. 571, 575-576 (2005) (fact that stop occurred in high crime area permissible consideration in assessing exit order), investigating a report of a person with a gun, and immediately after the officers had heard gunshots in the immediate area. See Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 655 (2006) (police awareness of gunshots impacts risk assessment). An officer stopped the defendant after observing him speeding away from the area where the shots appeared to have been fired, see id.; immediately after stopping the defendant's SUV, the officer heard a loud banging sound coming from inside the vehicle. See Horton, supra at 576 (permissible to consider defendant's actions, which, although innocent when viewed individually, taken together reasonably suggest that defendant was hiding something). These circumstances were sufficiently concerning that the officer delayed his approach to the defendant's vehicle until other officers arrived. See Commonwealth v. Stampley, 437 Mass. 323, 330 (2002) (measured response is "hallmark of reasonableness on the part of officers conducting a stop"). When the police spoke with the defendant, he appeared nervous, and, despite the apparent lack of any suggestion that the police intended to "[get] inside [the] vehicle," told them that "[they were] not" going to do so.¹⁰

Viewing these facts in totality, we conclude that the police had an objectively reasonable basis for ordering the defendant out of the vehicle. See Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 743-744 (2018). See also Stampley, 437 Mass. at 328 (justification for exit order does not depend on presence of immediate threat, but rather on safety concerns raised by entire circumstances of encounter); Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 350 (2010) (police not required to gamble with their personal safety, and are entitled to take reasonable precautions for their protection).

B. Protective sweep of vehicle. The Commonwealth argues that the roadside search of the defendant's vehicle was a permissible "protective sweep," see Commonwealth v. Douglas, 472 Mass. 439, 445-446 (2015) ; the defendant characterizes the search as a search for evidence requiring probable cause. See Commonwealth v. Motta, 424 Mass. 117, 123-124 (1997). We conclude that the police entry into the vehicle was a reasonable protective sweep conducted in anticipation of the defendant's return to the vehicle.

A search of the interior of a vehicle, limited in scope to a protective end, see Commonwealth v. Manha, 479 Mass. 44, 49 (2018), is permissible where "a reasonably prudent [officer] in [the officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger." Commonwealth v. Daniel, 464 Mass. 746, 752 (2013), quoting Silva, 366 Mass. at 406. Such a protective search must be confined to the area from which a suspect might gain possession of a weapon, either because he is still inside the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry. See Douglas, 472 Mass. at 446.

Although in this case, the officers' patfrisk of the defendant did not reveal any weapons on his person, it also did not eliminate the safety concerns that justified the order directing the defendant out of the vehicle. In fact, at least some of those concerns were amplified by the officers' observation of suspected bullet holes in the SUV's bumper and license plate and the defendant's dubious explanation of where he had been coming from when he was stopped. Those ongoing concerns justified a limited search of the passenger compartment of the vehicle in a way "reasonably designed to discover a weapon." Commonwealth v. Myers, 82 Mass. App. Ct. 172, 177 (2012), quoting Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010). See Commonwealth v. Robie, 51 Mass. App. Ct. 494, 498 (2001) (nervousness and defendant's evasive answers contributed to reasonable suspicion). The sweep here was confined to the area around the front driver's seat of the vehicle and was no more than a reasonable precaution against the risk that the defendant, who was not under arrest and appeared poised to return to the driver's seat, would retrieve a hidden weapon once he got back in the vehicle.¹¹

The timing of the sweep, which was made within fifteen minutes of the stop, does not change...