Commonwealth v. Johnson-Rivera

241 N.E.3d 89

104 Mass.App.Ct. 533

COMMONWEALTH

v.Jason JOHNSON-RIVERA.

No. 23-P-548

Appeals Court of Massachusetts, Bristol.

Argued March 12, 2024

Decided August 9, 2024

Practice, Criminal, Motion to suppress. Search and Seizure, Reasonable suspicion, Protective frisk, Motor vehicle. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop, Stop and frisk. Motor Vehicle, Firearms. Firearms.

Indictment found and returned in the Superior Court Department on April 28, 2022.

Following transfer to the Bristol County Division of the Juvenile Court Department, a pretrial motion to suppress evidence was heard by James P. Harrington, J., and a conditional plea was accepted by Siobhan E. Foley, J.

Chaleunphone Nokham for the defendant.

Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Sacks, & Smyth, JJ.

SACKS, J.

₅₃₃The defendant was indicted as a youthful offender, see G. L. c. 119, § 54, on a single charge of carrying a firearm without a license. G. L. c. 269, § 10 (a). After a Juvenile Court judge denied a pretrial motion to suppress evidence of the firearm, the defendant conditionally admitted to sufficient facts to be found a youthful offender, reserving his right to appeal the suppression decision. We conclude that a State trooper’s exit order to and patfrisk of the defendant during a traffic stop were justified by the defendant’s nervous behavior, his attempt to conceal a type of bag ₅₃₄that the trooper knew from experience could be used to carry a firearm, and the trooper’s knowledge that the defendant had an open charge for assault and battery with a firearm. These factors combined to create a reasonable suspicion that the defendant was armed and dangerous. We therefore affirm the order denying the motion to suppress.

Background. Following his indictment, the defendant filed a motion to suppress evidence of the firearm found in the "cross-body bag" he was wearing, asserting that the trooper, after making the traffic stop, lacked reasonable suspicion to justify either the exit order to the defendant or the patfrisk that followed. The judge held an evidentiary hearing at which he heard testimony from State Trooper Cody Smith, the arresting officer, and New Bedford Police Officer Jenna Touchette, who assisted Smith at the scene. The judge also viewed audio-video footage from Smith’s body-worn camera. We summarize the judge’s findings of fact, supplemented by testimony that the judge explicitly or implicitly credited, see Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015), and by "our independent review of the video footage from the body-worn camera," Commonwealth v. Yusuf, 488 Mass. 379, 380- 381, 173 N.E.3d 378 (2021).

On March 14, 2022, Trooper Smith, with eight years of experience as a police officer, was on patrol in his cruiser in New Bedford. At 5:36 p.m., Smith conducted a registration query on a passing sedan and learned that it had not been inspected as required after having been registered to a new owner. Smith pulled the sedan over, approached it from the passenger side, and saw that none of the four occupants was wearing a seatbelt. He began collecting their identifying information in order to issue citations.

While Smith was doing so, he saw that the defendant, who was in the right rear seat and thus closest to Smith, was showing signs of nervousness, including sighing, taking deep breaths, and running his hand through his hair. The defendant told Smith that he had a GPS-enforced curfew and needed to return to his home before 6 p.m.

Smith also noticed that the defendant was wearing a small Nike brand crossbody style fanny pack. During his previous service in the narcotics unit of the New Bedford police department, Smith had experience with approximately five crossbody bags containing firearms. Smith did not have any formal training on the issue, but he had had discussions within the narcotics unit and had been ₅₃₅told to have a heightened awareness that this type of bag may be used to carry firearms and narcotics. Their use was becoming more common during his time as a State trooper.

Smith further saw that bag was "positioned to [the defendant’s] left side," i.e., away from Smith, and the defendant seemed to be "tucking it to the left side away from my line of sight as if it were in between his body and the rear of the seat back rest." The defendant appeared stiff, "as if he didn’t want to move this part of his body where the bag was positioned." Smith testified that he had received training about such "pinning" (as he described it), as a sign that a person might be carrying a firearm.

Meanwhile, the driver of the sedan also caught Smith’s attention, by reaching several times toward the car floor in front of her despite Smith’s repeated instructions to stop doing so. Smith testified that this behavior heightened his concern for his own safety. Officer Touchette, who had seen the stop while driving by and had pulled over to assist Smith, also saw the driver reaching after being instructed not to do so. Smith ordered the driver out of the sedan and saw a backpack on the floor where she had been sitting. Smith then instructed the three passengers to keep their hands up and out in front of them. He asked the driver if there was anything illegal in the backpack, and she told him that it contained marijuana. Smith handcuffed her and searched the backpack, finding marijuana, cash, and a scale. Smith then placed her in the back of his cruiser.¹

While in the cruiser, Smith ran a background check on the defendant and learned that he had a charge of assault and battery with a firearm pending against him in the Juvenile Court.

Upon returning to the sedan, Smith saw two young women on the sidewalk arguing with Officer Touchette, who was watching the sedan’s three passengers. The women said that they were members of the same family as some of the passengers. Smith and Touchette both believed that the women were trying to divert attention away from the passengers; Touchette later testified that she was, in fact, distracted. This encounter heightened the officers’ concern for their safety. Touchette called for backup, because the officers "were outnumbered."

Smith then ordered the defendant out of the sedan. By this point the bag was situated slightly behind the defendant’s left side. As ₅₃₆the defendant got out, Smith quickly pat frisked the bag and felt an object inside it that was consistent with a handgun. Smith then handcuffed the defendant, removed the bag, and found a handgun inside.

[1–4] Discussion. In reviewing a ruling on a motion to suppress, "we adopt the motion judge’s factual findings absent clear error," but we "independently determine whether the judge correctly applied constitutional principles to the facts as found." Commonwealth v. Isaiah I., 450 Mass. 818, 821, 882 N.E.2d 328 (2008). Where police observe a traffic violation, a category that includes at least some violations related to inspection stickers, a traffic stop is lawful. See Commonwealth v. Torres-Pagan, 484 Mass. 34, 36, 138 N.E.3d 1012 (2020). "[A]n exit order is justified during a traffic stop if [among other things] officers have a reasonable suspicion of a threat to safety" or a "reasonable suspicion of criminal activity." Id. at 38, 138 N.E.3d 1012. To conduct a lawful patfrisk, "police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous." Id. at 38-39, 138 N.E.3d 1012.

[5, 6] Here, the traffic stop was lawful based on Smith’s knowledge of the inspection sticker violation. See Torres-Pagan, 484 Mass. at 36, 138 N.E.3d 1012. See also G. L. c. 90, §§ 7A, 20; 540 Code Mass. Regs. § 4.03(1)(a) (2018).² Smith also acted lawfully in expanding the scope of the stop in order to issue citations for failure to wear seatbelts. See Commonwealth v. Washington, 459 Mass. 32, 38-40, 944 N.E.2d 98 (2011). See also G. L. c. 90, § 13A. And the defendant makes no focused argument that the stop in this case was prolonged beyond constitutional limits.³

[7] During the stop, Smith became aware of facts, summarized below, giving rise to a reasonable suspicion that the defendant was carrying a firearm, which was illegal per se because the defendant was a juvenile. See Commonwealth v. Karen K., 491 Mass. 165, 178-179, 199 N.E.3d 860 (2023). These facts created both a safety concern and a reasonable suspicion of illegal activity, justifying the exit order. They also created a reasonable suspicion that the defendant was armed and dangerous, justifying the patfrisk.

[8, 9] ₅₃₇First, Smith recognized the type of cross-body bag worn by the defendant as a potential indicator that he was carrying a firearm. Officers may properly rely on their experience to draw an inference or conclusion from an observation, so long as they explain the specific experience that they relied on and how it correlates to the observations made; no formal training is necessary. See Commonwealth v. Matta, 483 Mass. 357, 366 n.8, 133 N.E.3d 258 (2019). At the motion hearing, Smith testified that he was aware of bags like the defendant’s being used to carry firearms or narcotics, both from discussions with fellow officers and from his personal experience with similar bags in at least five and likely more than ten separate instances. To be sure, the mere presence of this type of bag, which Smith agreed is available for purchase at retail stores, would fall far short of creating reasonable suspicion when considered in isolation. However, "[t]hat there may be innocent explanations for the [suspect’s behavior] does not remove it from consideration in the reasonable suspicion analysis" when the officer provides an adequate basis for its inclusion as a factor. Commonwealth v. DePeiza, 449 Mass. 367, 373, 868 N.E.2d 90 (2007).

Here, it was not just Smith’s experience with such bags, but the defendant’s apparent effort to conceal the bag from Smith -...