Commonwealth v. Lopez

99 Mass.App.Ct. 1123

168 N.E.3d 378 (Table)

COMMONWEALTH

v.Christian LOPEZ.

20-P-834

Appeals Court of Massachusetts.

Entered: May 6, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant, Christian Lopez, was convicted of one count of possession with intent to distribute fentanyl, subsequent offense, see G. L. c. 94C, § 32A (b ), and one count of possession with intent to distribute cocaine, subsequent offense, see G. L. c. 94C, § 32A (d ). On appeal, he argues that his motion to suppress the evidence seized from his person and from his right shoe after a traffic stop was improperly denied. We affirm.

Discussion. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error .... We review independently the application of constitutional principles to the facts found" (quotation and citation omitted). Commonwealth v. Amado, 474 Mass. 147, 151 (2016). The motion judge denied the defendant's motion to suppress the narcotics evidence, concluding that the police properly ordered the defendant to exit his vehicle and that the defendant had consented to the search of his shoe. On appeal, the defendant challenges both of these findings. He does not challenge the validity of the traffic stop, the patfrisk, or his detention after the patfrisk was completed.

1. Exit order. "[A]n exit order is justified during a traffic stop where ... police are warranted in the belief that the safety of the officers or others is threatened." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). "We assess whether there were facts and circumstances in the course of [the] particular traffic stop that, viewed objectively, would give rise to a heightened awareness of danger on the part of the [officer]" (quotations and citations omitted). Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013).

The facts found by the motion judge concerning the defendant's behavior and the context of the traffic stop, "none of which is clearly erroneous," Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 226 (2018),² support the conclusion that the exit order was justified by Detective Nicholas Dokos's objectively reasonable fear for his safety. The defendant was stopped after two police officers, who were patrolling a high-crime area, "with gang activity, shots fired," observed him looking down at his lap while driving, speeding up and slowing down, and crossing a double-yellow line and driving on the wrong side of the road.³ After the defendant pulled over, he bent forward at the waist, moving his shoulders and head downward. His hands and arms were out of the officers’ view; the defendant appeared to be reaching for the floor. When Dokos approached, the defendant was sweating, even though it was a cool November evening. These factors, taken together, justified the exit order. See Commonwealth v. Goewey, 452 Mass. 399, 407 (2008) (exit order justified after routine traffic stop where, in addition to other factors, defendant appeared to "hide or retrieve something"); Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (exit order justified after routine traffic stop where officer "observed the defendant pull his arms into the vehicle and lean forward, a motion consistent with reaching to the floor or under the seat").

2. Consent. The defendant further contends that the judge erred in concluding that he consented to the search of his shoe. To justify a warrantless search based on consent, the Commonwealth "has the burden of proving that the consent was, in fact, freely and voluntarily given." Commonwealth v. Carr, 458 Mass. 295, 299 (2010), quoting Commonwealth v. Rogers, 444 Mass. 234, 237 (2005). This requires proof of "consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority." Commonwealth v. Butler, 97 Mass. App. Ct. 223, 235 n.17 (2020), quoting Rogers, supra. Consent may be communicated through "words or conduct," and may also be "implicit." Rogers, supra at 237-238. "Because a finding of voluntariness is a question of fact, it should not be reversed absent clear error by the judge." Commonwealth v. Suters, 90 Mass. App. Ct. 449, 454 (2016), quot...