Commonwealth v. Ortiz-Matos

98 Mass.App.Ct. 1117

157 N.E.3d 113 (Table)

COMMONWEALTH

v.Robert ORTIZ-MATOS.

19-P-739

Appeals Court of Massachusetts.

Entered: November 4, 2020.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Robert Ortiz-Matos, was convicted of one count of trafficking in cocaine, one hundred grams or more, in violation of G. L. c. 94C, § 32E (b ) ; and one count of possession with intent to distribute a class A substance, in violation of G. L. c. 94C, § 32 (a ). On appeal, the defendant argues, first, that the motion judge erred in denying his motion to suppress evidence seized as a result of a motor vehicle stop; and, second, that the Commonwealth's evidence was insufficient to prove, beyond a reasonable doubt, that the defendant possessed the drugs that were the basis for his conviction. For the reasons that follow, we affirm.

Background -- motion to suppress. The motion judge made findings of fact in a thoughtful and thorough memorandum of decision and we rely upon those findings, supplemented by undisputed testimony that he explicitly or implicitly credited.² See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, (2015). On the evening of December 28, 2016, Massachusetts State Police Troopers Jason Conant and Lawrence Richardson, both members of the State Police Gang Unit and experienced drug investigators, were patrolling the north side of Lawrence in an unmarked police cruiser. At about 6:15 P.M. , Conant observed a red Ford Explorer that he had seen driving in the same area approximately five times earlier that evening. This observation, combined with the troopers' past experience and knowledge of drug activity in that area, caused them to become suspicious.³

The troopers followed the Explorer and performed a license inquiry on the cruiser's computer and learned that the Explorer was registered to a woman, the registration was active and valid, and the vehicle had not been reported stolen. Shortly afterwards, the troopers observed the Explorer make a right turn without a directional signal. Conant activated the cruiser's flashing lights to initiate a stop for the traffic violation. The Explorer did not pull over or reduce its speed. Conant activated the cruiser's sirens, and, apparently in response, the Explorer swerved to the left and then back to the right. "It crossed the left westbound lane as well as the single oncoming eastbound lane, and it came to within inches of striking the eastbound curb." The driver then stopped at a green light in the middle of an intersection before finally pulling over. When Richardson approached the passenger side of the vehicle, he observed the defendant sitting askew, with his back and buttocks pressed against the front passenger door and window. In Richardson's opinion, the defendant appeared extremely nervous and his left hand was shaking uncontrollably; Richardson testified that it appeared to him that the defendant was hiding something. Based on those observations, Richardson asked the defendant to get out of the Explorer, and the defendant complied. Richardson then conducted a patfrisk of the defendant's clothing for weapons. In four or five separate pockets of the defendant's jacket and jeans, Richardson felt what he believed to be folded wads of money; the defendant then volunteered, "It's just money." Richardson either removed the money or directed the defendant to remove it.⁴

At the same time, Conant was engaged with the driver, codefendant Helmin Sanchez.⁵ Sanchez produced a valid driver's license, but spoke limited English. In response to Conant's questioning, Sanchez explained that the Explorer belonged to an "amiga of his." Despite the valid license, Conant concluded that the defendant and driver were using the Explorer for drug activity. Conant formed that opinion based on his observations that the Explorer was registered to a third party; the inside of the vehicle contained no personal belongings; and Sanchez was using a single key. At some point, Conant directed Sanchez to get out of the Explorer, and Sanchez complied.

Based on the troopers' collective observations, they decided to call for a K-9 officer with a drug detecting dog to conduct a K-9 search of the Explorer. The K-9 officer and dog arrived within one minute of the call.⁶ The subsequent search uncovered significant quantities of cocaine and heroin⁷ hidden under the defendant's seat; these drugs are the subject of the motion to suppress.⁸

Discussion. 1. Motion to suppress. On appeal, the defendant first contends that the motion judge, who was not the trial judge, erred in denying the motion to suppress. He argues that the exit order was improper because it was not supported by a reasonable concern for the safety of the troopers or other persons, or by reasonable suspicion that the defendant was engaged in criminal activity.

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.

An exit order to a passenger in a vehicle may be justified in three ways. "First, ... if ‘a reasonably prudent [person] in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.’ " Commonwealth v. Cruz, 459 Mass. 459, 466 (2011), citing Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). "Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver." Cruz, supra. "Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement." Id. at 467. The Supreme Judicial Court recently has reiterated this standard for an exit order in Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020).

Here, the totality of the circumstances, viewed objectively, not only supports the troopers' reasonable belief that their safety, and the safety of others, was in danger, but also a reasonable belief that criminal behavior, separate from the traffic violation, was taking place and required further police investigation. See Commonwealth v. Torres, 433 Mass. 669, 673-674 (2001).

First, Richardson's observations of the defendant raised an objectively reasonable safety concern. Specifically, Richardson immediately, and reasonably, became concerned for his safety when the defendant turned his body to the left, sitting askew with his buttocks against the door and window, and shielding his hands and body from the trooper's view as if he were hiding something. See Commonwealth v. Johnson, 454 Mass. 159, 164 (2009), quoting Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005) ("Strange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect"). Furthermore, while not sufficient on their own, the defendant's nervous appearance and shaking hand "may contribute to reasonable suspicion when considered in the totality of the circumstances of the encounter." Commonwealth v. Nunez, 70 Mass. App. Ct. 752, 755 (2007). See Johnson, supra, quoting Terry v. Ohio, 392 U.S. 1, 27 (1968) ("The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger").

Given all of these facts, Richardson also was justified in conducting a patfrisk of the defendant. The court's recent holding in Torres-Pagan does not compel a contrary conclusion. In that case, "the defendant's actions did not indicate that he was armed and dangerous. He made no furtive movements; he already had gotten out of his vehicle and could not use it as a weapon; his body was fully visible to the officers; he was fully compliant with all commands issued by the officers; and he was outnumbered." Torres-Pagan, 484 Mass. at 41. The court upheld the allowance of the defendant's motion to suppress, saying, "A lawful patfrisk, however, requires more [than a lawful exit order]; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous. See [ Commonwealth v.] Martin, 457 Mass. [14,] 19 [ (2010) ]." Torres-Pagan, supra at 38-39.

Here, by contrast, the officer reasonably concluded that the defendant was hiding something that he had been sitting on or near and that conclusion, under all of the circumstances, led him to have at least a reasonable suspicion that the defendant was armed and dangerous. The motion judge made his ruling before the Supreme Judicial Court clarified the standard for a patfrisk in Torres-Pagan. Nonetheless, the judge correctly articulated that standard when he concluded:

"The subsequent pat frisk of Ortiz-Matos was likewise permissible. To justify a pat frisk in the course of an otherwise legitimate Terry stop, the police must have specific information to support a reasonable belief that the suspect is armed and dangerous. See Commonwealth v. Silva , 366 Mass. 402, 405-406 (1974). Here, in addition to all of the observations the police had made up to the time of the car stop, Ortiz-Matos'[s] behavior when Trooper Richardson approached him after the stop was made, i.e., his apparent efforts to conceal something from view and his palpable nervousness, was sufficient to support such a belief. The fact that Trooper Richardson did not see any weapon on the seat or floor area of the Explorer after

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