Commonwealth v. Pena

COMMONWEALTH v. REIMON PENA

Docket: 1977CR0330

Commonwealth of Massachusetts Superior Court

August 31, 2020

Dates: August 31, 2020

Present: /s/David A. Deakin Associate Justice

County: ESSEX, ss.

Keywords: MEMORANDUM AND ORDER ON DEFENDANT'S AMENDED MOTION TO SUPPRESS EVIDENCE

The defendant, Reimon Pena, is charged with one count of trafficking in fentanyl (G. L. c. 94C, § 32E(c)) and one count of carrying a dangerous weapon, a knife (G. L. c. 269, § 10(b)). The evidence that supports the indictments allegedly was collected during an automobile stop near the intersection of Erving Avenue and Jackson Street in downtown Lawrence on May 10, 2019. Pena was a passenger in an automobile driven by Jose Mercado. Pena initially brought a Motion to Suppress Evidence (Paper No. 5), which alleged that the trooper's detention of the two men exceeded the permissible scope of a traffic stop. Pena subsequently filed this Amended Motion to Suppress Evidence ("Motion") (Paper No. 12), contending that the Massachusetts State Trooper who stopped the car, in which Pena was a passenger, did so because of the driver's race and/or his race.¹ A hearing on the Amended Motion was held on August 5, 2020. Four witnesses testified. The Commonwealth called Massachusetts State Police Trooper Jennifer Penton, and the defense called Mercado, Professor Anne-Marie Hakstian, and Carrie Alvino.

After both sides rested, the court found that Hakstian's testimony was sufficient to raise "at least a reasonable inference of impermissible discrimination" in the stop of the vehicle. Commonwealth v. Lora, 451 Mass. 425, 440 (2008). The Commonwealth had requested that, if the court made such a finding, the Commonwealth be given the opportunity to introduce rebuttal testimony on the issue. The court permitted the Commonwealth to do so but suggested that the parties bifurcate the proceedings and proceed to argument on the aspects of the stop and search that are not dependent on the claim of selective enforcement. The parties agreed, and argument on these questions was heard on August 18, 2020.

Because the court concludes that Penton's request to the driver to step out of the vehicle to speak with her, and her ensuing search of the defendant, who was a passenger in the vehicle, and of the vehicle were unconstitutional, the Motion to Suppress is ALLOWED.

FACTS²

On May 10, 2019, Trooper Jennifer Penton of the Massachusetts State Police pulled over a 2007 Honda CRV (Massachusetts Registration 4ZE 441) driven by Jose Mercado. Pena was riding in the front passenger seat. Penton, an experienced law enforcement officer, was patrolling in downtown Lawrence as part of a "zero-tolerance" operation. According to Penton, the mayor of Lawrence (like the mayors or chief executives of other municipalities) regularly invites the Massachusetts State Police to come into the city and provide an active, visible law enforcement presence. Penton explained that, under the "zero-tolerance" approach, she was encouraged to take the most aggressive, permissible approach to enforcing all laws. Shortly before 4:48 p.m. on May 10, Penton was patrolling on a side street off Erving Avenue in Lawrence. She was in full uniform and driving a marked State Police cruiser. She testified that, as she was driving on the side street, she saw the Honda CRV travelling from her right to her left on Erving Avenue, the cross street ahead of her. It was "overcast and raining," and Penton noted that the CRV's windshield wipers were on, but its headlights were not.³ She testified that she turned left onto Erving Avenue, turned on her emergency lights, and pulled behind the CRV. Penton further testified that, after the CRV did not pull over for several blocks, she turned on her siren. At that point, the CRV pulled over at the intersection of Erving Avenue and Jackson Street. Mercado testified that he pulled over as soon as he became aware of the trooper behind him.

It appeared to Penton that there were two men in the CRV, one driving and one in the front passenger seat. She got out of her cruiser and approached the CRV. She asked the driver, whom she soon identified as Mercado, for his driver's and license and registration. He provided them. His license identified him correctly; the registration was in the name of "a third party." Mercado testified that the CRV belonged to his girlfriend. Penton noticed at this point that the passenger, Pena, was not wearing a seatbelt. She asked him for identification, and he produced a "health card." Penton explained, in English, that this was not the type of identification she meant. Pena did not provide any other identification, but Penton saw an identification card in his wallet (as he looked through it) and asked for it. Pena handed the trooper an identification card issued by the Dominican Republic that identified him correctly. Pena appeared to Penton to be nervous and avoided eye contact with her. After this interaction, Penton went back to her cruiser to run necessary checks.⁴ She found that Mercado's driver's license was active. Despite finding what she described as an extensive criminal history — including pending felony cases — Penton found no warrants pending for Mercado. She testified that Pena, too, had "a criminal history," but no active warrants. Nothing about the checks indicated that either man then was involved in criminal activity. As she was running the checks, she could see the two men in the CRV speaking to each other "rapidly." At about the same time, a Lawrence Police officer, stopped and asked Penton if she needed help. She asked him to pull his cruiser behind hers, and he did.

At this point, Penton determined that she wanted to speak with Mercado (the driver) "out of earshot" of Pena (the passenger). She again approached the driver's side of the CRV and "asked" Mercado if he would "mind" speaking to her. He replied, "I don't mind," or words to that effect. Penton then asked Mercado to get out of the CRV and join her on the sidewalk. At the hearing, Mercado confirmed that Penton had asked to speak with him, but he explained that he did not feel that he had an option to refuse. He noted in this context that Penton was a state trooper. Penton then asked Mercado a series of questions about Pena. She asked him how long he had known Pena, and Mercado answered that they had known each other for roughly one year. Penton then asked Mercado how he had met Pena; he responded that it had been "through a friend." Mercado told Penton that he could recall neither the friend's name nor where the initial meeting had taken place. She then asked Mercado, "can I search your car" or words to that effect. Mercado replied, "[g]o ahead; I don't mind; there's nothing in there," or something close to that. Mercado testified that, once again, he did not feel free to refuse, despite acknowledging that he told Penton that he would not "mind" if she searched the CRV.

Preparing to search the automobile, Penton next addressed Pena, who was still seated in the front passenger's seat. She asked him whether he had any weapons or tools that might be used to harm her. He responded that he had a knife in his waistband and went to remove it. Penton instructed him not to do that and that she would prefer to remove it, which she did. She then pat-frisked Pena, still seated in the CRV, to search for additional weapons. As she did so, she felt what she believed — based on her experience and training — to be a packet of drugs in the right, front pocket of the windbreaker he was wearing. Penton then told Pena to "step out" of the CRV, which he did. She then handcuffed and "searched" him.⁵ From the right, front pocket of his windbreaker, Penton recovered a packet that appeared to her, again based on her training and experience, to be six packets of fentanyl. She also recovered a total of $1,249.00 in mixed-denomination currency from several of Pena's pockets. She then placed him under arrest.

At this point in the interaction, Penton issued Mercado a citation for failing to activate his headlights while his windshield wipers were on. She told him that Pena would be arrested and explained to him that Pena would be taken to a "mobile booking location" that the State Police had set up as part of the "zero-tolerance" operation. She called for an Essex County Sheriff's transport vehicle to take Pena there. She then searched the CRV.⁶

PROCEDURAL HISTORY

The grand jury returned the two-count indictment in this case on July 17, 2019, and Pena was arraigned on October 16, 2019. On November 6, 2019, Pena filed his original Motion to Suppress Evidence (Paper No. 5). It challenged the validity of the automobile stop and the subsequent search of Pena. On March 5, 2020, Pena filed an Amended Motion to Suppress Evidence (Paper No. 12). It incorporated the challenges to the motor vehicle stop and added a claim that the stop and search were the products of impermissible selective enforcement.

A hearing was held on the Amended Motion on August 5, 2020. At the beginning of the hearing, the Commonwealth explained that, in the event that the court found that Pena had met his burden of presenting evidence legally sufficient to raise a claim of selective enforcement, it would request a continuance in order to present rebuttal evidence on that issue. The court indicated that, if it made such a finding, it would allow the requested continuance.

At the conclusion of the hearing, the court suggested that the hearing be bifurcated — with the parties briefing the issues pertaining to the stop itself and deferring on the issue of selective enforcement. The parties agreed and submitted memoranda of law addressing the validity of the stop and search. This memorandum of decision addresses that issue.

ANALYSIS

A police officer who observes a traffic violation may stop an automobile to issue a citation. See Commonwealth v. Santana, 420 Mass. 205, 207 (1995). Section 15 of chapter 85 of the Massachusetts General Laws...