Commonwealth v. Vega-Robles

Commonwealth of Massachusetts v. David Vega-Robles

No. 112355

No. 200900199

Superior Court of Massachusetts, Worcester

April 5, 2010

Caption Date: April 5, 2010

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Agnes, Peter W., J.

MEMORANDUM OF DECISION AND ORDER

Peter W. Agnes, Jr., Justice of the Superior Court

1. Introduction.

The defendant is charged by indictment with Trafficking in Cocaine (28-100 grams) based on evidence seized by the Massachusetts State Police as a result of a motor vehicle stop for a civil motor vehicle infraction. The defendant has filed a pretrial motion to suppress. Based on the credible evidence presented at the hearing on the defendant's pretrial motion to suppress, I make the following findings of fact and rulings of law.

2. Findings of fact.

The Commonwealth's case is based on the stop of a motor vehicle that took place on the westbound side of Route 2 in Lancaster, Massachusetts on November 29, 2008 at 10:30 p.m. The stop resulted from the random selection by Trooper Eric Grace of the vehicle operated by the defendant for an electronic inquiry concerning the status of inspection sticker. The trooper's inquiry was made from a mobile data terminal in his marked state police cruiser. The trooper, who was following behind the defendant's vehicle, learned that the vehicle had not been reported stolen, was registered, but that its inspection sticker had expired. Trooper Grace activated his lights and signaled the defendant to stop. The defendant, who was the sole occupant of the vehicle, slowed down and then stopped in the breakdown lane.

3. Trooper Grace approached the driver's side door and asked the defendant to produce his license and registration. The defendant, who appeared nervous and who was breathing heavily, complied with the trooper's request. Trooper Grace did not examine the vehicle to determine whether it actually had a valid inspection sticker affixed to the windshield. The defendant's license was from the State of New Hampshire. Trooper Grace asked the defendant to whom the vehicle belonged and the defendant replied that it belonged to his friend “Jimmy.” At the time of this exchange, it was evident to Trooper Grace that the defendant was not completely fluent in English. I find that the conversation between the defendant and Trooper Grace as well as Trooper McCammon involved the defendant responding partly in English and partly in Spanish, and that some of the questions asked by the troopers had to be repeated. The defendant also said he was coming from Lawrence and headed toward Leominster. The conversation between the defendant and Trooper Grace was hampered by the fact that English was not the defendant's first language and some of what he said in Spanish could not be understood by Trooper Grace.^[1] The defendant could not give a last name for the vehicle's owner. Trooper Grace also smelled a strong odor of a car freshener which made his suspicious because he had been trained that such items are sometimes used to mask the odor of drugs. When asked where he was going, the defendant replied to Exit 23 (at the time they were in the vicinity of exit 32, 33 or 34).^[2]

4. Trooper Grace returned to his cruiser, did a license and registration check using his mobile data terminal, and learned that the vehicle was registered to a female in Lawrence with a last name of “Lopez.” At this point, State Police Trooper McCammon, arrived on the scene. He happened to be driving past the location and stopped to see if he could be of assistance to a fellow trooper. Trooper McCammon conferred with Trooper Grace and decided to make inquiry of the defendant. Trooper McCammon asked the defendant who owned the vehicle. The defendant was not able to communicate the name of the vehicle's owner to Trooper McCammon in a way in which Trooper McCammon was able to understand.^[3] Trooper McCammon also asked the defendant if he had any weapons. The defendant answered “no.” Trooper McCammon asked the defendant if he would step outside the vehicle. The defendant said "yes, ” and then exited his car. He was pat frisked. The police removed a wad of United States currency in the amount of $420.00. Trooper McCammon next asked the defendant if he would agree to let the police search the vehicle. This question was asked multiple times. The defendant replied “yes.”

5. The defendant was placed inside Trooper Grace's police cruiser while Trooper Grace and Trooper McCammon inspected the interior of the defendant's vehicle. The officers first did a visual inspection from the outside and then entered the vehicle. A sweep of the area around the driver's seat did not reveal any weapons, but the troopers did notice that a face plate on the dashboard was a slightly different color from the rest of the dashboard and didn't seem to fit on the dashboard correctly. See exhibits 1-7 (photographs of the vehicle's interior). Eventually, based on an examination of the dashboard and the discovery of electrical wires that appeared out of place, the state police troopers discovered a “hide” underneath the dashboard containing plastic bags filled with a white substance that turned out to be cocaine, a Class B controlled substance. The defendant was placed under arrest and transported from the scene.

6. Discussion.

The State Police were entitled to stop the defendant's vehicle for the purpose of issuing him a citation for a motor vehicle infraction such as an expired, invalid or missing inspection sticker. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). The mere fact that a police officer who is carrying out a routine standard police practice of enforcing the traffic laws and the laws pertaining to motor vehicle equipment suspects or has a hunch that the operator or passengers are involved in illegal drug activity does not invalidate the stop so long as there was a valid basis for it based on an objective assessment of the facts and circumstances. See Commonwealth v. Santana, 420 Mass. 205, 208 (1995).^[4] The information supplied by the defendant did not fit with the facts. First, the defendant stated he was going to exit 23, but, as Trooper Grace testified, the correct exit for Leominster off of Route 2 would be exit 32, 33, or 34. Also, the defendant identified the vehicle's owner as “Jimmy, ” when in fact it was a female whose last name is Lopez. On the other hand, it is significant that the defendant's ability to speak English was limited and even the troopers admitted it was hard to understand some of his answers.

7. Basis for an exit order.

The first question that arises in this case is whether the troopers were justified in asking the defendant to step outside his vehicle. Whether in the form of an express directive or a request, the police must have justification before a motorist is required to exit from his or her vehicle during a traffic stop. See Commonwealth v. Rivera, 67 Mass.App.Ct. 362, 365 (2006). Under Article 14 of the Declaration of Rights, automatic exit orders in connection with routine traffic stops are prohibited. Commonwealth v. Gonsalves, 429 Mass. 658, 661-62 (1999). Instead, Massachusetts law requires the police to have a reasonable suspicion of danger to themselves or others based on an objective assessment of the circumstances. Id. at 665, 667. It was the testimony of the two troopers in this case that the exit order was administered for their safety and protection, and not as an investigatory measure. Indeed, an exit order could not have been issued as an aid to the investigation of criminal activity because there was no evidence at the time the order was issued that a crime had been, was being or was about to be committed. See Commonwealth v. Santos, 65 Mass.App.Ct. 122, 125 (2005). Although the Supreme Judicial Court has observed that it does not take much for a police officer to establish a basis for an exit order that will be regarded by the court as reasonable, see Gonsalves, 429 Mass. at 664, a hunch is not enough. Id.

8. At the time of the exit order, the defendant had a valid license, the vehicle was not stolen and was properly registered. The police did not observe any gestures or movements by the defendant that were unusual or threatening. The defendant's nervousness in the circumstances of a motor vehicle stop for a minor infraction like an expired inspection sticker that does not involve any evidence of furtive gestures, evasive answers, or what appears to be a weapon does not constitute a “specific and articulable fact” that adds any weight to the calculation of reasonable suspicion. See Commonwealth v Brown, 75 Mass.App.Ct. 528, 533-35 (2009), and cases cited. Contrast, Commonwealth v. Goewey, 69 Mass.App.Ct. 429, 435 (2007) (nervous behavior coupled with furtive gestures and movements). The only facts that could be described as suspicious include the following: (1) the defendant did not correctly identify the registered owner, (2) the defendant incorrectly identified the exit number for Leominster which was the destination he gave and (3) there was a strong odor of an air freshener coming from inside the vehicle. These are not the types of facts, taken singularly or in combination, which establish a reasonable basis for an exit order and a pat frisk. See Commonwealth v. Torres, 424 Mass. 153, 161 (1997); Commonwealth v. Brown, supra, 75 Mass.App.Ct. at 532; Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 618 (1991); Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 419-20 (1982). This is not a case where a combination of factors, each innocent in themselves, amount to a reasonable suspicion that the defendant was armed and dangerous. Contrast, Commonwealth v. Martin, 73 Mass.App.Ct. 526, 533-34 (2009), and cases cited. The fact that the police encounter a person...