Opinion
14-P-1754
07-10-2015
COMMONWEALTH v. MATTHEW C. KETCHUM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an evidentiary hearing, a District Court judge allowed the defendant's motion to suppress. The Commonwealth sought and obtained permission to file this interlocutory appeal, claiming the continued detainment of the defendant was a reasonable delay and his consent to the search cleansed any impropriety in the extension of the stop. We affirm.
"[W]e accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004)(citation omitted). We first note the initial stop of the defendant's vehicle was proper. On observing the vehicle, the officer could not read the license plate because a plastic cover blocked a clear view of the numbers on the plate. The motion judge correctly found that even if the plastic cover was legal, the officer nevertheless had reasonable suspicion that it constituted a civil motor vehicle violation under G. L. c. 90, § 6 (display of license plates). This reasonable belief justified the stop of the vehicle and a check of the defendant's license and registration. Once stopped, the officer's ensuing observations, i.e., the defendant's flushed face, his nervous conduct, the smell of burnt marijuana emanating from the vehicle, and the plain view observation of a pipe with what the officer recognized from his training and experience to be burnt marijuana residue on it, justified the exit order for field sobriety tests. See Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 715-717 (2000).
The defendant continued to appear nervous while completing the field sobriety tests, leading the officer to inquire as to his well-being. The defendant related that he may have been suffering from a seafood allergy, but declined an offer for medical attention.
Under these circumstances, where the officer was alone with the defendant and a fellow passenger, and where the defendant had been lawfully ordered from the vehicle to perform field sobriety tests, it was reasonable for the officer to briefly frisk him to ensure that he was not armed or dangerous. See Commonwealth v. Silva, 366 Mass. 402, 408 (1974).
However, the Commonwealth claims it was proper to extend the stop to await the arrival of a drug-sniffing dog in light of both the above facts and the defendant's subsequent misleading response to a question about his criminal history. We disagree. While the initial stop and frisk were proper, the delay caused by the continued questioning of the defendant and the canine sniff were disproportionate to the permissible scope of the stop. Once the defendant passed the field sobriety tests and produced a valid license and registration, the officer's concern that the defendant was operating under the influence of marijuana was obviated, and the stop should have ended. See Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U. S. 1187 (2006). See also Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001) ("In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion").
The plain view observation of a pipe with burnt marijuana residue on it, and the odor of burnt marijuana which the officer smelled, did not suggest that an amount of marijuana constituting a crime, i.e., an amount exceeding one ounce, was present. See Commonwealth v. Cruz, 459 Mass. 459, 472 (2011).
These facts distinguish the present matter from Commonwealth v. Feyenord, 445 Mass. 72, 77-78 (2005), cited by the Commonwealth. In Feyenord, the stop was prolonged because the defendant did not produce a valid driver's license and could not provide basic details such as his name or age. The officer also had probable cause to arrest the defendant for operating without a valid license by the time a canine unit was employed, in contrast to the facts here.
The Commonwealth also claims the defendant's consent to the search of his vehicle effectively cures the taint of the impermissibly extended stop. We disagree. The officer sought consent only after his suspicions had been heightened by the defendant's words and actions following the point at which the stop should have ended. "When consent to search is obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, the consent has not been regarded as freely given. Evidence gathered in a search allowed by such a compromised consent has been thought to be tainted and inadmissible." Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595 (1999). The consent, though perhaps voluntary, was tainted by the fact that the defendant should no longer have been seized at that time.
Order allowing motion to suppress affirmed.
By the Court (Meade, Hanlon & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 10, 2015.