Opinion
19-P-1747
03-03-2021
COMMONWEALTH v. GLENROY MILLER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals a Superior Court judge's order denying a motion to suppress all evidence obtained as a result of an exit order and patfrisk during a traffic stop. The defendant argues that the exit order and patfrisk were not justified by the requisite reasonable suspicion. We affirm.
Background. We summarize the judge's pertinent findings of fact, none of which the defendant challenges. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
At approximately 3 A.M., Boston Police Officer Joseph Starkey and two other officers were on patrol in their unmarked cruiser in a high-crime area in which Starkey had previously responded to numerous incidents involving firearms. The officers observed a Lexus automobile driving well in excess of the speed limit with its headlights turned off. The officers activated their unmarked cruiser's lights and siren and pulled the Lexus over. The officers got out of their cruiser and approached the Lexus.
Because the area was well lit and the Lexus's windows were not tinted, Starkey was able to clearly observe the movements of the front seat passenger, later identified as the defendant. Starkey saw the defendant lift his hips and move his shoulders and arms in a manner suggesting that he was moving his hands about his waistline. The defendant appeared agitated, and when Starkey informed the driver of the Lexus that she did not have her headlights on, the defendant became very angry at the driver.
Starkey became concerned that the defendant might present an armed threat to the officers. Specifically, Starkey believed that the movement he observed might have been the defendant hiding or checking the position of a firearm. Consequently, Starkey ordered the defendant out of the vehicle and then pat frisked him. During the patfrisk, Starkey identified the outline of a firearm at the back of the defendant's thigh. After a struggle, Starkey seized the firearm.
After the motion judge denied the defendant's motion to suppress, the defendant entered conditional guilty pleas to unlawful carrying of a firearm, carrying a loaded firearm, possessing a firearm with a defaced serial number, and resisting arrest. The defendant timely appealed.
The pleas were conditioned on the outcome of this appeal. See Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019).
Discussion. We accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 U.S. 280 (1978), and we make an "independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found.'" Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 393 Mass. 806 (1986), quoting Brewer v. Williams, 430 U.S. 387, 403 (1977).
"[A]n exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds" (footnote added). Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). "A lawful patfrisk, however, requires more; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous." Id. at 38-39. Nevertheless, "it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns." Commonwealth v. Stampley, 437 Mass. 323, 325 (2002), quoting Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999).
The defendant concedes the validity of the stop.
The defendant argues that his movements did not justify the exit order; he notes that a passenger is not required to remain immobile during a traffic stop. It is settled, however, that a person's movement inside a motor vehicle may contribute to an officer's reasonable belief that the person is attempting to conceal or retrieve a weapon. See Stampley, 437 Mass. at 327 (pulling arms into vehicle and leaning forward was consistent with retrieving or concealing object and raised legitimate officer safety concerns); Commonwealth v. Torres, 433 Mass. 669, 674 (2001) (observation of passengers "bent over" and "messing with something" on floor of stopped vehicle indicated to officer that passengers "might be concealing or retrieving a weapon").
Indeed, in Commonwealth v. Meneide, 89 Mass. App. Ct. 448 (2016), "the defendant's unusual action of lifting himself off the seat by six inches in a manner consistent with concealing something was sufficient to justify the exit order and patfrisk." Id. at 452. Here, the motion judge found that the defendant's movements, including lifting himself off the seat, were "consistent with an attempt to secrete a weapon or, worse, to retrieve one." As in Meneide, these movements were sufficient to justify the exit order. The defendant acknowledges that Meneide is closely analogous to this case, and he suggests that we revisit the conclusion reached there. We see no reason to do so.
The defendant's agitated, "very angry" demeanor provided additional cause for concern.
More was required to justify the patfrisk than to justify the exit order. See Torres-Pagan, 484 Mass. at 38-39. Here, however, the same movements that justified the exit order also justified the patfrisk. That is, those movements gave rise to the requisite "reasonable suspicion, based on specific articulable facts, that the [defendant was] armed and dangerous." Id. at 39. See Meneide, 89 Mass. App. Ct. at 452.
The judge here did not have the benefit of Torres-Pagan at the time he ruled. But he concluded that Starkey had a reasonable fear, "based on a specific observation of a distinct movement," that the defendant had a firearm and posed a threat to the officers' safety. This met the Torres-Pagan patfrisk standard.
The defendant points to various factors that have been recognized as contributing to the basis for an exit order or a patfrisk that were not present here. These include suspicion that a crime other than a traffic violation had been or was about to be committed by a car's occupants, see Torres-Pagan, 484 Mass. at 38, and that the occupants gave evasive or inconsistent answers to officers' questions. See Commonwealth v. Brown, 75 Mass. App. Ct. 528, 534 (2009). But the defendant cites no authority suggesting that these are requirements in every case. Their absence from this case does not defeat the evidence supporting the exit order and patfrisk here.
The defendant also argues that neither the exit order nor the patfrisk can be justified based on the stop having occurred in a high-crime area. In light of Meneide's holding that a suspicious movement very much like the one here was enough by itself to justify an exit order and patfrisk, see 89 Mass. App. Ct. at 452, we need not address the extent to which the location of the stop provided further justification.
Order denying motion to suppress affirmed.
By the Court (Vuono, Sacks & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 3, 2021.