Commonwealth v. Douglas , 472 Mass. 439 ( 2015 )

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SJC-11824
COMMONWEALTH vs. JASON DOUGLAS
(and five companion cases1).
Suffolk. April 6, 2015. - August 14, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Constitutional Law, Search and seizure, Stop and frisk,
Reasonable suspicion. Search and Seizure, Motor vehicle,
Protective sweep, Threshold police inquiry, Reasonable
suspicion. Threshold Police Inquiry. Firearms. Practice,
Criminal, Motion to suppress.
Indictments found and returned in the Superior Court
Department on September 28, 2011.
Pretrial motions to suppress evidence were heard by Janet
L. Sanders, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Cordy, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. After review by that court, the Supreme
Judicial Court granted leave to obtain further appellate review.
Daniel R. Katz for Wayne Steed.
Michael Tumposky for Jason Douglas.
1
Two against Jason Douglas and three against Wayne Steed.
2
Donna Jalbert Patalano, Assistant District Attorney (Joseph
F. Janezic, III, Assistant District Attorney, with her) for the
Commonwealth.
DUFFLY, J. Following a traffic stop for a civil motor
vehicle infraction (failure to use a directional signal) of a
motor vehicle that they had had under surveillance, Boston
police officers ordered first the rear seat passenger sitting
behind the driver, then the rear seat passenger on the
passenger's side, to get out of the vehicle, and pat frisked
each for weapons, on the suspicion that they were armed and
dangerous. No weapons were found. While the rear seat
passengers remained outside the vehicle, as instructed, the
front seat passenger, defendant Jason Douglas, got out of the
vehicle and was ordered to return to his seat. After he did so,
he moved the gear shift in the center console to the "drive"
position, while the driver kept her foot on the brake. Douglas
was ordered from the vehicle and pat frisked, and the driver
also was ordered from the vehicle. Finding no weapon on
Douglas's person, officers conducted a protective sweep of the
vehicle. They discovered a loaded firearm under the front
passenger seat.
Douglas and his codefendant, Wayne Steed, who had been
seated behind him, were charged with unlicensed possession of a
3
2
firearm and related offenses. Both defendants moved to suppress
the evidence seized as a result of the search. After an
evidentiary hearing, a Superior Court judge allowed their
motions. A single justice of this court allowed the
Commonwealth's application for leave to pursue an interlocutory
appeal to the Appeals Court, and the Appeals Court reversed the
allowance of the motions to suppress. See Commonwealth v.
Douglas, 86 Mass. App. Ct. 404, 405 (2014). We granted the
defendants' applications for further appellate review.
We conclude that, even if the patfrisks of the rear seat
passengers were invalid, Douglas's action in shifting the
automobile into "drive" during the course of the stop, in
conjunction with the circumstances of the stop and other
information known to the officers at the time, supported the
officers' suspicion that Douglas might be armed and dangerous,
and that a limited protective sweep of the vehicle was necessary
for officer safety. We therefore conclude that the motions to
suppress should not have been allowed, but on grounds different
2
Jason Douglas was charged with carrying a firearm without
a license, second offense, G. L. c. 269, § 10 (a), (d);
possession of a firearm without a firearms identification (FID)
card, G. L. c. 269, § 10 (h); and unlawful possession of
ammunition, G. L. c. 269, § 10 (n). Wayne Steed was charged
with carrying a firearm without a license as an armed career
criminal, G. L. c. 269, §§ 10 (a), 10G; possession of a firearm
without an FID card, G. L. c. 269, § 10 (h); and unlawful
possession of ammunition, G. L. c. 269, § 10 (n).
4
from those relied upon by the Appeals Court, essentially for the
reasons cited by the concurring opinion. See Commonwealth v.
Douglas, supra at 416-418 (Rubin, J., concurring).
1. Background. The sole witness at the hearing on the
motions to suppress was Boston police Officer Liam Hawkins, who
was one of the arresting officers and was the officer who
conducted the patfrisk of Douglas. Based on Hawkins's
testimony, the motion judge found the following.
a. The stop. On an evening in April, 2011, members of the
Boston police department's youth violence strike force were
conducting surveillance of a party at a Boston nightclub. The
party was being held to celebrate the successful release on the
Internet of a video recording that had been produced by a group
of individuals living on Annunciation Road in Boston. The group
had been involved in a rivalry with another group of individuals
from the Orchard Park housing development that had resulted in
prior violence, and the surveillance was intended to gather
information about the members of the group. The officers also
had stationed "take down" vehicles in the vicinity, to make
stops as requested. When the party ended, police followed and
stopped some of the attendees in what was known as "field
interrogation observations." Some partygoers were followed to a
restaurant in the Chinatown area of Boston, where officers
5
conducted surveillance of the parking lot.
At approximately 3 A.M., Sergeant Detective Joseph Sullivan
observed a group of four individuals, three men and a woman,
leave the restaurant and get into an automobile. One of the men
was the defendant Douglas, who had had many prior dealings with
law enforcement and had a criminal record that included at least
one conviction of possession of a firearm. Sullivan reported
that another of the men, later identified as the defendant
Steed, was wearing a hooded sweatshirt and had been holding his
hands close to his body, in the front pockets of his sweatshirt.
As the vehicle was leaving the parking lot, with the woman
driving, Sullivan noticed that the driver had not used a
directional signal. He radioed this information to Officers
Hawkins and Mathew Wosny, who were driving an unmarked "take
down" vehicle. Hawkins and Wosny followed the vehicle as it
traveled along Essex Street, and saw it turn onto Surface Road,
again without using a turn signal. The officers activated their
blue lights and siren and stopped the vehicle on the entrance
ramp to Route I-93 South, for the civil motor vehicle
infraction.
The motion judge further found:
"Hawkins approached the passenger side of the vehicle,
and Wosny approached the driver's side. Hawkins noticed
that the individual seated behind the driver (later
identified as Shakeem Johnson), was turning toward the
6
middle of the car, so that his hands were not visible.
Hawkins knew that Johnson had a criminal record; because of
that and his movement, Wosny ordered him out of the car.
He pat frisked Johnson (who was heavily intoxicated) and
found nothing, concluding that what Johnson was in fact
doing inside the car was removing his seatbelt. On the
other side of the car, Hawkins noticed that the individual
in the back seat beside Johnson (later identified in court
as the defendant Steed), was staring straight ahead, with
at least one hand in the front pocket of his sweatshirt.
Regarding this as unusual, Hawkins ordered him out of the
car and pat frisked him; nothing was found. Douglas,
seated in the front, was by this time expressing his
displeasure at the stop, and on his own got out of the car
to talk to officers. Hawkins ordered him to get back
inside, which he did. Hawkins noticed that Douglas moved
the gear shift on the center console from the 'park'
position to 'drive.' The car did not move, because the
driver, [Rheanna] Reese, had her foot on the brake.
Hawkins ordered Douglas to place the vehicle back in
'park.' Douglas complied."
Other officers had by this time arrived to assist Hawkins
and Wosny. Douglas and the driver were ordered out of the
vehicle and Douglas was pat frisked. Nothing was found. More
officers arrived. Hawkins then searched the passenger
compartment of the vehicle and found a firearm underneath the
front passenger seat. All four of the vehicle's occupants were
detained; Steed and Douglas later were charged with firearms
offenses.
b. Motions to suppress. In allowing the defendants'
motions to suppress, the judge concluded that "there was little
if any information that any one of [the occupants] posed any
kind of danger to the officers"; the search of each occupant did
7
not result in any such information; and any possible suspicion
that another officer might have had, based on his earlier
observation of one of the occupants, later identified as Steed,
before Steed entered the vehicle, as well as any suspicion of
Johnson, based on his action inside the vehicle, had dissipated
when no weapon was discovered following their patfrisks. The
judge found also that, although Douglas moved the gear shift,
"the car did not move and he shifted the car back into park
before he too was pat frisked," and that there was no indication
that the driver was armed and dangerous. Concluding that the
exit orders and patfrisks were invalid, the judge determined
that no further analysis was required because whatever occurred
following the patfrisks was tainted by the invalid exit orders.
The Appeals Court, in a divided opinion, determined that
the officers had reasonable suspicion to issue the exit orders
and to pat frisk the vehicle's occupants. See Commonwealth v.
Douglas, 86 Mass. App. Ct. 404, 412 (2014). The court concluded
further that, when no weapons were found as a result of the
patfrisks,3 the reasonable suspicion only increased, and the
3
The judge found that the driver was pat frisked, but there
was no testimony to support this finding. Boston police Officer
Liam Hawkins testified that he believed that the driver was not
pat frisked because he recalled that there was no female officer
present, and that, based on the driver's attire, Hawkins
observed nothing "that would be alarming."
8
officers were justified in conducting a protective search of the
vehicle for weapons.4 See id.
We conclude that, even assuming that the patfrisk of the
rear seat passengers was based on a reasonable suspicion that
they were armed and dangerous, any suspicion dissipated when no
weapon was found on either individual, and there was no
justification at that point to conduct a protective sweep of the
vehicle. We agree with the analysis in the concurrence,
however, see id. at 416-418 (Rubin, J., concurring), that
Douglas's subsequent conduct in leaving the vehicle unbidden
and, when he was ordered to return to his seat, in shifting from
"park" to "drive," considered in the totality of the
circumstances and in light of other information known to the
officers, provided reasonable suspicion that Douglas had a
weapon either on his person or within reach inside the vehicle,
and therefore that the exit order and patfrisk of Douglas, and
4
The Appeals Court's decision relies substantially on
testimony by Hawkins that is not included in the judge's
findings, on the ground that the judge implicitly credited the
testimony because it was uncontroverted. Nothing in the judge's
decision indicates that she implicitly credited this testimony;
to the contrary, the decision suggests that she did not. In any
event, a reviewing court may not supplement a motion judge's
findings of fact with additional testimony that is not
controverted because only one witness testified, in order to
reverse the judge's decision. See Commonwealth v. Jones-
Pannell, 472 Mass. , (2015).
9
the protective sweep of the vehicle underneath the seat he had
occupied, were permissible.5
2. Discussion. "In reviewing a decision on a motion to
suppress, 'we accept the judge's subsidiary findings absent
clear error but conduct an independent review of [the] ultimate
findings and conclusions of law.'" Commonwealth v. Ramos, 470
Mass. 740, 742 (2015), quoting Commonwealth v. Colon, 449 Mass.
207, 214, cert. denied, 552 U.S. 1079 (2007). "Although an
appellate court may supplement a motion judge's subsidiary
findings with evidence from the record that 'is uncontroverted
and undisputed and where the judge explicitly or implicitly
credited the witness's testimony,'" "the mere absence of
contradiction is not enough to permit supplementation with facts
not found by the judge." Commonwealth v. Jones-Pannell, 472
Mass. , , (2015), quoting Commonwealth v. Isaiah I.,
448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). "[I]n no
event is it proper for an appellate court to engage in what
5
The Commonwealth contends also that the motions to
suppress should have been dismissed because the defendants'
affidavits in support of those motions did not meet the
requirements of Mass. R. Crim. P. 13, as appearing in 442 Mass.
1516 (2004). Where, as here, the Commonwealth does not move
before the hearing for "a more particularized affidavit or
move[] that the motion to suppress be denied without a hearing,"
the Commonwealth will be deemed to have "waived any objection to
the particularity of the defendant's affidavit pursuant to rule
13(a)(2)." See Commonwealth v. Mubdi, 456 Mass. 385, 390-391
(2010).
10
amounts to independent fact finding in order to reach a
conclusion of law that is contrary to that of a motion judge who
has seen and heard the witnesses, and made determinations
regarding the weight and credibility of their testimony."
Commonwealth v. Jones-Pannell, supra at .
Because Hawkins and Wosny observed a traffic violation,
they were warranted in making the initial stop of the vehicle,
notwithstanding their subjective intentions in making the stop.
See Commonwealth v. Santana, 420 Mass. 205, 207, 210 (1995). We
thus consider whether, at each step of the officers' interaction
with the vehicle's occupants, the officers' conduct was "no more
intrusive than necessary . . . to effectuate both the safe
conclusion to the traffic stop and the further investigation of
the suspicious conduct." See Commonwealth v. Torres, 433 Mass.
669, 675 (2001).
Following a routine traffic stop, police may "order the
driver or the passengers to leave the automobile . . . only if
they have a reasonable belief that their safety, or the safety
of others, is in danger." Id. at 673. A police officer may
conduct a patfrisk of an individual ordered to leave the vehicle
only if the officer has a reasonable basis to suspect that the
individual is likely to be armed and dangerous. Commonwealth v.
Johnson, 454 Mass. 159, 162 (2009).
11
The motion judge determined that Johnson's turning toward
the middle of the vehicle, and Steed's holding of his hand in
his pocket, while staring straight ahead, did not give rise to a
reasonable suspicion that either was armed and dangerous. She
determined further that, even if these actions did indeed give
rise to a reasonable suspicion to justify the exit orders and
subsequent patfrisks of each of them, any reasonable suspicion
that either had a weapon on his person was dissipated after the
patfrisks revealed no weapons. We agree. Even assuming that
the officer had a reasonable basis to remove Johnson from the
rear seat, based on his observation of Johnson's motion (a
determination we need not reach), after pat frisking Johnson,
the officer determined that an intoxicated Johnson had not been
reaching for a weapon, but, rather, had been attempting to
remove his seat belt. Thus, as the judge found, any reasonable
suspicion was dissipated. Similarly, the patfrisk of Steed
dissipated any reasonable suspicion that he was concealing a
weapon by holding his hand close to his body in the front pocket
of his sweatshirt. Once these "potential threat[s] to the
officer[s'] safety w[ere] dispelled and there was no reasonable
suspicion that criminal activity was afoot, any basis for
further detention evaporated." Commonwealth v. Torres, 424
Mass. 153, 159 (1997).
12
When the patfrisks revealed that neither Johnson nor Steed
had a weapon, there was no reasonable suspicion to justify a
protective sweep of the automobile. The actions giving rise to
the initial suspicion of the rear seat passengers were only as
to their persons; the officers did not observe any motion, such
as bending down out of sight, that suggested reaching for or
placing a weapon on the floor. Just as the officers' suspicions
had been dispelled, however, Douglas's additional conduct, in
conjunction with the other circumstances here, provided
reasonable suspicion that Douglas was armed and dangerous, and
either had a weapon on his person or had concealed it in the
area where he had been sitting. "An officer who does not have
probable cause to search an automobile for evidence of a crime
or contraband may nonetheless conduct a limited search for
weapons if 'a reasonably prudent [officer] in [the officer's]
position would be warranted in the belief that the safety of the
police or that of other persons was in danger.'" Commonwealth
v. Daniel, 464 Mass. 746, 752 (2013), quoting Commonwealth v.
Silva, 366 Mass. 402, 406 (1974). Such a protective search must
be "'confined in scope to an intrusion reasonably designed to
discover' a weapon," Commonwealth v. Moses, 408 Mass 136, 144
(1990), quoting Commonwealth v. Silva, supra at 408, and "'must
be confined to the area from which the suspect might gain
13
possession of a weapon,' either because he is still within the
vehicle or because he is likely to return to the vehicle at the
conclusion of the officer's inquiry." Commonwealth v. Daniel,
supra, quoting Commonwealth v. Almeida, 373 Mass. 266, 272
(1977), S.C., 381 Mass. 420 (1980).
Douglas's actions in getting out of the vehicle unasked,
confronting Hawkins, and then shifting the vehicle into "drive"
could have suggested to a reasonable officer that Douglas was
attempting to conceal a weapon, either on his person or in the
vehicle, and was willing to risk flight and possibly an
automobile chase. See Commonwealth v. Maldonado, 55 Mass. App.
Ct. 450, 454 (2002), S.C., 439 Mass. 460 (2003), and cases cited
(intervening act removed taint of original search where
defendant returned to vehicle after patfrisk and was
"fidgeting," prompting officer to find gun in his lap).
Moreover, at the point when Douglas first stepped out of the
vehicle, unasked, and then, upon being ordered to return to the
vehicle, moved the gearshift from "park" to "drive," the police
knew that the four occupants had been at a party earlier in the
evening hosted by a group that had been involved in a long-
standing rivalry with another group, and that the rivalry had
resulted in acts of violence. See Commonwealth v. Elysee, 77
Mass. App. Ct. 833, 841 (2010). The police also were aware that
14
Douglas previously had been convicted of possession of a
firearm. See Roe v. Attorney Gen., 434 Mass. 418, 442 (2001);
Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2006).
We agree with the concurrence in the Douglas case that,
unlike Johnson's and Steed's actions, Douglas's acts of leaving
the vehicle unasked, expressing displeasure to the officer, and
then shifting the vehicle into drive after he returned to his
seat could have indicated to a reasonable officer that Douglas
might be in possession of a firearm, either on his person or
within his reach inside the vehicle. Douglas's actions,
combined with the occupants' activities earlier that evening,
and the officers' knowledge, were sufficient to support a
reasonable suspicion that Douglas either had a weapon on his
person or that there was a weapon in the vehicle, within his
reach, and removed any possible taint from the earlier exit
orders. See, e.g., Commonwealth v. Fredette, 396 Mass. 455,
458-460 (1985), and cases cited; Commonwealth v. Mock, 54 Mass.
App. Ct. 276, 284 (2002), quoting Commonwealth v. Borges, 395
Mass 788, 795 (2002), and cases cited. Contrast Commonwealth v.
Martin, 457 Mass. 14, 19-22 (2010) (defendant's act in pushing
officer's hands away did not remove taint of impermissible stop
and patfrisk where officer did not base his renewed attempt to
pat frisk on defendant's act). When the patfrisk of Douglas
15
revealed no weapon, the officers continued to have a reasonable
suspicion that there might be a weapon in the vehicle. Thus, it
was permissible that the officers conduct a protective sweep
before allowing Douglas and the other occupants to reenter the
vehicle.
Order allowing motions
to suppress reversed.