Commonwealth v. Cordero

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SJC-12210
COMMONWEALTH vs. GABRIEL CORDERO.
Berkshire. February 14, 2017. - June 1, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Search and Seizure, Motor vehicle, Threshold police inquiry,
Reasonable suspicion. Constitutional Law, Search and
seizure, Investigatory stop, Reasonable
suspicion. Practice, Criminal, Motion to
suppress. Controlled Substances.
Indictments found and returned in the Superior Court
Department on May 11, 2015.
A pretrial motion to suppress evidence was heard by John A.
Agostini, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Duffly, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.
Merritt Schnipper for the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for
the Commonwealth.
GAZIANO, J. We address in this case the authority of a
2
police officer to prolong a routine traffic stop in order to
investigate suspected, unrelated criminal activity. The
defendant argues that State police troopers and local police
officers unreasonably detained him beyond the time required to
accomplish the purposes of a traffic stop, in violation of the
Fourth Amendment of the United States Constitution and art. 14
of the Massachusetts Declaration of Rights, and thus that
evidence seized from the trunk of his vehicle must be
suppressed. The Commonwealth contends, in contrast, that an
officer is not required to ignore incriminating facts that arise
during the traffic stop, and that the facts gave rise to a
reasonable suspicion to believe that the defendant was engaged
in criminal activity. After a Superior Court judge denied the
defendant's motion to suppress, a single justice of this court
allowed the defendant's motion for interlocutory review by the
Appeals Court, and we allowed the defendant's application for
direct appellate review. We conclude that once a police officer
has completed the investigation of a defendant's civil traffic
violations, and the facts do not give rise to reasonable
suspicion of criminal activity, the officer is required to
permit the defendant to drive away. Therefore, we reverse the
order denying the defendant's motion to suppress. 1
1
We need not reach the defendant's second argument, that
the Commonwealth failed to prove that he unambiguously and
3
1. Facts. We present the facts as found by the motion
judge, supplemented by uncontroverted testimony at the motion
hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007),
S.C., 450 Mass. 818 (2008). On the evening of February 19,
2015, at approximately 6:50 P.M., as State police Trooper Noah
Pack left the Massachusetts Turnpike in Lee, he observed a
Toyota Camry being driven ahead of him with broken tail and
brake lights. He also noticed that the vehicle's windows were
illegally tinted. Pack did not immediately stop the vehicle.
Rather, he followed it while driving along Route 20, through Lee
and Lenox, for approximately five miles.
While he followed the vehicle, Pack used his onboard
computer to determine that the vehicle was owned by and
registered to the defendant. He also learned that the
defendant's driver's license was current and valid and that the
vehicle was properly registered, inspected, and insured.
Further, he obtained a photograph and other biographical
information of the defendant, and learned that there were no
voluntarily consented to the search of the trunk of his vehicle.
"Where the defendant seeks to suppress information obtained
after unlawful police conduct, the issue is whether the evidence
challenged has been obtained by exploiting the illegality."
Commonwealth v. Fredette, 396 Mass. 455, 458-459 (1985), citing
Wong Sun v. United States, 371 U.S. 471, 488 (1963). Because we
conclude that the prolonged seizure of the defendant was
unconstitutional, any consent given during the illegal seizure
was invalid. See Commonwealth v. Torres, 424 Mass. 153, 163
(1997) ("consent obtained during an illegal detention is
ineffective to justify an otherwise invalid search").
4
warrants for the defendant's arrest and that the defendant had
no pending criminal charges. Pack also discovered that the
defendant lived in Holyoke, 2 had been convicted of charges of
firearms violations, drug offenses, and assault and battery on a
police officer, and had been incarcerated for the drug-related
convictions.
Pack stopped the vehicle, approached the driver's side, and
asked the defendant to roll down the window. The trooper
observed that the driver appeared to be the person in the
Registry of Motor Vehicles photograph and that another man was
seated in the passenger seat. Pack asked the defendant for his
driver's license and registration.
While the defendant looked for these items, the trooper
noticed that he seemed to be "extremely nervous," not making eye
contact, stuttering when he answered questions, and offering
information unrelated to the stop. 3 Pack asked the defendant
"what brought him out this way" and "where he was coming from."
The defendant answered that he was headed to a chain restaurant
"up the road." Pack did not believe this statement because,
2
Based on his law enforcement experience, the trooper
believed that Holyoke is a "major drug source city" and that a
"good percentage of the drugs coming into Berkshire County" came
from Holyoke.
3
The trooper testified that the defendant "was very
talkative in that he offered his own speech about his own issues
and what I perceived as an attempt to control the conversation
and distract me."
5
while he had been following the defendant, they had driven past
one such restaurant in Lee, and because the defendant had not
specified the location of the restaurant where he was headed.
When asked where he was coming from, the defendant said that he
had been at his cousin's house "just behind him." Given that
Pack had been following the defendant for more than five miles,
he also doubted this explanation.
The defendant produced his driver's license but could not
locate the vehicle's registration. The trooper asked the
passenger for identification, and returned to his cruiser to run
a records check on that information. Once inside the cruiser,
Pack "called for assistance" and waited in his cruiser until a
second trooper arrived "a few minutes later."
After the arrival of a second trooper, Pack returned to the
defendant's vehicle "to test the window tint and have a brief
conversation with [the defendant]." Proffering some paperwork,
the defendant said that the brake light was out because he
recently had been in an accident; he asked to get out of his
vehicle to look at the tail light. The two went to the rear of
the vehicle, where Pack pointed out the damaged lights and
tested the vehicle's window tint.
Pack then told the defendant that he was "confused by [the
defendant's] travel for the day" and questioned the defendant,
who continued to show signs of nervousness, about his travels.
6
In response, the defendant said that he was going to see a
friend, but did not provide the friend's name. Pack told the
defendant that he suspected the defendant of drug activity and
asked for permission to search the vehicle. The defendant said
that he did not have any drugs in the vehicle and that "it ain't
got to be like that." Pack interpreted this remark as a refusal
of consent. He left the defendant standing with the second
trooper at the rear of the vehicle and went to question the
passenger. When the passenger also showed signs of nervousness
and gave a different account of where the two had been that the
trooper did not believe, he called over the police radio for a
canine to be brought to the location to conduct a drug sniff.
Pack testified that, while they were waiting, the defendant
asked the second trooper whether he could sit in the police
cruiser to get out of the cold. Pack testified that the second
trooper told the defendant that he could do so, but first would
be required to submit to a patfrisk and then be handcuffed; the
second trooper said that the defendant consented. A frisk of
the defendant revealed $1,900 in cash in one of his pockets.
After he had been handcuffed and placed in the back of the
cruiser, the defendant told the second trooper that there was
some marijuana in the glove box. Pack asked for permission to
retrieve the marijuana from the vehicle, and did so after the
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defendant agreed. 4
Eventually, a Pittsfield police officer arrived on the
scene. The officer asked the defendant if he would consent to a
search of the trunk. The defendant responded only that he
wanted to go home to his children. The officer asked a second
time for the defendant's consent to search, and the defendant
responded that all he had in his trunk was a plastic bag of
clothes. When, for a third time, the officer asked for consent
to search the vehicle, according to the officer, the defendant
"gave consent for it."
After a search of the vehicle's trunk revealed roughly
2,000 bags of what the officers believed to be heroin, the
defendant was placed under arrest. The entire duration of the
roadside stop was between forty and forty-five minutes.
The defendant was charged with trafficking in heroin, G. L.
c. 94C, § 32E (c); distribution of a class A substance as a
subsequent offender, G. L. c. 94C, § 32E (b); motor vehicle
lights violations, G. L. c. 90, § 7; and nontransparent window
obstruction, G. L. c. 90, § 9D. The defendant was arraigned and
filed a motion to suppress evidence seized from him during the
traffic stop. A Superior Court judge denied the defendant's
motion to suppress evidence seized from his vehicle during the
traffic stop.
4
The amount of marijuana in the vehicle was not criminal.
8
2. Discussion. a. Standard of review. "In reviewing a
ruling on a motion to suppress evidence, we accept the judge's
subsidiary findings of fact absent clear error and leave to the
judge the responsibility of determining the weight and
credibility to be given . . . testimony presented at the motion
hearing. . . . We review independently the application of
constitutional principles to the facts found" (quotations and
citations omitted). Commonwealth v. Amado, 474 Mass. 147, 151
(2016). See Commonwealth v. Cassino, 474 Mass. 85, 88 (2016)
("We make an independent determination of the correctness of the
judge's application of constitutional principles" [quotations
and citation omitted]).
b. Permissible bounds of a routine traffic stop. A
routine traffic stop may not last longer than "reasonably
necessary to effectuate the purpose of the stop" (citation
omitted). Amado, 474 Mass. at 151. "It is well settled that a
police inquiry in a routine traffic stop must end [when the
purpose of the stop is accomplished] unless the police have
grounds for inferring that 'either the operator or his
passengers were involved in the commission of a crime . . . or
engaged in other suspicious conduct'" (citation
omitted). Commonwealth v. Torres, 424 Mass. 153, 158 (1997).
See Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999)
("Citizens do not expect that police officers handling a routine
9
traffic violation will engage . . . in stalling tactics,
obfuscation, strained conversation, or unjustified exit orders,
to prolong the seizure in the hope that, sooner or later, the
stop might yield up some evidence of an arrestable crime").
In Rodriguez v. United States, 135 S. Ct. 1609, 1614
(2015), the United States Supreme Court held that "the tolerable
duration of police inquiries in the traffic-stop context is
determined by the seizure's 'mission' to address the traffic
violation that warranted the stop." See United States
v. Sharpe, 470 U.S. 675, 685 (1985); Commonwealth v. Feyenord,
445 Mass. 72, 80 n.9 (2005), cert. denied, 546 U.S. 1187 (2006)
("It goes without saying that the driver cannot be held
indefinitely until all avenues of possible inquiry have been
tried and exhausted"). Police authority to seize an individual
ends "when tasks tied to the traffic infraction are -- or
reasonably should have been -– completed." Rodriguez, supra.
The police do not earn "bonus time" to conduct additional
investigations by an expeditious performance of the traffic-
related investigation. The reasonableness of the stop depends
on what the police, in fact, do to complete the purpose of the
stop. Id. at 1616.
Here, it is undisputed that the trooper was authorized to
stop the defendant for civil traffic infractions. See Amado,
474 Mass. at 151 ("Where the police have observed a traffic
10
violation, they are warranted in stopping a vehicle" [citation
omitted]); Commonwealth v. Bacon, 381 Mass. 642, 644 (1980)
(same). The trooper also was justified in conducting a roadside
investigation related to the broken tail and brake lights, and
the impermissible degree of the window tint. See Rodriguez, 135
S. Ct. at 1614 ("A seizure for a traffic violation justifies a
police investigation of that violation"). The stop of the
defendant's vehicle, however, could not last "longer than
reasonably necessary to effectuate the purpose of the stop"
(citation omitted). Commonwealth v. Cruz, 459 Mass. 459, 465
(2011).
By the time the trooper stopped the defendant's vehicle, he
had acquired information from his onboard computer concerning
the vehicle (i.e., that it was properly registered and insured)
and the registered owner of the vehicle (i.e., that the
defendant was a licensed operator who had no outstanding
warrants). Thereafter, the trooper's roadside investigation
reasonably included confirmation of the identity of the driver,
testing the percentage of the vehicle's window tint, and writing
citations for the motor vehicle violations. See Torres, 424
Mass. at 163 (investigation of routine traffic stop ends when
purpose of stop is accomplished).
Once the defendant got out of his vehicle and the trooper
finished testing the window tint and discussing with the
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defendant the broken tail and brake lights, these tasks were
completed. Accordingly, because "[a]uthority for the
seizure . . . ends when tasks tied to the traffic infraction
are -— or reasonably should have been -— completed," the
investigation that followed was unreasonable unless supported by
additional justification. See Rodriguez, 135 S. Ct. at 1614.
See also Torres, 424 Mass. at 158 (police inquiry in routine
traffic stop must end upon production of valid license and
registration).
c. Reasonable suspicion to extend investigation. We turn
next to consider whether, after the trooper had finished
discussing the broken vehicle lights and window tint with the
defendant, the trooper had reasonable suspicion to justify his
investigation of criminal drug activity.
"In order to expand a threshold inquiry of a motorist and
prolong his detention, an officer must reasonably believe that
there is further criminal conduct afoot, and that belief must be
based on 'specific and articulable facts and the specific
reasonable inferences which follow from such facts in light of
the officer's experience'" (citation omitted). Feyenord, 445
Mass. at 77. 5 "The dispositive issue, therefore, is whether,
5
While a combination of nonsuspicious facts cumulatively
may establish reasonable suspicion, see Commonwealth v. Fraser,
410 Mass. 541, 545 (1991) ("a combination of factors that are
each innocent of themselves may, when taken together, amount to
12
after [the defendant] had complied with the usual requirements
associated with a [traffic code] violation, a legally sufficient
basis existed, in terms of reasonable suspicion grounded in
specific, articulable facts . . . ." Torres, 424 Mass. at 158.
When the trooper finished discussing with the defendant the
broken lights and the window tint, the facts known to the
trooper did not provide reasonable suspicion for a drug
investigation. At that point, the trooper knew the following:
the vehicle was owned by and registered to the defendant; the
defendant's driver's license was current and valid and the
vehicle was properly registered, inspected, and insured; there
were no outstanding warrants for the defendant's arrest; the
driver of the vehicle was its registered owner; 6 and the
defendant had no pending criminal charges. 7
The Commonwealth's arguments that the trooper had
reasonable suspicion of drug activity so as to justify further
investigation are unavailing. First, the Commonwealth notes
that the defendant was "extremely nervous, making no eye contact
the requisite reasonable belief"), "[a] hunch will not suffice."
Commonwealth v. Wren, 391 Mass. 705, 707 (1984).
6
The trooper's onboard computer had provided him with an
identifying photograph of the defendant.
7
The defendant's failure to produce his registration
provided the trooper with the authority to issue a citation for
a fine of thirty-five dollars under G. L. c. 90, §§ 11 and 20,
for failure to carry a license or registration certificate.
13
and stuttering his speech in answering questions," and offering
unrelated information to the trooper. That the defendant
exhibited signs of nervousness and evasiveness in the context of
an involuntary police encounter cannot, without more, generate
reasonable suspicion. See Commonwealth v. Martin, 457 Mass. 14,
21 (2010), quoting United States v. McKoy, 428 F.3d 38, 40 (1st
Cir. 2005) ("Nervousness is a common and entirely natural
reaction to police presence"). See also Gonsalves, 429 Mass. at
668–669 (officer's observation that passenger in taxicab was
acting nervously did not support reasonable
suspicion); Commonwealth v. Evans, 87 Mass. App. Ct. 687, 693
(2015) ("our cases have consistently held that 'a defendant's
nervous movements or appearance alone is insufficient' to create
reasonable suspicion" [citation omitted]).
Second, the defendant's evasive answers about where he had
come from and where he was going did not give rise to a
reasonable suspicion of illegal drug activity. See Rodriguez,
135 S. Ct. at 1615 ("Beyond determining whether to issue a
traffic ticket, an officer's mission includes . . . such
inquiries . . . [as] checking the driver's license, determining
whether there are outstanding warrants against the driver, and
inspecting the automobile's registration and proof of insurance"
[citation omitted]). That the defendant had driven past a
building housing one chain restaurant en route to another such
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restaurant is innocuous, not sinister, and the inference to the
contrary was unreasonable. Similarly, the defendant's statement
that he was coming from his cousin's house "just behind him,"
which the trooper doubted given that he had followed the vehicle
for over five miles, cannot support reasonable suspicion.
See Commonwealth v. Warren, 475 Mass. 530, 538 (2016) ("evasive
conduct in the absence of any other information tending toward
an individualized suspicion that the defendant was involved in
the crime is insufficient to support reasonable
suspicion"); Commonwealth v. Mercado, 422 Mass. 367, 371 (1996)
("Neither evasive behavior, proximity to a crime scene, nor
matching a general description is alone sufficient to support
the reasonable suspicion necessary to justify a stop and
frisk").
Third, the trooper's opinion that Holyoke was a "major drug
source city" and that a "good percentage of the drugs coming
into Berkshire County" came from there did not give rise to
reasonable suspicion. The introduction in evidence of the
trooper's opinion raises the same concerns that we have
addressed in the context of "high crime" neighborhoods. We have
held that a "high crime" neighborhood may be a proper factor in
the reasonable suspicion analysis, see Commonwealth v. Johnson,
454 Mass. 159, 163 (2009), but "[j]ust being in a high crime
area is not enough to justify a stop." Commonwealth
15
v. Grandison, 433 Mass. 135, 139 (2001). We repeatedly have
urged caution in the use of this consideration, pointing out
that "many honest, law-abiding citizens live and work in high-
crime areas. Those citizens are entitled to the protections of
the Federal and State Constitutions, despite the character of
the area" (citation omitted). Commonwealth v. Gomes, 453 Mass.
506, 512 (2009). "The exercise of that caution necessarily
means that we look beyond the term 'high crime area' to
determine whether the inferences fairly drawn from that
characterization 'demonstrat[e] the reasonableness of the
intrusion'" (citation omitted). Commonwealth v. Meneus, 476
Mass. 231, 238 (2017).
Similarly, a suspect's connection to a location that is
called a drug "source city" cannot, standing alone, support
reasonable suspicion. Those travelling from a "source city"
comprise "a very large category of presumably innocent travelers
. . . who would be subject to virtually random seizures" were
the "source city" consideration to justify a seizure. See Reid
v. Georgia, 448 U.S. 438, 441 (1980) (per curiam). "[T]ravel
from [a source city] cannot be regarded as in any way
suspicious" because "the probability that any given . . .
passenger from [a source city] is a drug courier is
infinitesimally small. Such a flimsy factor should not be
allowed to justify -- or help justify -- the stopping of
16
travelers . . . ." United States v. Andrews, 600 F.2d 563, 566
(6th Cir.), cert. denied, 444 U.S. 878 (1979). See United
States v. Lambert, 46 F.3d 1064, 1070-1071 (10th Cir. 1995) (no
reasonable suspicion where only information known to agents was
that suspect departed from drug-source city, was flying alone,
had one-way ticket he had purchased with cash, had checked one
piece of luggage, and appeared nervous); United States v. Grant,
920 F.2d 376, 378-379, 384-385 (6th Cir. 1991) (no reasonable
suspicion of criminal activity even though suspect came from
"source city" for drug couriers, appeared nervous, did not
produce his plane ticket on request, and did not have his name
on flight manifest); United States v. White, 890 F.2d 1413,
1417-1419 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990) (no
reasonable suspicion to justify detention of suspect after
suspect deplaned from drug-source city, even though suspect
arrived early in morning, purchased one-way ticket with cash,
held carry-on bag closely with both hands, and appeared
nervous). See also United States v. Wilson, 953 F.2d 116, 125
(4th Cir. 1991) (source city factor plays a relatively
insignificant role in reasonable suspicion analysis).
Lastly, here, the defendant's prior convictions, without
further specific and articulable facts indicating that criminal
activity was afoot, could not create reasonable suspicion.
While Massachusetts courts have commented that "knowledge of a
17
person's arrest record or unspecified 'criminal conduct' [may]
be considered in a reasonable suspicion evaluation" (citation
omitted), further evidence is required to support reasonable
suspicion. Commonwealth v. Wright, 85 Mass. App. Ct. 380, 383
(2014), and cases cited. See id. at 384 (vehicle occupants'
prior narcotics convictions, when combined with strong odor of
air freshener and suspect's use of leased vehicle registered in
State where neither occupant lived, supported reasonable
suspicion).
The Commonwealth relies on Feyenord, supra, to justify the
duration and intrusiveness of the search. See J.A. Grasso, Jr.
& C.M. McEvoy, Suppression Matters Under Massachusetts Law
§ 4-5[b] (2017) ("Even during an initially lawful stop, the
character of the stop can change quickly"). The circumstances
here, however, are not akin to those in Feyenord, 445 Mass. at
73, where the police officer stopped a suspect for a civil
traffic violation. The officer's investigation of the traffic
infraction evolved into a reasonable investigation of other
potential crimes because the suspect "was unable to produce a
[driver's] license," provided a Massachusetts registration that
was not in his name, and gave the officer a false name and
birthdate. Id. at 73-74.
The facts in this case differ in two important respects.
First, unlike in Feyenord, 445 Mass. at 78, the trooper's
18
investigation of the traffic infraction revealed no facts that
were manifestly suspicious, and, second, the trooper had
completed most of his investigatory tasks before stopping the
defendant, thereby reducing the time necessary for his roadside
investigation. See Commonwealth v. Locke, 89 Mass. App. Ct.
497, 501-502 (2016) (no reasonable suspicion despite odor of
unburnt marijuana, presence of air fresheners, suspect's
nervousness, and fact that passenger was staring silently
ahead); Commonwealth v. Brown, 75 Mass. App. Ct. 528, 533, 537,
539 (2009) (suspect's "nervous looks" and "tense" appearance
were "general descriptions [that] fall short of the 'specific
and articulable facts' which are required to demonstrate
reasonableness. . . . It is not by itself sufficient that the
point of encounter with police occurs in a high crime
area. . . . Although in hindsight [the officer's] hunch proved
to be correct, we view the reasonableness of the search and
seizure from the vantage preceding the discovery of the
[evidence], and on that basis the actions of the police here
exceeded constitutional grounds" [quotations and citations
omitted]); Commonwealth v. Santos, 65 Mass. App. Ct. 122, 128
(2005) (no reasonable suspicion where suspect did not have his
driver's license or vehicle registration in his possession, and
where stop occurred in high crime area).
Ultimately, by the time the trooper finished discussing
19
with the defendant the broken lights and the window tint, the
investigation of the civil traffic violations was complete.
Because this investigation did not give rise to reasonable
suspicion of criminal activity, the trooper did not have a
legitimate basis to detain the defendant, and the defendant
should have been allowed to drive away. See Torres, 424 Mass.
at 163 (continued detention of defendant and passenger no longer
necessary after defendant had satisfied purpose of stop by
producing his license and registration; therefore, all evidence
seized after that point must be suppressed as fruit of poisonous
tree).
Order denying defendant's
motion to suppress
reversed.