Commonwealth v. Gonsalves

Greaney, J.

The defendant is charged with trafficking in cocaine in violation of G. L. c. 94C, § 32E (b). The cocaine' was seized by a State trooper, who, while on routine traffic patrol at about 9 p.m. on March 5, 1997, stopped a taxicab on Route 195 near Marion, after he had seen the taxicab drift over a marked lane into the breakdown lane. In the course of the stop, the trooper ordered the defendant, who was sitting in the rear of the taxi, to get out. After conversing with the defendant, the trooper searched the rear seat area and seized a package of cocaine weighing approximately seventy-eight grams. A judge in the Superior Court allowed the defendant’s motion to suppress both the cocaine and his statements because the trooper had “no objective basis upon which to order the defendant out of the vehicle.”¹ The Appeals Court affirmed the suppression order, relying on our case law under art. 14 of the Declaration of Rights of the Massachusetts Constitution, concluding, as did the Superior Court judge, that the trooper had no reasonable basis to support his order to the defendant to step out of the taxicab. Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186 (1999). The Appeals Court rejected the Commonwealth’s request that our law should be changed to conform to Maryland v. Wilson, 519 U.S. 408, 415 (1997), which holds that a police officer does not violate the Fourth Amendment to the United States Constitution, when the officer, in a routine traffic stop, orders a passenger out of the vehicle. Commonwealth v. Gonsalves, supra at 187. We granted the Commonwealth’s application for further appellate review to consider the Commonwealth’s request. We are not persuaded that we should change our law developed under art. 14.

Based on the evidence that he found credible, the judge made findings of fact. We accept those facts, see Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990), and now summarize them. When the State trooper observed the taxicab traveling partly in the breakdown lane of the highway which he was patrolling, he became concerned that the driver might be under the influence of an intoxicant, and signaled for the driver to stop. The trooper approached the stopped taxicab, spoke to the driver, and noted that there were also two passengers in the car, including the defendant, who was the sole occupant of the back seat. The trooper took the taxicab driver’s license and registration. He questioned the driver about his driving over the marked lane, and the driver told the trooper that he had trouble with his night vision. In the course of questioning the driver, the trooper trained his flashlight on the occupants of the car, something which he routinely did on such stops for his personal safety. The trooper thought the defendant was extremely nervous. His hands were trembling and moving from his lap to the seat and back to his lap again, and he appeared to be breathing heavily. Because the defendant appeared nervous, the trooper ordered him to step out of the taxicab. The defendant complied, and the trooper conducted a patfnsk, which revealed nothing. He asked the defendant why he was nervous, and the defendant replied that there were warrants outstanding against him for driving without a license. At that point, the trooper “secured” the defendant in the rear seat of the police cruiser. He obtained permission from the driver of the taxicab to search the vehicle’s back seat, where the trooper saw a portion of a plastic bag protruding from between the seat cushion and the seat back. The plastic bag contained white powder which the trooper suspected was cocaine.

The trooper returned to the cruiser, recited the Miranda rights to the defendant, and questioned him. The defendant denied knowledge of the plastic bag or any cocaine. After citing the taxicab driver for a marked lane violation, the trooper allowed the taxicab to leave. He then took the defendant to the Bourne barracks for further questioning. At first, the defendant continued to deny any knowledge of the bag of white powder, which weighed approximately seventy-eight grams, but, eventually, he made inculpatory statements in the trooper’s presence.

1. In Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), the United States Supreme Court held that a police officer may, as matter of course, order a driver out of a vehicle that has been lawfully stopped for a traffic violation. In Maryland v. Wilson, supra at 415, the Court extended that rule to approve similar orders given to passengers in a stopped vehicle.² The Commonwealth argues that we have “consistently purported to follow Mimms.” It relies on Commonwealth v. Santana, 420 Mass. 205, 212-213 (1995), for this statement, while acknowledging, as it must, that Santana contains language which “squarely cuts against the [the United States Supreme] Court’s holding in Mimms.” Nonetheless, the Commonwealth argues that we should now expressly embrace Mimms, and its corollary, the ruling in Wilson, and make plain that our art. 14 case law coincides with the Mimms-Wilson holdings under the Fourth Amendment:

We have not adopted Mimms.

“It is true that cases from [the Appeals Court] and the Supreme Judicial Court have cited approvingly to Mimms, without expressly stating that the police are not entitled to carte blanche authority to order drivers out of their vehicles. See, e.g., Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978); Commonwealth v. Robbins, 407 Mass. 147, 151 (1990); Commonwealth v. Moses, 408 Mass. 136, 142 (1990); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528-529 (1995).

“However, a closer examination of these cases reveals that while explicit language requiring a ‘reasonable suspicion’ has not appeared, each case explored the factual basis for the officer’s suspicion. See Commonwealth v. Ferrara, 376 Mass. at 505 (finding no basis for further interrogation and no need for further protective precautions, and reversing order denying motion to suppress); Commonwealth v. Robbins, 407 Mass. at 152 (police officer’s actions proper where officer saw brown-handled object wedged in passenger seat and driver had just been arrested on outstanding warrant); Commonwealth v. Moses, 408 Mass. at 138, 141-143 (police officer’s actions proper where officer feared defendants had access to a weapon, was outnumbered by defendants, and one defendant, upon making eye contact with the officer, ducked under dashboard).”

Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183-184 (1999). As the Williams opinion goes on to point out, what was implicit in the decisions just referred to, was made explicit in Commonwealth v. Santana, supra, where we stated that “[t]o determine whether [an exit] order was justified, we ask ‘whether a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.’ ” Commonwealth v. Santana, supra at 212-213, quoting Commonwealth v. Almeida, 373 Mass. 266, 271 (1977). This statement in Santana was reiterated two years later in Commonwealth v. Vazquez, 426 Mass. 99, 102-103 (1997). Thus, the rule that a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle has been affirmed by this court well after the United States Supreme Court abandoned that requirement in Mimms. Because we have departed from the Federal view of a citizen’s Fourth Amendment rights in the area, our long-standing rule expresses a principle of State constitutional law under art. 14.

We have expressly granted other protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment. See Commonwealth v. Torres, 424 Mass. 153, 154-155, 157-164 (1997) (that passenger left vehicle, without being asked to do so, on routine traffic stop provides no basis to further detain driver and passenger after issuing speeding ticket); Commonwealth v. King, 389 Mass. 233, 244 (1983) (once officer, making valid investigatory check of parked car at rest area, verified driver’s and passenger’s licenses and vehicle registration, no grounds existed for further investigation or precautions); Commonwealth v. Loughlin, 385 Mass. 60, 61-63 & n.3 (1982) (search conducted after justifiable threshold inquiry wherein driver produced valid license and registration held impermissible); Commonwealth v. Ferrara, supra at 504-505 (no basis to interrogate passengers after driver produced valid license and registration); Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 534 (1998) (during routine stop for traffic violation, officer may not ask for passenger’s identification as matter of “routine practice”); Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996) (after officer, having stopped driver for erratic driving, determined that there was no traffic offense and driver had produced valid license and registration, he had no reason to issue exit orders to passengers, in spite of earlier furtive movements of one passenger); Commonwealth v. Kimball, 37 Mass. App. Ct. 604, 607 (1994). (during stop on suspicion that car was stolen, once driver produced valid license and registration, he should have been permitted to leave). In view of these protections, and the principles expressed in the Santana decision, which were repeated in the Vazquez decision, we conclude that art. 14 requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer’s safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle. The fact that we do not follow Mimms in this type of case necessarily leads to the conclusion that we shall not follow Wilson either, because Wilson extends Mimms in a manner incompatible with the rights guaranteed Massachusetts citizens under art. 14.

2. We now explain our reasons for reaching these conclusions and comment on some matters raised by the dissenting opinion in this case. A routine traffic stop, like the one in this case, presents a situation where citizens, both the vehicle’s driver and any passenger or passengers in the vehicle, expect a police officer to get the government’s business done quickly, so those detained can go on their way. This expectation is a reasonable one. A passenger in the stopped vehicle may harbor a special concern about the officer’s conduct because the passenger usually had nothing to do with the operation, or condition, of the vehicle which drew the officer’s attention in the first place. Citizens do not expect that police officers handling a routine traffic violation will engage, in the absence of justification, 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. That a small percentage of routine traffic stops may result in the detection of more serious crime is no reason to subject the vast majority of citizens to orders to get out of their vehicles.

Such an intrusion into a driver or a passenger’s privacy is not minimal. As was expressed by a dissent in Mimms, “[a] woman stopped at night may fear for her own safety; a person in poor health may object to standing in the cold or rain; another who left home in haste to drive children or spouse to school or to the train may not be fully dressed; an elderly driver who presents no possible threat of violence may regard the police command as nothing more than an arrogant and unnecessary display of authority.” Pennsylvania v. Mimms, supra at 120-121 (Stevens, J., dissenting). Routine traffic stops may also pose unique hardships on minorities who, it has been argued, are often the subject of stops on pretext. See Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997); Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271. Justice Ireland’s concurring opinion, with which we agree, makes this point more expansively. Post at 669-671. The rules in Mimms and Wilson, which permit automobile exit orders during any traffic stop, but which do not require that such orders be given, are a clear invitation to discriminatory enforcement of the rule.³

“Mimms [and Wilson] rested on the logic, which we do not contest, that there is danger for a police officer inherent in any auto stop. Mimms, 434 U.S. at 110, 111. However, to permit an officer, in the absence of any specific and articulable facts, to order the driver of a vehicle [and a passenger or passengers] to step out of the vehicle would be to invite random and unequal treatment of motorists. See Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 472 (1996) (‘[t]he vice in interrogations and searches based on a hunch is their essentially random and arbitrary nature, a quality inconsistent, under constitutional norms . . . with a free and ordered society’).” Commonwealth v. Williams, supra at 183. The safety of the police can be adequately protected. While a mere hunch is not enough, see Commonwealth v. Silva, 366 Mass. 402, 406 (1974), 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, and, if the basis is there, a court will uphold the order. See Commonwealth v. Johnson, 413 Mass. 598, 600, 601 (1992) (driver put something inside his waistband after trying to evade police); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (driver failed to produce registration in high crime area, late at night, and carefully opened console just high enough when retrieving wallet); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 399 (1998) (passenger bent out of officer’s sight and attempted to put on his coat as if to conceal something); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104-105 (1996) (as driver pulled over, back seat passenger bent down as if replacing or retrieving object under front seat); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992) (driver had no license, police officer outnumbered, aluminum bat under front passenger seat, back seat passenger holding object large enough to conceal weapon); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1104 (1989) (driver had tried to evade capture and passenger reached into well between the front seats during the stop). See also State v. Smith, 134 N.J. 599, 618 (1994) (“To support an order to a passenger to alight from a vehicle stopped for a traffic violation, therefore, the officer need not point to specific facts that the occupants are ‘armed and dangerous.’ Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car”). It could be argued plausibly that automatic exit orders might increase the chance of confrontation when already upset citizens are compelled to stand outside a vehicle while a police officer disposes of the minor traffic violation, especially if circumstances indicate that the officer’s conduct may be a pretext.⁴

The rule we adopt also provides that the police will act in a reasoned way. As Justice Kennedy stated in his dissent in Wilson: “The distinguishing feature of our criminal justice system is its insistence on principled, accountable decisionmaking in individual cases.” Maryland v. Wilson, supra at 422 (Kennedy, J., dissenting). Bright-line rules, by their nature, tend to eliminate this feature. They should be allowed only in those circumstances where safety concerns clearly outweigh the intrusion on individual rights.⁵ Police work is fast-paced, can be dangerous at times, and requires understanding of a broad set of rules in order to ensure that the rights of citizens are upheld. The dissent in this case calls for a bright-line rule in order to ease some of the complexity police officers face in the line of duty, equating the Mimms-Wilson rule to the automatic patfrisk that may accompany a lawful Terry stop.⁶ Post at 676-678. The two situations are not analogous, and the difference between them demonstrates why the Mimms-Wilson rule should not be adopted.

Under Terry, a police officer is permitted to pat frisk a person stopped under suspicion of criminal activity where the police officer has reason to believe he is dealing with an armed and dangerous individual. See Terry v. Ohio, 392 U.S. 1, 24-25 (1968). Under Mimms-Wilson, a police officer is permitted to issue exit orders to a person stopped for a traffic infraction when the officer has no reason to suspect anything. It is more consistent with the Terry rule, as well as with the circumstances in which we have been willing to create bright-line rules, to require some objective circumstances making it reasonable to issue an exit order to the driver or passengers in a stopped vehicle. We believe that “[i]t does no disservice to police officers .. . to insist upon exercise of reasoned judgment” in this kind of case. Maryland v. Wilson, supra at 423 (Kennedy, J., dissenting).

The dissent in this case refers to forty-five States which it asserts have accepted Mimms or Wilson or both. This assertion should be looked at with a skeptical eye. While we agree that twenty-two States have considered Mimms, and in some instances Wilson, and accepted the rules in these decisions as a matter of State constitutional law or policy,⁷ twenty-two States have not expressly considered the issues in Mimms or Wilson under their State Constitutions.⁸ Three States have rejected Mimms or Wilson on State constitutional grounds.⁹,¹⁰

We also point out other relevant considerations. The Declaration of Rights was adopted in 1780, as part of the Massachusetts Constitution, some seven years before the United States Constitution was approved. The Declaration of Rights was written in the historical context of the abuses of governmental power inflicted on the colonists by British officials, and art. 14 was directed at the unlawful invasion of privacy rights by those officials. That the drafters of the Fourth Amendment subsequently chose to replicate the words used in art. 14 cannot support a conclusion that we are compelled to act in lockstep with the United States Supreme Court when it interprets that amendment. Such a conclusion posits a serious misunderstanding of the authority of this court to interpret and enforce the various provisions of the Massachusetts Constitution, particularly those in the area of civil liberties. Chief Justice Wilkins has stated that, “the [United States] Supreme Court . . . describes] a common base from which we can go up,” but the Justices of this court “are, however, entitled to [their] own views, indeed constitutionally required to have them.” Remarks of Chief Justice Herbert P. Wilkins to Students at New England School of Law on March 27, 1997, 31 New England L. Rev. 1205, 1213 (1997). The nature of federalism requires that State Supreme Courts and State Constitutions be strong and independent repositories of authority in order to protect the rights of their citizens.

The foregoing discussion explains the foundation of our rule that, once a stopped driver has produced the necessary papers and they are found to be in order, he and his passengers are to be promptly released, Commonwealth v. Torres, 424 Mass. 153, 158 (1997), and why we choose not to follow Mimms-Wilson. We, of course, respect the United States Supreme Court’s judgment in the matter under the Fourth Amendment. That judgment was reached after balancing the interests of the police against the liberty interests of citizens, with the Court concluding that the former should prevail over the latter. For the reasons stated, we conclude that, under art. 14, the balancing of interests requires that Massachusetts citizens should not be subjected to unjustified exit orders during routine traffic stops.

3. We reject the Commonwealth’s arguments that the judge based his ruling on an erroneous interpretation of the timing of the officer’s exit orders, or, alternatively, that the judge erred in finding no reasonable basis for the actions of the trooper. It was not the timing of the trooper’s actions, but the insufficient reasons for the actions, on which the judge based his decision. We agree with the analysis made by the Superior Court judge and the Appeals Court in considering whether the trooper had a basis to order the defendant out of the taxi. Where, as here, the evidence consists solely of oral testimony, the determination of the weight and credibility of the testimony is the responsibility of the judge. We accept his subsidiary findings of fact and his decision that nervousness and fidgeting do not warrant what occurred here.¹¹ Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990).

Order allowing motion to suppress affirmed.

1 In reaching this conclusion, the judge expressly relied on Commonwealth v. Torres, 424 Mass. 153, 158 (1997), which is based exclusively on art. 14 of the Declaration of Rights of the Massachusetts Constitution. The Commonwealth makes no argument that the defendant did not raise art. 14 as the only ground on which he could obtain the relief he sought in his motion to suppress.

2 In Knowles v. Iowa, 119 S. Ct. 484 (1998), the United States Supreme Court appears to have drawn the line on what may be done by the police in a routine traffic stop. There the Court held that a police officer who had made such a stop and cited the driver for speeding could not thereafter conduct a “full field-type search” of the vehicle. Id. at 488.

3 The United States Supreme Court, in New York v. Class, 475 U.S. 106, 115 (1986), recognized that “[k]eeping the driver of a vehicle in the car during a routine traffic stop is probably the typical police practice. See D. Schultz & D. Hunt, Traffic Investigation and Enforcement 17 (1983).” (Emphasis added.)

4 We question the assumption that asking a person at a traffic stop to get out of the car will be safer than keeping the person in the car. As Justice Stevens pointed out in his dissent in the Wilson case, there is no empirical evidence supporting this contention, and the available “statistics are as consistent with the hypothesis that ordering passengers to get out of a vehicle increases the danger of assault as with the hypothesis that it reduces that risk.” Maryland v. Wilson, 519 U.S. 408, 417 (1997) (Stevens, J., dissenting)'. Professor LaFave, in 4 W. LaFave, Search and Seizure § 9.5, at 44 (Supp. 1999), notes the absence of empirical evidence that, as a class, passengers in automobiles whose drivers have committed a traffic violation have a propensity to violence.

5 Bright-line rules also undermine the Fourth Amendment’s underlying touchstone of reasonableness. See LaFave, supra at 44. Sec also Dery, Sanctioning “Thousands Upon Thousands of Petty Indignities”: The Supreme Court’s Creation of a Constitutional Free Zone for Police Seizure of Innocent Passengers in Maryland v. Wilson, 54 Wash. & Lee L. Rev. 1419 (1997); Harris, Car Wars: The Fourth Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556 (1998); Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997); Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271. To the extent that a bright-line rule is needed, our conclusions today establish one: No exit order may be given to the driver or any passenger in a routine traffic stop without the police officer’s having an objective reasonable basis to justify the order.

6 Terry v. Ohio, 392 U.S. 1, 23-26 (1968).

7 Two of these States, California and Florida, had no choice in the matter because of amendments to their State Constitutions which require interpretations consistent with those of the United States Supreme Court in its construction of the Fourth Amendment. The other States are Colorado, Connecticut, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas, Virginia, and Wisconsin.

While Iowa has not considered Mimms, it has upheld, under the State Constitution, a statute authorizing searches incident to traffic citations, making rejection of Mimms-Wilson unlikely. State v. Doran, 563 N.W.2d 620 (Iowa 1997) .

8 These States either have not decided the issues, have decided the issues after considering only Fourth Amendment arguments, or have done so with no citation to State constitutional authority. The States are Alabama; Arizona (but see State v. Webster, 170 Ariz. 372, 374-375 [Ct. App. 1991] [Livermore, C.J., dissenting] [citing Mimms, majority upholds police officer’s order that passenger get back into vehicle on traffic stop, dissent argues that seizure of passengers requires individual justification]); Arkansas; Delaware; Georgia; Kansas; Maine; Minnesota; Mississippi; Missouri; Montana; Nebraska; Nevada; New Hampshire; New Mexico; Oklahoma; South Carolina; Tennessee; West Virginia; Wyoming (but see Goettl v. State, 842 P.2d 549, 558, 569-575 [Wyo. 1992] [Urbigkit, J., dissenting] [urging continued independent review under the Wyoming Constitution of search and seizure questions, noting, for example, that in Wyoming passengers in motor vehicles have a legitimate expectation of privacy]).

Two of the States have expressly stated an interest in considering Mimms or Wilson on State constitutional grounds. These States are Alaska, State vs. Wystrach, No. A-6158 (Alaska Ct. App. May 28, 1997) (the court has not had “the opportunity to consider whether file Alaska Constitution requires a different rule”); Utah, State v. Shepard, 955 P.2d 352, 357 n.1 (Utah Ct. App. 1998) (court accepts holding in Wilson, “until the Utah Supreme Court decides otherwise under the Utah Constitution”).

9 These States are as follows: Hawaii, State v. Kim, 68 Haw. 286, 287-288 (1985) (rejecting Mimms); Vermont, State v. Caron, 155 Vt. 492, 500-501 (1990) (court upholds exit order on the basis that police had reasonable suspicion that person stopped was armed and dangerous), and State v. Jewett, 148 Vt. 324, 330 (1987) (under Vermont Constitution, justified exit order on the basis that police had reasonable suspicion that individual was driving while under the influence of alcohol, and that ordering occupant out of the vehicle may “confirm or negate . . . suspicions regarding probable cause to arrest”); Washington, State v. Mendez, 137 Wash. 2d 208, 220 (1999) (affirming acceptance of Mimms under Washington Constitution, explicitly refusing to extend to passengers).

10 The situation in Michigan and Oregon is unclear and we have not included these States in any category.

11 It is implicit in the judge’s findings of fact that he rejected the trooper’s testimony that the defendant’s nervousness and hand motions provided him with an objectively reasonable fear for his safety. In his findings of fact, the judge said, “Because the defendant appeared to be nervous, [the] trooper . . . ordered him to exit the vehicle.” In discussing his reasons for allowing the defendant’s motion to suppress the evidence gathered as a result of the search, the judge said, “No gesture or conduct indicated the presence of a weapon on defendant’s person or in his immediate vicinity. Although certainly the trooper had every right to be careful for his own safety, he had no objective basis upon which to order the defendant out of the vehicle and to continue his investigation. The trooper was simply following a ‘hunch’. ...”