Commonwealth v. Fisher

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13-P-837 Appeals Court
COMMONWEALTH vs. CYRUS S. FISHER.
No. 13-P-837.
Hampshire. May 9, 2014. - July 22, 2014.
Present: Cohen, Sikora, & Agnes, JJ.
Search and Seizure, Motor vehicle, Reasonable suspicion.
Controlled Substances. Constitutional Law, Search and
seizure, Reasonable suspicion. Practice, Criminal, Motion
to suppress, Interlocutory appeal.
Complaint received and sworn to in the Northampton Division
of the District Court Department on November 26, 2012.
A pretrial motion to suppress evidence was heard by Jacklyn
M. Connley, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.
Michael J. Russo, III, Assistant District Attorney (Thomas
H. Townsend, Assistant District Attorney, with him) for the
Commonwealth.
Leah R. Kunkel for the defendant.
2
AGNES, J. This is an interlocutory appeal by the
Commonwealth from an order of a District Court judge allowing
the defendant's motion to suppress evidence. See Mass.R.Crim.P.
15, as appearing in 422 Mass. 1501 (1996). The judge found, on
the basis of the undisputed evidence, that the police were
lawfully engaged in a community caretaking function when they
responded to a report that a person in a car may be either
having a seizure or suffering from a drug overdose. What
followed, as the facts below indicate, was the discovery of
evidence indicating that the person in the vehicle, later
identified as the defendant, Cyrus S. Fisher, possessed cocaine,
a Class B controlled substance, and additional contraband. For
the reasons that follow, we conclude the judge erred in finding
that the officer exceeded the scope of his authority when,
during a well-being check, he ordered the defendant to step out
of his motor vehicle. Accordingly, we reverse the order
allowing the defendant's motion to suppress.
Background. The essential facts are not in dispute. The
only witness to testify at the hearing on the defendant's motion
to suppress was Northampton police Officer Brendan McKinney. He
was the second police officer to arrive at the scene, a gasoline
station and convenience store located on King Street. It was
approximately 1:25 A.M. on November 24, 2012, when he arrived
and found Officer McGrath already on scene. A third police
3
cruiser and the fire department soon arrived. Officer McKinney
observed Officer McGrath engaged in conversation with the
defendant, who was seated in a vehicle with the driver's side
door open. 1 The defendant was asked if he had consumed any drugs
or alcohol that evening and if he needed medical attention. He
answered both questions in the negative, but his speech was
slurred, his eyes were half-closed, and he was nodding his head
up and down. There was no odor of an alcoholic beverage
emanating from the defendant or the vehicle. The defendant was
wearing baggy pants with a cargo pocket that was partly open and
visible from outside the vehicle. What occurred at this point
according to the judge's succinct findings of fact is the
following:
"[W]hen McKinney shined his flashlight on the pants, he saw
a baggie sticking out of the pocket. He also saw what
looked like a white powder in the baggie. He asked the
defendant what it was, and asked him to take it out of his
pocket. The defendant did, but he couldn't see immediately
what it was because of the way the defendant held it in his
hand. McGrath asked the defendant to exit the car, he was
searched and found to be in possession of crack cocaine.
During an inventory of the car, located on the driver, seat
[sic] was an envelope containing baggies with what was
believed to be [phencyclidine (PCP), a Class B controlled
substance]. The defendant was placed under arrest."
1
No evidence was presented at the hearing as to who opened
the car door or when it was opened. Like the trial judge, we
assume that the opening of the vehicle's door was not the result
of a search. See Commonwealth v. Evans, 436 Mass. 369, 372-373
(2002) (when facts, viewed objectively, indicate driver who may
be in need of medical attention, police may open car door to
perform well-being check of driver without any further
justification).
4
Standard of review. In reviewing a ruling on a motion to
suppress evidence, we accept the judge's subsidiary findings of
fact unless they are clearly erroneous. See Commonwealth v.
Isaiah I., 450 Mass. 818, 821 (2008). We give substantial
deference to the judge's ultimate findings and rulings. See
Commonwealth v. Eckert, 431 Mass. 591, 593 (2000). However, we
independently review the correctness of the judge's application
of constitutional principles to the facts as found. See
Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).
The defendant maintains that the judge determined the
credibility and weight of Officer McKinney's testimony and found
that McKinney did not know what was in the baggie until after
the defendant was removed from his car and searched. It is
settled that the credibility of the witnesses and weight to be
given their testimony are matters reserved exclusively for the
judge. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).
When, as in this case, the evidence consists exclusively of the
oral testimony of a witness, the judge's subsidiary findings are
accepted on appeal unless they are clearly erroneous.
Commonwealth v. Jones, 375 Mass. 349, 353-354 (1978).
The judge found that Officer McKinney "saw what looked like
a white powder in the baggie." In the absence of any further
finding with respect to the credibility of the witness, a
5
finding that the officer observed what appeared to be white
powder in a plastic baggie, as distinct from a finding that the
officer observed white powder in a plastic baggie, is not
constitutionally significant. 2 See Commonwealth v. Whitehead, 85
Mass. App. Ct. 134, 138 (2014) (reasonable suspicion turns on
probabilities, not hard certainties). See also Commonwealth v.
Spagnolo, 17 Mass. App. Ct. 516, 522 n.7, 523 n.9 (1984) (on
motion to suppress, judge's task is to determine whether
underlying basis for officer's action was sufficient; officer
used word "guess" to describe reasonable and possible
inference); Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 214
n.7 (2013) (we do not read finding of fact stating that officer
was not certain about observation, without more, as
determination that testimony lacked credibility).
2
When a judge makes subsidiary findings of fact, it is open
to an appellate court to imply additional findings of fact so
long as (1) "the evidence is uncontroverted," and (2) "the judge
explicitly or implicitly credited the witness's testimony."
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008). In such a case, the ultimate result is
governed by principles of law and may not be in agreement with
the result reached by the judge. An appellate court may not
fill in gaps in a judge's findings of fact when they are
materially incomplete or clearly erroneous, or when they lack a
determination as to credibility. Commonwealth v. Isaiah I., 450
Mass. at 819-821 & n.4. See Commonwealth v. Rosado, 84 Mass.
App. Ct. 208, 221 n.4 (2014) (Sikora, J., dissenting) ("A judge
disbelieving testimony, as either inadvertent error or
intentional misstatement, must make the discrediting finding or
risk a misunderstanding by the reviewing court").
6
Discussion. The community caretaking doctrine is
applicable principally to a range of police activities involving
motor vehicles, see Commonwealth v. Duncan, 467 Mass. 746, 750
n.3 (2014), in which there are objective facts indicating that a
person may be need of medical assistance or some other
circumstance exists apart from the investigation of criminal
activity that supports police intervention to protect an
individual or the public. See Commonwealth v. Murdough, 428
Mass. 760, 762-764 (1999). The existence of objective grounds
supporting police intervention for legitimate, noninvestigatory
reasons excuses the need for a warrant, probable cause, or even
reasonable suspicion. See Commonwealth v. McDevitt, 57 Mass.
App. Ct. 733, 736 (2003). 3
The law does not demand that an alert police officer must
suppress his or her training and investigatory experience in
carrying out the myriad of community caretaking functions
society expects police officers to undertake for its protection.
3
There are "multitudinous everyday contacts between police
officers and individuals" that do not involve "forcible
intrusions on privacy" and for which no justification is
required. Commonwealth v. Canavan, 40 Mass. App. Ct. 642, 646
(1996). Thus, it is settled that a police officer may approach
a person on the street or sitting in a parked motor vehicle and
engage the person in conversation without any justification.
See Commonwealth v. Lyles, 453 Mass. 811, 815 (2009). It is
only when a seizure takes place that justification in terms of
objective evidence of criminal activity or the need to perform a
community caretaking function is required. See Commonwealth v.
Eckert, 431 Mass. at 593-594.
7
See id. at 736-737. So long as the officer's conduct at the
outset and throughout the course of exercising a community
caretaking function is justified by the doctrine, the law does
not attach significance to the officer's subjective motives.
See Commonwealth v. Murdough, 428 Mass. at 762, quoting from
Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 740 (1998) ("an
officer's motive [does not] invalidate[] objectively justifiable
behavior").
In performing a community caretaking function, a police
officer's decision to detain a motorist for a brief period of
time or to take other reasonable steps that intrude on a
motorist's liberty in an effort to confirm whether emergency
medical assistance is required or to determine the nature of the
individual's apparent illness or impairment is not invalid
because the acts taken by the officer also serve to uncover
evidence of criminal activity. Thus, it has been noted that
"[c]ommunity care-taking functions sometimes blend almost
imperceptibly into the investigation of criminal activity."
Grasso & McEvoy, Suppression Matters Under Massachusetts Law
§ 4-2[f][1], at 4-32 (2013-2014 ed.).
In the present case, the judge correctly ruled that Officer
McGrath and Officer McKinney acted reasonably in questioning the
defendant to determine whether he needed medical assistance.
The police officers faced a situation in which the operator of a
8
motor vehicle was impaired (slurred speech, eyes closing, head
nodding). While alcohol intoxication was certainly a
possibility, the absence of the tell-tale odor of an alcoholic
beverage made it reasonable for the officers to explore other
causes. Officer McKinney would have been derelict in his duty
as a police officer if he did not take reasonable steps to
determine the cause and extent of the defendant's impairment.
See Irwin v. Ware, 392 Mass. 745, 762 (1984).
The judge ruled that the observation of the plastic baggie
in the defendant's open pocket and the presence of what appeared
to be white powder did not contribute in a meaningful way to the
officer's suspicion because "[a] mere hunch is not enough to
justify an exit order." Although this is a correct statement of
the law, it does not accurately fit the facts found by the
judge. "Where police officers have a reasonable, articulable
suspicion that a person in a vehicle has committed, is
committing, or is about to commit a crime, they may stop that
vehicle, issue an exit order, and conduct a threshold inquiry.
Though the officers were admittedly uncertain that a specific
crime had occurred, their observations to that point were
sufficient to raise a reasonable suspicion of criminal
activity." Commonwealth v. Greenwood, 78 Mass. App. Ct. 611,
616 (2011) (citations omitted).
9
Considering the totality of the factual circumstances -- a
driver who exhibited signs of impairment, but who was not
presenting with the constellation of symptoms commonly
associated with alcohol intoxication, and the presence of a
plastic baggie sticking out of his pants containing what
appeared to be a white powder -- it was reasonable for the
police officers to suspect that the defendant was in possession
of narcotic drugs. In such circumstances, an exit order is
allowed because it is proportional to the suspicion that arose
once the plastic baggie was observed. 4 See Commonwealth v.
Bostock, 450 Mass. 616, 622 (2008) (upholding exit order to
prevent defendant's flight when reasonable suspicion of criminal
activity arose during nonroutine motor vehicle stop). See also
Commonwealth v. Watson, 430 Mass. 725, 732 (2000). The police
4
Our decision that the exit order was justified is based
on our determination that the officers had reasonable grounds to
believe the defendant had cocaine in his possession. However,
this should not be read to mean that an exit order was not a
reasonable measure in support of their community caretaking
responsibilities. Viewed objectively, the facts known to the
police were that the defendant was impaired due to a cause that
was probably not alcohol related. The police had an objectively
reasonable belief that the defendant's safety and well-being
were at risk, see Commonwealth v. Brinson, 440 Mass. 609, 615
(2003), and had a responsibility to ascertain the cause of the
impairment, and whether immediate medical attention was required
or whether the defendant was capable of driving or making other
arrangements for transportation. Commonwealth v. Murdough, 428
Mass. at 762-764 (1999). In applying the community caretaking
function, "[t]he ultimate standard . . . is reasonableness."
Cady v. Dombrowski, 413 U.S. 433, 439 (1973).
10
had a right to avoid the potential danger to themselves and to
the public, as well as to the defendant himself, if he had
attempted to drive away. 5
Conclusion. The motion judge properly recognized the
distinction between the investigative functions and the
community caretaking functions of the police, and that the
latter are "totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute." Commonwealth v. Evans, 436 Mass. 369, 372
(2002), quoting from Cady v. Dombrowski, 413 U.S. 433, 441
(1973). However, in performing a community caretaking function,
the reasonable steps taken by the police to protect an
individual or the public may lead to the discovery of evidence
of a crime. When this occurs, the police are no less entitled
to seize the evidence and pursue the matter as a criminal case
than they would be if the evidence was discovered inadvertently
during a criminal investigation.
Order allowing motion to
suppress reversed.
5
The search of the defendant's person yielding evidence of
"crack" cocaine and the subsequent seizure from the vehicle of
PCP are not at issue in this appeal.