DocketNumber: No. 11-P-60
Citation Numbers: 82 Mass. App. Ct. 164
Judges: Graham
Filed Date: 7/16/2012
Status: Precedential
Modified Date: 6/25/2022
The defendants, Andre Lee Damon and Nicholas Loring, were indicted in the Superior Court for trafficking in heroin in an amount of twenty-eight grams or more, but less than one hundred grams, in violation of G. L. c. 94C, § 32E(c). Damon was also indicted for breaking and entering in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16. State police stopped a motor vehicle owned and operated by Damon for a civil infraction. After detecting the odor of burnt marijuana, the police ordered the defendants out of the vehicle, conducted a search of a closed compartment in the motor vehicle, and recovered the heroin.
Prior to trial, the defendants each filed a motion to suppress the heroin and any statements made to the police. In denying the motions to suppress, the judge concluded that the exit orders were justified by the fact that the driver could not produce a license and appeared nervous, the officers detected the odor of burnt marijuana, and the driver acknowledged he had smoked marijuana in the car “at some point.” The judge concluded that the search of the vehicle was permissible under the so-called “automobile exception” because the officers had probable cause to believe that contraband (i.e., marijuana) was present in the vehicle. The defendants’ interlocutory appeal was allowed by a single justice of the Supreme Judicial Court, and the matter was transferred to this court for review.
The defendants contend that the stop of Damon’s vehicle for an alleged civil infraction (failure to use a directional signal prior to turning) was improper. In addition, they argue that, after the passage of G. L. c. 94C, § 32L (the amended Act),
Facts. We summarize the detailed and comprehensive facts as found by the judge, with minor supplementation by uncontro-verted facts from the record of the hearing, noting that all of the judge’s findings are supported by the evidence that he found credible. Consequently, we accept those findings. Commonwealth v. Sparks, 433 Mass. 654, 656 (2001). We accord deference to the judge’s factual findings, “but independently review[] the correctness of the judge’s application of constitutional principles to the facts found.” Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995).
On January 16, 2009, Brockton police had a warrant for the arrest of Manuel Barbosa for murder. The police believed Bar-bosa might be found at 85 Wyman Street in Brockton, and a contingent of Brockton and State police went to that address to conduct surveillance. Sergeant Lopes, one of the officers at the scene, radioed Troopers Steven Connolly and Richard Long to assist in the surveillance. Connolly arrived and parked his unmarked vehicle on Walnut Street around the comer from the Wyman Street address. Long, driving a marked cruiser, arrived and parked at a location a few streets from the Wyman Street address.
At approximately 7:45 p.m., Lopes radioed Connolly and informed him that two men had just left 85 Wyman Street and entered a red Nissan automobile. Lopes instructed Connolly to follow the vehicle and stop it. Shortly thereafter, Connolly observed the red Nissan and followed it onto North Main Street. The operator of the Nissan made two turns in light traffic without using a directional signal. Connolly signaled for the Nissan to
Trooper Connolly approached the driver’s side of the Nissan, where Damon was seated in the driver’s seat, and Long approached Loring, who sat in the front passenger seat. Neither officer had his weapon drawn. Connolly asked Damon for his license and Damon responded that he did not have his license with him.
Trooper Long ordered Loring to step out of the car. Both defendants complied with the exit orders and were then pat frisked for weapons (no weapons were found). Following the patftisks, Long opened the front door of the Nissan and searched the vehicle’s interior, beginning with the area under the front
Believing the brown substance to be heroin, Long removed it and walked back to Connolly and the defendants at the rear of the vehicle. He held it out for Connolly to see, remarking, “What do you think this is?” The defendants bolted, running in opposite directions. Long pursued Loring and apprehended him after a short foot chase. Damon successfully fled the scene but was apprehended later that evening.
Discussion. 1. Initiation of the stop. The defendants contend that Damon’s failure to use his directional signal when making turns did not constitute a civil traffic violation
Trooper Connolly testified that on the evening in question, at approximately 7:45 p.m., he followed Damon’s vehicle as it traveled on Walnut Street and took a right onto Prospect Street and a left onto North Main Street. He noted that the operator of the vehicle (Damon) failed to use his turn signal at each of these turns.
The Commonwealth argues that the motion judge’s findings were erroneous insofar as they rejected Trooper Connolly’s testimony that the exit orders were issued because the troopers possessed a reasonable fear for their safety. Ordinarily, “[wjhen the police are justified in stopping an automobile for a routine
Here, the record clearly supports the motion judge’s findings and conclusion that the exit orders were not justified by legitimate concerns for the troopers’ safety or the safety of others. The record does not support the Commonwealth’s argument that the officers were concerned that Barbosa, the subject of an arrest warrant, could have been one of the passengers. The judge’s findings, supported in the record, were that surveillance officers observed two white males leave 85 Wyman Street and get into a red Nissan; therefore, it was implausible for the officers to believe that either defendant could be Barbosa,
So ordered.
General Laws c. 94C, § 32L, inserted by St. 2008, c. 387, § 2, provides, in pertinent part:
“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification.
"By way of illustration rather than limitation, possession of one ounce*166 or less of marihuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent.”
Connolly did not run a computer check on Damon’s license until after the vehicle was searched; when the trooper did so, he found that Damon’s license was valid.
There is no indication that the troopers suspected Damon of driving while under the influence of marijuana, in violation of G. L. c. 90, § 24(l)(a)(l), or that they requested that he submit to field sobriety tests. Compare Commonwealth v. Cruz, 459 Mass. 459, 469 n.17 (2011).
“Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting from Commonwealth v. Bacon, 381 Mass. 642, 644 (1980).
On cross-examination, Connolly testified that Damon made three turns without using his turn signals.
That the stop for the traffic offense was a pretext, as Loring strongly emphasizes in his brief, does not matter. See Commonwealth v. Ciaramitaro,
We note, however, the observation of the Supreme Judicial Court that “possession of marijuana, in any amount, remains illegal; decriminalization is not synonymous with legalization. See G. L. c. 94C, § 31; G. L. c. 94C, § 34. Because marijuana remains unlawful to possess, any amount of marijuana is considered contraband.” Cruz, supra at 473. (At the same time, the court has placed limitations on the application of the “contraband” definition in the context of warrantless searches concerning one ounce or less of marijuana. See note 9, infra.)
As noted above, the motion judge separately found the search of the vehicle proper under the “automobile exception” because the officers had probable cause to believe that contraband (i.e., any amount of marijuana) was present in the vehicle. This view was explicitly rejected in Cruz, supra at 474-476.
At the hearing on the motion to suppress, a photograph of Barbosa was admitted in evidence.