Commonwealth v. Douglas

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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.