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16-P-1666 Appeals Court
COMMONWEALTH vs. AUGUSTO DAROSA.
No. 16-P-1666.
Plymouth. April 12, 2018. - January 8, 2019.
Present: Green, C.J., Trainor, Rubin, Shin, & McDonough, JJ.1
Controlled Substances. Marijuana. Constitutional Law, Search
and seizure. Search and Seizure, Motor vehicle, Search
incident to lawful arrest, Probable cause, Reasonable
suspicion.
Complaint received and sworn to in the Brockton Division of
the District Court Department on September 14, 2012.
A pretrial motion to suppress evidence was heard by James
M. Sullivan, J., and a motion for reconsideration was also heard
by him; and the case was tried before Antoinette E. McLean
Leoney, J.
Eric W. Ruben for the defendant.
1 This case was initially heard by a panel comprised of
Justices Trainor, Shin, and McDonough. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Green and Justice Rubin. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993). Justice Trainor
participated in the deliberation on this case prior to his
retirement.
2
Johanna S. Black, Assistant District Attorney, for the
Commonwealth.
SHIN, J. The defendant appeals from his conviction of
possession with intent to distribute marijuana.2 The police
recovered the marijuana during a traffic stop, which led to a
search of the defendant's vehicle because he did not have a
valid driver's license. With probable cause to arrest for the
license violation, two detectives searched the front compartment
of the vehicle while the defendant, already pat frisked, sat at
the rear of the vehicle, guarded by a third detective. The
motion judge found the search lawful and denied the defendant's
motion to suppress on the rationale that, because the detectives
had not yet decided whether to arrest the defendant, they were
entitled to conduct a "protective sweep prior to allowing [him]
to return to his vehicle." But the evidence did not show, and
the Commonwealth did not argue, that the detectives had a
reasonable belief that the defendant was armed and dangerous,
and the detectives did not decide to arrest him until they
2 The defendant was also charged with possession with intent
to distribute a class B substance, carrying a firearm without a
license, receiving a firearm with a defaced serial number,
possessing a firearm without a firearm identification card, and
operating a motor vehicle with a suspended license. For reasons
not reflected in the record, all these charges were dismissed
before trial at the Commonwealth's request.
3
discovered contraband during a more thorough search conducted
after the arrival of a K-9 unit.3
No recognized exception to the warrant requirement applies
in these circumstances. To hold otherwise would confer a police
entitlement to search based on probable cause to arrest for any
offense, including minor traffic offenses, in contravention of
G. L. c. 276, § 1,4 and the United States Supreme Court decision
in Arizona v. Gant, 556 U.S. 332 (2009). Because the items
seized from the defendant's vehicle were fruits of the unlawful
search, the motion to suppress should have been allowed. We
therefore vacate the judgment and set aside the verdict.5
Factual background. We summarize the facts as found by the
judge and as derived from the detectives' testimony at the
suppression hearing, which the judge implicitly credited in
3 The defendant does not independently challenge the
legality of the later search or the patfrisk of his person.
4 "A search conducted incident to an arrest may be made only
for the purposes of seizing fruits, instrumentalities,
contraband and other evidence of the crime for which the arrest
has been made . . . and removing any weapons that the arrestee
might use to resist arrest or effect his escape." G. L. c. 276,
§ 1.
5 "It appears doubtful that the Commonwealth has enough
evidence to reprosecute the defendant[], but we will leave the
final decision on that matter to the district attorney . . . ."
Commonwealth v. Torres, 424 Mass. 153, 164 (1997). Thus, even
though the other issues the defendant raises could occur on
retrial, in the exercise of our discretion we decline to address
them.
4
full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).
Brockton police Detective Brian Donahue was on patrol on Main
Street in Brockton around 10:15 P.M. He was in an unmarked
vehicle and accompanied by Detective William Carpenter and
Detective Sergeant Frank Vardaro. Main Street is a heavily
traveled one-way road with two lanes and parking on both sides.
The surrounding area is a commercial district, "densely
populated" with retail businesses, bars, and nightclubs. It is
also an area "with a high instance of criminal activity"
including "narcotic activity."
As the detectives traveled on Main Street, a minivan in
front of them pulled alongside a Mercedes sport utility vehicle
parked on the side of the road. The detectives observed an arm
come out of the minivan and hand a plastic grocery bag to
someone in the Mercedes. The vehicles were stopped in an area
that was heavily trafficked and illuminated by lights from a
nearby court house and businesses. No person in either vehicle
made an attempt to conceal the transfer of the bag, and none of
the detectives testified that it was consistent with a drug
sale. In fact, two detectives affirmatively testified that the
transfer did not resonate as suspicious based on their training
and experience.6
6 Notably, the Commonwealth does not rely on the transfer in
defending the subsequent search of the defendant's vehicle.
5
Because the minivan was blocking traffic, Donahue sounded
his horn. When the minivan began moving again, the detectives
followed it and observed the driver abruptly change lanes
without signaling. Donahue then activated the emergency lights
on his vehicle and effectuated a traffic stop without incident.
The defendant was the driver and only occupant of the
minivan. Upon Donahue's request the defendant could produce a
registration but not a license. He told Donahue that he did not
have his license with him, but continued to search the headboard
and middle console area of the driver's compartment. When
Donahue asked what he was looking for, the defendant replied,
"[my] license," prompting Donahue to ask, "[W]hy are you looking
for it if you already told me you don't have it with you?" The
defendant then stopped looking around and complied with
Donahue's request to write down his name and date of birth.
Leaving the defendant in the minivan, Donahue returned to his
vehicle and conducted a computer query, which revealed that the
defendant's license was revoked and that he had a criminal
record for narcotics violations.7
Nothing until this point caused Donahue or the other
detectives to perceive the defendant as armed and dangerous. To
7 Although the judge found that the defendant's record
"included" narcotics violations, there was no evidence that the
defendant had been charged with or convicted of any other type
of violation.
6
the contrary, Donahue agreed that the defendant did not "do
anything other than cooperate" during the course of the stop.
Likewise, Carpenter agreed that he saw "nothing . . . in [the
defendant's] manner, mood, gestures, or anything else" to
suggest that he was going to pose a "problem." Four officers
testified in total, and none indicated that the defendant
appeared to be armed and dangerous. Indeed, Donahue
acknowledged that he had no evidence that "there would be a
weapon in the [minivan]."8
Nonetheless, because the defendant did not have a valid
license, Donahue ordered him out of the minivan, pat frisked
him, and told him to sit on the curb at the rear of the minivan.
The defendant remained there, guarded closely by Carpenter,
while Donahue and Vardaro searched the front driver and
passenger compartments. During the search Donahue smelled fresh
8 When asked then why he searched the minivan, Donahue
replied, "I have that right." Cf. Gant, 556 U.S. at 337
(officer testified he conducted search "[b]ecause the law says
we can do it"). The dissent concludes that Donahue's statement
is not comparable to the officer's statement in Gant because
Donahue testified that he conducted the search for "[his] safety
and the safety of the other officers present." Post at .
But that testimony was not tied to any particular circumstance
concerning this defendant; at no point did Donahue testify that
this defendant appeared armed and dangerous or explain what
circumstances caused him to form such a belief. Considering
Donahue's testimony as a whole, it is abundantly clear that,
similar to the officer in Gant, Donahue believed he had a right
to conduct what he deemed a "search incident to arrest" based
solely on the existence of probable cause to arrest the
defendant for the license violation.
7
marijuana and saw and smelled fabric softener sheets, which he
knew from experience are often used to mask the odor of drugs.
Vardaro also discovered a large package of money under the front
passenger seat.
Based on these discoveries, Donahue requested that a K-9
unit respond to the scene. The canine, trained to detect drugs,
alerted to a bag in the rear compartment of the minivan. Inside
the bag was a large amount of marijuana.9 At this point Donahue
placed the defendant under arrest "for the license being
revoked."
Judge's decision. The judge issued a three-page memorandum
of decision denying the defendant's motion to suppress.10 The
decision begins with a statement of the facts, which is drawn
directly from the detectives' testimony. The judge then made
the following "[f]indings and [r]ulings" regarding the events
that occurred prior to the arrival of the K-9 unit:
"The initial stop of the defendant's motor vehicle was
proper and valid. The defendant's vehicle was double
9 Although not material to our decision, the judge erred in
finding that the bag also contained weapons. A weapon was
discovered in the minivan, but not until after it had been towed
to the police station. There, officers searched the minivan
again and found a loaded revolver and Percocet pills secreted in
the dashboard.
10The Commonwealth did not file a written opposition to the
defendant's motion to suppress. Furthermore, although the judge
requested at the end of the hearing that both parties
incorporate their closing arguments into supplemental written
memoranda, the Commonwealth failed to do so.
8
parked in an active travel lane. It was observed making a
transfer to a second vehicle in an area that is known for
narcotic activity. Commonwealth v. Thompson, 427 Mass.
729, 735 (1998). Donahue further observed the operator
change lanes without signaling and cutting off other
motorists in the process. Commonwealth v. Santana, 420
Mass. 205, 207 (1995).
"The scope of the stop is often fluid. The degree of
suspicion the police reasonably harbor must be proportional
to the level of intrusiveness. Commonwealth v. Sinforoso,
434 Mass. 320 (2001). The defendant's inability to produce
a driver's [license] was problematic. The fact that the
defendant's right to operate had in fact been revoked
caused the situation to rise to the level of ongoing
criminal activity. Donahue also became aware of the
defendant's criminal history involving narcotics.
"As the defendant was subject to arrest it was proper to
detain him away from the vehicle. Thus it was proper to
ask the defendant to exit the vehicle and pat frisk him for
the safety of the officers present. Commonwealth v.
Bostock, 450 Mass. 616, 619-621 (2008). The defendant was
informed that his right to operate had been revoked. At
that time the officers could have released the defendant
and summonsed him to court to answer to the charge at a
later date. Accordingly, the defendant could have
regain[ed] access to the vehicle. The search of the front
[driver] and passenger compartment was an appropriate step
for the police as a protective sweep prior to allowing the
defendant to return to his vehicle. Commonwealth v.
Santiago, 53 Mass. App. Ct. 567, 571 (2002). See also
Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528
(1995)."
The defendant moved for reconsideration, and the judge held
a nonevidentiary hearing. After the hearing, the judge denied
the motion based in part on "recent decisional case law" --
namely, Commonwealth v. Wright, 85 Mass. App. Ct. 380 (2014), in
which the issue was not the validity of a search, but whether an
officer's expansion of the scope of a routine traffic stop, by
9
calling a K-9 unit, was supported by reasonable suspicion of
further criminal activity. Id. at 383-384.
Discussion.11 Warrantless searches are per se unreasonable
under the Fourth Amendment to the United States Constitution and
art. 14 of the Massachusetts Declaration of Rights, "subject
only to a few specifically established and well-delineated
exceptions." Gant, 556 U.S. at 338, quoting Katz v. United
States, 389 U.S. 347, 357 (1967). See Commonwealth v. Craan,
469 Mass. 24, 28 (2014). It is the Commonwealth's burden to
show the applicability of one of those exceptions. See
Commonwealth v. Perkins, 465 Mass. 600, 603 (2013). Here, the
Commonwealth seeks to defend the search on two alternative
grounds: (1) by arguing it was a search incident to an arrest;
and (2) by asking us to create a new exception for circumstances
where, although the officers had probable cause to arrest, they
did not do so right away and thus could, theoretically, have
allowed the defendant to return to his vehicle.12 In addition,
11We review the judge's subsidiary findings of fact for
clear error but "review independently the application of
constitutional principles to the facts found." Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004).
12We agree with the Commonwealth's concession at oral
argument that it was not inevitable that the minivan would have
been impounded and the items in it discovered during an
inventory search. At the time of the seizure, the officers had
not yet decided to arrest the defendant, nor was it virtually
"certain as a practical matter" that the minivan would have been
10
the dissent concludes that the search was a Terry-type13 search
for weapons. None of these justifications withstands scrutiny.
1. Search incident to arrest. The Commonwealth's primary
argument is that the search was permissible as incident to the
defendant's arrest for operating a motor vehicle without a
license. This argument faces the threshold problem that, at the
time of the search, the defendant was not arrested. While it is
true that a search can qualify as incident to arrest even where
it precedes a formal arrest, the search and the arrest still
must be "substantially contemporaneous." Commonwealth v.
Washington, 449 Mass. 476, 481 (2007), quoting New York v.
Belton, 453 U.S. 454, 465 (1981) (Brennan, J., dissenting). See
Stoner v. California, 376 U.S. 483, 486 (1964). The
contemporaneity requirement is consistent with "[t]he purpose,
long established, of a search incident to an arrest," which "is
to prevent an individual from destroying or concealing evidence
of the crime for which the police have probable cause to arrest,
or to prevent an individual from acquiring a weapon to resist
arrest or to facilitate an escape." Commonwealth v. Santiago,
410 Mass. 737, 743 (1991). See Chimel v. California, 395 U.S.
752, 762-763 (1969). "To permit a search incident to arrest
impounded even had he been arrested. Commonwealth v. O'Connor,
406 Mass. 112, 117 (1989).
13 Terry v. Ohio, 392 U.S. 1 (1968).
11
where the suspect is not arrested until much later, or is never
arrested, would sever this exception completely from its
justifications." Washington, 449 Mass. at 482.
Here, the defendant was not arrested until after the K-9
unit arrived, conducted a more thorough search, and discovered
the marijuana in the rear of the minivan. The Commonwealth
presented no evidence establishing within a reasonable degree of
certainty how much time elapsed between the initial search and
the arrival of the K-9 unit,14 or how much additional time
elapsed until the discovery of the marijuana.15 Thus, even
accepting the Commonwealth's assertion that the search incident
to arrest doctrine allowed the officers to delay their decision
to arrest until after seeing the results of the search,16 the
14The only evidence on this point was Donahue's testimony
that the K-9 unit arrived "within a few minutes."
15When asked how long the K-9 unit was at the scene, the K-
9 handling officer testified that he "really [did not] know,"
but that the process "usually [does not] last [as] long" as ten
or fifteen minutes. Later, he testified that the canine was in
the minivan for "[f]ive minutes maybe" but reiterated that he
"really [did not] know."
16The assertion is dubious given that the underpinning for
the search incident to arrest exception, as applied here, is to
search for and remove weapons that the arrestee might use "to
resist arrest or effect his escape." Chimel, 395 U.S. at 763.
In arguing otherwise, the Commonwealth relies on the statement
in Washington that "it is illogical to require [the police] to
inflict th[e] greater deprivation of liberty [that results from
an arrest] 'to justify the lesser intrusion of a search.'"
Washington, 449 Mass. at 486, quoting Commonwealth v. Skea, 18
Mass. App. Ct. 685, 694 (1984). But in Washington the police
12
Commonwealth did not meet its burden of showing that the search
and the arrest were substantially contemporaneous.
Moreover, even assuming contemporaneity, the search was not
a lawful search incident to arrest under either Gant or G. L.
c. 276, § 1, the latter of which "is more restrictive than the
Fourth Amendment." Commonwealth v. Mauricio, 477 Mass. 588, 594
n.2 (2017), quoting Commonwealth v. Blevines, 438 Mass. 604, 607
(2003). Gant holds that the police can search a vehicle
incident to an occupant's arrest in only two circumstances:
"when the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the search" such that
he might gain access to a weapon, or "when it is 'reasonable to
believe evidence relevant to the crime of arrest might be found
in the vehicle'" (citation omitted). Gant, 556 U.S. at 343.
The Commonwealth concedes that the officers could not have
expected to find evidence of the crime of arrest, i.e.,
operating without a license, inside the defendant's minivan.
See id. at 344; Perkins, 465 Mass. at 605. Thus, to justify the
had a basis, apart from incident to arrest, to conduct the
warrantless search: there was probable cause to arrest, and the
loss of evidence was imminent, creating exigent circumstances.
See Washington, supra at 483-487. It was in this context that
the court explained that the officers did not have to formally
arrest the defendants before searching them. Washington does
not stand for the illogical proposition that an officer's
decision not to arrest is itself a reason justifying a
warrantless search.
13
search as incident to arrest, the Commonwealth had to show that
the defendant was within reaching distance of the passenger
compartment of the minivan.
The Commonwealth did not meet this burden either. The
judge did not find that the defendant was in reaching distance,
and the evidence would not support such a finding. As noted
supra, the defendant was seated on the curb toward the rear
bumper of the minivan, guarded by Carpenter, while Donahue and
Vardaro conducted the search. The defendant was already pat
frisked and secured by Carpenter, who stayed "in close
proximity" to him during the search. The detectives could not
reasonably have believed in these circumstances that the
defendant was within reaching distance of a weapon inside the
minivan. This is supported by Donahue's testimony, which he
reiterated several times, that he searched the minivan not
because he thought the defendant could reach for a weapon, but
because the detectives might have allowed him to get back in the
minivan and leave the scene.
The Commonwealth points out that, unlike in Gant, the
defendant was not handcuffed or restrained inside a police
vehicle. This is a factual distinction with no legal
difference. Gant itself acknowledges that "officers have many
means of ensuring the safe arrest of vehicle occupants," such
that "it will be the rare case in which an officer is unable to
14
fully effectuate an arrest so that a real possibility of access
to the arrestee's vehicle remains." Gant, 556 U.S. at 343 n.4.
Here, the defendant was outnumbered three to one and was being
guarded closely by one of the detectives. Although the
defendant was not handcuffed, he was still secured in a
practical sense and not reasonably within reaching distance of
any weapons that might have been in the minivan.17 See
Commonwealth v. Cavanaugh, 366 Mass. 277, 280 (1974) (although
defendant not handcuffed, it was "at least doubtful that the car
was within [his] reach . . . once the [two] officers had him on
the sidewalk"). See also United States v. McCraney, 674 F.3d
614, 619-620 (6th Cir. 2012) (although two defendants "were not
handcuffed or secured in the back of a patrol car," officers
could not reasonably believe they were within reaching distance
where "[t]hey were standing . . . behind the [vehicle] as
instructed, two or three feet from the rear bumper, with three
17Contrary to the view taken by the dissent, post at ,
we are not engaging in fact finding to reach a conclusion
contrary to that of the judge. The judge did not conclude that
the search was justified as incident to arrest, and so made no
finding whether the defendant was within reaching distance of
the minivan. What we reject is the Commonwealth's argument on
appeal that, as a matter of law, the defendant was unsecured
because he was not handcuffed or restrained inside a police
vehicle. In any event, given the dissent's agreement that this
was not a valid search incident to arrest, the quarrel with our
conclusion that the defendant was secured is of no significance.
For purposes of the Terry analysis, as discussed infra, we
accept the judge's premise that the officers might have
eventually allowed the defendant to return to the minivan.
15
officers standing around them, while the other two officers on
the scene conducted the search").
2. "Search incident to probable cause to arrest." While
the Commonwealth strives on appeal to justify the search as one
incident to arrest, the judge, as noted, based his ruling on the
opposite supposition -- that the defendant might not have been
arrested and thus "could have regain[ed] access to the vehicle."
The Commonwealth relies on the judge's rationale in the
alternative, arguing that the search was justified -- "even were
[it] not to fit within the search incident to arrest exception"
and even absent "Terry prerequisites" -- because "if [the
officers] were to allow the defendant to contact an acquaintance
to drive his minivan, the defendant would most likely have
returned to his minivan either while they waited or once his
acquaintance arrived."
The Commonwealth's position is untenable and would
eviscerate the limitations imposed by Gant, which sought to rein
in the previously "unbridled discretion" of officers "to rummage
at will among a person's private effects" based on the person's
commission of an arrestable traffic offense. Gant, 556 U.S. at
345. See Commonwealth v. George, 35 Mass. App. Ct. 551, 555
(1993) ("Given the plenary power that the police have to arrest
for traffic offenses, [G. L.] c. 276, § 1, requires us to be on
guard for pretext searches not based on a genuine and reasonable
16
concern about a concealed weapon or destruction of evidence").
The United States Supreme Court acknowledged that its earlier
decision in Belton, 453 U.S. 454, had been widely understood by
lower courts as authorizing a vehicle search "incident to every
arrest of a recent occupant" even where "the vehicle's passenger
compartment will not be within the arrestee's reach at the time
of the search." Gant, 556 U.S. at 343. The Court stated, in no
uncertain terms, that to construe Belton so broadly "would serve
no purpose except to provide a police entitlement, and it is
anathema to the Fourth Amendment to permit a warrantless search
on that basis." Id. at 347.
Upholding the search here on the assumption that the
officers might not have arrested the defendant and might have
let him return to his vehicle would permit an end run around
Gant. It would be tantamount to conferring an automatic police
entitlement to search a vehicle whenever there is probable cause
to arrest a recent occupant. But if there is no police
entitlement to search incident to formal arrest, there certainly
can be no entitlement to search incident to probable cause to
arrest. See Washington, 449 Mass. at 482 (there is no "search
incident to probable cause to arrest" exception to warrant
requirement).
Suggesting otherwise, the Commonwealth claims that officer
safety concerns justified the search because the minivan was
17
stopped in a high crime area at night. But as Gant holds, other
exceptions to the warrant requirement "ensure that officers may
search a vehicle when genuine safety or evidentiary concerns
encountered during the arrest of a vehicle's recent occupant
justify a search." Gant, 556 U.S. at 347. One such exception,
established by Michigan v. Long, 463 U.S. 1032, 1049 (1983),
authorizes a Terry-type search of the passenger compartment of a
vehicle when the officer has reasonable suspicion that a recent
occupant is "dangerous" and might access the vehicle to "gain
immediate control of weapons." Lantigua and Santiago, cited in
the judge's decision, both concern this exception.18 Neither
stands for the proposition that an officer is entitled to search
a vehicle any time a recent occupant is (or might be) allowed to
return to it. See Gant, 556 U.S. at 352 (Scalia, J.,
concurring) ("Where no arrest is made," propriety of protective
search of vehicle is governed by Long). Accord McCraney, 674
F.3d at 620.
18See Santiago, 53 Mass. App. Ct. at 571 (reasonable under
Terry for officer to check vehicle for weapons "when the driver
and vehicle matched descriptions arising from recent attacks in
the area by an individual armed with a dangerous weapon");
Lantigua, 38 Mass. App. Ct. at 528 (officer properly conducted
"Terry-type search" based on "particular danger to an officer
when the person he is investigating is seated in a car with his
movements concealed"). See also Commonwealth v. Silva, 61 Mass.
App. Ct. 28, 35 n.8 (2004) (Lantigua "involv[ed] a Terry-type
search of a car").
18
3. Search based on reasonable suspicion that defendant was
armed and dangerous. This brings us to the ground cited by the
dissent -- that the search was a valid Terry-type search for
weapons. For this exception to apply, the Commonwealth had to
show that the officers "possess[ed] a reasonable belief based on
'specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant[ed]'
the officer[s] in believing that the [defendant was] dangerous
and [could] gain immediate control of weapons." Long, 463 U.S.
at 1049, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). See
Commonwealth v. Sumerlin, 393 Mass. 127, 129 (1984);
Commonwealth v. Silva, 366 Mass. 402, 406, 408 (1974). In the
vehicle context, the Commonwealth must specifically show that
there was reasonable suspicion that the vehicle contained a
weapon. See Commonwealth v. Douglas, 472 Mass. 439, 445-446
(2015).
As noted above, the Commonwealth did not argue Terry before
the judge.19 Perhaps as a result, the judge made no findings on
whether a reasonable officer would have been warranted in
believing that the defendant was dangerous and could have
weapons in his minivan. Although we can in some situations
19The Commonwealth's brief cites Terry once -- to argue
that the validity of the search "is not dependent on Terry
prerequisites." The words "armed" and "dangerous" do not appear
at all in the brief.
19
affirm on grounds other than those relied on by the judge, we
cannot do so where, as here, the findings and the record do not
support the alternative ruling. See Mauricio, 477 Mass. at 595.
To reach the result that it does, the dissent must find its own
facts, which is not an appropriate appellate function. See
Commonwealth v. Mayfield, 398 Mass. 615, 625 (1986) (appellate
court may not "find facts or . . . draw uncompelled inferences
from the evidence").
Specifically, two of the factors relied on by the dissent
have no support in the judge's findings or the record. First,
the dissent concludes that the defendant's handing of the
grocery bag to the person in the Mercedes was an "apparent
street-level drug deal." Post at . But none of the officers
so testified, and the judge made no such finding. The transfer
was conducted out in the open, in a heavily trafficked and well-
lit area,20 and none of the officers testified that he believed
it to be consistent with a drug sale based on his training and
experience. In fact, Carpenter affirmatively agreed that, "as a
trained detective," the transfer did not appear to him as
"anything other than maybe . . . a little odd"; likewise,
Vardaro agreed that, although the transfer "perked [his]
interest," it "didn't really resonate as anything suspicious
20Donahue agreed that there was nothing "secret or hidden"
about the way that the defendant handed over the bag.
20
happening at that point." Thus, our conclusions regarding the
transfer are based on the officers' uncontested testimony, which
the judge implicitly credited, and are not the result of our own
fact finding, as the dissent claims. And in light of that
testimony, this is not a case where the judge could have
inferred that the features of the transfer fit the pattern of a
typical street-level drug sale. Cf. Commonwealth v. Kennedy,
426 Mass. 703, 706 (1998) (judge could "supplement with her own
inferences the officer's testimony concerning his inferential
process in identifying the observed . . . interaction as a drug
sale"). We surely cannot draw such an inference ourselves on
appeal.
In concluding otherwise, the dissent puts much emphasis on
Carpenter's testimony that he found the transfer to be "odd" and
on Vardaro's testimony that the transfer "perked [his]
interest."21 Post at . But an officer's belief that a person
has done something odd or interesting does not equate to a
belief that that person has engaged in a drug transaction.
Indeed, Carpenter and Vardaro confirmed that to be the case.
And while it is true, as the dissent notes, that drug sales can
"occur in a seemingly open and nonsuspicious manner," post
at , there was no testimony to that effect introduced at the
21 The judge did not mention this testimony in his decision.
21
hearing. Contrary to the dissent's view, we cannot rely on
notions of "common sense" to overcome not just the complete
absence of testimony about the officers' inferential processes,
but also affirmative testimony from the officers that, based on
their experience and training, the observed transaction did not
resonate as a drug sale. See Kennedy, 426 Mass. at 706
("Commonwealth should have elicited from the officer more detail
on what a typical street-level drug sale looks like from
beginning to end").
Second, the dissent concludes that the defendant made a
furtive movement when asked to produce his license. Post
at . But the judge did not find that the movement was
furtive. Rather, he simply stated, in the "[f]acts" section of
his decision, that "[t]he defendant continued to search the
driver's compartment" after telling Donahue that he did not have
his license with him, and the judge did not factor the movement
into his "[f]indings and [r]ulings." Ascribing a sinister
motive to the movement amounts therefore to appellate fact
finding, made all the more improper by the dissent's disregard
of the testimony of all three detectives present at the scene
that the defendant did not do anything to suggest that he was
dangerous. Donahue observed the defendant's rummaging firsthand
and did not react with concern for his safety; he merely asked
the defendant what he was doing, asked him to write down his
22
biographical information, and left him in the minivan while
Donahue conducted a computer query. Given Donahue's testimony,
the rummaging cannot reasonably be viewed as a furtive gesture
suggesting that the defendant was reaching for or hiding a
weapon. See Commonwealth v. Daniel, 464 Mass. 746, 752-753
(2013) ("officer's actions in allowing the occupants to move the
vehicle without first removing the knife from the dashboard
suggest[ed] that the defendants' movements and actions, viewed
by a trained officer on the scene, did not create a heightened
awareness of danger" [quotations omitted]).22 At a minimum, it
is not an inference that is compelled from the evidence. See
Mayfield, 398 Mass. at 625. See also Commonwealth v. Santos, 65
Mass. App. Ct. 122, 125 (2005) ("defendant's movement --
'sit[ting] up erect from a reclined position . . . and lean[ing]
forward' -- add[ed] little to the analysis" where "motion judge
did not find the gesture to be furtive, nor did he rely on it in
denying the motion to suppress").
The remaining factors cited by the dissent do not establish
reasonable suspicion that the defendant was armed and dangerous.
The defendant's criminal history did not include any firearms
22See also Commonwealth v. Hooker, 52 Mass. App. Ct. 683,
687 (2001) ("That the defendant moved his upper shoulders and
appeared to place something on the seat is . . . [not] a ground
for reasonable apprehension"); Commonwealth v. Holley, 52 Mass.
App. Ct. 659, 665 (2001) ("lean[ing] over to the passenger side
visor . . . cannot be considered as a threatening gesture").
23
offenses or other violent offenses. See Commonwealth v. Gomes,
453 Mass. 506, 512 (2009) (defendant's criminal history, which
did not include "any weapons-related offenses," insufficient to
create reasonable apprehension of danger). Even assuming
(despite the lack of findings and testimony) that the earlier
transfer of the bag, coupled with the defendant's narcotics
convictions, could have led the officers to believe he was
selling drugs, drug involvement is not sufficient to presume
that a defendant is "armed and dangerous for constitutional
purposes." Washington, 449 Mass. at 483. See Commonwealth v.
Dagraca-Teixeira, 471 Mass. 1002, 1004 n.3 (2015); Gomes, 453
Mass. at 511-513; Commonwealth v. Jimenez, 438 Mass. 213, 220
(2002). Nor would the defendant's traffic offenses give rise to
reasonable suspicion. See George, 35 Mass. App. Ct. at 555.
See also McCraney, 674 F.3d at 621. And although the vehicle
was stopped in a high crime area at night, this factor, which
must always be viewed "with some caution," Commonwealth v.
Holley, 52 Mass. App. Ct. 659, 663 (2001), has less significance
here because the officers outnumbered the defendant. See Gomes,
453 Mass. at 513.
This case is materially indistinguishable from Gomes.
There, an officer observed the defendant -- a known "impact
player" in the local drug market, id. at 508 -- conduct what the
officer believed, based on his training and experience, to be a
24
drug transaction. See id. at 511-512. The transaction occurred
around 4 A.M. in an area with a high incidence of crime,
including shootings. See id. at 513. Nonetheless, the court
concluded that the officer lacked reasonable suspicion to
conduct a Terry-type patfrisk because he was not alone or
outnumbered, and the defendant had no criminal history of
weapons-related offenses, made no gestures suggesting that he
was carrying a weapon, and did not attempt to flee. See Gomes,
453 Mass. at 512-513.
The dissent relies heavily on Lantigua, 38 Mass. App. Ct.
526, but reads that case too broadly. In Santos, 65 Mass. App.
Ct. at 127-128, we confined Lantigua to its facts -- the driver
there had already gotten out of his vehicle and told the officer
that his registration was in the glove compartment. Lantigua,
supra at 527. On those particular facts, "We held [in Lantigua]
that the officer, in the interest of his own safety, could
properly retrieve the registration from the place where the
defendant said it would be . . . ." Santos, supra at 127. But
as we stated in Santos, and reiterate here, "Nothing in our
Lantigua decision should be read to sanction . . . general
rummaging through the interior spaces of a stopped car . . . ."
Id. at 128.
Judgment vacated.
Verdict set aside.
McDONOUGH, J. (dissenting, with whom Trainor, J., joins).
"Under art. 14 of the Massachusetts Declaration of Rights, the
touchstone of our analysis of police conduct that results in a
search or seizure is whether that conduct was reasonable. . . .
The reasonableness of the particular conduct at issue here
involves an evaluation of whether the police exceeded the
permissible scope of the stop, which is an issue of
proportion. . . . Judicial second-guessing of that exercise of
judgment, especially in a rapidly developing situation, is
inappropriate." Commonwealth v. Watts, 74 Mass. App. Ct. 514,
517, 519-520 (2009). Because I believe the majority departs
from these principles, I respectfully dissent. I am satisfied
that the motion judge's conclusion that the limited protective
sweep for weapons of the front seat area of the minivan
unlawfully operated by the defendant was properly ordered as a
"heightened precaution[] for the officers' own safety."
Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995)
("The same concerns that allow an officer investigating a
traffic violation to order the driver out of the car for the
officer's safety . . . also allow a limited search of the
passenger compartment for weapons before the passenger reenters
the car . . .").1
1 I agree with the majority that, as the judge implicitly
concluded, this limited protective sweep for weapons cannot be
2
Discussion. The judge found that three experienced
Brockton detectives had justification for this limited vehicle
protective sweep for weapons where (a) probable cause existed to
arrest the defendant for engaging in ongoing criminal activity -
- driving with a revoked license; (b) in a high crime area known
for narcotics activity, the detectives witnessed the defendant
engage in what can reasonably be inferred as an apparent street-
level drug deal, and learned that the defendant had a
"significant" criminal history that included narcotics
convictions and open cases; (c) the defendant moved and answered
furtively when asked to produce a driver's license;2 (d) the
defendant, once removed from the minivan but uncuffed and
unsecured, could have regained access to the minivan; and (e) to
justified as a search incident to an arrest. The defendant was
not arrested until after police conducted a full search of the
minivan prompted in part by the results of the sweep.
Commonwealth v. Washington, 449 Mass. 476, 481 (2007), quoting
New York v. Belton, 453 U.S. 454, 465 (1981) (Brennan, J.,
dissenting) (proper search incident to arrest may precede
arrest, but arrest must be "substantially contemporaneous").
2 These three circumstances constitute plus factors
supporting reasonable suspicion of ongoing criminal conduct.
See generally Commonwealth v. DePeiza, 66 Mass. App. Ct. 398,
405 (2006), S.C., 449 Mass. 367 (2007). While the judge did not
use the phrase "plus factors" in his memorandum of decision, he
did use it at the hearing on the defendant's motion for
reconsideration, emphasizing "that . . . if there had been no
plus factors, then it would have been a routine motor vehicle
stop, and the defendant should have been allowed to go on his
way. Obviously I found there were some of those plus factors
present."
3
ensure their safety, before allowing the defendant to reenter
the minivan, detectives conducted the protective sweep for
weapons limited to the front seat area. I submit that these
critical circumstances, explained more fully infra, were
established by the judge's findings, supplemented with facts he
implicitly credited3 that are consistent with his decision, and
justify the detectives' limited protective sweep.
a. Defendant's ongoing criminal conduct. The majority
agrees that the detectives were warranted in stopping the
defendant for a traffic violation. See generally Commonwealth
v. Buckley, 478 Mass. 861, 865-866 (2018). After learning that
the defendant's license had been revoked -- an arrestable
offense -- there existed probable cause that the defendant was
engaged in criminal activity, which justified the exit order and
the patfrisk of the defendant for officer safety. Contrast
Commonwealth v. Amado, 474 Mass. 147, 152 (2016).
b. Defendant's narcotics convictions, open cases, and
apparent street-level drug deal. The majority concludes that
neither the judge nor the detectives viewed the defendant's bag
handoff to an occupant of the Mercedes sport utility vehicle
(SUV), through their open windows, at 10 P.M. in a high crime
area known for illegal narcotics activity, as an apparent
3 I agree with the majority that "the judge implicitly
credited in full" the detectives' testimony. Ante at .
4
street-level drug deal. Ante at . The majority further
concludes that "this is not a case where the judge could have
inferred that the features of the transfer fit the pattern of a
typical street-level drug sale." Ante at . I submit that
the majority's conclusions concerning the bag handoff are at
odds with the judge's explicit and implicit findings, and with
the detectives' testimony. First, the judge twice discussed the
defendant's bag handoff in his findings. Under the "[f]acts"
heading in his memorandum of decision, the judge wrote:
"This is a densely populated commercial district which
hosts retail businesses as well as bars and
nightclubs. . . . It is also an area with a high
instance of criminal activity. . . . As [Detective
Donahue, 'an experienced investigator with a background
in violent crime and narcotics cases' and Detective
Carpenter and Detective Sergeant Vardaro] were traveling
northbound [the defendant's minivan], directly in front
of them, pulled alongside of a black Mercedes SUV, which
was parked on the side of the roadway, and stopped. The
officers observed an arm come out of the [minivan] and
hand a large paper bag to an occupant of the Mercedes."
The judge returned to the defendant's bag handoff further
on, under his "[f]indings and [r]ulings" heading.
"[The defendant's vehicle] was observed making a transfer
to a second vehicle in an area known for narcotic
activity."
Moreover, the judge found that just after the stop the
detectives learned of the defendant's "significant criminal
history that included narcotics violations," which according to
Carpenter's testimony, included "open" narcotics cases. Thus, I
5
submit that the majority's conclusion that the bag handoff was
not, nor could be, viewed by the judge and the detectives as a
likely drug deal fails to pay sufficient deference to the
judge's findings.
It is a "well-settled proposition that the judge's findings
of fact are 'binding in the absence of clear error . . . and
[we] view with particular respect the conclusions of law which
are based on them.'" Commonwealth v. Bottari, 395 Mass. 777,
780 (1985), quoting Commonwealth v. Correia, 381 Mass. 65, 76
(1980). Nevertheless, the majority supports its view that
neither Carpenter nor Vardaro suspected that the bag handoff was
a drug deal because both "testified that the transfer did not
resonate as suspicious based on their training and experience."
However, the judge made no such finding,4 and each detective's
testimony, read as a whole, reveals that the bag handoff was a
focus of the questioning, and in my view confirms that they
considered the bag handoff as suggestive of criminal activity.
But because the judge credited the testimony, we know that
Vardaro resisted defense counsel's insistence that the
defendant's bag handoff "didn't mean anything" to him, instead
4 As is discussed more fully infra, a reviewing court may
not engage in "independent fact finding" based on the record in
order to reach a conclusion of law that is contrary to that of a
motion judge. Commonwealth v. Jones-Pannell, 472 Mass. 429, 438
(2015).
6
stressing in his responses, "I saw it," and saying twice that
the bag handoff "would have perked my interest." Defense
counsel pressed Vardaro to concede that aside from the traffic
violation, "There's not any indication of any other kind of
activity going on in this minivan, is there? You don't know
anything else except a minivan in front of you stopped for a
couple seconds and pulled to the right? . . . That's all you
know at this point; right?" But Vardaro held his ground,
responding, "No. That's not all we know. [We] know that he
stopped. He handed something to somebody on the side of the
road, he impeded traffic, and then he took off and changed lanes
without signaling until we stopped him. That is what we know at
this point."
Again, because the judge credited his testimony, we know
that Carpenter, when asked generally what he saw when the
defendant's minivan stopped directly behind the Mercedes,
singled out the defendant's bag handoff: "We observed the
operator of the minivan extend his arm from the driver's door
window towards the black Mercedes and pass an item to a
passenger in the black Mercedes." On cross-examination,
Carpenter rejected defense counsel's premise that the bag
handoff was an "innocent gesture" when he was asked, "[T]here
was nothing that you noticed about -- or drew your attention for
police enforcement reasons of the car in front of you when the
7
shopping bag -- when the plastic bag was . . . passed from one
car to the other; correct? It . . . just looked like an
innocent gesture, didn't it?" Carpenter, like Vardaro, held his
ground, answering, "We -- we found it to be odd. . . . [It
drew] attention that a vehicle is stopped in the middle of the
roadway . . . blocking traffic to pass something from one
vehicle to another."5
While neither the detectives nor the judge used the
talismanic words "apparent street-level drug deal" when
characterizing the defendant's bag handoff, I submit that in
matters of common sense the obvious is often left unspoken.6
Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 466 (1986)
(whether inference is warranted or impermissibly remote is
determined not by hard and fast rules of law, but by experience
and common sense). "Absent explicit findings, we analyze[] the
record to see if the findings implicit in the judge's ruling are
supported" (citation omitted). Commonwealth v. Grandison, 433
5 So compelling was the inference that the defendant's bag
handoff was an apparent drug deal that, on appeal, the defendant
argues that it was improper propensity evidence "suggesting that
[the defendant] was a drug dealer" and that the erroneous
admission created a substantial risk of a miscarriage of
justice.
6 See People vs. Osuna-Avila, Cal. Ct. App., 3rd Dist., No.
C064685 (Dec. 29, 2010) ("[A] trial court can rely on an
officer's experience and accept the obvious unspoken premise
that the [tinted] window looked too dark").
8
Mass. 135, 137 (2001). "We may affirm the denial of a motion to
suppress on any ground supported by the record." Commonwealth
v. Washington, 449 Mass. 476, 483 (2007), citing Commonwealth v.
Va Meng Joe, 425 Mass. 99, 102 (1997).7
I address one final point made by the majority concerning
the defendant's bag handoff. In concluding that the judge could
not properly infer that the transfer "fit the pattern of a
typical street-level drug sale," ante at , the majority
relies on the seemingly innocuous scene and circumstances of the
handoff, stressing that "[t]he vehicles were stopped in an area
that was heavily trafficked and illuminated by lights from a
nearby court house and businesses," and that "[n]o person in
either vehicle made an attempt to conceal the transfer of the
bag." Ante at . But the judge's findings do not include any
reference to these factors. Here the majority necessarily makes
an "independent [finding of fact] in order to reach a conclusion
of law that is contrary to that of [the] motion judge" who
upheld the protective sweep as lawful. Commonwealth v. Jones-
Pannell, 472 Mass. 429, 438 (2015). This, respectfully, it may
not do. Id. Moreover, to the contrary, it is well known that
7 Indeed, if the facts found by the judge support an
alternative legal theory, a reviewing court is free to rely on
an alternative legal theory. See Commonwealth v. Cast, 407
Mass. 891, 897 (1990), citing Commonwealth v. Signorine, 404
Mass. 400, 403 n.1 (1989).
9
street-level drug sales typically occur in a seemingly open and
nonsuspicious manner so as not to attract attention, and to
create the impression of normalcy.8 "'Seemingly innocent
activities taken together can give rise to reasonable suspicion
[of drug activity] justifying a threshold inquiry.'
Commonwealth v. Watson, 430 Mass. 725, 729 (2000)."
Commonwealth v. Gomes, 453 Mass. 506, 511 (2009).9
As he did twice in his findings, the judge was entitled to
consider the defendant's apparent street-level drug deal as one
factor in upholding the limited search of the minivan a "an
appropriate step for the police as a protective sweep prior to
8 Indeed, I point out -- for context only -- that the
Commonwealth's expert at trial, State police Trooper Erik
Telford, testified that dealers typically arrange for drug
exchanges in "some public area, parking lots, any street corner,
any street, inside bathrooms, fast food stores, restaurants,
[and] bars . . . [t]o make it seem as innocuous or benign as
just a meet –- as a meet between two people, and unless you're
street savvy . . . [you do not know that] it's actually a street
level drug transaction . . . . It's just a safe way to insulate
the dealer and the customer to make it look like normal legal
activity . . . ." See Commonwealth v. Singer, 29 Mass. App. Ct.
708, 709 n.1 (1991) (because appeal involves rulings by motion
judge prior to trial, "we do not rely on facts developed at
trial" but we may "recount some of the evidence at trial . . .
merely to give context to the legal issues before us").
9 That the item here exchanged, a plastic grocery bag, was
by itself innocuous does not undercut the suspicious nature of
the handoff. See, e.g., Commonwealth v. Santiago, 470 Mass.
574, 579 (2015) ("Although [the officer] did not see any item
actually exchanged, the defendant's extended arm . . .
[supported the officer's] belief that a drug transaction between
the two men had just taken place").
10
allowing the defendant to return to his vehicle." I suggest
that the majority's reliance on Washington is misplaced. There
the court held that "[w]hile drug involvement certainly may be a
relevant factor in assessment of threats to police safety, we
are reluctant to adopt a blanket rule that all persons suspected
of drug activity are to be presumed armed and dangerous for
constitutional purposes." Washington, 449 Mass. at 482-483.
Here, rather than applying a "blanket rule," id. at 483, the
judge, at most, considered the defendant's criminal narcotics
history as just one relevant factor. Moreover, unlike here, in
Washington, "the [motion] judge found specifically that the
defendants did nothing to cause the troopers concern for their
safety." Id. at 482. In contrast, the judge here found
otherwise and necessarily credited Donahue's unequivocal
testimony that he ordered the limited protective sweep of the
front seat area for "[m]y safety and the safety of the other
officers present" when the judge found that Donahue and Vardaro
"conducted a search for weapons around the driver's and
passenger[']s seat[s] in the front of the vehicle." With that
finding, the judge necessarily ruled out any possibility that
the detectives conducted the search as a pretext for a search
for evidence. Far from undercutting the judge's rulings,
Washington stands for the proposition that these experienced
detectives "certainly" could consider the defendant's criminal
11
history of drug involvement, coupled with his bag handoff in an
area known for narcotics activity, as one "relevant factor" in
their "assessment of threats to police safety." Id. at 483.
c. Defendant's furtive answers and movements. The
majority concludes that the defendant's "rummaging [for his
license seconds after telling Donahue he did not have it with
him] cannot reasonably be viewed as a furtive gesture suggesting
that the defendant was reaching for or hiding a weapon" because
"Donahue observed the defendant's rummaging firsthand and did
not react with concern for his safety." Ante at .
Respectfully, I submit this conclusion cannot be reconciled with
the judge's findings. The judge made no finding -- explicit or
implicit -- that Donahue was unconcerned about the defendant's
contradictory answers and his unexplained searching movements.
And neither did Donahue so testify. By detailing in his
findings the defendant's contradictory answers and his searching
movements prompted by Donahue's questioning, "[i]t may be
inferred from the judge's findings," Commonwealth v. Blevines,
54 Mass. App. Ct. 89, 92 n.6 (2002), S.C., 438 Mass. 604 (2003),
that the judge viewed Donahue's inquiries as purposeful and
prompted by law enforcement objectives. Specifically, the judge
found that after the defendant told Donahue that he did not have
his license with him, Donahue saw the defendant continue "to
search the driver's compartment," prompting Donahue to ask the
12
defendant "what he was looking for." When the defendant
answered, "[m]y [license]," the judge found that Donahue
"reminded him that he had stated he didn't have his [license]
with him," at which point the judge found that "[t]he defendant
stopped looking around." These findings make clear that the
judge found that Donahue's reminder immediately caused the
defendant to stop his rummaging. Thus, in my view, the judge
implicitly rejected the majority's benign characterization of
the defendant's searching movements and his contradictory
response when asked why he continued searching the minivan
interior.10 The judge properly included in his calculus the
defendant's implicit evasiveness, as well as his readily
apparent pretext for continuing to search the front seat
compartment in the immediate aftermath of the stop.11
d. The defendant was not secured. Once outside the
minivan, the defendant was escorted, without handcuffs, to the
rear of the minivan to be with Carpenter. Here, the majority
concludes that "[a]lthough [the defendant] was not handcuffed,
10A suspicious verbal response qualifies as furtive
behavior. See, e.g., United States v. Curcio, 694 F.2d 14, 28
(2d Cir. 1982) ("furtive, hangdog, or otherwise suspicious . . .
method of answering").
11"Although nervous or furtive movements do not supply
reasonable suspicion when considered in isolation, they are
properly considered together with other details to find
reasonable suspicion." Commonwealth v. DePeiza, 449 Mass. 367,
372 (2007).
13
he was still secured in a practical sense." Ante at . I
respectfully submit that here the majority is again engaging in
"independent fact finding" which undercuts the judge's ultimate
conclusion that the sweep was lawful. Jones-Pannell, 472 Mass.
at 438. The majority's position that the defendant was "secured
in the practical sense" is inconsistent with the testimony of
the three detectives. When defense counsel's question to
Donahue suggested that the defendant was "outside the car
secured," Donahue responded, "He wasn't secured." When Vardaro
was asked, "Was it possible . . . [that the defendant] would
have had access to the vehicle again," Vardaro answered, "Yes."
And although Carpenter testified that he stayed "in close
proximity" to the defendant during "the search of the [front
seat area]," when asked if he stood with the defendant "the
whole time," Carpenter did not agree, answering, "The majority
of the time, I believe."
The judge credited Donahue's concern that the defendant
might "regain" access to the minivan because Donahue had not yet
decided either to arrest him or "just do a [c]ourt complaint on
him for the license [revocation]." Concerned about the prospect
that the defendant might reenter his minivan as a passenger
(with a driver he might contact), the judge found that the
detectives' check of the front seat area for weapons was "an
appropriate step for the police as a protective sweep prior to
14
allowing the defendant to return to his vehicle." Donahue's
concern was, as he put it, "anything within the lunge and
reaching area of the —- of the vehicle, of the driver if someone
came to drive the vehicle away or if [the defendant] got into
the passenger seat of the vehicle." Donahue said that his
interest in doing so was for "[m]y safety and the safety of the
other officers present."12 Pressed on the point during cross-
examination, Donahue explained that his concern was "[i]n case
[the defendant] did get back into the vehicle if he was allowed
to leave the scene," adding, "I have that right, sir." Thus,
12A police officer does not have to testify specifically
that he was in fear for his own safety. "[T]he officers'
concern for their own safety is a fact that can be inferred from
all the circumstances: it does not necessarily depend on direct
testimony." Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301,
306 n.5 (1986).
The majority, ante at note 8, compares Donahue's statement
-- "I have that right, sir" -- to the officer's testimony in
Arizona v. Gant, 556 U.S. 332, 336 (2009), where the defendant
claimed, and the United States Supreme Court accepted, that he
"posed no threat to the officers after he was handcuffed in the
patrol car and because he was arrested for a traffic offense for
which no evidence could be found in his vehicle." When the
officer in Gant was asked why he searched the car, he replied,
"Because the law says we can do it." Id. at 337. But the facts
in Gant are distinguishable because here, the defendant was
uncuffed and not arrested. Moreover, Donahue's answer was
immediately preceded by: "I didn't have evidence [of a weapon]
but I have the right to check for my safety." And unlike Gant,
Donahue's stated reasons for the protective sweep were "[m]y
safety and the safety of the other officers present," which the
judge implicitly credited in finding that Donahue and Vardaro
"conducted a search for weapons around the driver's and
passenger[']s seats in the front of the vehicle."
15
the record amply supports the judge's finding that the
protective sweep was limited in purpose and area to a check for
weapons the defendant could access upon reentering the minivan.
e. Lantigua controls. I agree with the judge that in the
circumstances, the "Terry-type"13 protective sweep of the
defendant's minivan limited to the driver and the front
passenger areas was lawful under the principles of Lantigua, 38
Mass. App. Ct. at 528-529:14
"Inability to produce a license or a registration
reasonably gives rise to a suspicion of other offenses,
such as automobile theft, and justifies heightened
precautions for the officers' own safety.
"Faced with this situation, the officer's entry into the
car was justified . . . . First, prior to allowing the
defendant to reenter the car to obtain the registration,
13The majority claims that a Terry-type search was not
raised by the Commonwealth. Ante at . I disagree. In its
brief, the Commonwealth cites Terry and Lantigua, the latter of
which is an extension of the Terry-type frisk to a protective
search of the interior of a vehicle limited to situations where
concern remains "that a driver or passenger returning to the
vehicle may gain access to a weapon that may be used against the
police." Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 411
(2014), S.C., 472 Mass. 439 (2015). And, of course, in
upholding the protective sweep, the judge explicitly relied on
Lantigua.
14See Commonwealth v. Manha, 479 Mass. 44, 49 (2018).
"Allowing the defendant to return to the [vehicle] without a
search for weapons, where a weapon could be within reach of the
defendant, poses an obvious concern for officer safety."
Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 744 (2018).
See id., quoting Commonwealth v. Edwards, 476 Mass. 341, 348-349
(2017) ("Although the defendant was not in the vehicle at the
time the gun was observed, . . . there was no assurance that he
would not be returning promptly to his seat behind the wheel of
the automobile").
16
the officers could properly effect a Terry-type search of
the areas of the car which would be readily accessible to
the defendant on reentering. The purpose of the search
would be protective only, analogous to a pat frisk of the
defendant's person for weapons. The reasonableness of a
scan for weapons turns, we think, not so much on the
finding that the defendant bent down and to the right
before leaving the car, . . . but on the particular danger
to an officer when the person he is investigating is
seated in a car with his movements concealed from the
officer's view. The same concerns that allow an officer
investigating a traffic violation to order the driver out
of the car for the officer's safety . . . also allow a
limited search of the passenger compartment for weapons
before the passenger reenters the car to obtain the
registration. Courts cannot be oblivious to the recent
escalation in the numbers of incidents reported wherein
police officers have been killed or wounded while
performing routine traffic functions. '[W]e think it
crucial to remember that, as shown by many staged climaxes
to threshold police inquiries, 'the answer might be a
bullet."' Commonwealth v. Silva, [366 Mass. 402, 407
(1974)], quoting . . . [Terry, 392 U.S. at 33] (Harlan,
J., concurring). In such encounters officers must be
allowed to take reasonable precautions for their own
safety."
The majority insists that the judge's reliance on Lantigua
is misplaced because Lantigua was limited "to its facts" in
Commonwealth v. Santos, 65 Mass. App. Ct. 122, 127-128 (2005).
Ante at . Because I do not see those or similar words in
Santos, nor in any subsequent case discussing either case,15 I
respectfully disagree. While both cases involved vehicle
searches following traffic stops, Santos found Lantigua
distinguishable on other material facts. Santos, supra at 128.
15Our holding in Lantigua was recently cited approvingly by
the Supreme Judicial Court in Commonwealth v. Sheridan, 470
Mass. 752, 761 (2015).
17
Reduced to the essence of the facts, in Lantigua, 38 Mass. App.
Ct. at 528-529, we upheld a lawful limited protective sweep for
weapons, while in Santos, supra at 127, we disapproved of an
unlawful unlimited investigatory sweep for evidence.16
Eschewing Lantigua, the majority submits that this case is
controlled by Gomes, 453 Mass. at 512, ante at , a case not
involving a motor vehicle stop. There, the court held that the
police "lacked particular facts from which a reasonable
inference could be drawn that the defendant was armed and
presented a danger to the officers or others" that would justify
a patfrisk for weapons (yielding "crack" cocaine on his person).
Id. The court so held, even though officers witnessed the
defendant engaging in drug activity around 4 A.M. in an area
with a high incidence of crime, and was a known "impact player"
in the local drug market, with a criminal history involving drug
sales, but which did not include "any weapons-related offenses."
Id. at 507-508, 512. Here, the majority concludes: "This case
As in the case before us (but unlike Santos where the
16
defendant was handcuffed in a cruiser), the defendant in
Lantigua was neither handcuffed nor secured when the officer
entered the vehicle. Lantigua, 38 Mass. App. Ct. at 527. We
held in Lantigua that the officer, "as a safety precaution,"
id., "could properly retrieve the registration from the place
where the defendant said it would be, rather than have the
defendant reenter the protective and partially concealing
interior of the car, for the ostensible purpose of retrieving it
himself." Santos, 65 Mass. App. Ct. at 127 (discussing holding
in Lantigua). Thus, as applied to this case, Lantigua remains
good law, Santos notwithstanding.
18
is materially indistinguishable from Gomes." Ante at . But
plainly it is distinguishable, most materially because while
both the defendant and Gomes were engaged in criminal conduct,
the defendant before us was engaged in criminal conduct while
operating a motor vehicle -- a critical difference compelling a
different result. "The failure of the defendant to produce a
license [in this case because it was revoked] is . . .
significant. We have recognized that, in appropriate
circumstances, the '[i]nability to produce a license or a
registration reasonably gives rise to a suspicion of other
offenses, such as automobile theft, and justifies heightened
precautions for the officers' own safety.'" Santos, 65 Mass.
App. Ct. at 126, quoting Lantigua, 38 Mass. App. Ct. at 528.
f. Sweep was cursory check for weapons of front seat area.
Our courts have long held that "a Terry type of search may
extend into the interior of an automobile so long as it is
limited in scope to a protective end." Silva, 366 Mass. at 408.
Such a search must be "confined to what is minimally necessary
to learn whether the suspect is armed and to disarm him once the
weapon is discovered. . . . Thus the search must be confined to
the area from which the suspect might gain possession of a
weapon." Commonwealth v. Almeida, 373 Mass. 266, 272 (1977)
(allowing sweep of car where defendant "was not under arrest at
the time of the 'pat-down' search of his person, and there was
19
no assurance that he would not be returning promptly to his seat
behind the wheel of the automobile").
The majority fears that upholding this limited, cursory
protective sweep for weapons would "eviscerate the limitations
imposed by Gant, which sought to rein in the previously
'unbridled discretion' of officers 'to rummage at will among a
person's private effects' based on the person's commission of an
arrestable traffic offense. Gant, 556 U.S. at 345." Ante
at . Respectfully, I suggest that the majority's fears are
unfounded. Nothing of the sort condemned in Gant happened here.
In conducting their "cursory search for weapons inside the front
compartment" of the minivan, Donahue and Vardaro did not rummage
at will through anything. They did not open a glove box or the
center console, nor rummage through seat pockets or anything
else, in an effort to search "among a person's private effects."
Id. They made but a quick check under the front seats "looking
for weapons" -- nothing more. The judge characterized the
limited sweep as "consistent with the doctrine of
proportionality" and as a "measured response to evolving
circumstances," and found that the "the intrusions only
escalated [commensurate] with the rising level of definable
suspicion."
Conclusion. "It is important to distinguish this case from
the cases . . . where the driver of a vehicle stopped for a
20
traffic violation produces a valid driver's license and
registration." Watts, 74 Mass. App. Ct. at 517 n.2. Because I
am satisfied that this limited protective sweep for weapons of
the minivan's front seat area was properly grounded in
reasonable suspicion and that it was necessary to protect the
officers' safety, I would affirm the order denying the motion to
suppress.