Commonwealth v. Graham

Graham, J.

(dissenting). I respectfully disagree with the majority’s conclusion that the motion judge erred in determining that the discovery of the firearm was the result of an illegal search of a motor vehicle and not the result of a valid protective search.

*131We take the facts from the judge’s findings, supplemented by uncontradicted evidence in the record. See Commonwealth v. Colon, 449 Mass. 207, 214 (2007); Commonwealth v. Scott, 52 Mass. App. Ct. 486, 492 (2001). At approximately 12:30 a.m. on July 22, 2008, Boston police Detectives Brian Smigielski and Thomas Brooks were patrolling the Fayston Street area of the Roxbury section of Boston, where they had observed an increase in firearm violence that month. As they were standing on the sidewalk in front of 79 Fayston Street, talking to a group of individuals, they observed a car making a left turn from Mascoma Street onto Fayston. The individuals with whom Smigielski and Brooks were speaking retreated toward the steps of 79 Fayston Street when they saw the approaching vehicle. The detectives observed that the car, with four occupants, had a broken driver’s side mirror. Neither Smigielski nor Brooks had any information that the vehicle or its occupants were involved in a crime.

Smigielski and Brooks decided to follow the car, which continued down Fayston Street and turned right onto Blue Hill Avenue. The driver failed to signal this turn, and the car’s license plate was not illuminated. The car then turned left onto Alaska Street and then right onto Perrin Street, the driver failing to use directional signals on each occasion. The detectives requested the assistance of the BKOl Unit, Officers McNeil and Dodd. The car they were following, meanwhile, came to a stop at the curb in front of 33 Perrin Street. Smigielski and Brooks pulled behind it, activated the blue lights in their vehicle, and got out with their badges displayed on the breast of their outer garments. At that point, Officers Dodd and McNeil arrived and parked behind the detectives’ vehicle. All four officers then approached the car; Smigielski and Dodd were on the driver’s side, and Brooks and McNeil were on the passenger side.

As Smigielski and Brooks approached the car, they saw the driver leaning toward the glove box on the passenger side of the car. Smigielski approached the driver’s side of the car and saw the operator, Robert Kines, holding the registration in his left hand and locking the glove box with a set of keys in his right hand. Smigielski then requested Kines’s license and registration. Kines told Smigielski that he had dropped the keys he was *132holding in his right hand onto his lap, as he retrieved his license from his right rear pocket. Kines held his license out for Smigiel-ski, who took it from him. Smigielski asked Kines for his registration, at which time Kines held the registration out toward Smigielski.

Neither Smigielski nor Brooks was familiar with the defendant William A. Graham, who was the front seat passenger. However, Brooks recognized the two rear seat passengers, Greg Ai-tenor and Khyree Thompson. Brooks was aware that Thompson had a history of firearm related offenses, and that Graham, Al-tenor and Thompson were “associated with individuals from the ‘Westville Terrace’ neighborhood and based on that thought these individuals might be involved in firearm related activity.”

While Smigielski informed Kines of the reason for the stop, Kines placed his hand next to his seat and the center console. Smigielski ordered Kines to keep his hands in sight. Kines again placed his right hand down toward his side, at which point Smigielski opened the driver’s side door and ordered Kines out of the car while Kines stated, “I need my keys.” Smigielski then pulled Kines out of the car “as Kines reached for his key.” While conducting a patfrisk of Kines, Smigielski removed from Kines’s pockets four small clear plastic baggies containing what he believed to be marijuana and two leather batting gloves, and also removed a knife clipped to the side of his jeans. Then, “[bjased upon known information about the history of the occupants, the officers ordered the remaining occupants out of the car,” and conducted a patfrisk of each one.

During the patfrisk of Graham, Brooks recovered a knife1 from inside a sheath that was concealed in his left waistband area, and a clear plastic baggie containing what Brooks believed to be marijuana.

The officers then conducted a search of the “passenger compartment of the motor vehicle.” Smigielski attempted to open the glove compartment, but it was locked. Smigielski used “the key retrieved from Kines” to open the glove box, and located a black revolver.

In allowing the motion to suppress, the judge specifically *133ruled that the exit orders were warranted because, “when an officer’s life is at stake, it doesn’t take much to justify an exit order.” The judge concluded, however, that the search of the car’s passenger compartment including the glove box was illegal because the occupants were pat frisked and neither detective “felt anything that could have been a weapon in the [defendants’] pockets. . . . They simply searched the pockets and took out a few small bags of a leafy substance.”

Standard of review. We accept the motion judge’s findings of fact absent clear error, acknowledging that the weight and credibility of testimony is for the judge hearing the motion, but we review independently the motion judge’s ultimate findings and conclusions of law. Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005). “Our duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.” Id., quoting from Commonwealth v. Vesna San, 63 Mass. App. Ct. 189, 190 (2005). “Since the search of the defendant’s automobile was conducted without a warrant, the burden was on the Commonwealth to show that it was reasonable under the Fourth Amendment to the United States Constitution.” Commonwealth v. Moon, 380 Mass. 751, 759-760 (1980). “Searches and seizures conducted outside the scope of valid warrants are presumed to be unreasonable. In such circumstances, the burden is on the Commonwealth to show that the search or seizure falls within a narrow class of permissible exceptions.” Commonwealth v. Rodriguez, 378 Mass. 296, 303 (1979).

Protective search. Under art. 14 of the Massachusetts Declaration of Rights, police officers must have a reasonable apprehension of danger to themselves or others before either a driver or passenger may be ordered from a lawfully stopped motor vehicle. Commonwealth v. Gonsalves, 429 Mass. 658, 662-663 (1999). The police are, of course, entitled to take reasonable precautions for their own safety.2 “Essentially, the question is whether a reasonably pmdent [person] in the [officer’s] position *134would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Silva, 366 Mass. 402, 406 (1974). “[I]n appropriate circumstances a Terry type search may extend into the interior of an automobile.” Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). Such a search must be limited to what is minimally necessary to dispel safety concerns. See Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997); Commonwealth v. Alvarado, 427 Mass. 277, 284 (1998).

Here, the police exceeded the permissible scope of a protective search of a motor vehicle and engaged in an investigatory search, which is prohibited. The case principally relied upon by the majority, Commonwealth v. Pena, 69 Mass. App. Ct. 713, 718-719 (2007), is inapposite. There we upheld, as a proper protective search, the search underneath an automobile’s rear seat cushion where the judge found that a rear seat passenger made repeated furtive gestures with his hands, ignoring orders of the police officers, and the seat cushion where the passenger was sitting was obviously improperly placed.3

Here, there were neither furtive movements by the occupants of the car nor were there erratic movements or behavior by them. The driver produced a license and registration for the vehicle, the occupants cooperated in leaving the vehicle, and a patfrisk of the occupants and a search of the interior of the vehicle failed to uncover any weapons or threats to four armed police officers. Given these facts as found by the judge, and fully supported in the record, the judge was correct in concluding that the search of the locked glove compartment exceeded the proper bounds of a protective search.

Neither Kines nor the defendant was charged with any offense related to the knives recovered by the detectives.

In applying hindsight to the officers’ actions, this court is mindful that, “as shown by many tragic climaxes to threshold police inquiries, ‘the answer might be a bullet.’ ” Commonwealth v. Silva, 366 Mass. 402, 407 (1974), quoting from Terry v. Ohio, 392 U.S. 1, 33 (1968).

The potential threat to the officers’ safety in Pena came from the rear seat passenger in a motor vehicle with tinted windows, who continually protested the stop of the motor vehicle and “whose initial willingness to raise his hands at [the officer’s] request gave way to a refusal to sit still, erratic movement of his hands, and repeated insistence that [the officers] ‘check the trunk.’ ” Pena, supra at 719.