Commonwealth v. Loughlin

Nolan, J.

(dissenting, with whom Lynch, J., joins). Because I believe that the trial judge correctly denied the defendants’ motions to suppress evidence, I dissent from the opinion of the court.

I do not agree that Commonwealth v. Ferrara, 376 Mass. 502 (1978), is dispositive of the case. The actions of the defendant in Ferrara, prior to the time the police stopped his vehicle, were considerably less suspicious than those actions involved here. In Ferrara, the defendant went three times into a cleaning establishment that was under police surveillance and then he drove away in his automobile. The police followed closely in an unmarked automobile and an occupant of the defendant’s vehicle looked back at them. When the defendant made a sharp turn on the street, the police stopped the vehicle. That was the extent of the defendant’s suspicious activity. This court held that once the defendant had produced a valid license and registration there was no basis for further interrogation and no need for further protective precautions. Id. at 505. The majority also enlist support from Commonwealth v. McCleery, 345 Mass. 151 (1962). That case is inapposite because the vehicle in McCleery was stopped for a routine check.

The defendants’ actions in the present case were more suspicious than those involved in Ferrara or McCleery and invited more scrutiny. It was about 1 a.m. when the vehicle was observed in the breakdown lane of a highway, with its distress signals flashing, in a deserted section of Sturbridge. As the State police cruiser approached, the defendant Loughlin, who had been standing at the right rear of the vehicle, walked quickly to the passenger door and got into the vehicle. The defendant Searles, who was sitting in the driver’s seat, quickly ducked out of sight. He then jumped *67from the vehicle and came rapidly toward the State police trooper. I think it is clear that these movements could reasonably have led the trooper to suspect criminal activity on the part of the defendants. A case closer to the mark is Commonwealth v. Almeida, 373 Mass. 266 (1977). In Almeida this court held that the police were warranted in searching the defendant’s vehicle for weapons because the defendant was sitting in an automobile parked in a high crime district late at night with the car engine running and the headlights turned off.

We have consistently sustained the right of the police to make a threshold inquiry where suspicious conduct gives the police reasonable ground to suspect criminal activity on the part of a defendant. See Commonwealth v. Silva, 366 Mass. 402, 405 (1974), and cases cited. We have also held consistently that, once a “stop” has been effected, a limited protective search for weapons is justified if the circumstances support the reasonable belief of the police that their safety is threatened during the “stop.” Commonwealth v. Almeida, supra at 272. Commonwealth v. Silva, supra at 405, and cases cited.

In the case before us, the lateness of the hour, the deserted area, and the erratic behavior of the defendants justified the trooper’s belief that his safety might be threatened. The court lays great stress on the importance of the order of events. It seems to conclude that whatever suspicion was engendered by the defendant’s walking hurriedly to his vehicle’s open passenger door as soon as the police cruiser stopped and by Searle’s peculiar conduct wound down to nothing once the defendant gave the trooper his name and address. Apparently, the court rules that this gesture of identification by the defendant (though unsupported by any written verification and coming as it did only seconds after the suspicious behavior) acts as a catharsis. This “order of events” approach does not square with reality. The trooper’s impression of suspicious conduct by the defendant before the defendant furnished his name and address has a continuing effect. It perdured to that point in time when the trooper *68issued his order to exit the vehicle. It was not necessarily dissipated by a rite of passage such as responding orally with a name and address. The court suggests that this identification has the talismanic effect of removing all need for “protective precaution.” This approach does not ring true in the real world of a trooper faced with two men acting suspiciously at 1 a.m. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). Accordingly, in these circumstances he was justified in ordering Loughlin out of the vehicle and pat-frisking him to determine whether he was armed. Terry v. Ohio, 392 U.S. 1, 27 (1968). Upon discovering a large sum of money in large and small denominations on Loughlin, the trooper suspected that a robbery had been committed, which justified an inquiry about the possible existence of weapons in the vehicle. When the trooper inquired if there were weapons in the vehicle, Searles said, “No weapons. You can check.” By extending this permission to search, Searles validly consented to the ensuing search of the vehicle. See Commonwealth v. Cantalupo, 380 Mass. 173, 176 (1980). The trial judge found that the search was consensual. That finding is supported by the evidence presented at the hearing on the motion to suppress.

I maintain that the initial “stop,” the ordering of the defendants out of the vehicle, and the subsequent pat-down of the defendants did not infringe on any of the defendants’ constitutional rights but, instead, were justified by the trooper’s reasonable appraisal of the situation. I further hold that the subsequent search of the vehicle for weapons was conducted with valid consent. Therefore the judge correctly denied suppression of the fruits of that search. I would affirm the defendants’ convictions.

I cannot resist adding an epilogue. For twenty years, State courts have been required to accommodate their jurisprudence to an exclusionary rule which was fashioned with the hope that more scrupulous attention would be paid to the precious rights of the Fourth Amendment to the United States Constitution. Mapp v. Ohio, 367 U.S. 643, 655 (1961). We can only applaud the zeal with which these *69rights are protected. However, the wisdom of a rule excluding evidence instead of punishing the violator of these rights is, at the very least, questionable. State courts are bound to follow this rule but we are not required to expand it as the court in this case is doing.