Commonwealth v. Cordero

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SJC-12210

COMMONWEALTH vs. GABRIEL CORDERO.

Berkshire. February 14, 2017. - June 1, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Search and Seizure, Motor vehicle, Threshold police inquiry,
Reasonable suspicion. Constitutional Law, Search and
seizure, Investigatory stop, Reasonable
suspicion. Practice, Criminal, Motion to
suppress. Controlled Substances.

Indictments found and returned in the Superior Court
Department on May 11, 2015.

A pretrial motion to suppress evidence was heard by John A.
Agostini, J.

An application for leave to prosecute an interlocutory
appeal was allowed by Duffly, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court. The Supreme Judicial Court granted an
application for direct appellate review.

Merritt Schnipper for the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for
the Commonwealth.

GAZIANO, J. We address in this case the authority of a
 2

police officer to prolong a routine traffic stop in order to

investigate suspected, unrelated criminal activity. The

defendant argues that State police troopers and local police

officers unreasonably detained him beyond the time required to

accomplish the purposes of a traffic stop, in violation of the

Fourth Amendment of the United States Constitution and art. 14

of the Massachusetts Declaration of Rights, and thus that

evidence seized from the trunk of his vehicle must be

suppressed. The Commonwealth contends, in contrast, that an

officer is not required to ignore incriminating facts that arise

during the traffic stop, and that the facts gave rise to a

reasonable suspicion to believe that the defendant was engaged

in criminal activity. After a Superior Court judge denied the

defendant's motion to suppress, a single justice of this court

allowed the defendant's motion for interlocutory review by the

Appeals Court, and we allowed the defendant's application for

direct appellate review. We conclude that once a police officer

has completed the investigation of a defendant's civil traffic

violations, and the facts do not give rise to reasonable

suspicion of criminal activity, the officer is required to

permit the defendant to drive away. Therefore, we reverse the

order denying the defendant's motion to suppress. 1

1
We need not reach the defendant's second argument, that
the Commonwealth failed to prove that he unambiguously and
 3

1. Facts. We present the facts as found by the motion

judge, supplemented by uncontroverted testimony at the motion

hearing. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007),

S.C., 450 Mass. 818 (2008). On the evening of February 19,

2015, at approximately 6:50 P.M., as State police Trooper Noah

Pack left the Massachusetts Turnpike in Lee, he observed a

Toyota Camry being driven ahead of him with broken tail and

brake lights. He also noticed that the vehicle's windows were

illegally tinted. Pack did not immediately stop the vehicle.

Rather, he followed it while driving along Route 20, through Lee

and Lenox, for approximately five miles.

While he followed the vehicle, Pack used his onboard

computer to determine that the vehicle was owned by and

registered to the defendant. He also learned that the

defendant's driver's license was current and valid and that the

vehicle was properly registered, inspected, and insured.

Further, he obtained a photograph and other biographical

information of the defendant, and learned that there were no

voluntarily consented to the search of the trunk of his vehicle.
"Where the defendant seeks to suppress information obtained
after unlawful police conduct, the issue is whether the evidence
challenged has been obtained by exploiting the illegality."
Commonwealth v. Fredette, 396 Mass. 455, 458-459 (1985), citing
Wong Sun v. United States, 371 U.S. 471, 488 (1963). Because we
conclude that the prolonged seizure of the defendant was
unconstitutional, any consent given during the illegal seizure
was invalid. See Commonwealth v. Torres, 424 Mass. 153, 163
(1997) ("consent obtained during an illegal detention is
ineffective to justify an otherwise invalid search").
 4

warrants for the defendant's arrest and that the defendant had

no pending criminal charges. Pack also discovered that the

defendant lived in Holyoke, 2 had been convicted of charges of

firearms violations, drug offenses, and assault and battery on a

police officer, and had been incarcerated for the drug-related

convictions.

Pack stopped the vehicle, approached the driver's side, and

asked the defendant to roll down the window. The trooper

observed that the driver appeared to be the person in the

Registry of Motor Vehicles photograph and that another man was

seated in the passenger seat. Pack asked the defendant for his

driver's license and registration.

While the defendant looked for these items, the trooper

noticed that he seemed to be "extremely nervous," not making eye

contact, stuttering when he answered questions, and offering

information unrelated to the stop. 3 Pack asked the defendant

"what brought him out this way" and "where he was coming from."

The defendant answered that he was headed to a chain restaurant

"up the road." Pack did not believe this statement because,

2
Based on his law enforcement experience, the trooper
believed that Holyoke is a "major drug source city" and that a
"good percentage of the drugs coming into Berkshire County" came
from Holyoke.
3
The trooper testified that the defendant "was very
talkative in that he offered his own speech about his own issues
and what I perceived as an attempt to control the conversation
and distract me."
 5

while he had been following the defendant, they had driven past

one such restaurant in Lee, and because the defendant had not

specified the location of the restaurant where he was headed.

When asked where he was coming from, the defendant said that he

had been at his cousin's house "just behind him." Given that

Pack had been following the defendant for more than five miles,

he also doubted this explanation.

The defendant produced his driver's license but could not

locate the vehicle's registration. The trooper asked the

passenger for identification, and returned to his cruiser to run

a records check on that information. Once inside the cruiser,

Pack "called for assistance" and waited in his cruiser until a

second trooper arrived "a few minutes later."

After the arrival of a second trooper, Pack returned to the

defendant's vehicle "to test the window tint and have a brief

conversation with [the defendant]." Proffering some paperwork,

the defendant said that the brake light was out because he

recently had been in an accident; he asked to get out of his

vehicle to look at the tail light. The two went to the rear of

the vehicle, where Pack pointed out the damaged lights and

tested the vehicle's window tint.

Pack then told the defendant that he was "confused by [the

defendant's] travel for the day" and questioned the defendant,

who continued to show signs of nervousness, about his travels.
 6

In response, the defendant said that he was going to see a

friend, but did not provide the friend's name. Pack told the

defendant that he suspected the defendant of drug activity and

asked for permission to search the vehicle. The defendant said

that he did not have any drugs in the vehicle and that "it ain't

got to be like that." Pack interpreted this remark as a refusal

of consent. He left the defendant standing with the second

trooper at the rear of the vehicle and went to question the

passenger. When the passenger also showed signs of nervousness

and gave a different account of where the two had been that the

trooper did not believe, he called over the police radio for a

canine to be brought to the location to conduct a drug sniff.

Pack testified that, while they were waiting, the defendant

asked the second trooper whether he could sit in the police

cruiser to get out of the cold. Pack testified that the second

trooper told the defendant that he could do so, but first would

be required to submit to a patfrisk and then be handcuffed; the

second trooper said that the defendant consented. A frisk of

the defendant revealed $1,900 in cash in one of his pockets.

After he had been handcuffed and placed in the back of the

cruiser, the defendant told the second trooper that there was

some marijuana in the glove box. Pack asked for permission to

retrieve the marijuana from the vehicle, and did so after the
 7

defendant agreed. 4

Eventually, a Pittsfield police officer arrived on the

scene. The officer asked the defendant if he would consent to a

search of the trunk. The defendant responded only that he

wanted to go home to his children. The officer asked a second

time for the defendant's consent to search, and the defendant

responded that all he had in his trunk was a plastic bag of

clothes. When, for a third time, the officer asked for consent

to search the vehicle, according to the officer, the defendant

"gave consent for it."

After a search of the vehicle's trunk revealed roughly

2,000 bags of what the officers believed to be heroin, the

defendant was placed under arrest. The entire duration of the

roadside stop was between forty and forty-five minutes.

The defendant was charged with trafficking in heroin, G. L.

c. 94C, § 32E (c); distribution of a class A substance as a

subsequent offender, G. L. c. 94C, § 32E (b); motor vehicle

lights violations, G. L. c. 90, § 7; and nontransparent window

obstruction, G. L. c. 90, § 9D. The defendant was arraigned and

filed a motion to suppress evidence seized from him during the

traffic stop. A Superior Court judge denied the defendant's

motion to suppress evidence seized from his vehicle during the

traffic stop.

4
The amount of marijuana in the vehicle was not criminal.
 8

2. Discussion. a. Standard of review. "In reviewing a

ruling on a motion to suppress evidence, we accept the judge's

subsidiary findings of fact absent clear error and leave to the

judge the responsibility of determining the weight and

credibility to be given . . . testimony presented at the motion

hearing. . . . We review independently the application of

constitutional principles to the facts found" (quotations and

citations omitted). Commonwealth v. Amado, 474 Mass. 147, 151

(2016). See Commonwealth v. Cassino, 474 Mass. 85, 88 (2016)

("We make an independent determination of the correctness of the

judge's application of constitutional principles" [quotations

and citation omitted]).

b. Permissible bounds of a routine traffic stop. A

routine traffic stop may not last longer than "reasonably

necessary to effectuate the purpose of the stop" (citation

omitted). Amado, 474 Mass. at 151. "It is well settled that a

police inquiry in a routine traffic stop must end [when the

purpose of the stop is accomplished] unless the police have

grounds for inferring that 'either the operator or his

passengers were involved in the commission of a crime . . . or

engaged in other suspicious conduct'" (citation

omitted). Commonwealth v. Torres, 424 Mass. 153, 158 (1997).

See Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999)

("Citizens do not expect that police officers handling a routine
 9

traffic violation will engage . . . in stalling tactics,

obfuscation, strained conversation, or unjustified exit orders,

to prolong the seizure in the hope that, sooner or later, the

stop might yield up some evidence of an arrestable crime").

In Rodriguez v. United States, 135 S. Ct. 1609, 1614

(2015), the United States Supreme Court held that "the tolerable

duration of police inquiries in the traffic-stop context is

determined by the seizure's 'mission' to address the traffic

violation that warranted the stop." See United States

v. Sharpe, 470 U.S. 675, 685 (1985); Commonwealth v. Feyenord,

445 Mass. 72, 80 n.9 (2005), cert. denied, 546 U.S. 1187 (2006)

("It goes without saying that the driver cannot be held

indefinitely until all avenues of possible inquiry have been

tried and exhausted"). Police authority to seize an individual

ends "when tasks tied to the traffic infraction are -- or

reasonably should have been -– completed." Rodriguez, supra.

The police do not earn "bonus time" to conduct additional

investigations by an expeditious performance of the traffic-

related investigation. The reasonableness of the stop depends

on what the police, in fact, do to complete the purpose of the

stop. Id. at 1616.

Here, it is undisputed that the trooper was authorized to

stop the defendant for civil traffic infractions. See Amado,

474 Mass. at 151 ("Where the police have observed a traffic
 10

violation, they are warranted in stopping a vehicle" [citation

omitted]); Commonwealth v. Bacon, 381 Mass. 642, 644 (1980)

(same). The trooper also was justified in conducting a roadside

investigation related to the broken tail and brake lights, and

the impermissible degree of the window tint. See Rodriguez, 135

S. Ct. at 1614 ("A seizure for a traffic violation justifies a

police investigation of that violation"). The stop of the

defendant's vehicle, however, could not last "longer than

reasonably necessary to effectuate the purpose of the stop"

(citation omitted). Commonwealth v. Cruz, 459 Mass. 459, 465

(2011).

By the time the trooper stopped the defendant's vehicle, he

had acquired information from his onboard computer concerning

the vehicle (i.e., that it was properly registered and insured)

and the registered owner of the vehicle (i.e., that the

defendant was a licensed operator who had no outstanding

warrants). Thereafter, the trooper's roadside investigation

reasonably included confirmation of the identity of the driver,

testing the percentage of the vehicle's window tint, and writing

citations for the motor vehicle violations. See Torres, 424

Mass. at 163 (investigation of routine traffic stop ends when

purpose of stop is accomplished).

Once the defendant got out of his vehicle and the trooper

finished testing the window tint and discussing with the
 11

defendant the broken tail and brake lights, these tasks were

completed. Accordingly, because "[a]uthority for the

seizure . . . ends when tasks tied to the traffic infraction

are -— or reasonably should have been -— completed," the

investigation that followed was unreasonable unless supported by

additional justification. See Rodriguez, 135 S. Ct. at 1614.

See also Torres, 424 Mass. at 158 (police inquiry in routine

traffic stop must end upon production of valid license and

registration).

c. Reasonable suspicion to extend investigation. We turn

next to consider whether, after the trooper had finished

discussing the broken vehicle lights and window tint with the

defendant, the trooper had reasonable suspicion to justify his

investigation of criminal drug activity.

"In order to expand a threshold inquiry of a motorist and

prolong his detention, an officer must reasonably believe that

there is further criminal conduct afoot, and that belief must be

based on 'specific and articulable facts and the specific

reasonable inferences which follow from such facts in light of

the officer's experience'" (citation omitted). Feyenord, 445

Mass. at 77. 5 "The dispositive issue, therefore, is whether,

5
While a combination of nonsuspicious facts cumulatively
may establish reasonable suspicion, see Commonwealth v. Fraser,
410 Mass. 541, 545 (1991) ("a combination of factors that are
each innocent of themselves may, when taken together, amount to
 12

after [the defendant] had complied with the usual requirements

associated with a [traffic code] violation, a legally sufficient

basis existed, in terms of reasonable suspicion grounded in

specific, articulable facts . . . ." Torres, 424 Mass. at 158.

When the trooper finished discussing with the defendant the

broken lights and the window tint, the facts known to the

trooper did not provide reasonable suspicion for a drug

investigation. At that point, the trooper knew the following:

the vehicle was owned by and registered to the defendant; the

defendant's driver's license was current and valid and the

vehicle was properly registered, inspected, and insured; there

were no outstanding warrants for the defendant's arrest; the

driver of the vehicle was its registered owner; 6 and the

defendant had no pending criminal charges. 7

The Commonwealth's arguments that the trooper had

reasonable suspicion of drug activity so as to justify further

investigation are unavailing. First, the Commonwealth notes

that the defendant was "extremely nervous, making no eye contact

the requisite reasonable belief"), "[a] hunch will not suffice."
Commonwealth v. Wren, 391 Mass. 705, 707 (1984).
6
The trooper's onboard computer had provided him with an
identifying photograph of the defendant.
7
The defendant's failure to produce his registration
provided the trooper with the authority to issue a citation for
a fine of thirty-five dollars under G. L. c. 90, §§ 11 and 20,
for failure to carry a license or registration certificate.
 13

and stuttering his speech in answering questions," and offering

unrelated information to the trooper. That the defendant

exhibited signs of nervousness and evasiveness in the context of

an involuntary police encounter cannot, without more, generate

reasonable suspicion. See Commonwealth v. Martin, 457 Mass. 14,

21 (2010), quoting United States v. McKoy, 428 F.3d 38, 40 (1st

Cir. 2005) ("Nervousness is a common and entirely natural

reaction to police presence"). See also Gonsalves, 429 Mass. at

668–669 (officer's observation that passenger in taxicab was

acting nervously did not support reasonable

suspicion); Commonwealth v. Evans, 87 Mass. App. Ct. 687, 693

(2015) ("our cases have consistently held that 'a defendant's

nervous movements or appearance alone is insufficient' to create

reasonable suspicion" [citation omitted]).

Second, the defendant's evasive answers about where he had

come from and where he was going did not give rise to a

reasonable suspicion of illegal drug activity. See Rodriguez,

135 S. Ct. at 1615 ("Beyond determining whether to issue a

traffic ticket, an officer's mission includes . . . such

inquiries . . . [as] checking the driver's license, determining

whether there are outstanding warrants against the driver, and

inspecting the automobile's registration and proof of insurance"

[citation omitted]). That the defendant had driven past a

building housing one chain restaurant en route to another such
 14

restaurant is innocuous, not sinister, and the inference to the

contrary was unreasonable. Similarly, the defendant's statement

that he was coming from his cousin's house "just behind him,"

which the trooper doubted given that he had followed the vehicle

for over five miles, cannot support reasonable suspicion.

See Commonwealth v. Warren, 475 Mass. 530, 538 (2016) ("evasive

conduct in the absence of any other information tending toward

an individualized suspicion that the defendant was involved in

the crime is insufficient to support reasonable

suspicion"); Commonwealth v. Mercado, 422 Mass. 367, 371 (1996)

("Neither evasive behavior, proximity to a crime scene, nor

matching a general description is alone sufficient to support

the reasonable suspicion necessary to justify a stop and

frisk").

Third, the trooper's opinion that Holyoke was a "major drug

source city" and that a "good percentage of the drugs coming

into Berkshire County" came from there did not give rise to

reasonable suspicion. The introduction in evidence of the

trooper's opinion raises the same concerns that we have

addressed in the context of "high crime" neighborhoods. We have

held that a "high crime" neighborhood may be a proper factor in

the reasonable suspicion analysis, see Commonwealth v. Johnson,

454 Mass. 159, 163 (2009), but "[j]ust being in a high crime

area is not enough to justify a stop." Commonwealth
 15

v. Grandison, 433 Mass. 135, 139 (2001). We repeatedly have

urged caution in the use of this consideration, pointing out

that "many honest, law-abiding citizens live and work in high-

crime areas. Those citizens are entitled to the protections of

the Federal and State Constitutions, despite the character of

the area" (citation omitted). Commonwealth v. Gomes, 453 Mass.

506, 512 (2009). "The exercise of that caution necessarily

means that we look beyond the term 'high crime area' to

determine whether the inferences fairly drawn from that

characterization 'demonstrat[e] the reasonableness of the

intrusion'" (citation omitted). Commonwealth v. Meneus, 476

Mass. 231, 238 (2017).

Similarly, a suspect's connection to a location that is

called a drug "source city" cannot, standing alone, support

reasonable suspicion. Those travelling from a "source city"

comprise "a very large category of presumably innocent travelers

. . . who would be subject to virtually random seizures" were

the "source city" consideration to justify a seizure. See Reid

v. Georgia, 448 U.S. 438, 441 (1980) (per curiam). "[T]ravel

from [a source city] cannot be regarded as in any way

suspicious" because "the probability that any given . . .

passenger from [a source city] is a drug courier is

infinitesimally small. Such a flimsy factor should not be

allowed to justify -- or help justify -- the stopping of
 16

travelers . . . ." United States v. Andrews, 600 F.2d 563, 566

(6th Cir.), cert. denied, 444 U.S. 878 (1979). See United

States v. Lambert, 46 F.3d 1064, 1070-1071 (10th Cir. 1995) (no

reasonable suspicion where only information known to agents was

that suspect departed from drug-source city, was flying alone,

had one-way ticket he had purchased with cash, had checked one

piece of luggage, and appeared nervous); United States v. Grant,

920 F.2d 376, 378-379, 384-385 (6th Cir. 1991) (no reasonable

suspicion of criminal activity even though suspect came from

"source city" for drug couriers, appeared nervous, did not

produce his plane ticket on request, and did not have his name

on flight manifest); United States v. White, 890 F.2d 1413,

1417-1419 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990) (no

reasonable suspicion to justify detention of suspect after

suspect deplaned from drug-source city, even though suspect

arrived early in morning, purchased one-way ticket with cash,

held carry-on bag closely with both hands, and appeared

nervous). See also United States v. Wilson, 953 F.2d 116, 125

(4th Cir. 1991) (source city factor plays a relatively

insignificant role in reasonable suspicion analysis).

Lastly, here, the defendant's prior convictions, without

further specific and articulable facts indicating that criminal

activity was afoot, could not create reasonable suspicion.

While Massachusetts courts have commented that "knowledge of a
 17

person's arrest record or unspecified 'criminal conduct' [may]

be considered in a reasonable suspicion evaluation" (citation

omitted), further evidence is required to support reasonable

suspicion. Commonwealth v. Wright, 85 Mass. App. Ct. 380, 383

(2014), and cases cited. See id. at 384 (vehicle occupants'

prior narcotics convictions, when combined with strong odor of

air freshener and suspect's use of leased vehicle registered in

State where neither occupant lived, supported reasonable

suspicion).

The Commonwealth relies on Feyenord, supra, to justify the

duration and intrusiveness of the search. See J.A. Grasso, Jr.

& C.M. McEvoy, Suppression Matters Under Massachusetts Law

§ 4-5[b] (2017) ("Even during an initially lawful stop, the

character of the stop can change quickly"). The circumstances

here, however, are not akin to those in Feyenord, 445 Mass. at

73, where the police officer stopped a suspect for a civil

traffic violation. The officer's investigation of the traffic

infraction evolved into a reasonable investigation of other

potential crimes because the suspect "was unable to produce a

[driver's] license," provided a Massachusetts registration that

was not in his name, and gave the officer a false name and

birthdate. Id. at 73-74.

The facts in this case differ in two important respects.

First, unlike in Feyenord, 445 Mass. at 78, the trooper's
 18

investigation of the traffic infraction revealed no facts that

were manifestly suspicious, and, second, the trooper had

completed most of his investigatory tasks before stopping the

defendant, thereby reducing the time necessary for his roadside

investigation. See Commonwealth v. Locke, 89 Mass. App. Ct.

497, 501-502 (2016) (no reasonable suspicion despite odor of

unburnt marijuana, presence of air fresheners, suspect's

nervousness, and fact that passenger was staring silently

ahead); Commonwealth v. Brown, 75 Mass. App. Ct. 528, 533, 537,

539 (2009) (suspect's "nervous looks" and "tense" appearance

were "general descriptions [that] fall short of the 'specific

and articulable facts' which are required to demonstrate

reasonableness. . . . It is not by itself sufficient that the

point of encounter with police occurs in a high crime

area. . . . Although in hindsight [the officer's] hunch proved

to be correct, we view the reasonableness of the search and

seizure from the vantage preceding the discovery of the

[evidence], and on that basis the actions of the police here

exceeded constitutional grounds" [quotations and citations

omitted]); Commonwealth v. Santos, 65 Mass. App. Ct. 122, 128

(2005) (no reasonable suspicion where suspect did not have his

driver's license or vehicle registration in his possession, and

where stop occurred in high crime area).

Ultimately, by the time the trooper finished discussing
 19

with the defendant the broken lights and the window tint, the

investigation of the civil traffic violations was complete.

Because this investigation did not give rise to reasonable

suspicion of criminal activity, the trooper did not have a

legitimate basis to detain the defendant, and the defendant

should have been allowed to drive away. See Torres, 424 Mass.

at 163 (continued detention of defendant and passenger no longer

necessary after defendant had satisfied purpose of stop by

producing his license and registration; therefore, all evidence

seized after that point must be suppressed as fruit of poisonous

tree).

Order denying defendant's
motion to suppress
reversed.