2013 WL 4251773 (Mass.App.Ct.)
For Dockets See 2013-P-0682
Appeals Court Of Massachusetts.
COMMONWEALTH,
v.
Michael BERNARD.
No. 2013-P-0682.
July, 2013.
Brief and Record Appendix for the Defendant on Appeal
from the Lawrence District Court
Edward Crane, Attorney for the Defendant, BBO# 679016,
Law Office of Kevin Crane, 104 Mount Auburn St., P.O.
Box 381030, Cambridge, MA 02238, (617) 851-8404,
Edward@cranelawoffice.com.
*i TABLE OF CONTENTS
Page 1
CAUSE THE DEFENDANT'S LICENSE PLATE
COVER DID NOT OBSCURE THE NUMBERS ON
THE PLATE IN VIOLATION OF G. L. C. 90, S. 6 ... 6
A. The Judge's Finding That Trooper Sweeney Agreed
That The Photograph Accurately Depicted The Defendant's Vehicle On The Day Of The Stop Was Not Clearly
Erroneous ... 7
B. The Judge Did Not Credit Trooper Sweeney's Testimony As A Whole And Any Argument Based On This
Assumption Is Flawed ... 10
C. Tinted License Plate Covers Are Not Per Se Illegal
Under G. L. c. 90, s. 6 Or The Massachusetts Code Of
Regulations ... 11
D. The Stop Of The Defendant's Vehicle Was Not Justified Because He Did Not Commit A Traffic Violation ... 12
TABLE OF AUTHORITIES ... iii
STATEMENT OF THE ISSUES ... 1
STATEMENT OF THE CASE ... 1
STATEMENT OF THE FACTS ... 1
II. EVEN IF THE INITIAL STOP WAS LEGAL,
TROOPER'S SUBSEQUENT EXIT ORDER TO THE
DEFENDANT WAS UNCONSTITUTIONAL BECAUSE IT WAS NOT SUPPORTED BY A REASONABLE SUSPICION THAT THE DEFENDANT WAS
DANGEROUS ... 13
*ii A. The Circumstances Did Not Warrant A Reasonable
Belief Posed A Safety Risk ... 13
A. The Illegal Stop ... 2
B. Trooper Sweeney's Interaction With The Defendant ...
2
C. The Exit Order And Pat Frisk ... 4
ARGUMENT
i. Any Reasonable Fear That May Have Been Triggered
By The Defendant's Act Of Reaching Towards The Center
Console Was Alleviated By His Subsequent Explanation ...
14
ii. The Defendant's Nervousness In No Way Suggested
That He Was A Threat To Trooper Sweeney ... 17
I. THE MOTION JUDGE CORRECTLY ALLOWED
THE DEFENDANT'S MOTION TO SUPPRESS BE-
iii. Other Factors Diminished Any Suggestion That The
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2013 WL 4251773 (Mass.App.Ct.)
Page 2
Defendant Posed A Safet Risk To Trooper Sweeney ... 18
Commonwealth v. Murphy, 442 Mass. 485 (2004) ... 6
B. Trooper Sweeney Prematurely Concluded That The
Defendant Was Dangerous And Unreasonably Persisted
With This Conclusion Without Assessing the Totality Of
The Circumstances ... 20
III. REGARDLESS AS TO WHETHER THE INITIAL
STOP AND EXIT ORDER WERE JUSTIFIED,
TROOPER SWEENEY WAS NOT WARRANTED IN
LIFTING UP THE DEFENDANT'S SHIRT PRIOR TO
FRISKING HIM ... 22
CONCLUSION ... 25
Commonwealth v. Pugh, 462 Mass. 482 (2012) ... 7
Commonwealth v. Robles, 48 Mass. App. Ct. 490 (2000) ...
18
Commonwealth v. Silva, 366 Mass. 402 (1974) ... 22
Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516 (1984)
... 6
Commonwealth v. Stampley, 437 Mass. 323 (2002) ... 13
RECORD APPENDIX
Commonwealth v. Torres, 424 Mass. 153 (1997) ... 16
MASS R. APP. P. 16(K) CERTIFICATE
*iii TABLE OF AUTHORITIES
CASES
*iv Commonwealth v. Torres, 433 Mass. 669 (2001) ... 13
Commonwealth v. Wolcott, 77 Mass. App. Ct. 457 (2010)
... 7
STATUTORY AUTHORITIES
Massachusetts Cases
Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ... 12
Commonwealth v. Brown, 75 Mass. App. Ct. 528 (2009) ...
17
Commonwealth v. Feyenord, 445 Mass. 72 (2005) ... 17
Commonwealth v. Flemming, 76 Mass. App. Ct. 632
(2010) ... 22
Commonwealth v. Goewey, 452 Mass. 399 (2008) ... 14
Commonwealth v. Gonsalves, 429 Mass. 658 (1999) ... 13
Commonwealth v. Joe, 425 Mass. 99 (1997) ... 21
Massachusetts General Laws
G. L. c. 90, s. 6 ... 11
SECONDARY AUTHORITIES
Treatises
Massachusetts Guide To Evidence § 901(a) ... 9
*1 STATEMENT OF THE.ISSUES.
1. The Motion Judge Found That The Defendant's License
Plate Was Not Obstructed And Therefore That He Did Not
Violate G. L. c. 90, s. 6. Was This Finding Clearly Erroneous?
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2013 WL 4251773 (Mass.App.Ct.)
2. The Defendant Reached Towards The Area Next To The
Center Console And Appeared Nervous Throughout The
Stop. Did These Factors Provide A Sufficient Basis For
Trooper' Sweeney's Exit Order?
3. Did Trooper Sweeney Act Reasonably In Handcuffing
The Defendant And Lifting His Shirt Up At The Side Of A
Busy Highway?
STATEMENT OF THE CASE
The defendant is satisfied with the Commonwealth's
statement of the case in so much as it describes the nature
of the Commonwealth's appeal and the procedural history.
STATEMENT OF THE FACTS
The facts contained in section A are taken from the motion
judge's findings and undisputed testimony elicited at the
hearing. Because the motion judge found that the initial
stop of the defendant's vehicle was illegal, she did not
make any further findings about the events following the
stop. Section B describes the events following the stop
with facts derived from undisputed testimony and evidence
introduced at the motion hearing.
*2 A. The Illegal Stop.
On the afternoon of June 9, 2011, Trooper Jeremy
Sweeney of the Massachusetts State Police was driving a
marked cruiser southbound on Route 495.[FN1] (R. 1).
Trooper Sweeney was traveling in the right lane of the
highway.[FN2] (Tr. 7). He noticed a vehicle pass him in the
left lane of the highway, two lanes over from his location.
(Tr. 7). This vehicle had a plastic cover over the rear license plate. (R. 2). This cover was clear, such that the
numbers and letters were visible and not obstructed. (R. 1).
Despite this lack of obstruction Trooper Sweeney moved
behind this vehicle and pulled it over for having an obscured license plate in violation of G. L. c. 90, s. 6. (R. 1).
Page 3
FN1. Reference to the record appendix will be
cited by page number as (R. _).
FN2. Reference to the transcript of the motion to
suppress hearing will be cited by page number as
(Tr. _).
B. Trooper Sweeney's Interaction With The Defendant.
As the vehicle pulled into the breakdown lane on Route
495, Trooper Sweeney observed the driver leantowards the
area between the driver's seat and the center console for
approximately five seconds. (Tr.9). Once the vehicle
stopped, Trooper Sweeney exited his cruiser and approached the vehicle on the *3 passenger side. (Tr. 10). He
asked the defendant, the driver of the vehicle, for his license and registration. (Tr. 10). The defendant opened. the
glove box and removed some papers. (Tr. 10). He retrieved
his registration from these papers and handed it to Trooper
Sweeney. (Tr. 10). Trooper Sweeney noticed that the defendant's hand was shaking. (Tr. 10. The. defendant
reached into the center console and removed more papers
in a futile search for his license. (Tr. 10-11). After two
minutes of searching, the defendant told Trooper Sweeney
that he did not have his license on him. (Tr. 11).
Trooper Sweeney told the defendant the reason for the stop
and said that he had observed the defendant reaching towards the center console while in the process of pulling
over. (Tr. 12):. The. defendant responded that he was
reaching over because he had spilled his ice cream. (Tr.
12). The defendant pointed towards a bowl of ice cream
that was sitting on the passenger's seat. (Tr. 12). Trooper
Sweeney next asked the defendant if he had been pulled
over recently. (Tr. 13). The defendant responded that he
had been pulled over about four months ago. (Tr. 13).
Continuing with his inquiry, Trooper Sweeney asked the
*4 defendant if he had ever been arrested. (Tr. 13). The
defendant responded that he had, but not in the last seven
years (Tr. 13).
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2013 WL 4251773 (Mass.App.Ct.)
Trooper Sweeney next quizzed the defendant about where
he was heading. (Tr. 14). The defendant responded that he
was headed to work at Tedesco's Towing. (Tr. 14). Trooper
Sweeney was aware that this company tows vehicles for
the State Police. (Tr. 14). Trooper Sweeney concluded his
questioning by asking the defendant why he was nervous if
he had been pulled over recently, he had been arrested
before, and he worked for a company that interacts with the
State Police. (Tr. 14). The defendant did not offer a reason
in response. (Tr. 14).
Page 4
responded that the defendant's freedom was not worth his
career. (Tr. 26). Trooper Sweeney proceeded to arrest the
defendant and bring him to the police barracks. (Tr. 26-28).
6ARGUMENT
I. THE MOTION JUDGE CORRECTLY ALLOWED
THE DEFENDANT'S MOTION TO SUPPRESS
BECAUSE HIS LICENSE PLATE COVER DID NOT
OBSCURE THE NUMBERS ON THE PLATE IN
VIOLATION OF G. L. C. 90, S. 6.
C. The Exit Order And Pat Frisk.
Having concluded his questioning, Trooper Sweeney went
around the vehicle, opened the driver's side door, and
asked the defendant to exit the vehicle. (14-15). The defendant did so and Trooper Sweeney moved him to the rear
of the vehicle. (Tr. 15). As Trooper Sweeney closed the
driver's side door, he noticed a Leatherman tool set and a
collapsible baton in the map pocket of the vehicle. (Tr.
15-16). Trooper Sweeney subsequently asked the defendant if he would *5 mind being patted down. (Tr. 19).
The defendant said that he did. (Tr. 19). This response
concerned Trooper Sweeney and he informed the defendant that he was going to conduct a pat down anyways.
(Tr. 20).
Prior to the search, Trooper Sweeney asked the defendant
if he had any weapons. (Tr. 21). The defendant said that he
had a knife in his pants pocket. (Tr. 21). Trooper Sweeney
proceeded to handcuff the defendant and lift up his shirt.
(Tr. 22). In doing so, Trooper Sweeney uncovered a knife
from the defendant's pocket and a firearm from a concealed
holster in the defendant's pants. (Tr. 23). The defendant
said that he had bought the gun from someone in New
Hampshire and that he did not have a license for it. (Tr.
23).
At this point, the defendant asked Trooper Sweeney not to
arrest him. (Tr. 24). He begged Trooper Sweeney to help
him out and asserted that he was turning his life around
after becoming a father. (Tr. 24-26). Trooper Sweeney
The motion judge allowed the defendant's motion to suppress because she found that his license plate cover was not
in violation of G. L. c. 90, s. 6 and therefore Trooper
Sweeney had no legal basis for stopping the defendant's
vehicle. (R. 1-2). The judge based this finding on a photograph of the rear of the defendant's vehicle. This color
photograph shows a clear plastic cover over the defendant's
license plate that does not obstruct the letters or numbers in
any way. (R. 3). The judge found that Trooper Sweeney
testified that this photograph accurately depicted the defendant's vehicle as it appeared on the day of the stop. (R.
1). The Commonwealth asserts that Trooper Sweeny never
testified as such and that this finding was clearly erroneous.[FN3] (Comm. Br. 17). Contrary to the Commonwealth's
assertion, this finding was well-supported by the evidence.
FN3. Reference to the Commonwealth's brief will
be cited as (Comm. Br. _).
*7 A. The Judge's Finding That Trooper Sweeney
Agreed That The Photograph Accurately Depicted The
Defendant's Vehicle On The Day Of The Stop Was Not
Clearly Erroneous.
“In reviewing a ruling on a motion to suppress evidence,
[appellate courts] accept the judge's subsidiary findings of
fact absent clear error.” Commonwealth v. Murphy, 442
Mass. 485, 492 (2004). “The clear error standard is a very
limited form of review.” Commonwealth v. Spagnolo, 17
Mass. App. Ct. 516, 517 (1984). “A finding is ‘clearly
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2013 WL 4251773 (Mass.App.Ct.)
Page 5
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Commonwealth v. Pugh, 462 Mass. 482, 495
(2012), quoting Commonwealth v. Wolcott, 77 Mass. App.
Ct. 457, 471-472 n.12 (2010). “The weight and credibility
to be given oral testimony is for the [motion] judge.”
Murphy, 442 Mass at 492.
The Commonwealth argues that “no reasonable reading of
[Trooper Sweeney's] testimony *8 about the photograph...
supports the judge's finding.” (Comm. Br. 21). The
Commonwealth asserts that Trooper Sweeney testified that
he could read the license plate as it was depicted in the
photograph, but never testified that the photograph accurately depicted the defendant's vehicle at the time of the
stop. (Comm. Br. 18-19).
As noted above, the Commonwealth challenges the judge's
finding that “Trooper Sweeney agreed the photograph
presented was a fair and accurate depiction of the plate, as
it appeared at the time the defendant was stopped.” (R. 1).
The transcript quite clearly contradicts the Commonwealth's argument. The transcript reflects the following
exchange after defense counsel showed the photograph to
Trooper Sweeney:
DEFENSE COUNSEL:
Does this look like the vehicle you saw on that particular day?
TROOPER SWEENEY: DEFENSE COUNSEL:
Yes. And could you read that license plate number off
the back of the car, please?
TROOPER SWEENEY: DEFENSE COUNSEL:
Two nine tango zulu nine two. And is that your belief
that that was the actual car and the license plate on the
vehicle on June 9th, correct?
TROOPER SWEENEY:
Yes.
DEFENSE COUNSEL:
Okay. Do you have any difficulty reading that license
plate number?
TROOPER SWEENEY:
I don‘t.
(Tr. 30) (emphasis added).
Trooper Sweeney clearly testified that the photograph
depicted the defendant's vehicle as it appeared on the day
of the stop. The Commonwealth's assertion that *9 “there
was no testimony that [the photograph] was a fair and
accurate representation of the number plate at the time of
stop” is simply false. (Comm. Br. 20-21). While Trooper
Sweeney did not use the exact phrase, “a fair and accurate
representation”, to describe the photograph of the defendant's vehicle, he did agree that the photograph depicted
“the actual car and license plate on the vehicle on June
9th.” (Tr. 30). To the extent that the Commonwealth is
arguing that this semantic distinction negates the judge's
finding, this argument is without merit.[FN4] The slight
difference in the testimonial language and the finding
made by the judge does not render the latter clearly erroneous. The simple fact of the matter is that *10 Trooper
Sweeney testified that the photograph depicted the defendant's vehicle at the time of the stop. To find clear error
based on this distinction would elevate form over substance to an absurd degree.
FN4. Any argument that the judge could not rely
upon the photograph because Trooper Sweeney
did not specifically use the phrase “a fair and
accurate representation” to authenticate the photograph is also meritless. Authentication of photographs does not demand the use of this phrase,
but rather simply requires “evidence sufficient to
support a finding that the matter in question is
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2013 WL 4251773 (Mass.App.Ct.)
what its proponent claims.” Mass. G. Evid. §
901(a). See also Commonwealth v. Figueroa, 56,
Mass. App. Ct. 641, 647 (2002) (photographs
properly authenticated by circumstantial evidence). Trooper Sweeney's testimony was sufficient to establish that the photograph depicted the
defendant's vehicle as it appeared on the day of
the incident and the photograph was therefore
properly authenticated. Furthermore, the Commonwealth requested that the judge look at the
photograph and did not object when the defendant
moved to introduce it into evidence. (Tr. 54).
B. The Judge Did Not Credit Trooper Sweeney's Testimony As A Whole And Any Argument Based On This
Assumption Is Flawed.
The Commonwealth bases much of the‘remainder of its
argument on interpretations of the evidence that are contrary to the judge's findings. In presenting these faulty
interpretations, the Commonwealth asserts that the judge's
ruling implies that “she credited [Trooper Sweeney's]
testimony as a whole.” (Comm. Br. 17, n.14). Again, the
judge's findings clearly contradict this assertion.
The judge specifically found that the license plate cover
was clear and that the numbers and letters were visible.
This finding contradicted Trooper Sweeney's testimony
that it was “difficult to read” the defendant's license plate.
(Tr. 29). After comparing Trooper Sweeney's testimony
with the judge's finding's, it is impossible to conclude that
the judge wholly adopted his testimony. The only aspect of
Trooper Sweeney's testimony that the judge explicitly
found credible was his testimony that the photograph *11
depicted the defendant's vehicle at the time of the stop. The
judge consequently relied upon this photograph, not
Trooper Sweeney's earlier testimony, in finding that the
defendant's license plate cover did not obscure the numbers
so as to violate G. L. c. 90, s. 6.
C. Tinted License Plate Covers Are Not Per Se Illegal
Under G. L. c. 90, s. 6 Or The Massachusetts Code Of
Page 6
Regulations.
Finally, the Commonwealth argues that “the stop was
lawful because driving with a tinted license plate cover is
prohibited under the plain language of G. L. c. 90, s. 6, the
plain language of an implementing regulation, 540 Code
Mass. Regs. § 2.23, and the policy underlying both.”
(Comm. Br. 23). Again, this argument fails because the
judge did not find that the defendant's license plate was
tinted. Furthermore, the Commonwealth is incorrect in
asserting that all tinted license plate covers are illegal. The
statutory language of G. L.c. 90, s.6 states that license
plates “shall be kept clean with the numbers legible and
shall not be obscured in any manner by the installation of
any device obscuring said numbers.” The aforementioned
regulation prohibits any type of cover that “reduces the
legibility or substantially *12 diminishes the reflective
qualities of such plate.”[FN5] Neither the statute nor the
regulation completely prohibits tinted license plate covers;
rather, they prohibit such covers inasmuch as they obscure
the plate numbers from view. Whether the cover was tinted
or not, the judge found that it did not obscure the at and
therefore the defendant did not violate G. L. c. 90, s. 6.[FN6]
FN5. Trooper Sweeney testified that he pulled the
defendant over because “anything covering the
license plate that reduces the reflective ability of
it is illegal.” (Tr. 8). As the regulatory language
makes clear, this is incorrect. A cover that minimally reduces the reflective quality is not illegal;
the reflective quality must be “substantially diminished” for the cover to be illegal in this respect.
FN6. The defendant challenged the alleged violation at a clerk's hearing. The clerk found the
defendant not responsible. The defendant submitted a copy of the document memorializing the
clerk's finding in support of his motion to suppress. (R. 15).
D. The Stop Of The Defendant's Vehicle Was Unwar-
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2013 WL 4251773 (Mass.App.Ct.)
ranted Because He Did Not Commit A Traffic Violation.
It is well-established that a police officer may stop a vehicle-if the officer has “observed a traffic violation.” Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). However, the judge in the instant case explicitly found that the
defendant did not commit a traffic violation. See Bacon,
381 Mass. at 645 n.3 (stop not justified where judge did hot
credit *13 officer's testimony that the defendant drove
through a red light). Because this finding was not clearly
erroneous, the stop was not justified and all of the evidence
obtained thereafter was properly suppressed.
II. EVEN IF THE INITIAL STOP WAS LEGAL,
TROOPER'S SUBSEQUENT EXIT ORDER TO THE
DEFENDANT WAS UNCONSTITUTIONAL BECAUSE IT WAS NOT SUPPORTED BY A REASONABLE SUSPICION THAT THE DEFENDANT
WAS DANGEROUS.
Trooper Sweeney's exit order was also unconstitutional
and therefore provides another basis for this Court to affirm the judge's allowance of the motion to suppress. The
judge made no findings with respect to what occurred after
the stop, but even if Trooper Sweeney's testimony is believed, he had no basis for ordering the defendant to exit
the vehicle.
A. The Circumstances Did Not Warrant A Reasonable
Belief That The Defendant Posed A Safety Risk.
“[Article] 14 requires that a police officer, in a routine
traffic stop, must have a reasonable belief that the officer's
safety, or the safety of others, is in danger before ordering a
driver out of a motor vehicle.” Commonwealth v.
Gonsalves, 429 Mass. 658, 662-663 (1999). “To determine
whether such a belief that the safety of the officers or the
public is in danger is reasonable, we ask ‘whether a reasonably *14 prudent man in the policeman's position
would be warranted’ in such a belief.” Commonwealth v.
Stampley, 437 Mass. 323, 325 (2002), quoting Common-
Page 7
wealth v. Torres, 433 Mass. 669, 673 (2001).
The circumstances here did not justify a reasonable‘belief
that Trooper Sweeney's safety was in danger. The only
facts that might support a belief were the defendant's
nervousness and his act of reaching towards the area between the driver's seat and the center console while pulling
over. These facts, when considered in the totality of circumstances, did not suffice to establish a reasonable suspicion that the defendant posed a safety risk. See United
States v. McKoy, 428 F. 3d 38,’ 40 (1st Cir. 2005) (“It is
simply not reasonable to infer that a driver is armed and
dangerous because the officers believe that he appears
nervous and reaches towards the car's console when approached by police, even in a high-crime neighborhood.”).
i. Any Reasonable Fear That May Have Been Triggered By
The Defendant's Act Of Reaching Towards The Center
Console Was Alleviated By His Subsequent Explanation.
With regards to the defendant's allegedly “furtive” gesture,
Trooper Sweeney questioned him *15 about this and the
defendant explained that he had dropped a bowl of ice
cream. (Tr.12). He pointed to a bowl of ice cream on the
passenger seat. (Tr. 12). Despite this entirely rational explanation, Trooper Sweeney did not believe the defendant
and continued to suspect that, the defendant had either
hidden or retrieved a weapon.[FN7] (Tr. 12).
FN7. Defense counsel showed a picture of the
interior of the vehicle to Trooper Sweeney and
asked him if it accurately depicted how the bowl
of ice cream looked on the day of the stop. (Tr.
33). Trooper Sweeney responded that the bowl
was not on its side, as it was in the photograph.
(Tr. 33). A copy of this photograph is appended.
(R. 4).
To a reasonable person, the defendant's explanation would
have alleviated any fear that he may have in fact been
hiding a weapon when he reached towards the center
console. A reasonable person would have recognized that
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2013 WL 4251773 (Mass.App.Ct.)
it was highly unlikely that the defendant was driving
around in the middle of June with a bowl of ice cream
gradually melting on the passenger seat. A reasonable
person would have concluded that the defendant was eating the ice cream, dropped the ice cream while pulling
over, reached down to pick it up, and placed it on the
passenger seat as
*16 he awaited the officer.[FN8] Instead, Trooper Sweeney
persisted with an unreasonable suspicion that the defendant
had attempted to hide a weapon.
FN8. This was not a situation in which the defendant's rational and innocent explanation of
suspicious conduct contended with an equally
rational explanation that would indicate danger.
See Commonwealth v. Goewey, 452 Mass. 399,
408 (2008) (defendant's smoking of a cigarette
after reaching down below his seat did not alleviate officer's suspicion because defendant may
also have been hiding a weapon). The only rational explanation for the bowl of ice cream on the
passenger seat was consistent with the defendant's
explanation of his movements.
This suspicion became increasingly unreasonable after the
defendant opened the center console and emptied its contents onto the passenger seat while searching for his license
and registration. If the defendant had secreted a weapon in
the center console, he certainly would not have then
opened this console in plain view of Trooper Sweeney. To
a reasonable person, any prior suspicion about the defendant's movements would have been alleviated by his
subsequent act of opening the console and emptying its
contents. See Commonwealth v. Torres, 424 Mass. 153,
159 (1997) (reasonable for officer to order defendant to the
rear of the vehicle, but unreasonable to prolong that detention once “any potential threat to the officer's safety was
dispelled”). In a similar vein, any *17 reasonable suspicion
Trooper Sweeney might have about the defendant retrieving a weapon in the area between the center console
and the driver's seat would have been alleviated when
Trooper Sweeney arrived at the passenger's window and
Page 8
observed that there was no actual space between the driver's seat and the center console. (R. 4).
ii. The Defendant's Nervousness In No Way Suggested
That He Was A Threat To Trooper Sweeney.
Trooper Sweeney noted that the defendant's hand was
shaking as he searched the center console for his license
and registration. (Tr. 11). Trooper Sweeney found this
significant because he had informed the defendant that that
he was pulled over for a simple motor vehicle violation.
(Tr. 13).
The defendant's shaking hand would not have raised any
suspicion of danger in a reasonable person. Most people
would be nervous after being pulled over by a police officer on a busy highway. Nervousness in this situation is an
entirely natural reaction, no matter the asserted violation.
See Commonwealth v. Cruz, 459 Mass. 459, 468 (2011)
(“It is common, and not necessarily indicative of criminality, to appear nervous during even a mundane encounter
with police. *18 ...”). The fact that the defendant's hand did
not stop shaking after Trooper Sweeney informed him that
he had been pulled over for a license plate violation also
would have been insignificant to a reasonable person.
Anyone who has experienced any type of nerve-wracking
incident knows that the feeling of nervousness does not
disappear the instant that the reason for such nervousness
is explained or otherwise avoided. The feeling of nervousness gradually dissipates over time. It was entirely
unreasonable for Trooper Sweeney to expect the defendant's hands to stop shaking as soon as he was told of the
alleged violation and even more unreasonable to suspect
that the defendant's continued nervousness indicated danger. See Commonwealth.v. Brown, 75 Mass. App. Ct. 528,
534 (2009) (“[N]ervous or anxious behavior in combination with factors that add nothing to the equation will not
support a reasonable suspicion that an officer's safety may
be compromised.”).
iii. Other Factors Diminished Any Suggestion That The
Defendant Posed A Safety Risk To Trooper Sweeney.
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2013 WL 4251773 (Mass.App.Ct.)
The other circumstances of the stop should have assuaged
any reasonable fear of danger. The stop was on the side of
the highway during rush hour, not in a *19 high-crime area
in the middle of the night. Compare Commonwealth v.
Robles, 48 Mass. App. Ct. 490, 493 (2000) (stop of defendant in high-crime area, along with other factors, justified exit order). Trooper Sweeney was not outnumbered.
Compare Commonwealth v. Feyenord, 445 Mass. 72, 76
(2005) (suspicion of danger heightened because officer
was outnumbered by occupants of vehicle). The defendant
also emptied the contents of both the glove box and the
center console of the vehicle.
Though the defendant was unable to produce his license,
he did produce his registration. He also produced a number
of credit cards and some other miscellaneous documents
while searching for his license. He also identified his employer, a towing company that Trooper Sweeney knew
worked with the State Police. Even though Trooper
Sweeney could have easily attempted to verify the defendant's identity through a radio or computer check, he
instead persisted with questioning the defendant about his
*20 criminal history and why he appeared to be nervous.[FN9] (Tr. 13-14). Neither Trooper Sweeney's continued
questioning nor his subsequent exit order were warranted
by the defendant's failure to produce his license. See
Commonwealth v. Santos, 65 Mass. App. Ct. 122, 12,6
(2005) (lack of license did not warrant exit order where
there was no “swiftly developing situation that prevented
verification or disproof of the' officer's suspicions regarding the defendant's identity... through routine computer or
radio checks”).
FN9. Trooper Sweeney repeatedly testified that
he was concerned about not knowing the defendant's identity. (Tr. 14-15, 39). A reasonable
person in this situation would have asked the defendant for his name. Trooper Sweeney did not
ask the defendant for his name until after the arrest. (Tr. 26, 35).
Page 9
B. Trooper Sweeney Prematurely Concluded That The
Defendant Was Dangerous And Unreasonably Persisted With. This Conclusion Without Assessing The
Totality Of The Circumstances.
As the SJC has stated, “[a] measured response gauged to
the precise unfolding of the encounter, rather than hasty
reaction to the first ambiguous suggestion of possible
trouble, is the hallmark of reasonableness on the part of
officers conducting a stop.” Stampley, 437 Mass. at 330.
Trooper Sweeney's actions in this case meet the latter
description. He *21 observed the defendant briefly reach
towards the area between the driver's seat and the center
console while pulling over. Upon observing this ambiguous act, Trooper Sweeney came to the hasty conclusion
that the defendant was hiding a weapon. Insteadreasonably
assessing the circumstances that appeared before him,
Trooper Sweeney refused to believe that the-defendant had
dropped his ice cream despite the otherwise unexplainable
presence of a bowl of ice cream on the passenger seat.
Trooper Sweeny stubbornly persisted- with his conclusion
that the. defendant individual by questioning the criminal
history and the reason for his nervousness, inquiries that
are entirely unrelated to the investigation of a simple vehicular violation. The nature of these inquiries and the
refusal to even consider the defendant's explanation for his
movements make it clear that Trooper Sweeney was not
willing to reassess his initial determination that the defendant posed a threat. Trooper Sweeney's unwillingness
to stray from this hasty conclusion was unreasonable, as a
measured assessment of the totality of the circumstances
did not suggest that the defendant was dangerous.
*22 If this Court were to hold that the initial stop was legal,
then it should affirm the allowance of the defendant's motion to suppress on the alternate grounds that Trooper
Sweeney was not justified in ordering the defendant out of
his vehicle. See Commonwealth v. Joe, 425 Mass. 99, 102
(1997) (“An appellate is free to affirm a ruling on grounds
different from on by the motion judge if the correct or
preferred basis for affirmance is supported record and the
findings”).
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 4251773 (Mass.App.Ct.)
III. REGARDLESS AS TO WHETHER THE INITIAL STOP AND EXIT ORDER WERE JUSTIFIED,
TROOPER SWEENEY WAS NOT WARRANTED IN
LIFTING UP THE DEFENDANT'S SHIRT PRIOR
TO FRISKING HIM.
The permissible scope of a pat frisk is “confined to what is
minimally necessary to learn whether the suspect is armed
and to disarm him once the weapon is discovered.”
Commonwealth v. Silva, 366 Mass. 402, 408 (1974). “In
most instances the search must be confined to a pat-down
of the outer clothing of the suspect.” Id. “Only after the
pat-down gives indication that a weapon is present do the
police have the privilege to search further.” Id.
Trooper Sweeney did not initiate the search with a
pat-down of the exterior of the defendant's *23 clothing.
Instead, Trooper Sweeney handcuffed the defendant and
lifted up his shirt. (Tr. 22-23). This action was entirely
unnecessary and considerably more intrusive than a
standard pat-down search. By initiating the search in this
manner, Trooper Sweeney went beyond the permissible
scope of a Terry-style pat frisk.
Commonwealth v. Flemming, 76 Mass. App. Ct. 632
(2010), dealt with precisely this issue. In this case, two
police officers stopped the defendant after having received
reports of shots fired at his address. Id. at 633-634. While
one of the officers spoke with the defendant about the
incident, the other officer approached the defendant's left
side and observed a waist-high bulge underneath his
t-shirt. Id. at 634. The officer “told the defendant to put his
hands in the air and then lifted the left side of the defendant's t-shirt, revealing a large, loaded revolver tucked into
the defendant's waistband.” Id.
After being arrested and charged for possession of this
firearm, the defendant successfully filed a motion to suppress and the Commonwealth appealed. Id. at 633. On
appeal, this Court agreed with the motion judge and held as
follows:
*24 [T]he question is not simply whether some other al-
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ternative to lifting the defendant's shirt was available but
whether [the officer] acted unreasonably in failing to recognize or to pursue it. To determine whether the search
was reasonable, we therefore must consider whether obvious, commonly employed, and effective alternatives
were available under the circumstances.
In the present case, there was no reason why [the officer]
could not conduct a pat-down of the exterior of the defendant's clothing in the location of the suspicious bulge, to
determine whether the object felt like a weapon. The defendant was cooperative, had made no threatening movements towards the police and had his hands in the air. We
accordingly conclude that the circumstances of the encounter between [the officer] and the defendant furnished
no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior
patfrisk.
Id. at 638.
This Court further concluded that “a visual inspection of
otherwise concealed areas is more intrusive than a patfrisk” because “it may reveal parts of the body that are
customarily not displayed in public... to a broader audience, consisting of anyone within viewing range of the
encounter.” Id. at 637, n.10.
Just like the situation in Flemming, Trooper Sweeney had
no reason to lift up the defendant's shirt prior to conducting
a pat-down. The defendant admitted that he had a knife in
his pocket. Trooper Sweeney could have easily confirmed
this fact by patting down *25 the defendant or he could
have simply reached into the defendant's pocket to retrieve
the knife. Instead, Trooper Sweeney forcibly handcuffed
the defendant and lifted up the defendant's shirt at the side
of a busy highway. In addition to being completely unnecessary, this search was particularly intrusive in that it
exposed the defendant's stomach and waist area to a
countless number of commuters traveling on Route 495.
Trooper Sweeney's act of lifting up the defendant's shirt
was improper because it was both unnecessary and unduly
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 4251773 (Mass.App.Ct.)
intrusive. The impropriety of this search provides another
basis upon which this Court can affirm the motion judge's
decision.
CONCLUSION
For the reasons stated above, this Court should affirm the
judge's decision to allow the defendant's motion to suppress.
COMMONWEALTH, v. Michael BERNARD.
2013 WL 4251773 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
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