On September 29, 2010 in COMMONWEALTH vs. FERNDY ELYSEE (and five companion cases). 77 Mass. App. Ct. 833(2010) the Appeals court upheld as valid an exit order and subsequent arrests for firearms violations.
The court in deciding stated “We are presented first with a question concerning the lawfulness of the police officer’s order that a passenger of a motor vehicle stopped for a traffic violation exit the vehicle. Both defendants filed pretrial motions to suppress the two firearms that were found in the vehicle as a result of that exit order, citing both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In his memorandum of decision and order denying those motions, the motion judge made findings of fact and adopted as fact the testimony of Boston police Officers Brian Ball, Ismael Henriquez, and Joel Resil, which he found to be truthful. On appeal, we review the motion judge’s subsidiary findings of fact for clear error, and “independently determine the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46 , 50 (2004).
As drawn from the motion judge’s findings and the testimony of the three officers, the facts supported by the record are as follows. On December 19, 2006, Boston police Officers Bryan Ball and Dennis Medina, both of the anti-crime unit, went to the Dorchester District Courthouse expecting to testify.” After two of the defendants, Golston and Tubberville were involved in an altercation with known gang members while awaiting hearings inside the courthouse they walked across the street. In prior dealings with them the officers knew of gang involvement and prior guns charges as well.
“Officers Henriquez and Resil were in an unmarked anti-crime unit car not far away, so Officer Ball asked them to provide assistance at the courthouse. They drove to Wheatland Avenue and stopped a block or so down the street from the intersection of Wheatland Avenue and Washington Street. Meanwhile, Officer Ball watched as Golston and Tubberville were picked up by a black Mercedes sports utility vehicle (SUV) that had come down Wheatland Avenue. The Mercedes made a right turn onto Washington Street without using a turn signal, and headed outbound toward Codman Square, an area known for frequent firearms and drug offenses. Officer Ball asked Officer Henriquez to stop the SUV for the turn signal infraction.
Officers Henriquez and Resil had seen the SUV driving on Wheatland Avenue, but did not notice whether it had signaled when it turned onto Washington Street. Relying on what Officer Ball reported, they followed the SUV. They observed it make a right turn onto Aspinwall Road, this time using a turn signal. Officers Henriquez and Resil then signaled the SUV to stop and it promptly complied. The officers exited their car and approached the vehicle — Henriquez walked to the driver’s side of the SUV and Officer Resil walked to the passenger side. As the officers approached, they noticed the rear of the SUV rocking, indicative of movement by the occupants. The officers suspected that one or more of the occupants was trying to conceal something.
Because the SUV’s windows were heavily tinted, the officers for their own safety ordered the occupants to lower all the windows. They discovered five people in the SUV: Golston in the front passenger seat; Tubberville in the right rear seat; defendant Ferndy Elysee in the center rear seat; defendant Richard Davis in the left rear seat; and Jazzlyn Walker, the driver. Officer Henriquez recognized Elysee as having previously been arrested for a firearm offense, and also believed that he had been a shooting victim. Officer Resil similarly associated Elysee with a history of firearm violence, and had also briefly dealt with Davis in the past, though not as much as with either Tubberville or Elysee.
Walker informed Officer Henriquez that although she had a driver’s license, she did not have it with her. Officer Henriquez returned to his car to check on the driver and vehicle information; to perform a warrant check on all the occupants; and, in light of the number of people in the SUV, the circumstances of the altercation at the courthouse, the known history of passengers in the SUV with firearms, and the fact that only he and his partner were on the scene, to ask for backup. Officer Resil positioned himself at the rear of the SUV. As a result of the earlier events at the courthouse and their personal knowledge about at least three of the five occupants, the officers had developed concern for their safety. Officer Henriquez thus decided to wait for backup before returning to the SUV. Officers Lakenya Webster and Roland Sandefur soon arrived on the scene.
Officer Henriquez once again approached the driver’s side of the SUV while Officer Resil returned to the passenger side. The officers noticed that none of the occupants were wearing seatbelts. Officer Henriquez asked Davis, seated in the left rear seat, for his name and date of birth. Davis did not look at the officer, but kept looking straight ahead. He did not answer. The officer asked him a second time, after which Davis did respond with his name and date of birth. The officer then asked him for identification, and Davis said he had none. At this point, Golston interjected, stating that Davis did, in fact, have some identification, and Davis produced it to Officer Henriquez. Officer Henriquez then asked Davis if he was carrying any weapons, but Davis again did not answer. Officer Henriquez asked him a second time. This time, Davis stated that he was not.
At that point, Officer Henriquez ordered Davis out of the SUV for a weapons frisk. Although he told only Davis to get out, Elysee slid to the left and also started to exit the vehicle. Just as Officer Henriquez started to frisk Davis, Officer Sandefur yelled “gun.” Officers Henriquez and Resil saw a handgun on the floor of the SUV where Davis’s feet had been. Officer Sandefur grabbed the gun, and the remaining occupants were ordered out. The officers handcuffed the four men; they lacked a fifth pair of handcuffs for Walker. Officer Webster performed a preliminary search of the SUV for additional weapons and found a second handgun beneath and between the left rear seat and the center rear seat.
As a matter of Federal constitutional law, no justification is required under the Fourth Amendment in order for police to order that the driver and passengers of a motor vehicle exit the vehicle during the course of a lawful stop of the vehicle for a traffic violation like the one at issue here. See Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam); Maryland v. Wilson, 519 U.S. 408 (1997). In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the United States Supreme Court reasoned that the driver of a car lawfully pulled over for a traffic stop is already “stopped.” Id. at 111. It balanced the further intrusion of requiring the driver to exit the vehicle, which it found “de minimis,” against the interest in officer safety, which it found “legitimate and weighty,” and concluded that exit orders were reasonable within the meaning of the Fourth Amendment and therefore permissible. Id. at 110-111. This reasoning was extended in Maryland v. Wilson, 519 U.S. 408 (1997), to motor vehicle passengers. Id. at 415. The Court concluded that, “as a practical matter,” they, too, were lawfully “stopped” in these circumstances, but that the intrusion on them wrought by an exit order is “minimal,” and that the risk to an officer from a car with a driver and passengers is greater than that from a car with only a driver. Id. at 413-415. Again balancing the state interest against the intrusion, the Court concluded that routine exit orders as to passengers in such circumstances are reasonable within the meaning of the Fourth Amendment and therefore they, too, are permissible. Ibid.
The Supreme Judicial Court has concluded that Massachusetts constitutional law differs. Construing the language of art. 14 of the Massachusetts Declaration of Rights, the Supreme Judicial Court concluded in Commonwealth v. Gonsalves, 429 Mass. 658 (1999), that exit orders during routine, lawful stops for ordinary traffic violations must be justified. The court reasoned that the intrusion upon the driver or passenger ordered to exit the vehicle “is not minimal,” id. at 663, and that a rule permitting exit orders at an officer’s discretion is an “invitation to discriminatory enforcement of the rule.” Id. at 664. The court also concluded that the safety of the police could be protected by tailoring the justification required to the circumstance. Id. at 662-663. The court thus stated that an exit order is justified where the police have “a reasonable belief that the officer’s safety, or the safety of others, is in danger.” Id. at 663. “Reasonable belief” is shorthand for a reasonable, articulable suspicion. See, e.g., Commonwealth v. Brown, 75 Mass. App. Ct. 528 , 531-532 (2009). See also Terry v. Ohio, 392 U.S. 1, 21 (1968) (“in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”). What is required thus are “specific and articulable facts,” from which “a reasonably prudent [person] in the [officer’s] position would be warranted” in the suspicion that his or her safety, or the safety of others, is in danger. Commonwealth v. Gonsalves, supra at 661, 664.
This test reflects the rule that the required justification for governmental actions that implicate art. 14 must be tailored to the level of intrusion at issue; the intrusion must be proportional to the danger identified by the officer. See Commonwealth v. Williams, 422 Mass. 111 , 115-116 (1996). Thus, “[t]o support an order to a passenger to alight from a vehicle stopped for a traffic violation . . . the officer need not point to specific facts that the occupants are ‘armed and dangerous.’ Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.” Commonwealth v. Stampley, 437 Mass. 323 , 326 (2002), quoting from Commonwealth v. Gonsalves, supra at 665.
In the totality of the circumstances, there was sufficient justification under this standard for the exit order in this case. First, the SUV had picked up Golston, a member of the Lucerne Street gang, who, while alone, had been acrimoniously confronted and perhaps jumped by a group of members of the rival Morse Street gang, with which the Lucerne Street group was involved in a violent feud. Golston and Tubberville, who had joined him, were picked up in a location outside the Dorchester courthouse where shootings (which might well be reasonably thought often to be related to individual’s plans to testify or to retribution for criminal acts) frequently occur. There was no indication that the immediate dispute between the two gangs, which had led to at least one altercation involving Golston that day, had been resolved.
While gang membership alone does not provide reasonable suspicion that an individual is a threat to the safety of an officer or another, the police are not required to blind themselves to the significance of either gang membership or the circumstances in which they encounter gang members, which are all part of the totality of the circumstances they confront and must assess. See Commonwealth v. Heon, 44 Mass. App. Ct. 254 , 256 (1998). Furthermore, Golston, Tubberville, and Elysee were all known to have previous firearms arrests. [Note 6] While knowledge of an arrest and an indictment or conviction — something not shown on this record — would provide a stronger basis for a belief in prior possession of firearms, see, e.g., Commonwealth v. Ciaramitaro, 26 Mass. App. Ct. 110 , 115 (1988), these arrests are one factor that may be considered by police in assessing the circumstances confronting them. See, e.g., Commonwealth v. Gomes, 453 Mass. 506 , 511 (2009) (defendant’s previous arrest on drug charges was a factor properly considered in determining whether there was reasonable suspicion defendant was engaged in “drug activity”).
Most importantly, after the SUV was pulled over, and while the police were approaching it, they observed it rocking in a manner consistent with significant movement by the SUV’s occupants. Given the timing of this, it was reasonable for the officers to conclude that this indicated concealment of something, most likely, given the circumstances, a weapon. In the circumstances, this indicated some risk to safety. Davis’s failure when asked to identify himself, to look at Officer Henriquez, or to answer, and his lying when asked if he had identification, could appropriately have served to bolster the officers’ suspicion that indeed some contraband, most likely a weapon, was somewhere in the vehicle. [Note 7]
Even with an SUV’s windows down, neither its occupants nor its contents are fully visible to an officer standing outside. Approaching an occupied vehicle that is lawfully stopped for a traffic violation may be dangerous and give rise to legitimate concern for officer safety. Police doing so are not required to take unreasonable risks. An exit order is a real but limited intrusion on the occupants that allows the officers both to observe the occupants more fully, and to separate them from the contents of the vehicle, if any. In this case, the evidence of concealment, when combined with the circumstances surrounding Golston and Tubberville’s entry into the SUV, the officers’ knowledge about three of the five individuals in the SUV, and Davis’s responses to the questions about his identification, warranted the officers in a reasonable suspicion that they were confronted with sufficient danger to justify the intrusion inherent in Officer Henriquez’s exit order. [Note 8]
The defendants also argue that the exit order was improper because both the exit order and Officer Henriquez’s conversation with Davis that immediately preceded it came not when the police initially approached the vehicle, but only after the police had reached the outer boundary of the seizure permitted as part of a routine traffic stop. They argue that, even had police developed reasonable suspicion sufficient to justify an exit order, the officers should instead have allowed the SUV to be on its way, and that the gun must therefore be suppressed as the fruit of a poisonous tree.
As a matter of Massachusetts law under art. 14 of the Massachusetts Declaration of Rights, a police officer may not, without some additional justification, extend a routine traffic stop by questioning a passenger once the driver has produced a valid license and registration. See Commonwealth v. Torres, 424 Mass. 153 , 158 (1997). [Note 9] “[T]he officer, ordinarily, may issue a citation for the traffic offense and must then allow the car to continue on its way.” Commonwealth v. Alvarez, 44 Mass. App. Ct. 531 , 534 (1998).
In this case, however, the motion judge credited Officer Henriquez’s testimony that upon returning to the SUV with the driver’s citation he became aware that none of the vehicle’s passengers were wearing seatbelts. It was thus permissible for the officers to extend the stop and for Officer Henriquez to ask Davis for identification in order to write a citation for this infraction. See G. L. c. 90, § 13A; Commonwealth v. Goewey, 69 Mass. App. Ct. 429 , 433-434 (2007), S.C., 452 Mass. 399 (2008) (a police officer is justified in requesting identification from a passenger during a traffic stop to enable him to write a citation for a seatbelt infraction). It was during the pendency of that encounter that Davis’s delayed and false responses to Officer Henriquez’s questions about his identity led the officer to act upon his reasonable suspicion that his safety was at risk. Officer Henriquez was thus justified, even before issuing an exit order, in asking Davis whether he had a weapon, and he acted both reasonably and proportionally in issuing his exit order when Davis’s response to his question was delayed. Cf. Commonwealth v. Feyenord, 445 Mass. 72 , 77-78 (2005), cert. denied, 546 U.S. 1187 (2006); Commonwealth v. Watts, 74 Mass. App. Ct. 514 , 517-519 (2009).”
I left quite a bit of the facts in (while summarizing a lot) to help illustrate how a good piece of police work went down. Traffic stops especially in this type of situation are tough. The smallest miscue and the officer will end up losing critical evidence in subsequent hearings or be seriously hurt. The case if an excellent illustration of the application of Mimms (Federal) and Gonsalves (Massachusetts) on the street cop.
Attorney Ronald A. Sellon