The Appeals court recently upheld an exit order and subsequent pat frisk of the passengers of a motor vehicle in COMMONWEALTH vs. JUSTIN L. YOUNG 78 Mass. App. Ct. 548 (2011). The court ruled that the exit orders to the passengers was justified as a valid search incident to arrest of the driver. To expect (as the defense counsel argued) that the police should be expected to search the vehicle with the passengers still inside it is not only a foolish proposition, but could potentially create a dangerous situation for all involved. The appeals court apparently agreed.
The court in deciding the case stated “A Superior Court judge properly denied a criminal defendant’s motion to suppress evidence discovered by a police officer during a patfrisk that was conducted when, following the arrest of the driver of an automobile in which the defendant had been a passenger, the defendant was ordered to get out of the vehicle, and stated to the officer that he had a firearm, where the initial stop of the vehicle by police was lawful, given that the police had observed a civil motor vehicle infraction. i.e., screeching tires; where the police acted reasonably in ordering the defendant out of the car so that they could conduct a justifiable search incident to the driver’s arrest, given that the presence of the defendant and another passenger in the vehicle rendered them able to destroy or conceal evidence inside the passenger compartment relevant to the crime for which the driver was arrested as effectively as the driver himself could have had he not been restrained in a nearby cruiser; and where the defendant’s actions after being ordered out of the vehicle gave rise to a reasonable apprehension of danger to the officers that justified the parfrisk.
2. Discussion. In his motion to suppress, the defendant argued that the police lacked a basis to order him from the vehicle because the discovery of drugs on Dobson’s person did not justify a search of the passengers or of the vehicle itself for drugs. The Commonwealth countered that the police could properly order the defendant to exit the vehicle in conjunction with a search of the vehicle incident to Dobson’s arrest and that the defendant’s subsequent behavior justified the patfrisk leading to discovery of the gun.
In ruling, the judge reasoned that the exit order was permissible because a vehicle search incident to Dobson’s arrest was proper when the defendant and a female passenger remained inside the vehicle. Because the defendant’s behavior subsequent to the exit order raised a reasonable apprehension of danger, the police were justified in conducting the patfrisk of the defendant’s person that led to discovery of the gun.
On appeal, the defendant maintains that the exit order leading to the frisk of his person and discovery of the gun was unlawful because (1) there was no basis for stopping the vehicle initially and (2) the justification for the exit order, a search of the vehicle’s interior incident to Dobson’s arrest, was impermissible under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009); Commonwealth v. Santiago, 410 Mass. 737 , 743 (1991). We disagree.
A. The vehicle stop and arrest of Dobson. While the defendant’s status as a passenger permits him to challenge the initial stop of the vehicle, the propriety of that stop requires little discussion. See Brendlin v. California, 551 U.S. 249, 251 (2007) (defendant passenger may challenge stop of motor vehicle); Arizona v. Johnson, 129 S. Ct. 781, 787 (2009). The stop was lawful because the police observed a civil motor vehicle infraction, the screeching of tires. See G. L. c. 90, § 16, as appearing in St. 1971, c. 1032 (prohibiting the operation of a motor vehicle “so as to make a harsh, objectionable or unreasonable noise”). See also Commonwealth v. Santana, 420 Mass. 205 , 209 (1995) (reasonable belief that civil motor vehicle infraction has occurred provides lawful basis for stop); Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638 , 642-643 (2001).
Had more not developed, there would have been no basis to order either Dobson, the driver, or the defendant, a passenger, from the vehicle. See Commonwealth v. Gonsalves, 429 Mass. 658 , 662-663 (1999) (under art. 14 police officer engaged in routine traffic stop must have reasonable belief that officer’s safety or safety of others is in danger before ordering driver or passenger from vehicle). Compare Pennsylvania v. Mimms, 434 U.S. 106, 111 & n.6 (1977) (under Fourth Amendment police officer may, as matter of course, order driver out of vehicle lawfully stopped for traffic violation), and Maryland v. Wilson, 519 U.S. 408, 415 (1997) (under Fourth Amendment exit order to passenger permissible in routine traffic stop). However, what began as a routine stop for a civil motor vehicle infraction quickly developed into a nonroutine encounter when Santosuosso made a plain view observation of a glassine baggie protruding from Dobson’s pocket. See Commonwealth v. Ciaramitaro, supra at 642. The discovery of drugs on Dobson’s person changed the nature of the encounter and provided probable cause to arrest Dobson for a narcotics violation. See G. L. c. 94C, § 31.
B. The exit order to the defendant. The motion judge found that nothing the defendant or the female passenger did prior to the initial exit order raised a reasonable apprehension of danger. It was what followed the exit order that gave rise to safety concerns and, therefore, justified a frisk of the defendant for weapons. We agree with this aspect of the judge’s analysis. The propriety of the exit order to the defendant, and the subsequent patfrisk of his person, depends entirely on the ability of the police to conduct a vehicle search incident to Dobson’s arrest.
To the extent that the police could lawfully conduct a vehicle search incident to Dobson’s arrest, they were not required to do so with passengers inside the vehicle. See Commonwealth v. Correia, 66 Mass. App. Ct. 174 , 177- 179 (2006) (search of vehicle for narcotics could reasonably include issuing exit order to passenger to facilitate search of the vehicle). Conversely, to the extent that the police lacked lawful grounds to conduct a vehicle search incident to Dobson’s arrest, their order to the defendant to exit the vehicle amounted to a prolonging of the stop and seizure of the defendant’s person that the defendant may challenge under art. 14. See Brendlin v. California, supra. See also Commonwealth v. Washington, 449 Mass. 476 , 479 n.3 (2007) (passengers in stopped motor vehicle not free to leave or to decline officer’s request); Commonwealth v. Quintos Q., 457 Mass. 107 , 110 (2010). We focus then on whether the police could permissibly conduct a vehicle search incident to Dobson’s arrest.
“The purpose, long established, of a search incident to an under art. 14. [Note 8] See Commonwealth v. Madera, 402 Mass. 156 , 159-161 (1988) (warrantless search incident to arrest of a bag held by defendant permissible because police had probable cause to search the bag and, particularly, because “we are dealing here with evidence of a crime for which the defendant already had been arrested on probable cause and not with evidence of an unrelated crime”); Commonwealth v. Garden, 451 Mass. 43 , 50 (2008) (search of passenger compartment within permissible scope of automobile exception “because any contraband hidden on the passengers’ person easily could have been transferred to a location in the passenger compartment when they were ordered to get out”).
C. The patfrisk. Although the police initially had no basis to do more than order the defendant to exit the vehicle while they performed a search of the vehicle’s interior for evidence of the crime of Dobson’s arrest, the defendant’s behavior in response to the exit order changed the nature of the encounter. The defendant’s actions subsequent to the exit order gave rise to a reasonable apprehension of danger to the officers that justified a frisk, and the defendant properly does not argue otherwise. The stop occurred at night, in a high crime area where a shot spotter activation had occurred only a short time earlier. After being ordered to exit the vehicle, the defendant raised his shoulders, showed signs of nervousness, required numerous exit orders, failed to exit the vehicle completely, and hid his hands from the officers. In these circumstances, the apprehension of danger was real and justified a frisk of the defendant. See Commonwealth v. Narcisse, 457 Mass. 1 , 9-10 (2010) (patfrisk justified whenindividual’s conduct poses threat to officers and gives rise to reasonable belief that he is armed and dangerous). Judgments affirmed.”
Attorney Ronald A. Sellon