41 Mass. App. Ct. 468 | Mass. App. Ct. | 1996
Lead Opinion
Following a routine stop of a motor vehicle for speeding, a State trooper embarked upon an interrogation of the occupants that led to an arrest of the defendant and, ultimately, his conviction of trafficking in more than fourteen grams of cocaine. G. L. c. 94C, § 32E(&)(1). A motion to suppress as evidence cocaine seized by the trooper was denied by a Superior Court judge. We conclude that the officer proceeded on a hunch, rather than reasonable suspicion, and that, therefore, the drugs seized should have been suppressed.
We take our facts largely from careful findings made by the motion judge, with some supplementation from the transcript
O’Neill then asked Luna if he knew how fast he had been going. Luna answered, “No.” The trooper’s next question was where Luna was coming from and where he was going. Luna responded that he was coming from Boston and was headed to Lowell to pick up a carpenter for a construction job back in Boston. As he continued to talk with Luna, O’Neill noticed that Bartlett, who was in the front passenger seat and Luna, each wore electronic pagers (beepers), and O’Neill was struck that there were no construction tools in the passenger compartment. None of the occupants made any quick or unusual movements (e.g., reaching under a seat) that might have been regarded as furtive or suggestive of a purpose to conceal. Luna’s demeanor, according to O’Neill, was consistently cooperative, calm, and responsive to his questions.
Trooper O’Neill’s suspicion, nevertheless, became aroused on the basis of the following:
(1) the car was rented and he knew drug couriers used rented cars;
(2) the car had been rented at Logan Airport and he knew Logan was a point of entry for drugs (in point of fact it turned out that the car had not been rented at Logan Airport, but at the Park Plaza Hotel in Boston);
(3) the car was not rented to Luna or, presumptively, either of the two passengers riding with him;
(4) Luna’s operator’s license showed him to be a resi*470 dent of Cambridge and it was odd that he should rent a car for a local trip;
(5) it seemed unlikely that Luna would be driving from Boston to Lowell and back to pick up a carpenter;
(6) there were no construction tools or materials in the passenger compartment of the car;
(7) Luna and Bartlett wore beepers and he associated beepers with drug dealers;
(8) he was aware that there had been drug seizures on the Lowell Connector and, indeed, had himself made arrests on the Lowell Connector related to drug traffic.
On the basis of the suspicion he had formed, O’Neill ordered Luna out of the car and pressed his inquiries. Luna knew neither the last name nor the address of the carpenter he was picking up in Lowell but knew how to get to his house. The Evelyn Gonzales who had rented the car, Luna explained, was his common-law wife. Luna’s clothes struck O’Neill as uncharacteristically clean and the time of day puzzlingly late for someone involved with construction work. The trooper sensed something amiss and he asked Luna whether there were drugs in the car. “No,” Luna told O’Neill, “You can look.” So O’Neill did, but not without also ordering Bartlett out of the car. As Bartlett stepped out, O’Neill spotted what he was after, a small taped package that turned out to contain white powder in a small jar. The arrest of Luna and Bartlett followed.
There is no question about the legitimacy of Trooper O’Neill’s stop of Luna and his companions; they were speeding. See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 527-528 (1995). The nature of the stop, i.e., for a traffic offense, defines the scope of the initial inquiry by a police officer. See and compare Commonwealth v. Modica, 24 Mass. App. Ct. 334, 339 (1987) (purpose of stop, based on information, was to investigate transportation of stolen computers). It should pertain to operation of the motor vehicle: inquiry into the status of the driver as a licensed operator and the registration of the automobile. Put more simply, the officer, as did
Those cases do not require that an officer making a stop for a traffic violation ignore what he sees, smells or hears. The sight of a half empty bottle of gin, of a firearm, or of a furtive movement, the smeÜ of liquor, or the sound of slurred speech, of course, invites further inquiry. None of the factors recited by O’Neill approach that sort of reasonable stimulus for investigation.
(1) The car was rented and O’Neill knew drug couriers use rented cars, but that knowledge does not support a syllogism that all rented cars are used for drug runs. (2) While it may be that Logan Airport is a point of entry for drugs, obviously every car registered to a Logan car rental office is not a vehicle for narcotics shipment. The unreasonable leap of logic is dramatized in this instance by the fact made known by the government (to its credit) that the trooper’s assumption that the car had been hired at Logan proved ultimately to be false, a fact he might have realized had he really been interested in the circumstances of the car rental. (3) The car was not rented to any of the persons in the car. After being asked to step out of the car, and asked a second time about where he was coming from and where he was going, Luna explained his connection to Evelyn Gonzales. If the trooper thought the use of the car unauthorized, the obvious investigatory step would be the routine one of checking to see if the car had been reported stolen. O’Neill did not do this; rather he stuck the car rental agreement into his pocket while he questioned Luna about other matters. (4) Luna lived in Cambridge and O’Neill thought it odd that Luna would be renting a car for a local trip, but there are any number of reasons (e.g., the family car is in the repair shop or another member of the family needs it) that a person rents a car for local use. (5) Luna and Bart
While alert police officers may add up suggestive factors, each of which is insufficient alone to support a search or arrest, Commonwealth v. Rivera, 33 Mass. App. Ct. at 314-315, the factors we have enumerated are singular for not, when fairly viewed, being suggestive. Compare Commonwealth v. Bacon, 381 Mass. 642, 645 (1980). Contrast Commonwealth v. Rivera, supra at 314-315. Adding up eight innocuous observations — eight zeros — does not produce a sum of suspicion that justifies a line of interrogation, an order of persons out of their car, and a search of their car. It is apparent that Trooper O’Neill played a good hunch and fished until he caught something. The vice in interrogations and searches based on a hunch is their essentially random and arbitrary nature, a quality inconsistent, under constitutional norms (art. 14 of the Declaration of Rights of the Massachusetts Constitution and the Fourth Amendment to the Constitution of the United States), with a free and ordered society. See the concurring opinion of Chief Justice Hennes-sey in Commonwealth v. Loughlin, 385 Mass, at 64-66. See also Commonwealth v. Kimball, 37 Mass. App. Ct. at 607-608.
Judgment reversed.
Verdict set aside.
Concurrence Opinion
(concurring). This record speaks, very loudly that this driver was interrogated on suspicion of being Hispanic. Only the driver’s ethnicity and possession of a beeper were apparent at the time of the stop. Previously, this court has stated that ethnicity plus velocity does not equal probable cause. See Commonwealth v. Bodden, 11 Mass. App. Ct. 964 (1981). It is now clear that we need to insert another equation of inequality into our jurisprudence: ethnicity plus a beeper does not equal probable cause.
Before it is said that another criminal has evaded punishment on a technicality, let me say that judges do not view compliance with the Constitution as a mere mundane inconvenience. Cf. Brown v. Board of Educ., 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962); Gideon v. Wainwright, 372 U.S. 335 (1963). In further response to those who say judges allow too many guilty persons to go free, I pose this question: how many Hispanic persons have been stopped and their person or vehicles searched without probable cause and with no contraband discovered? It is the constitutional protections and guarantees extended to those persons that courts are zealously trying to protect.
