COMMONWEALTH vs. HARUTYUN DEMIRTSHYAN.
No. 14-P-450.
Appeals Court of Massachusetts
Essex. February 6, 2015. - August 5, 2015.
87 Mass. App. Ct. 737 (2015)
Present: CYPHER, HANLON, & AGNES, JJ.
Discussion of the authority of a single justice of either appellate court (as well as the appellate courts themselves) to exercise discretion, on good cause shown and in an extraordinary event, to permit a party seeking interlocutory appellate review of a ruling on a motion to suppress to file a notice of appeal in the trial court and an application for leave to prosecute an interlocutory appeal in the Supreme Judicial Court for the county of Suffolk at any time so long as the two documents were filed within one year of the issuance of notice of the order that is the subject of the appeal. [740-741]
This court concluded that it was appropriate to exercise its discretion to suspend the otherwise applicable procedural rules for good cause shown in circumstances in which a late filed notice of appeal or an application for leave to prosecute an interlocutory appeal was pending at the time of the issuance of a Supreme Judicial Court decision that provided guidance on the authority of trial judges to grant extensions of time in such cases, and in which the merits were fully briefed and the issue was one of importance. [742]
A District Court judge erred in allowing a criminal defendant‘s pretrial motion to suppress evidence of an electroshock weapon discovered during a routine motor vehicle stop when, after the defendant suddenly lunged and reached into the back seat of the vehicle, a police officer ordered him to get out of the vehicle, where, even assuming without deciding that the officer‘s request for permission to search the vehicle was not justified because it exceeded the scope of a lawful inquiry, the officer‘s exit order and the discovery of the weapon both wеre the result of the defendant‘s independent and intervening act. [744-746]
COMPLAINT received and sworn to in the Lynn Division of the District Court Department on June 7, 2013.
A pretrial motion to suppress evidence was heard by Albert S. Conlon, J.; a motion to dismiss was heard by him; and a motion for reconsideration was heard by Ellen Flatley, J.
Ronald DeRosa, Assistant District Attorney, for the Commonwealth.
Jane Larmon White for the defendant.
AGNES, J. This appeal arises out of the Commonwealth‘s application for an interlocutory appeal of a District Court order suppressing evidence consisting of an electroshock weapon,1 the defendant‘s statements regarding its ownership, and the arresting officer‘s observations that led to its discovery during a routine motor vehicle stop. The defendant claims that the Commonwealth‘s appeal is untimely. The Commonwealth contends that its appeal is not time barred because the issue was addressed and decided in its favor in the court below, and, moreover, its application for leave to appeal was authorized by a single justice of the Supreme Judicial Court. Based on the guidance in Commonwealth v. Jordan, 469 Mass. 134 (2014), decided after this case was entered in the Appeals Court, we determine that the merits should be reached, albeit for reasons different from those advanced by the Commonwealth.
On the merits, the Commonwealth contends that the police officer was justified in ordering the defendant to get out of the vehicle (leading to the discovery of the weapon) when, at thе conclusion of the stop, the defendant suddenly lunged and reached into the back seat of the vehicle. We agree and, accordingly, reverse the order allowing the motion to suppress.
Discussion. 1. Procedural history.
The evidentiary hearing on the defendant‘s motion to suppress took place on September 17, 2013, and included the testimony of one police officer. The transcript, which is part of the record on appeal, consists of thirty-eight pages. The judge endorsed his findings and rulings on the motion that day. The parties were notified in court on October 1, 2013, that the motion was allowed. The Commonwealth requested a thirty-day continuance. The Commonwealth filed a
The Commonwealth responded on February 19, 2014, by filing a motion to reconsider the order of dismissal.3 In a written memorandum of decision and order dated March 10, 2014, the motion for reconsideration was allowed.4 The judge stated that she viewed the issue as simply whether, on February 4, 2013, the Commonwealth should have been given the three additional days it requested to file its application for an interlocutory appeal. The judge reasoned that because the Commonwealth had done “substantial work” on the case as of February 4 and the district attorney‘s office was burdened by an “extraordinary” amount of appellate-related work, as outlined in an affidavit submitted by the chief of the office‘s appellate division, the motion to reconsider should be allowed “in the exercise of discretion.”
Thereafter, on March 10, 2014, the Commonwealth filed its application for leave to appeal in the Supreme Judicial Court for
2. Legal framework.
When either the Commonwealth or the defendant seek interlocutory review of a judge‘s decision allowing or denying a pretrial motion to suppress pursuant to
Jordan instructs that in cases involving “excusable neglect,”
In Jordan, the court also explained that a single appellate judge or an appellate court has a broader authority to suspend or extend the time for filing notices of appeal. Id. at 142-143. Presumably, this broader authority extends both to the filing of the notice of appeal as well as to the application for leave to appeal. Jordan explained that this broader authority is enjoyed by a single justice of the Appeals Court as well as by a panel of this court. Ibid. Based on its interpretation of the relevant rules, the Jordan court indicated that when there has been a showing of “good cause,” a single justice of either appellate court, as well as those courts, has the authority to exercise discretion and permit a party to file the two documents required to secure interlocutory appellate review of a ruling on a motion to suppress at any time so long as the two documents were filed within one year of the issuance of notice of the order that is the subject of the appeal. Id. at 143-144. In Jordan, the court added that the exercise of this discretion by a single justice or an appellate court to suspend the procedural rules governing an interlocutory appeal of a ruling on a motion to suppress must be considered “an extraordinary, not an ordinary, event.” Id. at 143.9
In the present case, it is unnecessary to address the Commonwealth‘s argument that the allowance of its application for leave to file an interlocutory appeal by a single justice of the Supreme Judicial Court, which was ultimately allowed by the single justice on March 18, 2014, represents an implied suspension of the procedural rules governing applications for leavе to file an interlocutory appeal from a ruling on a motion to suppress, and thus cures any timeliness issues. See id. at 143-144.10 However, in Jordan, the Supreme Judicial Court added that in cases such as this, in which a late filed notice of appeal or application for leave to file an interlocutory appeal was pending appeal at the time of its decision, an appellate court, including a panel of this court, has discretion to suspend the otherwise applicable procedural rules for “good cause.” Id. at 145, 149. As in Jordan, we determine that it is appropriate to do so in this case because until Jordan, there was a lack of certainty about the authority of trial judges to grant extensions of time in these cases, the merits are fully briefed, and the issue is one of importance.
4. The exit order and seizure of the electroshock weapon.
In reviewing a ruling on a motion to suppress, we accept the motion judge‘s findings of fact absent clear error “but conduct[-] an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
Only one witness, Officer Brendon Reen of the Swampscott рolice department, testified at the motion hearing. The essential facts are not in dispute. The judge found that the vehicle operated by the defendant was properly stopped without incident because it lacked a valid inspection sticker. There were no passengers in the vehicle. The defendant complied with an order to produce his
of the order that is the subject of the appeal or within the time allowed by an extension order) or simultaneously submit a motion for an extension of timе or a suspension of the rules along with an affidavit “setting forth in meaningful detail the reasons for the delay.” Id. at 148. In all cases in which a party requires an extension of time or a suspension of the rules in order to proceed, the single justice will address that matter before reaching the merits of the application for leave to appeal. Ibid.
The judge acknowledged that this sudden and unexpected movement by the defendant “changed [the] dynamic” of the encounter. Although the judge did not make any further, specific findings of fact, his decision to credit Officer Reen‘s testimony authorizes us to imply additional findings that are consistent with the judge‘s other findings and the officer‘s testimony. See Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50 n.2 (2014). In response to the lunge by the defendant, Officer Reen, who stated he was concerned for his safety, responded immediately by reaching through the open window and putting his right hand on the defendant‘s left shoulder, which prevented the defendant from reaching into the back-seat area. He asked the defendant what he was doing. The defendant stated that he was reaching for the bag in the back seat. Officer Reen instructed the defendant to turn off the ignition and step out of the vehicle. The defendant complied. Officer Reen removed the backpack and placed it on the hood of the defendant‘s vehicle. Officer Reen discovered the electroshock weapon (commonly known as a stun gun) referred to earlier in an open compartment in the driver‘s side door.11 After securing the weapon, Officer Reen informed the defendant that it was illegal to
In a case such as this, a police officer is allowed to make a limited protective search of the interior of the vehicle. “A Terry-type ‘frisk’ of the interior of an automobile may be justified under
Describing the ultimate question as “close,” the judge ruled that the exit order was invalid because the defendant‘s act of reaching into the back seat was not sufficient to create a heightened awareness of danger. See Commonwealth v. Gonsalves, 429 Mass. 658, 664-665 (1999). This ruling is based on too narrow a view of Gonsalves. When, during a traffic stop, the driver suddenly and without explanation lunges into the back-seat area оf the vehicle where a backpack that had not been inspected by the police is located, it is objectively reasonable for the officer to take protective measures, including the use of reasonable force to prevent the driver from reaching into the back seat followed by an exit order in order to gain control over the situation. This is what the Supreme Judicial Court had in mind when, in Gonsalves, it described what might justify an exit order: “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.” Id. at 665, quoting from State v. Smith, 134 N.J. 599, 618 (1994). See Commonwealth v. Stampley, 437 Mass. 323, 325-326 (2002) (“To establish the reasonableness of an officer‘s belief that someone‘s safety is in danger during a stop, the Commonwealth is not required to make the specific showing that a driver or passenger has a weapon“).
Rights by the concern that a driver or passenger returning to the vehicle may gain access to a weapon that may be used against the police, even though the driver and any passengers are permitted to reenter the vehicle and go on their way.” Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 411 (2014). See Michigan v. Long, 463 U.S. 1032, 1049 (1983). See also Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010) (officer entitled to conduct protective sweep of vehicle confined in scope to intrusion reasonably designed to discover weapon, where concern extended to threats that might arise from retrieval of weapon in vehicle by occupant who was not placed under arrest but subjected to patfrisk); Commonwealth v. Myers, 82 Mass. App. Ct. 172, 177-178 (2012) (police entitled to conduct protective sweep of vehicle even though driver sat in back seat of cruiser after patfrisk and could no longer have reached inside vehicle, because he could have returned to vehicle and recovered hidden weapon at end of encounter). Once Officer Reen discovered the stun gun, an illegal weapon, he had probable cause to conduct a warrantless search of the entire automobile. See Commonwealth v. Motta, 424 Mass. 117, 122-124 (1997); Commonwealth v. Johnson, 461 Mass. 44, 50 (2011); Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 290-291 (1986).
In a case involving a motor vehicle infraction such as an invalid inspection sticker, the detention of the vehicle and its occupants must end when the driver produces a valid license and registration or when the officer completes the issuance of a citation or warning unless a development occurs that, when viewed objectively, is indicative of criminal activity or creates a heightened awareness of danger. See Commonwealth v. Torres, 424 Mass. 153, 158 (1997).12 The motor vehicle stop in this case had not yet reached the point where the justification for the initial stop had
Conclusion. For the above reasons, the order allowing the defendant‘s motion to suppress is reversed.15
So ordered.
wait for his friend, trooper was entitled to ask defendant if he would consent to trooper‘s police dog sniffing exterior of vehicle).