41 Mass. App. Ct. 554 | Mass. App. Ct. | 1996
This is a joint interlocutory appeal by the Commonwealth and the defendant from a Superior Court judge’s rulings on the defendant’s motion to suppress as evidence drugs seized in the search of an automobile occupied by him as a passenger. The judge did not make detailed findings of fact, but ruled from the bench at the conclusion of the suppression hearing that the initial search of the car after a justi
We summarize the judge’s brief findings supplemented by the uncontroverted evidence presented at the motion hearing. At approximately 1:30 a.m. Officer Gamer of the Williams-town police department stopped a vehicle because he observed it being operated in an erratic manner. Before he exited his marked police cruiser, he observed that there were five people in the car, three in the front seat and two in the rear. One of the rear seat passengers appeared to be bending forward as if to place an object under the seat in front of him. Fearing that the passenger may have placed a gun under the seat, Officer Gamer called for a backup. Before another police officer arrived on the scene, Officer Gamer approached the driver’s side of the car and, keeping an eye on the passengers in the car, asked the driver for her license and registration. At that time, the officer detected an odor of alcohol coming from the car. The driver produced her license and a passenger in the front seat, who was the owner of the car, produced the registration. After inquiring of the operator if she had been drinking, which she denied, the officer asked the operator to step out of the car and to follow him back to his cruiser. At that time another officer had arrived on the scene. Officer Gamer told him to keep an eye on the passengers. That officer did not, however, approach the car. After speaking to the operator for two or three minutes, Officer Garner concluded that she was sober and allowed her to return to the car. At that point, he testified that his investigation regarding any moving violation was over,
There is no dispute that the initial stop and threshold inquiry were proper in this case. There is also no question that Officer Gamer would have been justified, when his concern for his safety was aroused by what he saw as the furtive movement of the rear seat passenger, in taking steps to protect his safety during the stop by ordering the occupants out of the car. Commonwealth v. Ferrara, 376 Mass, at 505. However, once Officer Gamer had concluded his inquiry of the operator and determined that she had a valid license and registra
Although the judge found that the search was valid because the owner of the car consented to the search,
Because all of the drugs that were seized were traceable to the illegal detention of the occupants of the car and the subsequent search of the car, this evidence must be suppressed as the “fruit of the poisonous tree.” Commonwealth v. Fer-rara, 376 Mass, at 505. Commonwealth v. Loughlin, 385 Mass, at 63. Accordingly, the motion to suppress should be allowed in its entirety. The order denying the motion to suppress in
So ordered.
The officer at this juncture had also apparently concluded that the license and registration were valid.
The judge made no findings pertaining to the legality of the continued detention and interrogation of the occupants of the car after Officer Gamer had determined that the operator had committed no “moving” violation.