445 Mass. 72 | Mass. | 2005
Lead Opinion
A jury convicted the defendant, Kenton W. Feyenord, of trafficking between one hundred and 200 grams of cocaine in violation of G. L. c. 94C, § 32E (b) (3). A divided
1. Motion to suppress. We accept the motion judge’s findings of fact and the undisputed evidence consistent with those findings adduced at the hearing on Feyenord’s motion to suppress.
Having separated Feyenord from Cox, Pinkes went back and forth between them to ask basic questions about their identities and destination. Standing outside the vehicle, Feyenord told Pinkes that his name was Kadari Bowen and his birthday was June 6, 1978. When asked his age, however, Feyenord struggled with the answer, providing one age and then another. Feyenord told Pinkes that Cox was his brother-in-law and the father of his sister’s child, and that he had known Cox for twelve years. Feyenord also said that he had a New York driver’s license and he and Cox were traveling to visit a friend in Putnam, Connecticut, for whom he could produce neither an address nor a telephone number. In contrast, Cox, still seated in the vehicle, told Pinkes that he had known Feyenord for two to three years, knew him only as “Pat,” did not know his last name, and was not acquainted with any members of his family. Cox also said that they were headed to Brooklyn, New York.
These prehminaries lasted between five and ten minutes. At this point, Pinkes ordered Feyenord to sit in the back seat of the cruiser (unhandcuffed), telling him that he was not under arrest but was not free to leave. Pinkes then radioed for assistance from a canine officer, State Trooper James Devlin, who arrived at the scene within fifteen to twenty minutes with a drug-sniffing dog. Devlin proceeded to direct the dog around the vehicle. The dog displayed a heightened interest in an area near the left rear of the vehicle’s trunk. The officers proceeded to open the trunk and place the dog inside.
a. The traffic stop. Feyenord first argues that the judge should have granted his motion to suppress the cocaine because the police had no justification to stop him for driving a vehicle with one inoperable headlight in daylight. We disagree. General Laws c. 90, § 7, provides that “[ejvery motor vehicle operated in or upon any way . . . shall be provided with . . . suitable lamps.” We interpret this language to mean that a motor vehicle’s headlamps must be suitable at all times so that they are capable of being illuminated whenever road conditions might warrant.
b. The exit order. Feyenord next argues that the judge should have granted his motion to suppress because Pinkes ordered him to leave the vehicle without a reasonable suspicion of danger. We conclude that the exit order was proper.
Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, “a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle.” Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). However, “[wjhile a mere hunch is not enough ... it does not take much for a police officer to
Here, Feyenord could not produce his driver’s license, and Pinkes had been unable to ascertain his identity. Commonwealth v. Santana, supra at 213-214 n.8, and cases cited. Feyenord was visibly nervous and with a companion. Pinkes was alone. Although the exit order was not predicated on suspicious movements or the visible presence of a weapon or possible contraband, police officers need not “gamble with their personal safety,” and the course of events after the stop sufficiently gave “rise to legitimate safety concerns” to justify the taking of the reasonable precaution of separating Feyenord from Cox and ordering Feyenord from the vehicle. Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), quoting Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). See Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) (“justification for an exit order does not depend on the presence of an ‘immediate threat’ at the precise moment of the order, but rather on the safety concerns raised by the entire circumstances of the encounter”). The order also served a valid investigatory purpose. See Commonwealth v. Torres, 433 Mass. 669, 675 (2001) (“officer acted reasonably and within the limits of both Fourth Amendment and art. 14” because exit order was “no more intrusive than necessary . . . to effectuate both the safe conclusion to the traffic stop and the further investigation of the suspicious conduct”). See also Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833-834 (2001) (exit order justified where “tender of a registration not crediting ownership of the vehicle to any occupant raised a question whether the car was stolen,” and order served “special practical purpose” of “separating those in a stopped car from each other to frustrate interchange or collaboration among them”). Feyenord’s claim that the fruits of the subsequent investigation should be suppressed because the exit order was unlawful is without merit.
c. Feyenord.’s further detention. Feyenord next argues that his motion to suppress should have been granted because he was unreasonably detained while the police, without reasonable suspicion of drug-related activity, summoned a canine officer
In considering the temporary detention of a motorist, we begin with the “settled principle that ‘[a] justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.’ ” Commonwealth v. Torres, 424 Mass. 153, 162 (1997), quoting Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996). “In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion. ‘The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct.’ ” Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), quoting Commonwealth v. Williams, 422 Mass. 111, 116 (1996). In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on “specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer’s experience.” Commonwealth v. King, 389 Mass. 233, 243 (1983), quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). See Commonwealth v. Williams, supra at 116 (“We view the facts and circumstances as a whole in assessing the reasonableness of the officer[’s] conduct”); Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) (“a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief”); Commonwealth v. Wren, 391 Mass. 705, 707 (1984), and cases cited (“A hunch will not suffice”).
In the course of questioning Feyenord and Cox about their identities and destination, Pinkes uncovered significant inconsistencies. Given Feyenord’s inability to produce a valid driver’s license, his nervous behavior, and these unsettling inconsistencies, Pinkes could reasonably have concluded, based on “specific and articulable facts and the specific reasonable inferences which follow from such facts,” that Feyenord and Cox were engaged in criminal activity beyond Feyenord’s non-possession of a license and the vehicle’s malfunctioning headlight. Commonwealth v. King, supra at 243. Pinkes was thus justified in further detaining Feyenord and Cox and expanding the scope of his investigation beyond mere motor vehicle violations. See Commonwealth v. Wilson, 360 Mass. 557, 559-560 (1971) (defendant’s incredible claim of ignorance about provenance of water pistol in vehicle justified further inquiry); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995)
Having concluded that Pinkes was entitled to extend Feyenord’s detention and expand the scope of his investigation, we must consider whether his decision to summon and employ a drug-sniffing dog required additional facts that specifically pointed to Feyenord’s involvement in drug-related activity.
Although the facts supported the trooper’s suspicion that criminal activity was “afoot,” Terry v. Ohio, 392 U.S. 1, 30 (1968), the specific type of criminal activity that might be “afoot” was decidedly uncertain. The facts were consistent with a number of possibilities, including automobile theft, fugitive flight, and the transportation of contraband, to list just a few. “An expeditious collateral inquiry which might result in the suspect[’s] arrest or prompt release is not unreasonable when done to meet ‘the practical demands of effective criminal investigation and law enforcement.’ ” Commonwealth v. Barros, 425 Mass. 572, 585 (1997), quoting Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). Faced with facts such as those presented here, an officer must make judgments about what resources are readily available to him that might quickly dispel or confirm his suspicion that the driver is involved in some form of criminal activity.
Equally important, the detention of Feyenord (while poten
In sum, we conclude that “the conduct of the officerQ was proportional to the escalating suspicion that emerged over the course of the stop.” Commonwealth v. Sinforoso, supra at 323. Consequently, Feyenord’s detention for the purpose of summon
d. The dog sniff of the vehicle. Finally, Feyenord argues that the motion to suppress was improperly denied because the use of the dog to ascertain the presence of drugs in the vehicle was an unreasonable “search” contrary to the Fourth Amendment and art. 14. Feyenord’s Fourth Amendment argument is foreclosed by decisions of the Supreme Court, including Illinois v. Caballes, 543 U.S. 405, 410 (2005) (“dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment”), and Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (while vehicle stop effectuates Fourth Amendment seizure, use of narcotics-detection dog around vehicle’s exterior does not transform seizure into search). It remains for us to consider whether such a canine sniff is a search under art. 14. See, e.g., Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999), and cases cited (“[w]e have expressly granted . . . protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment”).
“When we confront the question whether police activities amount to a search or seizure within the meaning of art. 14, we ask ‘whether the defendants’ expectation of privacy [in the circumstances] is one which society could recognize as reasonable.’ ” Commonwealth v. Blood, 400 Mass. 61, 68 (1987), quoting Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982). See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). We agree with the Appeals Court that “the dog’s sniff and resulting ‘alert’ would constitute a search only if society were prepared to say that the defendant was reasonable in his subjective expectation of privacy in the odor of cocaine emanating from his car. We think that society is wholly unprepared and unwilling to take that step.” Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 207-208 (2004). Accordingly, we conclude that a dog sniff of a properly stopped vehicle is not a search
After “the dog indicated the presence of narcotics in the rear of the car, the police had probable cause to search the car.” Commonwealth v. Sinforoso, supra at 324, citing Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). Consequently, the discovery and seizure of the contraband was proper and Feyenord’s motion to suppress was correctly denied.
2. Sufficiency of the evidence. Feyenord argues that the judge erred in denying his motion for a required finding of not guilty, which he made at the close of the Commonwealth’s case and at the close of all the evidence, because the evidence did not demonstrate his participation in a joint venture to traffic in
State Troopers Pinkes and Devlin testified at trial, providing much the same account as offered at the hearing on Feyenord’s motion to suppress and credited by the judge in his findings on the motion.
In Feyenord’s defense, a former girl friend of Feyenord’s uncle testified that Feyenord had stayed in her Worcester home the night before his arrest, after he arrived on a bus from New York City. She also testified that she gave Feyenord permission to drive her vehicle back to New York so long as he returned it the same day, but indicated that there were no drugs in the
At trial, the Commonwealth argued alternatively that Feyenord was guilty of cocaine trafficking as a principal or as a participant in a joint venture. The jury found Feyenord guilty solely as a joint venturer.
The jury could have reasonably concluded that Feyenord knew of the large quantity of drugs stored in the vehicle he was driving because Feyenord appeared nervous when approached by Pinkes and provided false, evasive, and implausible answers
As Feyenord was driving a vehicle containing a large quantity of cocaine and the Commonwealth’s case permitted a reasonable inference that Feyenord knew of the cocaine and intended to assist Cox with trafficking it, the evidence supports the jury’s verdict of Feyenord’s guilt as a joint venturer. We see no error in the denial of Feyenord’s motions for a required finding of not guilty.
Judgment affirmed.
Given this limitation, we do not consider the challenge by the defendant to the judge’s instructions to the jury on joint venture, which, the Appeals Court concluded, adequately explained the applicable law. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 201 n.2 (2004).
Feyenord makes no challenge on appeal to the judge’s findings about the circumstances surrounding the discovery of drugs in the vehicle he was driving.
The canine officer testified at the hearing on the motion to suppress that he obtained consent from Feyenord to search the vehicle with the dog immediately after the dog became agitated during the initial exterior sweep. The judge made no finding of fact to this effect, and neither the Commonwealth nor Feyenord suggest that consent is at issue in this case.
With specific reference to “headlamps,” the statute provides that “[e]very automobile operated during the period from one half an hour after sunset to one half an hour before sunrise, and during any other period when visibility is reduced by atmospheric conditions so as to render dangerous further operation without lights being displayed, shall display at least two lighted white headlamps with at least one mounted at each side of the front of the vehicle . . . .” G. L. c. 90, § 7.
It is important to distinguish this case from cases in which the driver of a vehicle stopped for a traffic violation produces a valid driver’s license and registration. See, e.g., Commonwealth v. Loughlin, 385 Mass. 60, 61-62 (1982); Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978). Where an officer conducts an uneventful threshold inquiry giving rise to no further suspicion of criminal activity, he may not prolong the detention or expand the inquiry. See Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997); Commonwealth v. King, 389 Mass. 233, 243-244 (1983).
The total investigative detention of Feyenord, from the time of the stop to the sniff by the dog was between twenty-five and thirty minutes.
We do not decide, as the Supreme Court did in Illinois v. Caballes, 543 U.S. 405 (2005), whether the police may initiate a canine sniff of a vehicle stopped for a traffic violation, in the absence of any suspicion of criminal activity beyond the violation. In that case, the Court “proceed[ed] on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding.” Id. at 407. To the extent such a tactic raises art. 14 concerns, we need not consider them here, as Pinkes’s conduct was based on a reasonable suspicion of additional criminal activity.
In United States v. Perkins, 348 F.3d 965, 967-968 (11th Cir. 2003), a police officer stopped a motorist for a marked lanes violation, and the driver produced a valid out-of-State driver’s license and insurance information, which revealed nothing remarkable during a routine driver’s license and warrant check. After giving the driver a warning for the traffic violation, the officer continued to detain the driver to await the arrival of a drug-sniffing dog, which subsequently discovered narcotics in the vehicle. Id. at 968. The case squarely falls within the category of cases discussed in note 5, supra, involving an improper detention and expanded investigation after an uneventful threshold inquiry, and its reasoning is therefore inapplicable to this case, where the officer’s initial inquiry raised reasonable suspicions of “other illegal activity beyond the traffic offense.” United States v. Perkins, supra at 970.
It goes without saying that the driver cannot be held indefinitely until all avenues of possible inquiry have been tried and exhausted. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (“Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop”); 4 W.R. LaFave, Search and Seizure § 9.2(f), at 337 (4th ed. 2004), and cases cited (“There is no general rule that the detention may continue so long as the reasonable suspicion giving rise to the stop remains, for if this were the rule some stops could be continued indefinitely”).
Given Feyenord’s lack of identification and Cox’s identification as a foreign national, Pinkes may have had few other investigative avenues to ad
Few jurisdictions have found detentions of thirty minutes or less unreasonable. See, e.g., United States v. Orsolini, 300 F.3d 724, 730 (6th Cir. 2002) (fifty-minute detention, thirty-five minutes of which spent awaiting drug dog, reasonable); United States v. Shareef, 100 F.3d 1491, 1501-1502 (10th Cir. 1996) (thirty-minute wait for computer check during traffic stop reasonable); United States v. McCarthy, 77 F.3d 522, 532 (1st Cir.), cert. denied, 519 U.S. 991 (1996), and cert. denied sub nom. Hunter v. United States, 519 U.S. 1093 (1997) (seventy-five minutes reasonable where defendant gave evasive responses to official inquiries); State v. Moffatt, 450 N.W.2d 116, 118-119 (Minn. 1990) (sixty-one minute stop permissible). Cf. United States v. Sharpe, 470 U.S. 675, 686 (1985) (declining to deem unreasonable, as matter of law, all Terry stops exceeding twenty minutes); United States v. Place, 462 U.S. 696, 699, 709 (1983) (ninety-minute stop unreasonable); People v. Cox, 202 Ill. 2d 462, 469-470 (2002), cert. denied, 539 U.S. 937 (2003) (fifteen-minute detention pending arrival of drug dog unreasonable where police stopped vehicle for rear registration plate light malfunction and summoned canine unit before speaking with driver).
The use of dogs in other settings (e.g., to sniff the body of a person or the odors emanating from private homes) is not at issue in this case, and would have to be evaluated based on whether the privacy expectation in each of those settings is one society is willing to deem reasonable. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 208 (2004). See State v. Wiegand, 645 N.W.2d 125, 130-131 n.5 (Minn. 2002). For example, we note the heightened protection afforded homes in our search and seizure jurisprudence. Commonwealth v. Balicki, 436 Mass. 1, 12 n.14 (2002) (“Nowhere are expectations of privacy greater than in the home . . .”). Commonwealth v. Blood, 400 Mass. 61, 68-70 & n.9 (1987) (expectation that conversational exchange in private home will not be invaded surreptitiously is reasonable).
Interpreting their State Constitutions, several State courts have held that the use of a drug dog to sniff the exterior of a vehicle constitutes a “search.” See, e.g., People v. Haley, 41 P.3d 666, 672 (Colo. 2001); State v. Tackitt, 315 Mont. 59, 66 (2003); State v. Pellicci, 133 N.H. 523, 533 (1990); Commonwealth v. Rogers, 578 Pa. 127, 135 (2004). Other State courts have concluded that such canine sniffs are not “searches” under their respective State Constitutions. See, e.g., O’Keefe v. State, 189 Ga. App. 519, 526 (1988); State v. Wiegand, supra at 133; State v. Waldroup, 100 Ohio App. 3d 508, 514 (1995). Regardless of the State constitutional status of canine sniffs, many State courts require an officer to have some form of reasonable suspicion before using a drug dog to sniff the exterior of a vehicle, but none requires that an officer obtain a warrant or have probable cause to believe that there is contraband in the vehicle. See Fitzgerald v. State, 384 Md. 484, 511-512 n.14 (Ct. App. 2004), and cases cited.
The jury did not learn of Cox’s responses to Pinkes’s questions, as those responses were excluded as hearsay prior to trial. Cox apparently posted bail after his arrest, and his whereabouts were unknown at the time of trial.
Feyenord also testified that he had been in Worcester the previous week and had driven the motor vehicle during that visit as well. The former girl friend of Feyenord’s uncle did not corroborate this detail.
Given this result, we need not reach Feyenord’s argument that the judge erred in denying his motions for a required finding of not guilty on the theory of principal liability.
Concurrence Opinion
(concurring). I agree with the court that the defendant’s motion to suppress was properly denied because the police acted lawfully. In the circumstances that occurred, when a police officer harbors a reasonable suspicion that a crime has been committed, and that suspicion escalates, based on multiple false and evasive responses, and then reasonably focuses on the possibility of drug-related criminal activity,
In our democratic society, special concern must be vigilantly exercised by the courts to balance the rights of the police under the principles of Terry v. Ohio, 392 U.S. 1 (1968) (which have expanded considerably over the years since Terry was decided), with the protections afforded less powerful citizens who often feel the brunt of Terry-type stops. Many of these citizens (some even noncitizens), because of their economic standing, will be driving vehicles with defective equipment or driving them without proper licenses or registrations. Moreover, these vehicles will frequently be operated in areas of cities that have known drug zones (Lowell, Holyoke, Springfield, parts of Boston, to mention a few). The police, endeavoring to stamp out drug commerce and use, will invariably be making traffic stops in these zones. The lack of a license or proper registration or the commission of a routine traffic violation, coupled with nervousness, or even some evasion on the part of the operator or others in the vehicle, may provide a basis to continue detention under Terry principles, but should not, by themselves, provide a basis to bring in a drug-sniffing dog. As cogently noted by Professor LaFave:
“Allowing . . . dogs to be used serves only as a positive encouragement for police to engage in pretext and subterfuge, hardly a defensible move given the common knowledge that traffic-law enforcement has been diverted from its justified objectives to serve as a means for seeking out drugs. Allowing use of the drug dogs at all in conjunction with traffic stops can only encourage the making of stops for insignificant and technical violations on the basis of unarticulated suspicions and mere hunches or, at worst, on totally arbitrary and discriminatory bases. Moreover, allowing use of the dogs at all adds to the process another decision, whether to summon a drug dog, that the cases indicate requires no reasonable suspicion nor, for that matter, any justification whatsoever, but that*88 the practice indicates is also likely to be made on an arbitrary basis.” (Footnotes omitted.)
LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1896 (2004). See 4 W.R. LaFave, Search and Seizure § 9.3(f), at 400 (4th ed. 2004).
This case also provides an opportunity to speak directly to the subject of racial or ethnic profiling in the context of the use of drug sniffing dogs during traffic stops. The majority of police officers proceed in good faith when making traffic stops. Some officers, however, do not and proceed more on stereotypical thinking and hunches, using dubious investigative techniques that result in the harassment of racial and ethnic minorities. In his concurring opinion in Commonwealth v. Gonsalves, 429 Mass. 658 (1999), Justice Ireland wrote of “the dangers posed by unfettered police power to order individuals out of automobiles without any justification” and of documented “widespread public concerns about police profiling, commonly referred to as ‘DWB — driving while black.’ ” Id. at 669, 670 (Ireland, J., concurring). The same kind of discriminatory conduct is also directed at other ethnic groups, especially Hispanics. A motorist must never be stopped based on his or her race or ethnicity without legally sufficient cause. Getting a traffic ticket is never a happy experience. Getting a traffic ticket if you are a black or Hispanic person who has committed a minor traffic violation and then been questioned in public view by an armed police officer determined to find a basis, or extract consent, to bring in a police dog, is humiliating, painful, and unlawful. See generally S.R. Gross, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651 (2002).
A dog sniff is not a search under the Fourth Amendment to the United States Constitution, see Illinois v. Caballes, 543 U.S. 405, 407-410 (2005); United States v. Place, 462 U.S. 696, 707 (1983), and the court correctly concludes that a dog sniff of the exterior of an automobile is likewise not a search within the meaning of art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 607-609 (1993) (helicopter surveillance of backyard
In my view, we should clearly delineate the permissible bounds of a routine traffic stop, beyond which police officers may not go, in order fully to protect the art. 14 rights of all our citizens and to avoid even the appearance of having countenanced official discrimination and harassment. A police officer conducting a traffic stop may not summon a canine officer and dog on a mere hunch or unarticulated suspicion that drugs might be discovered in the stopped vehicle. See State v. Wiegand, 645 N.W.2d 125, 136-137 (Minn. 2002). Nor may the officer continue to engage the vehicle’s occupants in arbitrary or dila
The situation presented to the State trooper was fused with tension and not simply one in which the defendant had difficulty in producing proper documentation. In my view, the contradictory statements given by the two men with respect to their relationship and travel destination (the defendant identified his passenger as his brother-in-law and stated that they were traveling to see a “friend” in Putnam, Connecticut, while his passenger declared that he knew the defendant only as “Pat” and asserted that their intended destination was Brooklyn, New York) raised grave concerns that virtually compelled Trooper Pinkes, who was trained and experienced in narcotics investigations, to pursue further the possibility of illegal drug activity.
Dissenting Opinion
(dissenting, with whom Ireland, J., joins). Today the court holds that the police may use a drug-sniffing dog to make a public and targeted investigation of an automobile driver pulled over for a routine traffic violation (driving during the day time with only one working headlight), even though the police have no reason to suspect that he is involved in any illicit drug activity. Because the scope of the canine detection in this case was neither reasonable in the circumstances nor proportional to the investigating officer’s actual suspicions, as is required by our settled jurisprudence, I respectfully dissent.
It is black letter law that, to withstand a challenge to evidence
Our interpretation under art. 14 of the Massachusetts Declaration of Rights of the permissible “scope” of any ensuing investigation is equally settled. Any broadening in the scope of the investigatory stop must be “reasonable” and “proportional” in light of the “degree of suspicion the police reasonably harbor.” Commonwealth v. Williams, supra at 116, 117. See Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001) (“In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion”); Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 665 (1999) (reasonableness requirement in escalation of scope of traffic stops helps prevent arbitrary or harassing police conduct). I cannot agree with the court’s conclusion that the decision by the state trooper to summons a narcotics sniffing dog was “reasonable.” Ante at 80.
It is uncontested in this case that the investigating state trooper had no reason to suspect that the defendant was involved in any drug activity when he ordered the canine search. Rather, as the court candidly recognizes, the trooper had only a generalized suspicion that something might be afoot. What that something was, was “decidedly uncertain,” and “consistent with a number of possibilities.” Ante at 80. There is nothing in the record to indicate that the police “reasonably focuse[d] on the possibility of drug-related criminal activity.” Ante at 86. A motorist’s nervousness and false responses to police questions, without more, does not permit the police to conclude that illegal narcotics activity is afoot.
I conclude that the use of a drug-detection dog is not “proportional” or “justified” during a routine traffic stop unless the police have a reasonable suspicion that the detained individual is engaged in unlawful drug-related activities. See Illinois v. Caballes, 543 U.S. 405, 418-422 (2005) (Ginsburg, J., dissenting) (use of drug-sniffing dog during traffic stop “broaden[s] the scope of the traffic-violation-related seizure” and therefore ought to require reasonable suspicion). This is not only required, as I shall explain, by our art. 14 jurisprudence, but also is consistent with the conclusions of numerous other State courts of last resort, examining the limits imposed by their respective State Constitutions on targeted canine drug sniffing. See, e.g., State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002) (reasonable suspicion of drug activity required before initiation of canine sniff); State v. Pellicci, 133 N.H. 523, 534 (1990) (same); People v. Dunn, 77 N.Y.2d 19, 26 (1990), cert. denied, 501 U.S. 1219 (1991) (same); Commonwealth v. Johnston, 515 Pa. 454, 465-467 (1987) (same). See also State v. Tackitt, 315 Mont. 59, 69-70 (2003) (“particularized suspicion” of narcotics required to initiate sniff).
A canine drug sniff conducted during the course of a traffic
In my judgment, that conclusion is compelled by our art. 14 jurisprudence. In Commonwealth v. Gonsalves, supra at 663, we held that a police officer must have “a reasonable belief that the officer’s safety, or the safety of others, is in danger before ordering a [person] out of a motor vehicle.” In other words, even if a police officer has a legitimate basis for extending a traffic stop (in Commonwealth v. Gonsalves, supra at 660, the police suspected some illegal activity because the defendant passenger was “extremely nervous” and “appeared to be breathing heavily”), the officer cannot order a person out of a vehicle unless the officer has a reasonable belief that removal from the vehicle is required for reasons of safety. We explained in that case that our “rule” is rooted in art. 14’s requirement that the police respect the privacy of motorists, avoid unnecessary delay and inconvenience in making traffic stops, id. at 663-664, and act at all times “in a reasoned way.” Id. at 665.
The targeted use of a narcotics detection dog against a particular individual stopped for a routine traffic stop is entirely distinguishable from properly conducted police efforts to ensure public safety. The use of specially trained dogs in airports, schools, subway stations, or other such public arenas gives rise to issues not present in this case. See, e.g., Illinois v. Caballes, supra at 424-425 (Ginsburg, J., dissenting) (distinguishing search and seizure standards involving “general interest in crime control” from those involving “more immediate threats to public safety”), and cases cited. Reasonable canine detection can be utilized for public safety purposes without violating our carefully developed art. 14 jurisprudence.
The court’s conclusion that canine narcotics detection is permissible in this case means necessarily that drug-sniffing dogs may be called in any time the police sense that the subject of a routine traffic stop is engaged in “some” unspecified wrongdoing. In so holding, the court departs (without reason or explanation) from our settled jurisprudence and deprives our citizens of meaningful protection from an investigatory tactic widely recognized as intrusive and “viscerally disturbing.” Ante at 89.1 respectfully dissent.
Significantly, the judge did not find that the State trooper had reason to suspect the defendants of illicit narcotics activity, and the Commonwealth has never made such a claim. The record confirms that there was nothing about the actions or responses of the defendant that suggested illegal narcotics activity. The trooper did not testify to an odor of drugs, that the defendant was weaving while driving, that his eyes were glassy, or that his speech was abnormal. The trooper who pulled the defendant’s automobile over was in fact
The court’s opinion pays little, if any, attention to the issue whether targeted canine narcotics detection itself broadens the scope of any investigatory stop. Rather, the court focuses, unnecessarily in my view, on the length of the defendant’s detention at the side of the road. It is settled that, had they completed their legitimate investigation, the police could not (without reasonable suspicion) have detained the defendant further to await the dog’s arrival. Illinois v. Caballes, 543 U.S. 405, 408 (2005), citing People v. Cox, 202 Ill. 2d 462 (2002), cert. denied, 539 U.S. 937 (2003). Today’s holding creates troublesome incentives because “the stopping officer is tempted to engage in stalling regarding his proper function during the stop ... in order to give the appearance that the time for the stop has not expired in the interim.” Y. Kamisar, W.R. LaFave, J.H. Israel, & N.J. King, Modem Criminal Procedure 430-431 n. (11th ed. 2005), quoting 4 W.R. LaFave, Search and Seizure LaFave § 9.3(f) (4th ed. 2004).
Well-trained dogs often “alert” to innocent people. Illinois v. Caballes, 543 U.S. 405, 411-412 (2005) (Sauter, J., dissenting). In one case, school officials initiated a canine sniff of their teenage students. The dogs “alerted” to fifty students, thirty-three of whom later were revealed to have been innocent. A dog alerted to one junior high school girl. She was asked to empty her pockets, which contained no drugs. She was then strip searched, but, again, no drugs were found. Later, it was revealed that the girl had been playing that morning with her own dog, who was in heat. Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), afPd in part, 631 F.2d 91 (7th Cir. 1980), cert. denied, 451 U.S. 1022 (1981). See 1 W.R. LaFave, Search and Seizure § 2.2(g), at 532-534 (4th ed. 2004). Rare as such occurrences may be, they evidence the potential of canine narcotics detection to create a serious and unwarranted intrusion into a person’s life.
We reached our conclusion despite decisions of the United States Supreme Court to the contrary. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (on routine traffic stop police officer may, without additional basis, order driver from vehicle); Maryland v. Wilson, 519 U.S. 408, 415 (1997) (same, regarding passenger).