Lead Opinion
In this сase a dog sniff of a temporarily disabled motor vehicle yielded discovery of heroin and cocaine within the vehicle. We must decide whether a police officer properly engaged in a community caretaking function involving the disabled automobile effected a seizure for constitutional purposes by requesting consent for a canine sniff of the exterior of that motor vehicle.
Background. We recite the essential facts as found by the motion judge, supplemented by undisputed testimony from the suppression hearing. See Commonwealth v. DePeiza,
On June 9, 2006, at approximately 7:35 p.m., the defendant’s automobile, an Acura sedan, ran out of gasoline while traveling south on Route 140, in an area where the road was a four-lane divided highway with a posted speed limit of fifty-five miles per hour. At the same time, a State trooper on routine patrol with his drug-detection police dog was driving on the highway in a markеd cruiser. The trooper noticed the defendant’s vehicle abruptly slow down, with its hazard lights flashing, and pull into the breakdown lane. The trooper activated the cruiser’s blue lights and parked directly behind the Acura. The defendant got out of his car, indicated that he needed assistance, and approached the trooper. He said: “I’m out of gas, what should I do?” The trooper stood by the defendant while the defendant used his own cellular telephone to call a ftiend to bring gasoline to him.
The trooper observed that the vehicle had heavily tinted windows. However, because the front windows were rollеd down, he was able to see several bottles of water, some empty and some full, in the rear of the car. The trooper also noticed an air freshener hanging from the rear-view mirror, and smelled a strong air freshener scent coming from within the automobile.
As the two men stood outside the Acura waiting for the arrival of the person bringing gasoline, the trooper engaged the defendant in conversation. The defendant appeared nervous. He told the trooper that he had been shopping for clothing at a shopping mall, but the trooper noticed no shopping bags in the passenger сompartment. The defendant also told the trooper that he was unemployed and had recently moved to New Bedford from Boston. He said that he had purchased the Acura approximately seven months earlier, and that the vehicle was registered in the name of his girl friend. The trooper commented on the
At that point, the trooper asked the defendant for his driver’s license and automobile registration. The defendant produced both items from inside the Acura. The license identified the defendant, and the registration indicated that the Acura was registered to a woman in New Bedford. While the trooper conducted a computer check of the license and registration, the defendant sat in the driver’s seat of the Acura. The computer check revealed that the defendant had a valid license and no outstanding warrants, and that the vehicle had not been reported stolen.
The trooper handed the license and registration back to the defendant through the passenger side window. The trooper observed the defendant’s wallet on the dashboard, and a bulge in the right pocket of the defendant’s pants. He asked the defendant whether he had any weapons on his person. The defendant responded affirmatively, removing a small pocket knife from the pocket of his pants and handing it to the trooper. The trooper noticed that a bulge remained in the defendant’s pants pocket and inquired about it. The defendant responded that he had a “wad of cash.” The trooper did not ask the defendant to produce the remaining contents of his pocket at that time.
The trooper, who had been trained in narcotics trafficking, asked the defendant whether he would consent to the trooper’s police dog sniffing the exterior of the Acura. The defendant gave an affirmative response, stating that he “had nothing to hide.” The defendant got out of the vehicle and stood approximately thirty feet away. The trooper retrieved his dog from the cruiser. The canine performed an exterior sniff of the car. When the dog reached the driver’s side door of the Acura, it pointed its snout up toward the open driver’s side window. The trooper understood the dog’s actions to mean that the dog detected the scent of narcotics emanating from the Acura’s interior. The trooper asked the defendant whether there were at that time, or had ever been, narcotics inside the Acura. The defendant responded that he had
The trooper next asked the defendant whether he would consent to the dog searching the interior of the vehicle. The defendant responded that it was not a problem. The dog entered the car and indicated that it recognized the scent of narcotics under the rear passenger seat area.
After securing the dog in the cruiser, the trooper returned to the Acura, raised the rear seat, and discovered a door to a hidden compartment cut into the vehicle’s gasoline tank. Inside, the trooper found packages wrapped in cellophane containing what appeared to be heroin.
After an evidentiary hearing, a Superior Court judge allowed the defendant’s motion to supрress the drugs. The judge ruled that, although the trooper’s initial questioning of the defendant was a proper part of the community caretaking function, the trooper lacked any reasonable suspicion of criminal activity to justify further expanding the scope of inquiry. Once the trooper determined that the defendant needed no assistance, had no weapons, and had produced a valid license and registration, the trooper had no basis for further inquiry and his investigation should have terminated. The judge concluded in addition that the trooper’s decision to conduct the canine sniff of the exteriоr of the vehicle was not reasonable. Finally, the judge ruled that the Commonwealth had not met its burden of establishing that the defendant’s consent to the dog sniff was given freely and voluntarily.
Discussion. When reviewing a ruling on a motion to suppress evidence, we accept the judge’s subsidiary findings of fact absent clear error. Commonwealth v. Eckert,
It is not contested that the encounter began as an appropriate community caretaking one. “Local police officers are charged with ‘community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” Commonwealth v. Evans,
A noncoercive inquiry initiated for a community caretaking purpose may ripen into a seizure requiring constitutional justification. That, however, is not what happened here. While the usual indicia of a seizure is that the suspect would not reasonably believe that he is free to leave, see Commonwealth v. DePeiza,
When performing community caretaking functions involving a disabled vehicle, a police officer is justified in asking for a driver’s license and registration. Commonwealth v. Evans, supra at 374-375. Such a request is a minimal intrusion on the defendant’s rights and does not involve an improper seizure. Id. at 375. Thus, the trooper’s request to examine the defendant’s driver’s license and registration was appropriate.
Accоrdingly, the officer was properly present at the scene of the disabled motor vehicle while the defendant waited for his friend to arrive with the gasoline. See Cady v. Dombrowski, supra at 441, 443; Commonwealth v. Evans, supra at 372-373. Indeed, if the officer had left earlier, as dusk approached, passing cars would not have been warned of the presence of the disabled vehicle on the side of the road by the flashing blue lights of the police cruiser, and the driver would have been stranded if his friend had not come as promised.
While awaiting the arrival of the driver’s friend called to bring gasoline, the officer spoke with the driver. That conversation did not bring about a stop in the constitutional sense.
Nor was the defendant seized when the officer asked him whether he would consent to a canine sniff of the exterior of the vehicle. “A person is seized by the police only when, in light of all the attending circumstances, a reasonable person in that situation would not feel free to leave.” Commonwealth v. DePeiza, supra at 369. Nothing in the record supports the defendant’s claim that it was reasonable for him to conclude at that point that he was no longer free to leave and that his cooperation was no longer voluntary. No action or statement by the officer communicated that the defendant would be detained involuntarily should he choose not to cooperate.
On numerous occasions we have held, in circumstances at least as coercive as these, that a suspect would reasonably understand that he was free to leave, and that therefore the encounter with the police was not a stop. See, e.g., id. at 368-371 (shortly after midnight, officers drove by defendant, reversed direction and drove back, called from car to engage defendant in conversation, then left car to continue encounter; held defendant free to leave until officers announced intention to conduct patfrisk); Commonwealth v. Rock,
We turn therefore to the question of consent. The motion judge viewed the defendant’s consent to the exterior dog sniff as the product of an unlawful detention and thus not voluntary. See Commonwealth v. Torres,
Once the dog indicated that it had smelled an odor of narcotics coming from inside the vehicle, probable cause existed to search the car. The dog’s positive alert, together with the facts that the defendant was nervous; was in possession of a “wad of cash” despite being unemployed; said he had been shopping but had no shopping bags in the passenger compartment; and had no information about the “Fish and Wildlife” registration plate on the car, provided probable cause for the search. See Commonwealth v. Sinforoso,
The order allowing the motion to suppress is reversed and the matter is remanded to the Superior Court.
So ordered.
Notes
At the same time, the trooper observed the arrival of a pickup truck driven by the person bringing gasoline to the defendant.
The essence of the dissent is that any inquiry that extends beyond the immediate concerns justifying the community caretaking function transforms the encounter into a stop. Here, according to the dissent, the officer could not permissibly question the defendant beyond ascertaining the defendant’s problem and arranging a solution (for gasoline to be brought tо him). The dissent’s position is that further inquiry becomes investigative and impermissible because reasonable suspicion was lacking. The proposition is totally inconsistent with existing law on the subject. The police are entitled to interact with citizens, see Commonwealth v. Evans,
Although the discussion in the Feyenord case, see Commonwealth v. Feyenord,
Dissenting Opinion
(dissenting, with whom Marshall, C.J., аnd Botsford, J., join). I write separately because I conclude that, in the specific circumstances here, the defendant was seized by the police officer, rendering his consent to the dog sniff invalid, and because I disagree with the court’s interpretation of the holding in Commonwealth v. Feyenord,
In carrying out the community caretaking function, a police officer may, among other things, check on a stopped motor vehicle in the breakdown lane of a highway. See Commonwealth v. Evans,
A noncoercive inquiry that is initiated for a community care-taking purpose may, however, ripen into a seizure within the meaning of the Fourth Amendment to the United States Consti
The officer here was engaged in community caretaking at the outset of his interaction with the defendant. However, I agree with the motion judge that, in the specifiс circumstances here, the defendant was seized when the officer asked him whether he would consent to a canine sniff of the exterior of the vehicle. The defendant’s vehicle, having ran out of gasoline, was disabled on the side of a divided highway with a posted speed limit of fifty-five miles per hour. Even putting aside consideration of the defendant’s interaction with the officer, it would be reasonable for a motorist in the defendant’s situation to conclude that it would be unsafe to leave his or her vehicle and walk away along the side of the highway.
Furthermore, here the officer had already questioned the defend
My conclusion that the defendant was seized when the officer expanded the scope of the inquiry is consistent with this court’s decisional law concerning traffic stops, which limits the extent of the inquiry an officer may conduct in either a routine traffic stop, where an officer has observed a traffic violation, see Commonwealth v. Bacon,
Because I would conclude that, in the circumstances of this case, the defendant was seized, any further inquiry by the officer beyond the request for the defendant’s license and registration had to be justified by reasonable suspicion that a crime had been committed, was being committed, or was about to be committed, grounded in specific, articulable facts and the reasonable inferenсes drawn therefrom in light of the officer’s experience. See Commonwealth v. Eckert, supra; Commonwealth v. Torres, supra.
I agree with the motion judge that the requisite reasonable suspicion was lacking here. As the judge found, the factors the officer testified to having relied on as the basis for his suspicion, i.e., the defendant’s getting out of the vehicle and walking toward the officer*
Consent obtained as the result of the exploitation of a prior illegality that follows closely in time is not considered to be freely given, and is therefore ineffective to justify an otherwise invalid search. Id. at 163, citing Florida v. Royer,
Here there was neither passage of time nor any intervening circumstances between the improper detention of the defendant and the canine sniff that gave rise to the search. I agree with the judge that the defendant’s consent was no more than acquiescence to a claim of lawful authority. All of the evidence seized after the improper detention of the defendant should be suppressed as the fruit of the poisonous tree. Commonwealth v. Torres, supra.
Nor do I agree with the court that consent was not required under the holding in Commonwealth v. Feyenord, supra. Ante at 845. There, the court held that a canine sniff of a properly stopped vehicle was reasonable and did not violate the defendant’s Fourth Amendment and art. 14 rights where, during a lawful traffic stop in whiсh the defendant (among other things) did not produce a valid license, the officer had a basis for reasonable suspicion of further criminal activity. See Commonwealth v. Feyenord, supra at 76-83. The officer in that case, facing a swiftly evolving set of circumstances, where the visibly nervous driver and his companion gave inconsistent responses about their identities and destination, had a reasonable basis for his growing suspicion that the vehicle contained contraband, and was therefore justified in continuing to detain the defendant, expanding the scope of his investigation by summoning a nearby drug-detection canine unit.
Moreover, the court expressly distinguished its decision in the Feyenord case from the type of circumstances present here, where the driver of a vehicle produced a valid license and registration during an uneventful threshold inquiry, giving rise to no further suspicion of criminal activity. Commonwealth v. Feyenord, supra at 78 n.5. The court also left open the question whether, under art. 14, 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. Id. at 79 n.7. The court’s decision today does.not explain its rationale for expanding the Feyenord holding. Indeed, given the court’s conclusion that the defendant was not seized, no discussion of the Feyenord case should be necessary here. Instead, it appears the court could have concluded that the Commonwealth met its burden to show that the “consent [was] unfettered by coercion, express or implied, and also something more than mere ‘acquiescence to a claim of lawful authority.’ ” Commonwealth v. Voisine,
“Citizens do not expect that police officers handling a routine traffic violation [or a community caretaking inquiry] will engage, in the absence of justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop [or inquiry] might yield up some evidence of an arrestable crime.” Commonwealth v. Gonsalves,
For these reasons, I respectfully dissent.
It is also possible the defendant could not lawfully walk along the highway. See 720 Code Mass. Regs. § 9.08(2)(c) (1996) (“No person shall use any highway for pedestrian or foot traffic purposes except in emergency . . .”)•
In contrast to a community caretaking check into the well-being of an occupant of a vehicle that is already stopped, where no seizure is effected in the constitutional sense, it is well settled that the operator and any occupants of a vehicle pulled over by the police during a traffic stop are detained. See Berkemer v. McCarty,
“It is not unnatural for either the driver or the passenger in an automobile (or both) to get out of the vehicle to meet a police officer” who has stopped to render assistance. Commonwealth v. Torres,
Any shopping bags located in the sedan’s trunk would not, of course, have been visible in the passenger compartment.