The defendants, Ruben Dario Torres and Luis C. Hidalgo, were each convicted, after separate jury-waived trials in the Superior Court, of trafficking in more than one hundred grams of cocaine, G. L. c. 94C, § 32E (b)
The judge’s findings of fact may be summarized as follows. While on routine patrol on Route 3 in Bedford at about 10:35 a.m., Trooper Peter Cummings pursued an automobile which appeared to be speeding and signalled the automobile to pull over. The automobile, a two-door Renault, stopped in response to the trooper’s signal. The trooper, who was in uniform and armed, approached the Renault from the passenger side and saw the passenger, Torres, with his back toward the passenger side window conversing with the driver, Hidalgo. About twenty seconds elapsed without a response from Torres, causing the trooper to knock on the passenger side window. Torres turned, looked at the trooper, opened the door, and started to get out. The trooper asked Torres what he was doing, and Torres responded that he did not speak English. The trooper was concerned by Torres’s delayed response and his attempt to get out of the automobile, so for safety purposes, he directed Torres to go and wait at the rear of the vehicle.
Trooper Cummings then returned to the passenger side of the automobile, leaned in the open door, and asked Hidalgo for his license and registration. Hidalgo looked for the registration, opening and closing the glove compartment quickly. Hidalgo seemed nervous, but produced the necessary papers. In response to a series of questions, Hidalgo stated that the automobile belonged to his wife, that his passenger’s name was Ruben Torres, and that he (Hidalgo) was coming from the Burlington Mall where he had been shopping for a radio. The license and registration furnished by Hidalgo were both from Massachusetts, neither had expired, and both appeared valid. The trooper noticed that the driver’s license bore an address in Lowell known to him as an area associated with a high degree of drug activity. Trooper Cummings then asked Hidalgo where he was born, to which Hidalgo responded, Medellin, Colombia. From his training and experience, the trooper was aware that Medellin was a principal source of cocaine distribution.
The trooper then turned his attention to Torres who was still standing at the rear of the vehicle. In response to a question, Torres told the trooper, in English, that he was coming
At or near the end of his conversation with Torres, Trooper Cummings looked through the rear window of the automobile and saw Hidalgo, who had remained in the automobile, move his right hand and arm in the area of his jacket pocket. Concerned for his safety, the trooper approached Hidalgo. The trooper patted the side of Hidalgo’s jacket, felt a hard object, and recovered a telephone pager. In response to the trooper’s questions, Hidalgo indicated that he was unemployed, but had received the pager as a gift. The trooper asked Hidalgo if there were drugs in the automobile. Hidalgo responded, “No, there’s no drugs, search.”
A search followed. Papers were seized from the glove compartment, and a plastic shopping bag was found hidden behind a hinged panel attached to the rear passenger side. The plastic bag contained a number of small baggies that contained white powder that the trooper believed was cocaine. Both defendants were arrested, informed of their Miranda rights, and transported to the State police barracks.
Based on these facts, the judge concluded that Trooper Cummings had properly asked for Hidalgo’s license and registration in connection with a routine traffic stop. The production of valid papers by Hidalgo would have ended the encounter, were it not for, as the judge said, “the unusual behavior of Torres in exiting the passenger side of the vehicle without being asked to do so,” an event that “was at least suspicious enough for Trooper Cummings to attempt to ascertain the passenger’s identity as well.” The judge considered the trooper’s seizure and examination of Torres’s wallet unlawful, but concluded that this part of the episode was of no legal consequence to Hidalgo who, the judge
There is no question that the original stop of the automobile for speeding, and the threshold inquiry of Hidalgo in connection with the violation, were valid. The stop and inquiry proceeded in an uneventful manner with the production by Hidalgo of license and registration papers that appeared proper and identified Hidalgo. The trooper also elicited answers from Hidalgo that identified Torres and indicated where the two men had been before the stop. The stop, however, began to change character when the trooper decided to go to the back of the automobile to interrogate Torres. As the Appeals Court noted, Torres could reasonably harbor a higher expectation of privacy. Hidalgo, not Torres, had committed the speeding violation, and a passenger like Torres, in the absence of his own individual misbehavior or suspicious conduct, could expect that the formalities involved in the traffic stop would take place solely between the driver and the trooper. Commonwealth v. Torres, supra at 13, and cases cited.
There also can be no doubt that, at the time when the trooper focused his attention on Torres, both Hidalgo and Torres were seized and would continue to be seized until
It is well settled that a police inquiry in a routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that “either the operator or his passengers were involved in the commission of a crime ... or engaged in other suspicious conduct” (citations omitted). Commonwealth v. Torres, supra at 9. The dispositive issue, therefore, is whether, after Hidalgo had complied with the usual requirements associated with a speeding violation, a legally sufficient basis existed, in terms of reasonable suspicion grounded in specific, articulable facts, with direct reference to Torres for the trooper to go to the rear of the automobile to question him further.
Such behavior is insufficient to support the continued detention. 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 signalled the vehicle over to the side of the road. The case for reasonable suspicion is also not strengthened by the slight delay occasioned by Torres’s conversing with Hidalgo when the trooper approached the passenger side of the automobile. There is nothing known about the substance of their conversation, and from all that appears, Torres may have assumed that the trooper was approaching the vehicle from the driver’s side, unaware that the trooper was standing beside the automobile on the passenger side waiting to be acknowledged. (The driver’s side is a common point of approach by a police officer in many traffic stops.) The delay before the trooper knocked on the window, and Torres got out of the automobile, justified the trooper’s initial concern and his removal of Torres to the rear of the automobile for safety purposes. See Commonwealth v. Silva,
Two other recent decisions of the Appeals Court further support this conclusion. In Commonwealth v. Bartlett,
In Commonwealth v. Ellsworth,
The Appeals Court held that the police officer’s inquiry should have concluded after the driver had produced a valid license and registration, and the officer had determined that no traffic offense had been committed. Commonwealth v. Ellsworth, supra at 556-557. The furtive movement of one of the passengers, observed by the officer when he stopped behind the automobile, justified the initial precautions taken for his safety. But that movement could not justify the officer’s exit orders after he determined the validity of the driver’s license and the registration, and no other basis existed to continue to detain the vehicle’s occupants. Id.
The authority referred to, and discussed above, applies 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. Florida v. Royer,
The orders denying the defendants’ motions to suppress are vacated. Hidalgo’s conviction of trafficking in cocaine is reversed, and the finding of guilty is set aside. Torres’s conviction of trafficking in cocaine is reversed, and the finding of
So ordered.
Notes
ach defendant was also indicted for conspiracy to traffic in cocaine. G. L. c. 94C, § 40 (1994 ed.). In the Torres case, the indictment charging this crime was placed on file without a change of plea. Hidalgo was convicted of the charge, and the conviction was placed on file with his consent. These indictments are not part of the appeal.
Both defendants raise other issues on appeal. Torres argues that his motion for a required finding of not guilty should have been allowed because the Commonwealth’s evidence was insufficient to establish that he was a joint venturer with Hidalgo or was in actual or constructive possession of the cocaine, the theories on which the Commonwealth proceeded against him at trial. The Commonwealth’s evidence, considered under the governing test, see Commonwealth v. Merola,
We note here that Hidalgo had already told the trooper that his passenger was “Ruben Torres,” an identification that proved correct. Hidalgo also told the trooper that the two men had been shopping at the Burlington Mall, an assertion later repeated by Torres. There is no indication that the
We think the judge correctly put no weight on the findings that the trooper had noticed from an inspection of Hidalgo’s license that Hidalgo appeared to live in an area of Lowell known for drug activity and had told the trooper that he was bom in Medellin, Colombia, a place the trooper had learned was a principal source of cocaine. The judge merely noted these revelations as part of the historic facts. They pertained solely to Hidalgo, who had satisfied the trooper’s demands of him, and one of the facts (place of birth) is singularly devoid of incriminatory implications.
According to the Appeals Court, the trooper’s suspicions were aroused by the following circumstances:
“(1) the car was rented and he knew drug couriers used rented cars;
“(2) the car had been rented at Logan Airport and [the trooper] 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);
*161 “(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 resident 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, [the reason given by Luna];
“(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) [the trooper] 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.”
Commonwealth v. Bartlett,
In Commonwealth v. Davis,
Brief discussion is appropriate of the decision of the United States Supreme Court in Ohio v. Robinette,
We agree with the Appeals Court that the order of events is critical in this type of case, and the order of events is what renders this search and seizure improper. See Commonwealth v. Loughlin,