49 Mass. App. Ct. 348 | Mass. App. Ct. | 2000
The Commonwealth appeals from an order allowing a motion to suppress a handgun seized from the defendant after he was ordered out of a motor vehicle in which he was a passenger. In reviewing a motion to suppress, we accept the judge’s findings of fact, absent clear error, “[hjowever, we
We summarize the judge’s findings. On January 10, 1998, Officer Jeffrey Hart pulled over a vehicle that he observed fail to stop at a stop sign. Immediately upon stopping, all four vehicle doors opened and one of the rear seat passengers fled. Five other passengers remained in the vehicle. Officer Hart did not pursue the passenger who fled; he approached the car thinking that the passenger fled because the car was stolen. Officer Hart observed that the remaining three rear seat passengers were bent over, and he suspected they were trying to hide a handgun. The rear seat passengers did not immediately comply with Officer Hart’s order to put their hands on their head, but waited until he drew his weapon.
Officer Hart called for backup; reinforcements arrived from Methuen and Lawrence within approximately two minutes. The assisting officers stood by with weapons drawn as Officer Hart bolstered his gun and began taking the passengers out of the car individually, ordering them to the ground for frisking. Upon frisking the defendant,
“The pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances. The degree of intrusiveness that is permitted is that which is ‘proportional to the degree of suspicion that prompted the intrusion.’ ” Commonwealth v. Moses, 408 Mass. 136, 141 (1990), quoting from Commonwealth v. Borges, 395 Mass. 788, 794 (1985). See Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996). The Commonwealth contends that the level of force used and the duration of the stop were reasonable given the possibility of flight, the large number of suspects involved, and the possibility that a weapon was in the vehicle. The Commonwealth further
We conclude the motion judge warrantably could have determined, in the circumstances presented here, that, on balance, the degree of intrusiveness to the defendant far outweighed the degree of suspicion prompting the intrusion.
“Since the initial order to leave the vehicle was impermissibl[y] [excessive], the evidence obtained pursuant to the frisk after the defendant left the car should have been suppressed.” Commonwealth v. Williams, 46 Mass. App. Ct. at 185. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). The order allowing the defendant’s motion to suppress is affirmed.
So ordered.
It is not clear from the record whether the defendant was frisked as he left the automobile or after he had been ordered to the ground.
Deciding as we do, we do not have to address the motion judge’s conclusion that the exit order exceeded permissible limits of a threshold inquiry and that the officer thus did not have a reasonable basis to order the defendant out of the vehicle and search his person. Nor do we need to address the Commonwealth’s argument that the motion judge incorrectly concluded that because the stop was tantamount to an arrest, the seizure of a handgun was the fruit of an illegal search.
Arguably, the flight of one rear seat passenger justified the officer’s belief that possibly the car was stolen. However, there is no evidence that the officer attempted to further investigate prior to drawing his weapon.
We emphasize the principle restated in Commonwealth v. Gonzales, 429 Mass. at 665-666 n.5, that: “No exit order may be given to the driver or any passenger in a routine traffic stop without the police officer’s having an objective reasonable basis to justify the order.” “[T]o permit an officer, in the absence of any specific and articulable facts, to order the driver out of a vehicle [and a passenger or passengers] to step out of the vehicle would be to invite random and unequal treatment of motorists.” Id. at 664 (citation omitted). See Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183 (1994).
We note once again that this sort of unseemly treatment is “most commonly [accorded to] persons belonging to a racial or ethnic minority.” Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 536 (1998), and authorities cited therein.