Heard: November 12, 2015
Complaint received and sworn to in the Brockton Division of the District Court Department on October 30, 2013. A pretrial motion to suppress evidence was heard by Stephen S. Ostrach, J.
An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.
Gail M. McKenna, Assistant District Attorney, for the Commonwealth.
Moya R. Gibson for the defendant.
Present: Cohen, Grainger, & Wolohojian, JJ.
Before us is the Commonwealth's interlocutory appeal from an order allowing, in part, the defendant's motion to suppress. At issue is the search of an automobile after a routine traffic stop during which a noncriminal amount of marijuana was found. The motion judge found that safety concerns justified the exit order and patfrisk of the driver, but that once the patfrisk resulted in the discovery of only a noncriminal quantity of marijuana, safety concerns did not justify searching the backseat armrest. We affirm.
We summarize the findings of the motion judge, none of which are challenged. At approximately 10:30 £.M. on October 29, 2013, three State troopers were driving in an unmarked car on the south side of Brockton. Their attention was drawn to a car that took a right turn from a left-turn only lane. The car was a small four-door sedan without tinted windows. It was traveling slowly, and the officers decided to follow it. As they did so, they observed the defendant (who was driving) speaking on a cellular telephone (cell phone) and looking from side to side. The defendant, who was unknown to the troopers, was alone in the car. As the troopers followed, the defendant drove slowly through a residential area and through an apartment complex, all the while continuing to speak on his cell phone and appearing to look for someone. The troopers had no particular information about the apartment complex. However, they knew that drug sales had been taking place in the parking lots of commercial establishments in the general area.
After one or two minutes following the defendant in this manner, the troopers observed him take a right turn on red without coming to a full stop. Trooper Walter Foley activated his blue lights, and the defendant pulled over, slowly stopping his car in about 150 feet. The troopers saw the defendant lift his buttocks six inches. They could see the defendant's head and shoulders, but they could not see his hands. Nonetheless, they described the defendant's action as being consistent with putting his left hand under his buttocks. This action seemed unusual and, although the defendant did not dip out of sight, his movement caused the officers to suspect that he had concealed something beneath him, presumably contraband --whether narcotics or weapons.
The defendant was calm when the troopers approached. He produced his license upon demand, but could not locate the registration. The defendant was polite during Trooper Foley's questioning, had nothing in his hands, and the troopers saw nothing suspicious in the car or the front seat. However, Trooper Foley smelled an overwhelming odor of unburnt marijuana and air fresheners emanating from the car. The defendant acknowledged that he had "a little weed." He was then asked to leave the car to be pat frisked. The defendant questioned why this was necessary, but slowly complied with the order. He became nervous.
A packet of marijuana was found in the defendant's jacket pocket, and a smaller one was located in the pocket of his pants. Together, the two packets weighed less than an ounce, and Trooper Foley did not intend to apply for a criminal complaint for possession. The trooper was trained to recognize the indicia of "distribution, " which include air fresheners and packaging.
The defendant was escorted to the back of the car where he was held while Trooper Foley "pat frisked" the car. Trooper Foley first searched in the area of the driver's seat (where he found nothing) and then opened the rear driver's side door. His search in the area of the back driver's side seat also turned up nothing. The trooper then pulled down the back center armrest and discovered a gun. The armrest was within what the trooper described as the defendant's "wing span" ...