Supreme Judicial Court of Massachusetts, Plymouth
Heard: October 5, 2017.
found and returned in the Superior Court Department on April
19, 2013. A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J., and the cases were tried
before Richard J. Chin, J.
Supreme Judicial Court granted an application for direct
Matthew Malm for the defendant.
Lee, Assistant District Attorney, for the Commonwealth.
following submitted briefs for amici curiae: Ivan
Espinoza-Madrigal, of New York, Oren M. Sellstrom, & Oren
N. Nimni for Lawyers' Committee for Civil Rights and
Economic Justice & others.
Rebecca Kiley, Committee for Public Counsel Services, _&
Derege B. Demissie for Committee for Public Counsel Services
Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan D. Hall,
Jessie J. Rossman, & Carlton E. Williams for American
Civil Liberties Union of Massachusetts.
F. Conley, District Attorney, & John P. Zanini, Cailin M.
Campbell, & David D. McGowan, Assistant District
Attorneys, for District Attorney for the Suffolk District.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
appeal we are asked to reconsider one tenet of our search and
seizure jurisprudence: that a traffic stop constitutes a
"reasonable" "seizure" for purposes of
art. 14 of the Massachusetts Declaration of Rights where a
police officer has observed a traffic violation,
notwithstanding the officer's underlying motive for
conducting the stop. See Commonwealth v.
Santana, 420 Mass. 205 (1995). For the sound legal
and practical reasons discussed below, we decline to depart
from that tenet as the general standard governing the
validity of traffic stops under art. 14. We affirm the denial
of the defendant's motion to suppress, and we also affirm
the judgment of conviction.
recount the facts found by the motion judge, supplemented by
uncontroverted testimony at the motion hearing.
Commonwealth v. Cordero, 477 Mass.
237, 238 (2017). On January 25, 2013, Whitman police
Detectives Joseph Bombardier and Eric Campbell were
conducting surveillance of a three-unit apartment building
out of which they suspected drug activity was being
conducted. At approximately 10:50 £.M. that
evening, the detectives observed a vehicle park nearby, and
its two occupants enter the building. Those same two
individuals reemerged a few minutes later, returned to the
vehicle, and drove away without the vehicle's headlights
on. Bombardier instructed fellow Officer Gary Nelson to stop
the vehicle for suspected drug activity. Nelson did so a few
minutes later, upon observing the vehicle traveling above the
speed limit along a road in Whitman. Nelson radioed Bombardier
that he had stopped the vehicle.
the detectives arrived, Nelson was standing at the
vehicle's driver's side. Bombardier likewise
approached the driver, and in doing so he noticed a strong
odor of marijuana emanating from inside the vehicle.
Bombardier asked the driver if she had any marijuana in the
vehicle. She told him that she did not think so,
and said that he could check. After instructing the driver to
step out, Bombardier used his flashlight to search the
interior of the driver's seat area. Finding nothing, he
directed Campbell to ask the front seat passenger, the
defendant, to leave the vehicle. When the defendant stepped
out, Campbell observed what he believed to be a firearm under
the front passenger seat. The officers arrested the defendant and
the driver, placed them in separate cruisers, and advised
them of the Miranda rights. Another officer later observed a
plastic bag on the floor of the cruiser between the
defendant's feet that appeared to contain
"crack" cocaine. The defendant was subsequently
indicted for possession with the intent to distribute
cocaine, as well as with firearm offenses and other offenses
with enhanced penalties.
to trial, the defendant moved to suppress the evidence seized
during the traffic stop. The motion judge held an evidentiary
hearing, and thereafter, he denied the defendant's
motion. In April, 2015, a jury convicted the defendant on the
lesser included offense of cocaine possession, and he was
sentenced to one year in jail. The defendant timely filed
this appeal from the judgment of conviction, and on appeal,
he challenges only the denial of his pretrial motion to
defendant challenges the denial of his motion to suppress on
three grounds. First, he argues that the evidence against him
should be suppressed as the product of a pretextual stop,
where the Whitman officers stopped the vehicle the defendant
occupied not because it was speeding, but because the police
suspected that its occupants were involved in drug activity.
The defendant contends that all such pretextual stops, which
generally are legitimated on the basis of an observed civil
traffic violation yet motivated by a desire to investigate
suspected criminal wrongdoing as to which the police lack
reasonable suspicion or probable cause to justify an
investigatory stop, violate art. 14 and its protection
against unreasonable seizures. On this point, the defendant asks
that we overturn our decision in Santana, 420 Mass.
205, which holds that an observed traffic violation is
itself a lawful basis for the police to conduct a
traffic stop regardless of the officer's underlying
the defendant argues that the police impermissibly expanded
the scope of the stop when detectives Bombardier and Campbell
approached the vehicle during Nelson's traffic inquiry
and asked the driver about the smell of marijuana. Last, the
defendant challenges the motion judge's finding that the
driver's consent to the search of the vehicle was freely
and voluntarily given.
review these arguments in turn. In doing so, "we adopt
the motion judge's subsidiary findings of fact absent
clear error, but we independently determine the correctness
of the judge's application of constitutional principles
to the facts as found." Commonwealth
v. Catanzaro, 441 Mass. 46, 50 (2004).
parties dispute, as a threshold matter, whether the defendant
adequately raised this issue before the motion judge. We
conclude that he did. The first section of the
defendant's memorandum of law in support of his motion to
suppress asserted that "[t]he car stop was effectuated
so that the occupants could be identified and the car
searched." The motion judge's written opinion
likewise acknowledged "[t]he defendant['s]
argu[ment] that the stop for the traffic offense was a
pretext." The fact that the defendant did not
specifically state that he challenged the continued viability
of Santana does not preclude our review of this
issue, given both its treatment below and the fact that the
motion judge was bound to apply Santana regardless
of the defendant's position. See generally
Commonwealth v. Vasquez, 456 Mass.
350, 357-358 (2010) .
14, like the Fourth Amendment to the United States
Constitution, guarantees "a right to be secure from all
unreasonable searches and seizures." Because "[a]
police stop of a moving automobile constitutes a seizure,
" Commonwealth v. Rodriguez,
472 Mass. 767, 773 (2015), that stop must be reasonable in
order to be valid under the Fourth Amendment and art. 14. A
passenger in a vehicle may challenge the constitutionality of
a stop. See Commonwealth v. Quintos
Q., 457 Mass. 107, 110 (2010), citing Brendlin
v. California, 551 U.S. 249, 251 (2007).
Santana, 420 Mass. at 209, we articulated the
current State constitutional standard for evaluating the
validity of a traffic stop. Under that rule, called the
authorization approach, a traffic stop is reasonable for art.
14 purposes "so long as the police are doing no more
than they are legally permitted and objectively authorized to
do, " regardless of the underlying intent or motivations
of the officers involved. Santana, supra,
quoting United States v. Trigg,
878 F.2d 1037, 1041 (7th Cir. 1989), cert, denied sub nom.
Cummins v. United States, 502 U.S.
962 (1991). Stated differently, under the
authorization test, a stop is reasonable under art. 14 as
long as there is a legal justification for it. We have long
held that an observed traffic violation is one such
justification. See, e.g., Commonwealth v.
Bacon, 381 Mass. 642, 644 (1980) ("Where the
police have observed a traffic violation, they are warranted
in stopping a vehicle"); Commonwealth
v. Amado, 474 Mass. 147, 151 (2016) (valid
stop where "unlit registration plate");
Commonwealth v. Feyenord, 445
Mass. 72, 75 (2005), cert, denied, 546 U.S. 1187 (2006)
(valid stop where inoperable headlight in daylight);
Santana, 420 Mass. at 207 (valid stop where
defective taillight). Cf. Commonwealth v.
Lora, 451 Mass. 425, 436 (2008), quoting
Whren v. United States, 517 U.S.
806, 810 (1996) ("the decision to stop an automobile is
reasonable for Fourth Amendment purposes 'where the
police have probable cause to believe that a traffic
violation has occurred'"). As Santana makes
clear, the authority to conduct a traffic stop where a
traffic violation has occurred is not limited by "[t]he
fact that the [police] may have believed that the [driver
was] engaging in illegal drug activity." 420 Mass. At
defendant's view, however, evaluating the reasonableness
of a traffic stop on the basis of legal justification alone
is not enough, because this creates the risk that the police
might use an observed traffic violation as a pretext for
investigating other suspected wrongdoing. In place of
the authorization test, the defendant seeks a new art. 14
standard for traffic stops that looks beyond objective legal
justification in order to examine the police's underlying
motives for conducting the stop. Specifically, the defendant
asks that when considering a motion to suppress a judge
should examine whether a given traffic stop was only a
pretext for the police's underlying "true"
motive to investigate suspected criminal conduct, as to which
the police lacked the requisite reasonable suspicion or
probable cause to justify a bona fide investigatory stop. As
the primary basis for this position, the defendant relies on
a series of cases and academic articles discussing the
connections between traffic stops and racial profiling. He
also argues that because Massachusetts courts have considered
the issue of pretext when evaluating the reasonableness of
inventory or administrative searches, so too should they
consider pretext when analyzing the validity of traffic
stops. Before addressing these specific points, we examine
the underpinnings of Santana's authorization
is predicated on the general constitutional principle,
reflected in both art. 14 and Fourth Amendment jurisprudence,
that "police conduct is to be judged 'under a
standard of objective reasonableness without regard to the
underlying intent or motivation of the officers
involved.'" Santana, 420 Mass. at 208,
quoting Commonwealthv.Ceria, 13
Mass.App.Ct. 230, 235 (1982). See Lora, 451 Mass.
at 436, quoting Whren, 517 U.S. at 813
("Subjective intentions play no role in ordinary,
probable cause Fourth Amendment analysis");
Ceria, supra, and cases cited. Evaluating
the validity of police conduct on the basis of objective
facts and circumstances, without consideration of the
subjective motivations underlying that conduct, is justified
in part based on the significant evidentiary difficulties
such an inquiry into police motives would often entail. This
would require that courts discern not only whether the police
initially possessed some underlying motive that failed to
align with the legal justification for their actions, but
also whether the police were acting on that
"improper" motive (i.e., the pretext), as opposed
to the "proper" motive, when engaging in the
challenged action. Both judges and legal commentators have
questioned the ability of courts -- venues of limited insight
-- to reach accurate and satisfactory answers to these
questions, which may be more appropriately handled by
psychologists or philosophers than lawyers. See, e.g.,
United States v. Arra, 630 F.2d 836, 845, n.12 (1st
Cir. 1980) (one "problem" with this subjective
approach is "the premium it would place on dissemblance,
" and that "it may be little more than guesswork
for a court to determine what the true ...