MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Berkshire County grand jury indicted the defendant for trafficking heroin in an amount between eighteen and thirty-six grams, in violation of G. L. c. 94C, § 32E (c) (1). Prior to trial, the defendant filed a motion to suppress the heroin on which the indictment is based, contending that the drugs were found during an illegal patfrisk following an unlawful exit order from the vehicle in which he was a passenger.
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Following an evidentiary hearing, a judge of the Superior Court denied the motion. The defendant was granted leave by a single justice of the Supreme Judicial Court to pursue an interlocutory appeal and the matter was reported to this court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). For the reasons that follow, we affirm.
Background. The only witness at the suppression hearing was Trooper Brian Phillips, the officer who stopped the car, gave the exit order, and conducted the patfrisk. We summarize the judges findings of fact, supplemented by the Troopers uncontested testimony. See Commonwealth v. Gonzalez, 487 Mass. 661, 662 (2021).
At about 6 p.m. on November 12, 2018, Trooper Phillips was in a marked cruiser watching traffic from the parking lot of the fire department in Lee when a gray Infiniti with heavily tinted windows drove past him. The vehicle was traveling in excess of the posted speed limit. Trooper Phillips followed the car for a few miles and stopped it just outside of town on Route 7, near the Cranwell resort.
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By that time, Trooper Phillips had run a check on the license plate and learned that the cars registered owner had numerous firearm and trafficking charges. Because he assumed that the registered owner was driving the car, Trooper Phillips approached the passenger side of the vehicle as a safety precaution and asked the driver for his license and registration through the passenger side window. The judge found that “the driver could not produce a license and indicated that the license had been suspended.”
It was at this point that Trooper Philips realized there were four occupants in the car. Trooper Phillips asked the occupants for identification because it appeared to him that none of them were wearing seatbelts. The defendant was sitting in the front passenger seat “with his left arm covering his waist belt area and not moving.” He replied that he did not have any identification but would provide his name. Trooper Phillips then noticed that the defendant was wearing a seat belt, contrary to his initial belief. He had not seen that the defendants seat belt was fastened because it was covered by the defendants arm. Trooper Phillips told the defendant that he was “fine” and it was not necessary to produce an identification because he was wearing a seatbelt. The Trooper then began to ask some questions about where the occupants were going and coming from. In response to these questions, and unlike his previous behavior of making eye contact with the Trooper while offering to provide his name, the defendant “had this look” and stared straight ahead. Trooper Phillips described the defendants conduct as “not normal.” The driver also was staring straight ahead. In the Troopers experience, staring straight ahead means “they dont want to talk, they dont want to answer questions, probably theres something in the car that they dont want me to know about.” This behavior, and the fact that the defendant did not move his arm throughout the encounter, made Phillips feel “uncomfortable.” Consequently, he asked the occupants to step out of the car, beginning with the defendant.
The defendant complied and said “lock me up” as he got out of the car. Believing that the defendant had a weapon, Phillips ordered the defendant to put his hands behind his back. The defendant said, “hey, just lock me up.” Trooper Phillips testified, “I said, what do you have a gun, and I put the handcuffs on and he goes no, he just said lock me up. So I brought him to the back, pat him down, and where his arm was covering was a brick ․ shape item.” Phillips pat frisked the defendant and discovered that the item was a plastic shopping bag containing seventeen half-packs of heroin.
The judge concluded that Phillips legitimately feared for his safety when he ordered the defendant to step out of the car, based “upon the totality of the circumstances, including the factors that lead to the stop, the suspicious unexplained movements of [the defendant] in shielding his abdomen, the averting of the eyes, the fact that the owner had a lengthy record involving firearms and trafficking charges, and the fact that he was alone in the dark on a highway with four occupants.” The judge further observed that there were no other persons in the area, “[t]he vehicle was off in the middle of the night in the middle of winter” and “Trooper Phillips was alone and outnumbered on a dark street.” The judge also concluded that Trooper Philips was justified in conducting a patfrisk because he had a reasonable basis to suspect that the defendant was likely armed and dangerous. As to the defendants statement “lock me up,” the judge found that the defendant “blurted out the comment.” He concluded that the remark was not the product of any questioning and was made voluntarily.
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Discussion.
“In reviewing a ruling on a motion to suppress, we accept the judges subsidiary findings of fact absent clear error but conduct an independent review of the judges ultimate findings and conclusion of law. The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court. At the same time, we make an independent determination of the correctness of the judges application of constitutional principles to the facts as found. Our deference to the judges assessment of the weight and credibility of testimonial evidence includes inferences derived reasonably from the testimony” (citations, alterations, and quotations omitted).
Gonzalez, 487 Mass. at 667-668.
a. Clearly erroneous findings of fact. The defendant argues that the following factual findings have no support in the record and are clearly erroneous: (1) the driver indicated his license was suspended; (2) the defendant sat “with his left arm covering his waist belt area and not moving”; (3) the defendant made suspicious movements; and (4) the stop occurred “in the middle of the night in the middle of winter.” “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7 (2018).
The defendant correctly notes that there was no evidence regarding the status of the drivers license other than Trooper Phillipss testimony that he “believe[d]” the license was suspended. We need not decide whether this testimony sufficed to support the judges finding, however, because nothing turns on this specific fact. In the circumstances presented here, the status of the drivers license has no bearing on the question whether the exit order was justified. The significant fact about which there is no dispute is that the driver did not produce a license. As to the second challenged finding of fact, the Trooper testified that the defendants left arm, which was “just kind of covering his stomach, chest area,” “did not move ․ throughout the entire time [Phillips was] at the passenger window.” This testimony supported the judges finding regarding the position of the defendants arm during the stop.
The third challenged finding of fact, that the defendant acted suspiciously, is similarly supported by the testimony presented at the hearing. Trooper Philips testified that the defendant initially made eye contact with him and then stared straight ahead and ignored his questions. In addition, the defendant did not move his arm even when it was evident that Trooper Phillips was concerned about whether he and the other occupants of the car were wearing their seatbelts.
Finally, although we agree with the defendant that the stop did not occur in the middle of winter or in the middle of the night, the fact remains that it was certainly dark and likely cold in Berkshire County at 6 in the evening in mid-November. In any event, this factual finding has little bearing on our analysis.
b. The exit order. We turn first to the exit order. “In determining whether an exit order was justified based upon safety concerns, we ask whether a reasonably prudent [person] in the [officers] position would be warranted in the belief that the safety of the police or that of other persons was in danger” (citation and quotations omitted). Commonwealth v. Barreto, 483 Mass. 716, 722 (2019). The test is an objective one that is based on the totality of the circumstances. See Commonwealth v. Monell, 99 Mass. App. Ct. 487, 489 (2021). “[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns,” Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999), provided the officers fear is grounded in “specific, articulable facts and reasonable inferences” in light of the officers experience. Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020), quoting Commonwealth v. Edwards, 476 Mass. 341, 345 (2017).
We conclude that the exit order was justified under these principles. As the judge found, Trooper Phillips reasonably believed his safety was in danger because he was alone on the highway at night, was out numbered, and the defendant made suspicious movements consisting of sitting “with his left arm covering his waist belt area and not moving” and staring straight ahead. In addition, the registered owner of the car had a history of firearm and drug offenses.
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See Commonwealth v. Feyenord, 445 Mass. 72, 76 (2005), cert. denied, 546 U.S. 1187 (2006) (exit order justified where defendant failed to produce identification, occupants of vehicle outnumbered officer, and defendant was visibly nervous); Commonwealth v. Stampley, 437 Mass. 323, 326-328 (2002) (exit order justified where occupants outnumbered officer and defendant in rear seat repeatedly reached beneath seat); Commonwealth v. Bryan, 98 Mass. App. Ct. 238, 243-244 (2020) (exit order justified where occupants outnumbered officer and acted nervously while unrestrained by seatbelts, passenger had prior firearm conviction, and police received tip of gun in car).
c. The patfrisk. We now turn to the question whether the ensuing patfrisk was justified and conclude that it was. Recently, the Supreme Judicial Court clarified that, to justify a patfrisk, “an officer needs more than safety concerns; he or she also must have a reasonable suspicion that the suspect is armed and dangerous.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020). Here, Trooper Phillips had a legitimate reason to suspect that the defendant was armed and dangerous because he kept his arm positioned near his chest and did not move it, suggesting he was concealing something. See Commonwealth v. Evelyn, 485 Mass. 691, 708 (2020) (reasonable suspicion defendant was armed where he “kept his hands pressed against his body”); Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007) (reasonable suspicion defendant was armed where “[h]e was walking with his right arm held stiff and straight against his body”). Gestures which suggest an occupant is concealing an object “raise legitimate safety concerns to an officer conducting a traffic stop.” Stampley, 437 Mass. at 327. The reasonableness of Phillipss fear does not turn on the fact that it was drugs and not a weapon under the defendants arm where the defendant could have been concealing both. See Commonwealth v. Goewey, 452 Mass. 399, 408 (2008). Nor does it matter that the defendant was not reaching for the object. See Stampley, supra at 329. Although the defendants gesture alone could not justify the patfrisk, Phillipss suspicion that the defendant was armed and dangerous was “corroborated by additional suspicious circumstances” when the defendant spontaneously exclaimed “lock me up,” immediately after exiting from the car. Id. at 327 n.3. Taken together, this conduct established a reasonable suspicion that the defendant was “dangerous and [had] a weapon.” Torres-Pagan, 484 Mass. at 39.
Order denying motion to suppress affirmed.
FOOTNOTES
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. The defendant also moved to suppress a small amount of cash ($30) found on his person, and statements he made to police following the exit order.
3
. The propriety of the initial stop is not an issue on appeal.
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. The defendant does not challenge this conclusion on appeal.
5
. The defendant argues, correctly, that Trooper Phillips never determined whether the person driving the car also was the registered owner. However, it does not follow, as the defendant contends, that Trooper Phillips could not rely on the information he obtained about the registered owner in concluding that his safety was at risk. To the contrary, while it is certainly possible that someone other than the registered owner may be operating the vehicle, it is reasonable for the police to conclude that “a vehicle is likely being driven by its registered owner.” Commonwealth v. Deramo, 436 Mass. 40, 43 (2002). It was therefore appropriate for Trooper Phillips to consider the criminal history of the registered owner in assessing the level of risk to his safety.