Date: 06-06-2016

Case Style: Commonwealth v. Meneide

Case Number: 15-P-124

Judge: Gabrielle Wolohojian

Court: Massachusetts Appeals Court

Plaintiff's Attorney: Gail M. McKenna, Assistant District Attorney

Defendant's Attorney: Moya R. Gibson

Description: 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.1 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.
Background. We summarize the findings of the motion judge,
none of which are challenged. At approximately 10:30 P.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,

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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.2
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
2 The judge's use of quotation marks around the word "distribution" is unexplained, but appears to have significance. The judge also framed in quotation marks "furtive mo[ve]ments," "pat frisk" (when used in connection with the vehicle), and "wing span." All of these phrases and words were used by the testifying officer and so it could be that the judge intended simply to indicate that his finding contained a direct quotation. However, when viewed in the context of the findings, it is also possible that the judge used quotation marks to express skepticism. We do not attempt to resolve this ambiguity since our outcome does not depend on its resolution one way or the other.

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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" (see note 2, supra) in
that the defendant could have reached back and pulled down the
armrest while seated in the front seat.
On these facts, the motion judge concluded that the
defendant's car was validly stopped for a civil motor vehicle
offense, and that the exit order was justified based on the
standard articulated in Commonwealth v. Gonsalves, 429 Mass.
658, 664 (1999), that "it does not take much for a police
officer to establish a reasonable basis to justify an exit order
or search based on safety concerns." However, the judge
concluded that, once the patfrisk of the defendant revealed only
a noncriminal amount of marijuana, the defendant should have
been given two civil citations and sent on his way. The judge
reached this conclusion on two bases. First, there was no
reasonable suspicion of criminal activity. Second, given that
the defendant was unknown to the police, there were no reports
of violence, his behavior was nonthreatening, and he was alone,
while there were three officers present, there was no heightened
safety concern in that there was nothing other than "the very
real safety concern every officer has particularly at night."
The judge accordingly denied the defendant's motion to suppress

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to the extent it related to the marijuana located during the
patfrisk, but allowed the motion with respect to the fruits of
the search of the automobile.
Discussion. The defendant's motion to suppress challenged
the exit order, the patfrisk, and the automobile search. The
motion was allowed only with respect to the fruits of the
automobile search, and that is the subject of the Commonwealth's
appeal.3 At the outset, we note that the Commonwealth does not
argue that the exit order, the patfrisk, or the automobile
search were justified by either probable cause or reasonable
suspicion.4 The Commonwealth argues only that these events were
justified by objectively reasonable safety concerns.
3 The fruits were not only the gun, but also the defendant's statements after its discovery. The defendant admitted that he did not have a license to carry a firearm, that the gun was his, and that he carried it for his protection. When questioned why he had been driving slowly, the defendant stated that he had been looking for a friend. The defendant sought to suppress these statements, relying on Wong Sun v. United States, 371 U.S. 471 (1963), and Miranda v. Arizona, 384 U.S. 436 (1966). The judge did not explicitly state that the statements were suppressed in addition to the gun and ammunition. However, that conclusion necessarily follows given the judge's reasoning.
4 The smell of burnt or unburnt marijuana, standing alone, no longer provides either reasonable suspicion or probable cause. See Commonwealth v. Cruz, 459 Mass. 459, 469 (2011); Commonwealth v. Craan, 469 Mass. 24, 28 n.6 (2014); Commonwealth v. Rodriguez, 472 Mass. 767, 769-770 (2015); Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 706 (2014). The Commonwealth does not argue that any of the additional facts presented in this case, combined with the odor of marijuana, supported reasonable suspicion or probable cause.

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Although the defendant has not cross-appealed, he urges us
to affirm the suppression order on another ground, namely the
claimed invalidity of the exit order. "To avoid the
'possibility of continuing controversy over the same evidence,'
Commonwealth v. Boswell, 374 Mass. 263, 267 (1978), we will
permit [the defendant] to raise the propriety of the seizure
'under the umbrella of the government's appeal.'" Commonwealth
v. Catanzaro, 441 Mass. 46, 51 n.8 (2004), quoting from
Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 782 (1980). See
Commonwealth v. Bakoian, 412 Mass. 295, 298 n.2 (1992). For
this reason, we turn first to the validity of the exit order.
As a general matter, in the context of a routine traffic
stop, "once a stopped driver has produced the necessary papers
and they are found to be in order, he and his passengers are to
be promptly released." Commonwealth v. Gonsalves, 429 Mass. at
668. However, an officer is justified in issuing an exit order
to a driver or passenger when "a reasonably prudent man in the
policeman's position would be warranted in the belief that the
safety of the police or that of other persons was in danger."
Id. at 661, quoting from Commonwealth v. Santana, 420 Mass. 205,
212-213 (1995). See Commonwealth v. Silva, 366 Mass. 402, 406
(1974); Commonwealth v. Almeida, 373 Mass. 266, 271 (1977);
Commonwealth v. Sheridan, 470 Mass. 752, 761 (2015). A "mere
hunch is not enough"; instead, "objective circumstances [must

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make] it reasonable to issue an exit order to the driver or
passengers in a stopped vehicle," Gonsalves, 429 Mass. at 664,
666, because of "a heightened awareness of danger," Commonwealth
v. Demirtshyan, 87 Mass. App. Ct. 737, 744 (2015) (quotation
omitted). "[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," provided "the intrusiveness of the
officer's conduct [is] 'proportional to the degree of suspicion
that prompted it.'" Commonwealth v. Daniel, 464 Mass. 746, 752
(2013), quoting from Gonsalves, 429 Mass. at 664, and
Commonwealth v. Torres, 433 Mass. 669, 672 (2001).
Here, the defendant's unusual action of lifting himself off
the seat by six inches in a manner consistent with concealing
something was sufficient to justify the exit order and patfrisk.
The act of concealment heightened the safety concern inherent in
every automobile stop and provided an objectively reasonable
basis for the officer to take the protective measures of an exit
order and patfrisk. See Commonwealth v. Stampley, 437 Mass.
323, 327 (2002), and cases cited. The officer was not required
to know the exact nature of the object being concealed in order
to have an objectively reasonable concern for his safety. See
Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 905 (2013).
While it is true that the odor of marijuana in the car could
support an inference that the defendant sought to conceal drugs,

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that inference was not the only one that could reasonably be
drawn.5 While it is equally true that there is no "blanket rule
that all persons suspected of drug activity are to be presumed
armed and dangerous for constitutional purposes," Commonwealth
v. Washington, 449 Mass. 476, 483 (2007); see Commonwealth v.
Jimenez, 438 Mass. 213, 219 (2002), there is also no blanket
rule that a driver who conceals something when officers stop him
is presumed to be concealing drugs rather than a weapon. We
conclude that, in the circumstances presented, the trooper had
objectively reasonable safety concerns justifying the exit
order, the patfrisk, and a limited search of the immediate area
where the defendant had been seated.6 Those acts were
proportionate to the suspicion that the defendant had concealed
a weapon beneath himself or in a back pocket.
The question, though, is whether, notwithstanding the
justification for the search at its inception, it became
excessive in its scope once no weapon was found during the
patfrisk or in the immediate area where the defendant had been
seated. "It is settled in law that, in appropriate
5 Two of the three troopers involved in the stop testified at the hearing; both testified that, within their experience, guns are involved in a significant proportion of their drug cases. One officer testified to a fifty percent association; the other, ninety percent. However, the judge did not adopt the officers' testimony, nor did he make findings on this topic.
6 The judge's view that, after the patfrisk, the officers could do nothing more than issue civil citations was too narrow.

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circumstances, a Terry type of search may extend into the
interior of an automobile so long as it is limited in scope to a
protective end." Commonwealth v. Silva, 366 Mass. at 408. Such
a search is to be restricted to the area from which it is
reasonable to believe the suspect "might gain possession of a
weapon." Ibid., quoting from Chimel v. California, 395 U.S.
752, 763 (1969). Commonwealth v. Almeida, 373 Mass. at 272.
Thus, for example, where a defendant was seen to lock the glove
compartment as police approached the car, the police "were
entitled to open the glove compartment for the limited purpose
of determining whether it contained a weapon." Commonwealth v.
Graham, 78 Mass. App. Ct. 127, 130 (2010). And, where a
defendant "mov[ed] his body down, to the right, and out of
view," while seated in the driver's seat, a protective search of
the "driver's seat area" was permissible. Commonwealth v.
Myers, 82 Mass. App. Ct. 172, 174, 177 (2012). To similar
effect is Commonwealth v. Almeida, supra at 272, where the
defendant was observed to twist his body to the right, and the
protective search was limited to a visual inspection and search
beneath the defendant's seat. Similarly, where a defendant
leans forward and down, and offers to retrieve his registration
from the glove compartment, officers are allowed to look into
the console and glove compartment as a protective measure.
Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 527-528 (1995).

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Compare Commonwealth v. Cruz-Rivera, 76 Mass. App. Ct. 14, 15,
18-19 (2009). What these cases demonstrate is that the scope of
a protective search within the interior of an automobile must be
limited by, and rationally connected to, a safety concern about
the particular area to be searched.
The Commonwealth points to the fact that the car was small
and, therefore, the rear seat armrest was within the defendant's
reach even while seated in the driver's seat. But a Terry-type
search into the interior of a car must be limited in scope and,
as we have set out above, rationally connected to the
circumstances that gave rise to the original safety concern. We
have found no case upholding a protective search into areas of a
car about which there is no evidence to suggest there was any
danger. Nor have we found any case upholding the scope of a
protective search based solely on the possibility that the
defendant could reach a particular area of the car absent
evidence that he did or would do so. Nor have we found any case
where we have applied the concept of "wing span" to define the
scope of such searches (nor has the Commonwealth provided any),
as opposed to searches incident to arrest. See generally Grasso
& McEvoy, Suppression Matters Under Massachusetts Law § 12
3[a][1] (2016 ed.).
In this case, the defendant made no movement toward the
backseat generally or more particularly toward the backseat

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armrest, and there was no other evidence to suggest a weapon was
concealed there. The officers had no information about the
defendant, let alone any background information to suggest he
was armed or dangerous. Contrast Commonwealth v. Santiago, 53
Mass. App. Ct. 567 (2002) (driver matched description of armed
and dangerous serial rapist). He was calm and cooperative when
approached, and produced his license. See Commonwealth v.
Daniel, 464 Mass. at 753. Although he could not locate his
registration, the officers were able to confirm that the
registration was not suspended or revoked. The patfrisk
together with the search of the driver's seat area dissipated
the suspicion created by the defendant's act of lifting himself
off his seat. Compare Commonwealth v. Douglas, 472 Mass. 439,
443 (2015) (any reasonable suspicion that rear seat passengers
were armed and dangerous dissipated when patfrisks revealed no
weapons). All that remained was the defendant's nervousness,
and this was not enough.

Outcome: For these reasons, the order allowing in part and denying
in part the defendant's motion to suppress is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: