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15-P-124                                                Appeals Court

                  COMMONWEALTH   vs.   JERRY MENEIDE.


                             No. 15-P-124.

           Plymouth.     November 12, 2015. - June 1, 2016.

             Present:   Cohen, Grainger, & Wolohojian, JJ.


Marijuana. Firearms. Practice, Criminal, Motion to suppress.
     Search and Seizure, Automobile, Protective frisk,
     Reasonable suspicion. Constitutional Law, Search and
     seizure, Stop and frisk.



     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.


    WOLOHOJIAN, J.      Before us is the Commonwealth's

interlocutory appeal from an order allowing, in part, the
                                                                     2


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


     1
       The defendant is charged with carrying a firearm without a
license, G. L. c. 269, § 10(a); possession of a firearm without
a firearm identification card, G. L. c. 269, § 10(h)(1); and
carrying a loaded firearm without a license, G. L. c. 269,
§ 10(a) & (n).
                                                                    3


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,
                                                                    4


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.
                                                                   5


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
                                                                    6


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.
                                                                    7


       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
                                                                     8


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,
                                                                    9


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.
                                                                  10


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).
                                                                  11


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
                                                                     12


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.     See Commonwealth v. Cruz, 459 Mass.

459, 468 (2011).

    For these reasons, the order allowing in part and denying

in part the defendant's motion to suppress is affirmed.

                                      So ordered.
