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13-P-837                                               Appeals Court

               COMMONWEALTH   vs.   CYRUS S. FISHER.


                           No. 13-P-837.

           Hampshire.     May 9, 2014. - July 22, 2014.

              Present:   Cohen, Sikora, & Agnes, JJ.


Search and Seizure, Motor vehicle, Reasonable suspicion.
     Controlled Substances. Constitutional Law, Search and
     seizure, Reasonable suspicion. Practice, Criminal, Motion
     to suppress, Interlocutory appeal.



     Complaint received and sworn to in the Northampton Division
of the District Court Department on November 26, 2012.

     A pretrial motion to suppress evidence was heard by Jacklyn
M. Connley, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Michael J. Russo, III, Assistant District Attorney (Thomas
H. Townsend, Assistant District Attorney, with him) for the
Commonwealth.
     Leah R. Kunkel for the defendant.
                                                                        2


     AGNES, J.   This is an interlocutory appeal by the

Commonwealth from an order of a District Court judge allowing

the defendant's motion to suppress evidence.    See Mass.R.Crim.P.

15, as appearing in 422 Mass. 1501 (1996).    The judge found, on

the basis of the undisputed evidence, that the police were

lawfully engaged in a community caretaking function when they

responded to a report that a person in a car may be either

having a seizure or suffering from a drug overdose.    What

followed, as the facts below indicate, was the discovery of

evidence indicating that the person in the vehicle, later

identified as the defendant, Cyrus S. Fisher, possessed cocaine,

a Class B controlled substance, and additional contraband.      For

the reasons that follow, we conclude the judge erred in finding

that the officer exceeded the scope of his authority when,

during a well-being check, he ordered the defendant to step out

of his motor vehicle.   Accordingly, we reverse the order

allowing the defendant's motion to suppress.

     Background.   The essential facts are not in dispute.    The

only witness to testify at the hearing on the defendant's motion

to suppress was Northampton police Officer Brendan McKinney.       He

was the second police officer to arrive at the scene, a gasoline

station and convenience store located on King Street.     It was

approximately 1:25 A.M. on November 24, 2012, when he arrived

and found Officer McGrath already on scene.    A third police
                                                                    3


cruiser and the fire department soon arrived.    Officer McKinney

observed Officer McGrath engaged in conversation with the

defendant, who was seated in a vehicle with the driver's side

door open. 1   The defendant was asked if he had consumed any drugs

or alcohol that evening and if he needed medical attention.    He

answered both questions in the negative, but his speech was

slurred, his eyes were half-closed, and he was nodding his head

up and down.    There was no odor of an alcoholic beverage

emanating from the defendant or the vehicle.    The defendant was

wearing baggy pants with a cargo pocket that was partly open and

visible from outside the vehicle.    What occurred at this point

according to the judge's succinct findings of fact is the

following:

     "[W]hen McKinney shined his flashlight on the pants, he saw
     a baggie sticking out of the pocket. He also saw what
     looked like a white powder in the baggie. He asked the
     defendant what it was, and asked him to take it out of his
     pocket. The defendant did, but he couldn't see immediately
     what it was because of the way the defendant held it in his
     hand. McGrath asked the defendant to exit the car, he was
     searched and found to be in possession of crack cocaine.
     During an inventory of the car, located on the driver, seat
     [sic] was an envelope containing baggies with what was
     believed to be [phencyclidine (PCP), a Class B controlled
     substance]. The defendant was placed under arrest."

     1
       No evidence was presented at the hearing as to who opened
the car door or when it was opened. Like the trial judge, we
assume that the opening of the vehicle's door was not the result
of a search. See Commonwealth v. Evans, 436 Mass. 369, 372-373
(2002) (when facts, viewed objectively, indicate driver who may
be in need of medical attention, police may open car door to
perform well-being check of driver without any further
justification).
                                                                    4



     Standard of review.   In reviewing a ruling on a motion to

suppress evidence, we accept the judge's subsidiary findings of

fact unless they are clearly erroneous.   See Commonwealth v.

Isaiah I., 450 Mass. 818, 821 (2008).   We give substantial

deference to the judge's ultimate findings and rulings.      See

Commonwealth v. Eckert, 431 Mass. 591, 593 (2000).    However, we

independently review the correctness of the judge's application

of constitutional principles to the facts as found.    See

Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).

     The defendant maintains that the judge determined the

credibility and weight of Officer McKinney's testimony and found

that McKinney did not know what was in the baggie until after

the defendant was removed from his car and searched.    It is

settled that the credibility of the witnesses and weight to be

given their testimony are matters reserved exclusively for the

judge.   Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).

When, as in this case, the evidence consists exclusively of the

oral testimony of a witness, the judge's subsidiary findings are

accepted on appeal unless they are clearly erroneous.

Commonwealth v. Jones, 375 Mass. 349, 353-354 (1978).

     The judge found that Officer McKinney "saw what looked like

a white powder in the baggie."   In the absence of any further

finding with respect to the credibility of the witness, a
                                                                    5


finding that the officer observed what appeared to be white

powder in a plastic baggie, as distinct from a finding that the

officer observed white powder in a plastic baggie, is not

constitutionally significant. 2   See Commonwealth v. Whitehead, 85

Mass. App. Ct. 134, 138 (2014) (reasonable suspicion turns on

probabilities, not hard certainties).    See also Commonwealth v.

Spagnolo, 17 Mass. App. Ct. 516, 522 n.7, 523 n.9 (1984) (on

motion to suppress, judge's task is to determine whether

underlying basis for officer's action was sufficient; officer

used word "guess" to describe reasonable and possible

inference); Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 214

n.7 (2013) (we do not read finding of fact stating that officer

was not certain about observation, without more, as

determination that testimony lacked credibility).




     2
       When a judge makes subsidiary findings of fact, it is open
to an appellate court to imply additional findings of fact so
long as (1) "the evidence is uncontroverted," and (2) "the judge
explicitly or implicitly credited the witness's testimony."
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008). In such a case, the ultimate result is
governed by principles of law and may not be in agreement with
the result reached by the judge. An appellate court may not
fill in gaps in a judge's findings of fact when they are
materially incomplete or clearly erroneous, or when they lack a
determination as to credibility. Commonwealth v. Isaiah I., 450
Mass. at 819-821 & n.4. See Commonwealth v. Rosado, 84 Mass.
App. Ct. 208, 221 n.4 (2014) (Sikora, J., dissenting) ("A judge
disbelieving testimony, as either inadvertent error or
intentional misstatement, must make the discrediting finding or
risk a misunderstanding by the reviewing court").
                                                                    6


     Discussion.   The community caretaking doctrine is

applicable principally to a range of police activities involving

motor vehicles, see Commonwealth v. Duncan, 467 Mass. 746, 750

n.3 (2014), in which there are objective facts indicating that a

person may be need of medical assistance or some other

circumstance exists apart from the investigation of criminal

activity that supports police intervention to protect an

individual or the public.     See Commonwealth v. Murdough, 428

Mass. 760, 762-764 (1999).     The existence of objective grounds

supporting police intervention for legitimate, noninvestigatory

reasons excuses the need for a warrant, probable cause, or even

reasonable suspicion.   See Commonwealth v. McDevitt, 57 Mass.

App. Ct. 733, 736 (2003). 3

     The law does not demand that an alert police officer must

suppress his or her training and investigatory experience in

carrying out the myriad of community caretaking functions

society expects police officers to undertake for its protection.


     3
       There are "multitudinous everyday contacts between police
officers and individuals" that do not involve "forcible
intrusions on privacy" and for which no justification is
required. Commonwealth v. Canavan, 40 Mass. App. Ct. 642, 646
(1996). Thus, it is settled that a police officer may approach
a person on the street or sitting in a parked motor vehicle and
engage the person in conversation without any justification.
See Commonwealth v. Lyles, 453 Mass. 811, 815 (2009). It is
only when a seizure takes place that justification in terms of
objective evidence of criminal activity or the need to perform a
community caretaking function is required. See Commonwealth v.
Eckert, 431 Mass. at 593-594.
                                                                   7


See id. at 736-737.   So long as the officer's conduct at the

outset and throughout the course of exercising a community

caretaking function is justified by the doctrine, the law does

not attach significance to the officer's subjective motives.

See Commonwealth v. Murdough, 428 Mass. at 762, quoting from

Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 740 (1998) ("an

officer's motive [does not] invalidate[] objectively justifiable

behavior").

     In performing a community caretaking function, a police

officer's decision to detain a motorist for a brief period of

time or to take other reasonable steps that intrude on a

motorist's liberty in an effort to confirm whether emergency

medical assistance is required or to determine the nature of the

individual's apparent illness or impairment is not invalid

because the acts taken by the officer also serve to uncover

evidence of criminal activity.   Thus, it has been noted that

"[c]ommunity care-taking functions sometimes blend almost

imperceptibly into the investigation of criminal activity."

Grasso & McEvoy, Suppression Matters Under Massachusetts Law

§ 4-2[f][1], at 4-32 (2013-2014 ed.).

     In the present case, the judge correctly ruled that Officer

McGrath and Officer McKinney acted reasonably in questioning the

defendant to determine whether he needed medical assistance.

The police officers faced a situation in which the operator of a
                                                                     8


motor vehicle was impaired (slurred speech, eyes closing, head

nodding).    While alcohol intoxication was certainly a

possibility, the absence of the tell-tale odor of an alcoholic

beverage made it reasonable for the officers to explore other

causes.    Officer McKinney would have been derelict in his duty

as a police officer if he did not take reasonable steps to

determine the cause and extent of the defendant's impairment.

See Irwin v. Ware, 392 Mass. 745, 762 (1984).

     The judge ruled that the observation of the plastic baggie

in the defendant's open pocket and the presence of what appeared

to be white powder did not contribute in a meaningful way to the

officer's suspicion because "[a] mere hunch is not enough to

justify an exit order."    Although this is a correct statement of

the law, it does not accurately fit the facts found by the

judge.    "Where police officers have a reasonable, articulable

suspicion that a person in a vehicle has committed, is

committing, or is about to commit a crime, they may stop that

vehicle, issue an exit order, and conduct a threshold inquiry.

Though the officers were admittedly uncertain that a specific

crime had occurred, their observations to that point were

sufficient to raise a reasonable suspicion of criminal

activity."    Commonwealth v. Greenwood, 78 Mass. App. Ct. 611,

616 (2011) (citations omitted).
                                                                    9


     Considering the totality of the factual circumstances -- a

driver who exhibited signs of impairment, but who was not

presenting with the constellation of symptoms commonly

associated with alcohol intoxication, and the presence of a

plastic baggie sticking out of his pants containing what

appeared to be a white powder -- it was reasonable for the

police officers to suspect that the defendant was in possession

of narcotic drugs.   In such circumstances, an exit order is

allowed because it is proportional to the suspicion that arose

once the plastic baggie was observed. 4   See Commonwealth v.

Bostock, 450 Mass. 616, 622 (2008) (upholding exit order to

prevent defendant's flight when reasonable suspicion of criminal

activity arose during nonroutine motor vehicle stop).    See also

Commonwealth v. Watson, 430 Mass. 725, 732 (2000).    The police


     4
        Our decision that the exit order was justified is based
on our determination that the officers had reasonable grounds to
believe the defendant had cocaine in his possession. However,
this should not be read to mean that an exit order was not a
reasonable measure in support of their community caretaking
responsibilities. Viewed objectively, the facts known to the
police were that the defendant was impaired due to a cause that
was probably not alcohol related. The police had an objectively
reasonable belief that the defendant's safety and well-being
were at risk, see Commonwealth v. Brinson, 440 Mass. 609, 615
(2003), and had a responsibility to ascertain the cause of the
impairment, and whether immediate medical attention was required
or whether the defendant was capable of driving or making other
arrangements for transportation. Commonwealth v. Murdough, 428
Mass. at 762-764 (1999). In applying the community caretaking
function, "[t]he ultimate standard . . . is reasonableness."
Cady v. Dombrowski, 413 U.S. 433, 439 (1973).
                                                                  10


had a right to avoid the potential danger to themselves and to

the public, as well as to the defendant himself, if he had

attempted to drive away. 5

     Conclusion.   The motion judge properly recognized the

distinction between the investigative functions and the

community caretaking functions of the police, and that the

latter are "totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a

criminal statute."   Commonwealth v. Evans, 436 Mass. 369, 372

(2002), quoting from Cady v. Dombrowski, 413 U.S. 433, 441

(1973).   However, in performing a community caretaking function,

the reasonable steps taken by the police to protect an

individual or the public may lead to the discovery of evidence

of a crime.   When this occurs, the police are no less entitled

to seize the evidence and pursue the matter as a criminal case

than they would be if the evidence was discovered inadvertently

during a criminal investigation.

                                    Order allowing motion to
                                      suppress reversed.




     5
       The search of the defendant's person yielding evidence of
"crack" cocaine and the subsequent seizure from the vehicle of
PCP are not at issue in this appeal.
