Commonwealth v. Buckley , 478 Mass. 861 ( 2018 )

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SJC-12344
COMMONWEALTH vs. ROGELIO R. BUCKLEY.
Plymouth. October 5, 2017. - February 14, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Controlled Substances. Constitutional Law, Search and seizure,
Reasonable suspicion, Investigatory stop. Search and
Seizure, Threshold police inquiry, Reasonable suspicion,
Consent, Motor vehicle. Threshold Police Inquiry.
Practice, Criminal, Motion to suppress.
Indictments 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.
The Supreme Judicial Court granted an application for
direct appellate review.
Matthew Malm for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
The 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.
2
Rebecca Kiley, Committee for Public Counsel Services, &
Derege B. Demissie for Committee for Public Counsel Services &
another.
Jeff Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan
D. Hall, Jessie J. Rossman, & Carlton E. Williams for American
Civil Liberties Union of Massachusetts.
Daniel F. Conley, District Attorney, & John P. Zanini,
Cailin M. Campbell, & David D. McGowan, Assistant District
Attorneys, for District Attorney for the Suffolk District.
CYPHER, J. In this 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.
Facts. We 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
3
being conducted.1 At approximately 10:50 P.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.2 Nelson radioed Bombardier that he had stopped the
vehicle.
When 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.3 She told him that she
1
Detective Joseph Bombardier had received complaints from
one of the apartment's residents concerning heavy foot traffic
going in and out of the building at all hours. Bombardier
determined that another of the building's residents had
previously been charged with drug-related offenses. He
therefore decided to conduct surveillance of the building, and
suspected, based on his training and experience, that drug
activity was being conducted out of the building.
2
Officer Gary Nelson testified that he measured the vehicle
traveling forty-two miles per hour in a thirty mile per hour
zone. There is no testimony indicating that the vehicle's
lights were still off at the time of the traffic stop.
3
This stop occurred after the decriminalization of
marijuana possession under State law and this court's opinion in
4
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.4 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.
Prior 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,
Commonwealth v. Cruz, 459 Mass. 459 (2011), which held that, in
light of the changed status of marijuana, "the odor of burnt
marijuana alone no longer constitutes a specific fact suggesting
criminality." Commonwealth v. Overmyer, 469 Mass. 16, 20
(2014), citing Cruz, supra at 469-472.
4
The defendant does not challenge the officer's testimony
that he saw a firearm.
5
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
suppress.
Discussion.5 The 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
5
We acknowledge the briefs submitted by the following amici
curiae: Lawyers' Committee for Civil Rights and Economic
Justice, Urban League of Eastern Massachusetts, Charles Hamilton
Institute for Race and Justice, Massachusetts Law Reform
Institute, Union of Minority Neighborhoods, Boston Police Camera
Action Team, GLBTQ Legal Advocates & Defenders, MassEquality,
The Network/La Red, Interact: Advocates for Intersex Youth,
Theater Offensive, Greater Boston PFLAG, Centro Presente,
Brazilian Worker Center, Justice at Work, Justice Resource
Institute, Jewish Alliance for Law and Social Action,
Massachusetts Associate of Hispanic Attorneys, and Massachusetts
Black Lawyers Association; Committee for Public Counsel Services
and Massachusetts Association of Criminal Defense Lawyers;
American Civil Liberties Union of Massachusetts, Inc.; and the
District Attorney for the Suffolk District.
6
investigatory stop, violate art. 14 and its protection against
unreasonable seizures.6 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 motive.
Second, 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.
We 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).
1. Pretext. The 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
6
The Commonwealth conceded that the Whitman police did not
have reasonable suspicion of criminal activity justifying an
investigatory stop. We do not address whether this was a
necessary concession and focus exclusively on the asserted legal
basis for the stop, an observed traffic violation.
7
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).7
Article 14, like the Fourth Amendment to the United States
Constitution, guarantees "a right to be secure from all
unreasonable searches[] and seizures."8 Because "[a] police stop
of a moving automobile constitutes a seizure," Commonwealth v.
7
This is not to say that challenges to established law need
not be raised during trial court proceedings in order for them
to be entertained on appeal. Such arguments still must be
raised below. See, e.g., Commonwealth v. Barnes, 399 Mass. 385,
393-394 (1987) (appellate court not obliged to consider grounds
argued on appeal but not raised in motion to suppress).
8
Article 14 of the Massachusetts Declaration of Rights and
the Fourth Amendment to the United States Constitution are
distinct sources of this right to be free from arbitrary
government action, and in some circumstances, "art. 14 provides
more substantive protection to criminal defendants than does the
Fourth Amendment in the determination of probable cause."
Commonwealth v. Upton, 394 Mass. 363, 373 (1985).
8
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).
In 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).9 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
9
One year after Santana, the United States Supreme Court
decided Whren v. United States, 517 U.S. 806, 811-813 (1996), in
which the Court adopted an identical test for evaluating the
reasonableness of a traffic stop under the Fourth Amendment.
9
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 208.
In the 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.10 In place
10
The defendant's general position against pretextual
traffic stops mirrors that of the petitioners in Whren, 517 U.S.
at 810, which the Supreme Court succinctly summarized: "[The
petitioners] argue . . . that 'in the unique context of civil
traffic regulations' probable cause [to believe that a traffic
violation has occurred] is not enough. Since, they contend, the
use of automobiles is so heavily and minutely regulated that
total compliance with traffic and safety rules is nearly
10
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 test.
Santana 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
impossible, a police officer will almost invariably be able to
catch any given motorist in a technical violation. This creates
the temptation to use traffic stops as a means of investigating
other law violations, as to which no probable cause or even
articulable suspicion exist."
11
standard of objective reasonableness without regard to the
underlying intent or motivation of the officers involved.'"
Santana, 420 Mass. at 208, quoting Commonwealth v. Ceria, 13
Mass. App. Ct. 230, 235 (1982).11 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
11
We have applied this same standard of objective
reasonableness when assessing, for instance, the validity of a
Terry-type investigatory stop, Commonwealth v. Smigliano, 427
Mass. 490, 493 (1998) ("Because the facts and circumstances
known to the officer are sufficient to create a reasonable
suspicion . . . in a reasonable police officer, a Terry stop is
justified regardless of the officer's subjective state of
mind"); the reasonableness of a search conducted pursuant to the
emergency aid exception, Commonwealth v. Tuschall, 476 Mass.
581, 584-585 (2017) (officers must possess "an objectively
reasonable basis" for conclusion that intervention is necessary
to save someone who is injured or in imminent danger); and the
appropriate scope of a consent-based search, Commonwealth v.
Gaynor, 443 Mass. 245, 255 (2005), quoting Florida v. Jimeno,
500 U.S. 248, 251 (1991) (scope determined based on "objective
reasonableness -- what would the typical reasonable person have
understood by the exchange between the officer and the
suspect?").
12
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 motivation was"); 1 W.R. LaFave, Search
and Seizure § 1.4(e) (5th ed. 2012) (there is "no reason to
believe that courts can with any degree of success determine in
which instances the police had an ulterior motive," and
"[p]resence of an ulterior motive may show why an officer might
want to depart from the usual procedure but does not show that
he has done so").
The authorization test avoids this often-speculative
probing of the police's "true" motives, while at the same time
providing an administrable rule to be applied by both law
enforcement in the field as well as reviewing courts. Like its
Federal counterpart, art. 14 must often "be applied on the spur
(and in the heat) of the moment, and the object in implementing
13
its command of reasonableness is to draw standards sufficiently
clear and simple to be applied with a fair prospect of surviving
judicial second-guessing months and years after an arrest or
search is made." Atwater v. Lago Vista, 532 U.S. 318, 347
(2001). The bright-line standard of legal justification
achieves this by clarifying exactly when the police may conduct
a traffic stop: where an officer has observed a traffic
violation. "If this were not so, [a traffic stop's] validity
could not be settled until long after the event; it would depend
not only on the psychology of the arresting officer but on the
psychology of the judge." United States v. McCambridge, 551
F.2d 865, 870 (1st Cir. 1977).12
Moreover, this rule also ensures that the same
constitutional protections under art. 14 are afforded to all
Massachusetts drivers where the same factual circumstances are
present. As we observed in Santana, "the defendants' contention
might yield the illogical result of allowing stops of nonsuspect
drivers who violate motor vehicle laws, but forbidding stops of
suspected criminals who violate motor vehicle laws." Santana,
12
The United States Court of Appeals for the First Circuit
also noted that a rule of reasonableness that hinges on the
purity of law enforcement intentions may be all too easily
manipulated: "As law enforcement personnel learn that a
particular motivation is improper because it will render an
otherwise valid search invalid, they may not have difficulty
convincing themselves that their conduct was prompted not by the
improper reason but the proper one." United States v. Arra, 630
F.2d 836, 845 n.12 (1st Cir. 1980).
14
420 Mass. at 210 n.3. Application of the exclusionary rule in
these circumstances, as the defendant requests, would be
contrary to that rule's purpose, which is to "deter intentional
unconstitutional behavior." Lora, 451 Mass. at 439. Its effect
here would be to deter the police from carrying out one of their
primary objectives: investigating, within permissible legal
boundaries, suspected criminal behavior.
Beyond these legal and practical justifications, Santana's
authorization test is grounded in sound policy. We have noted
that "allowing police to make [traffic] stops serves [the]
significant government interest" of ensuring public safety on
our roadways. Rodriguez, 472 Mass. at 776. As Rodriguez more
fully explains:
"[M]any of our traffic violation statutes regulate moving
cars and relate directly to the promotion of public safety;
even those laws that have to do with maintaining a
vehicle's equipment in accordance with certain standards
may also be safety-related. . . . Permitting stops based
on reasonable suspicion or probable cause that these laws
may have been violated gives police the ability to
immediately address potential safety hazards on the road.
Thus, although a vehicle stop does represent a significant
intrusion into an individual's privacy, the government
interest in allowing such stops for the purpose of
promoting compliance with our automobile laws is clear and
compelling" (citation omitted).
Id. at 776-777. Therefore, the fact that a traffic law has been
violated is, generally speaking, a legally sufficient basis to
justify stopping a vehicle, irrespective of any additional
suspicions held by the officer(s) conducting the stop. See,
15
e.g., Commonwealth v. Cruz, 459 Mass. 459, 465 (2011) ("officers
validly 'stopped' the car for parking in front of a fire
hydrant, a civil traffic violation . . . . Thus, the officers'
presence at the side of the car was appropriate" [citations
omitted]); Santana, 420 Mass. at 210 ("By driving an automobile
with a broken taillight, the defendants took the risk of being
stopped"). In that sense a traffic stop cannot be "arbitrary,"
because it is predicated on a driver violating a traffic law.13
Still, the defendant urges that we overturn Santana on the
ground that the authorization test countenances pretextual stops
-- and more specifically, stops motivated by the race of the
driver (i.e., racial profiling). In the defendant's view, this
court's previous attempt to address the problem of racial bias
in traffic stops, Lora, 451 Mass. at 444-447, has failed to
provide a meaningful remedy. Lora held that where a driver
produces "sufficient evidence to raise a reasonable inference,"
id. at 442, that the stop at issue "is the product of the
selective enforcement predicated on race," evidence seized in
the course of that stop must be suppressed under the
exclusionary rule. Id. at 440. The surest way to effectively
remedy that issue now, the defendant contends, is simply to do
away with Santana's authorization test, and instead hold that
13
We have also recognized that "[a]n arrest or prosecution
based on probable cause is ordinarily cloaked with a presumption
of regularity." Lora, 451 Mass. at 437.
16
all pretextual stops, regardless of the particular motive
(whether it be the race of a driver, or, as here, a desire to
investigate suspected criminal wrongdoing) violate art. 14.
There are at least two deficiencies in this argument.
First, to the extent the defendant appeals to our
consideration of the motivations underlying a traffic stop in
the racial profiling context as a basis for doing so in this and
similar cases, he ignores any distinction between art. 14 and
the equal protection principles of arts. 1 and 10 of the
Massachusetts Declaration of Rights. In Lora we observed that
racial profiling "is at base a claim that [the police]
selectively enforced the laws in contravention of the Fourteenth
Amendment and arts. 1 and 10." Lora, 451 Mass. at 436. We
permitted inquiry into officers' subjective motives in that case
because Lora, unlike Santana or Whren, "involved a challenge to
[a] traffic stop[] based on equal protection grounds." Lora,
supra. At the same time, we observed that "'[s]ubjective
intentions play no role in ordinary, probable cause Fourth
Amendment analysis.' Our holding in [Santana] is not to the
contrary." Id., quoting Whren, 517 U.S. at 813. See Lora,
supra, quoting Whren, supra ("the constitutional basis for
objecting to intentionally discriminatory application of laws is
the Equal Protection Clause, not the Fourth Amendment"). Thus,
Lora makes clear that to the extent we do consider the purpose
17
of a stop when assessing its validity, we do so pursuant to the
equal protection principles of arts. 1 and 10 -- not art. 14's
guarantee against unreasonable seizures -- and only where a
driver has alleged that race was the reason for the stop.
This brings us to the more obvious deficiency in the
defendant's appeal to the racial profiling context: the fact
that racial profiling is not an issue in this case. Unlike the
Lora defendant, the defendant here has raised no allegation of
impermissible discrimination, and he does not challenge the
traffic stop on equal protection grounds. To the contrary, he
acknowledges in his brief that he is "is not arguing (and has
never argued) that he was racially profiled"14 (emphasis added).
Although we certainly do not dispute, as a general matter, the
enormity or relevance of the problem of racial profiling, it is
not an appropriate basis for overturning our general art. 14
standard governing the reasonableness of traffic stops where the
defendant has expressly disavowed any such argument that race
was a factor in the stop at issue.
At the same time, the defendant and the concurring Justice
raise considerable, legitimate concerns regarding racial
profiling and the impact of such practices on communities of
color. We share these sentiments, which echo those expressed by
14
The defendant is an African-American male; the driver is
a Caucasian female.
18
past members of this court. See, e.g., Lora, 451 Mass. at 444,
and cases cited ("Justices of this court have expressed
considerable concern about the practice of racial profiling in
prior decisions"). We likewise acknowledge their valid
questions regarding the lasting efficacy of Lora for addressing
the issue of pretextual stops motivated by race, given that in
the near-decade since that decision, we are not aware of a
single reported case suppressing evidence under its framework.
We take this opportunity to encourage lawyers to use the Lora
framework in cases where there is reason to believe a traffic
stop was the result of racial profiling. To the extent we must
review the adequacy of our decision in Lora, however, or address
these issues in depth, we wait to do so in a case where a driver
has actually alleged and laid a proper foundation for a claim
under Lora. We cannot evaluate the efficacy of the Lora
framework without a record.
As an alternative basis for his request that we overturn
Santana, the defendant cites cases from "other areas of criminal
law" where he contends Massachusetts courts "identify pretext" -
- namely, searches conducted for the purposes of inventory or
administrative regulation. But the defendant's conclusion that
"there is no good reason for the distinction" between the
constitutional analysis in these cases versus traffic stops
ignores at least one reason. Inventory and administrative
19
searches -- as distinct from traffic stops, which involve only a
temporary seizure, see Rodriguez, 472 Mass. at 773 -- are unique
in that they are conducted in the absence of probable cause or
reasonable suspicion, for purely noninvestigatory reasons. See,
e.g., Commonwealth v. Vuthy Seng, 436 Mass. 537, 550-555, cert.
denied, 537 U.S. 942 (2002). In these contexts, the burden
rests with the Commonwealth to demonstrate that the search "was
conducted for some legitimate police purpose other than a search
for evidence." Commonwealth v. Benoit, 382 Mass. 210, 219
(1981), S.C., 389 Mass. 411 (1983). From the start, then,
consideration of an officer's "purpose" for conducting the
search is relevant to an assessment of the lawfulness of the
search itself. Thus, where it appears that the "sole purpose"
of that search was in fact criminal investigation, rather than
inventory or administrative regulation, any evidence unlawfully
seized must be suppressed. See, e.g., Benoit, supra at 219
("The record clearly reveals that the only purpose for the entry
into this suitcase . . . was to seize evidence. The search and
seizure without a warrant was, therefore, illegal");
Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 576-577 (2015)
(affirming suppression of evidence found in course of inventory
search where officer testimony showed that "sole purpose of
impounding and searching the defendant's vehicle and its
contents" was to search "for evidence of drug activity without a
20
warrant").15 A traffic stop poses no such question regarding the
actual legal authority for the police conduct at issue, because,
as mentioned, "[w]here the police have observed a traffic
violation, they are warranted in stopping a vehicle." Bacon,
381 Mass. at 644. Cf. Whren, 517 U.S. at 811 (declining to
import principles of cases "addressing the validity of a search
conducted in the absence of probable cause" to cases involving
"police conduct that is justifiable on the basis of probable
cause to believe that a violation of law has occurred").
Having considered the defendant's arguments, we decline to
disturb our general rule that the reasonableness of a traffic
stop under art. 14 is evaluated according to the authorization
test articulated in Santana. Outside of the racial profiling
context -- as this case is -- the reasonableness of a traffic
15
The defendant quotes extensively from Commonwealth v.
Ortiz, 88 Mass. App. Ct. 573, 576-577 (2015), to argue that we
should consider pretext here. In Ortiz, the defendant, who was
the subject of surveillance as part of an investigation into
cocaine trafficking, was stopped and arrested for switching
lanes without signaling; a subsequent inventory search of his
vehicle yielded cocaine. Id. at 575. The arresting officer
testified that he would not have conducted either the stop or
the arrest absent the intention "to employ the inventory policy
to search [a] backpack for drugs." Id. at 576-577. The Appeals
Court affirmed the trial judge's suppression of the evidence on
the ground that the inventory search "was simply a pretext for
using the inventory policy to conduct an investigatory search."
Id. at 577. Significantly, however, the Appeals Court made no
such determination regarding the validity of the initial stop;
to the contrary, it correctly acknowledged that "the
constitutional reasonableness of traffic stops 'does not depend
on the actual motivations of the officer involved.'" Id. at 575
n.5, quoting Whren, 517 U.S. at 813.
21
stop does not depend upon the particular motivations underlying
the stop. For the sound legal and practical reasons previously
described, legal justification alone, such as an observed
traffic violation, is sufficient.
Applying that principle here, the motion judge credited
Nelson's testimony that before conducting the traffic stop at
issue, Nelson observed the vehicle traveling above the speed
limit. We therefore affirm the judge's conclusion that "the
stop was warranted by the observed traffic violation." "The
fact that the [police] may have believed that the defendants
were engaging in illegal drug activity does not limit their
power to make an authorized stop." Santana, 420 Mass. at 208.
2. Scope of the stop. In addition to challenging the
legality of the stop itself, the defendant argues that the
Whitman police exceeded the permissible scope of the stop when
the plainclothes detectives joined Nelson at the scene and asked
the driver about the odor of marijuana emanating from the
vehicle. "In evaluating whether the police exceeded the
permissible scope of a stop, the issue is one of proportion."
Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001). "The
nature of the stop, i.e., for a traffic offense, defines the
scope of the initial inquiry by a police officer." Commonwealth
v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996). See
Commonwealth v. Cordero, 477 Mass. 237, 241 (2017) ("A routine
22
traffic stop may not last longer than reasonably necessary to
effectuate the purpose of the stop" [quotations and citation
omitted]). "Where an officer conducts an uneventful threshold
inquiry giving rise to no further suspicion of criminal
activity, he may not prolong the detention or expand the
inquiry." Feyenord, 445 Mass. at 78 n.5.
As discussed, the stop at issue was justified based on
Nelson's observation of the vehicle speeding. This defines the
permissible scope of the officers' inquiry. The defendant fails
to cite any authority suggesting that it was impermissible for
the plainclothes detectives to join Nelson at the location of
the stop. The stop remained constitutional so long as the
officers did not exceed its permissible scope. There is nothing
in the record to indicate that the "tasks tied to the traffic
infraction . . . [were already] complete[]," Rodriguez v. United
States, 135 S. Ct. 1609, 1614 (2015), by the time Bombardier and
Campbell arrived, or that Nelson unnecessarily prolonged the
stop to await the detectives' arrival. See Cordero, 477 Mass.
at 242 ("The police do not earn 'bonus time' to conduct
additional investigations by an expeditious performance of the
traffic-related investigation"). The motion judge found that
the detectives arrived while "Nelson [was] standing at the
driver's side of the vehicle." Nelson testified that, after
stopping the vehicle, he explained to the driver that he had
23
stopped her for speeding and requested her license and
registration; she produced a registration certificate but was
unable to produce a license. Nelson recalled that he had been
speaking with the driver for "[a]pproximately a minute," and had
yet to confirm her name and date of birth, see id. at 242 (tasks
during routine traffic stop reasonably include "confirmation of
the identity of the driver"), when Bombardier and Campbell
arrived and spoke to the driver about the smell of marijuana.
At that point Nelson returned to his cruiser to confirm
McGovern's information. Contrast id. at 247 (continued
detention of defendant unreasonable where "the investigation of
the civil traffic violations" justifying stop "was complete").
We also reject the defendant's argument that Bombardier's
question to the driver about the smell of marijuana fell beyond
the permissible scope of the stop. That argument is foreclosed
by this court's opinion in Commonwealth v. Cruz, 459 Mass. 459
(2011). Cruz was decided following the enactment of G. L.
c. 94C, §§ 32L-32N, which "changed the status of the possession
of one ounce or less of marijuana from a criminal to a civil
offense." Id. at 464. In Cruz, an officer who had conducted a
valid traffic stop detected an odor of burnt marijuana as he
approached the driver's side window; we held that the officer's
"asking the driver whether he had been smoking marijuana" did
not constitute an impermissible expansion of the scope of the
24
stop, "because the officers could potentially have issued the
driver a civil citation pursuant to G. L. c. 40, § 21D." Id. at
466.16 The stop at issue here took place in January, 2013 --
after the Cruz decision, while possession of marijuana remained
a civil offense.17 As in Cruz, then, Bombardier did not exceed
the scope of the stop when inquiring about the smell of
marijuana emanating from the vehicle, given his authority to
issue a civil citation. "Once in the process of making a valid
stop for a traffic violation," as here, "officers are not
required to 'ignore what [they] see[], smell[] or hear[].'"
Cruz, 459 Mass. at 466, quoting Bartlett, 41 Mass. App. Ct. at
471.
3. Consent. The defendant argues that the evidence should
be suppressed because the driver did not voluntarily consent to
the search of the vehicle. See Commonwealth v. Podgurski, 386
Mass. 385, 390-392 (1982), cert. denied, 459 U.S. 1222 (1983)
(passenger may object to validity of vehicle search). A
warrantless search such as this is presumptively unreasonable
under both the Fourth Amendment and art. 14 unless one of the
16
See G. L. c. 94C, § 32N (directing police departments to
"enforce [G. L. c. 94C, § 32L,] in a manner consistent with the
non-criminal disposition provisions of [G. L. c. 40, § 21D]").
17
Effective December, 2016, the Regulation and Taxation of
Marijuana Act states, in pertinent part, that adults shall not
be penalized or sanctioned "under the laws of the commonwealth
in any manner" for possessing an ounce or less of marijuana.
See G. L. c. 94H, § 7 (a) (1).
25
"few specifically established and well-delineated exceptions" to
the warrant requirement apply. Commonwealth v. Johnson, 461
Mass. 44, 48 (2011), quoting Coolidge v. New Hampshire, 403 U.S.
443, 455 (1971). A search authorized by consent is one such
exception. See Commonwealth v. Buswell, 468 Mass. 92, 105
(2014). As with all warrantless searches, the Commonwealth
bears the burden of proof that consent was "freely and
voluntarily given," Commonwealth v. Krisco Corp., 421 Mass. 37,
46 (1995), quoting Bumper v. North Carolina, 391 U.S. 543, 548-
549 (1968), meaning it was "unfettered by coercion, express or
implied." Commonwealth v. Harmond, 376 Mass. 557, 561 (1978)
quoting Commonwealth v. Walker, 370 Mass. 548, 555, cert.
denied, 429 U.S. 943 (1976). "Voluntariness of consent 'is a
question of fact to be determined in the circumstances of each
case.'" Id., quoting Commonwealth v. Aguilar, 370 Mass. 490,
496 (1976). As a question of fact, "it should not be reversed
absent clear error by the judge." Commonwealth v. Gray, 465
Mass. 330, 343, cert. denied, 134 S. Ct. 628 (2013), citing
Commonwealth v. Carr, 458 Mass. 295, 303 (2010).
We discern no error here. The motion judge, who "was in
the best position to assess the weight and credibility of the
testimony given at the [suppression] hearing," Carr, supra,
concluded that the driver freely and voluntarily consented to
the search of the vehicle. This was based in part on the
26
judge's finding that when Bombardier "asked [the driver] if she
had any marijuana in the car. She told him she did not think so
and said that he could check." The fact that the driver
affirmatively offered the search naturally supports the judge's
conclusion that her consent was voluntary. See Commonwealth v.
Sanna, 424 Mass. 92, 97-99 (1997) (concluding that "the police
had properly entered the defendant's home on the consent given
by the father"). Further, the record lacks any evidence to
suggest that the officers' conduct during the vehicle stop was
at all coercive. See Commonwealth v. Cantalupo, 380 Mass. 173,
177-178 (1980). Contrast Carr, 458 Mass. at 302-303 (consent
not voluntary where armed officers "completely blocked the only
exit" from premises, officer who sought permission to search
"signaled his distrust of the defendants," and request to search
"sounded more like an order"). Finally, that the police did not
inform the driver of her right to refuse does not, as the
defendant argues, invalidate her consent. "The fact that a
person is not informed by the police that he has a right to
refuse to consent to an entry or search is a factor to be
considered on the issue of voluntariness, but is not
determinative of the issue." Sanna, 424 Mass. at 97 n.10.
Given the absence of record evidence to the contrary, we
conclude that the motion judge did not err in finding that the
27
driver freely and voluntarily consented to the search of the
vehicle.
Conclusion. For the foregoing reasons, we affirm the
denial of the defendant's motion to suppress the evidence
against him. We also affirm the judgment of conviction of
unlawful possession of a controlled substance.
So ordered.
BUDD, J. (concurring). I join the opinion of the court
because I agree that it is unworkable to strike down the
authorization rule articulated in Commonwealth v. Santana, 420
Mass. 205 (1995). However, I write separately because, although
-- as the court points out -- the driver here was not stopped
for "driving while black," it is important to highlight how
pretextual stops disproportionately affect people of color, and
to explore what can be done to mitigate the harm caused by this
practice.
Years of data bear out what many have long known from
experience: police stop drivers of color disproportionately
more often than Caucasian drivers for insignificant violations
(or provide no reason at all). In 2017, the Stanford Open
Policing Project found that police stopped African-American
drivers more than Caucasian drivers, controlling for population
makeup, both nationally and in Massachusetts.1 Stanford Open
Policing, Stop Rates, 2017, https://openpolicing.stanford.edu
/findings/ [https://perma.cc/F6HT-87WE]. See United States
Department of Justice, Office of Justice Programs, Bureau of
Justice Statistics, Special Report, Police Behavior During
1
I note that although most of the data focuses on people of
color, other marginalized communities, i.e., groups of people
who have historically experienced some form of oppression or
exclusion, are also the target of heightened police attention.
Transgendered people, for example, have reported facing
disproportionate harm by encounters with law enforcement.
Activists Say Police Abuse of Transgender People Persists
Despite Reforms, New York Times, Sept. 6, 2015.
2
Traffic and Street Stops, 2011, at 3 (rev. October 27, 2016),
https://www.bjs.gov/content/pub/pdf/pbtss11.pdf
[https://perma.cc/2ML3-UWY9].
In effectuating traffic stops, most officers act in good
faith. Even where they do, to a Caucasian driver a traffic stop
may be annoying or embarrassing, but for a driver of color, such
a stop can be humiliating and painful.2 Commonwealth v.
Feyenord, 445 Mass. 72, 88 (2005), cert. denied, 546 U.S. 1187
(2006) (Greaney, J., concurring). Further, recent tragic events
have shown that the fear people of color have of being stopped
by police is justified: African-Americans have been killed
during routine traffic stops.3
2
In Commonwealth v. Warren, 475 Mass. 530, 540 (2016), when
we discussed the related problem of racial profiling in Terry-
type stops, we noted "the recurring indignity of being racially
profiled."
3
The following are a few recent examples that have gained
national attention. A police officer in Minnesota stopped
Philando Castile for a broken taillight. During the encounter,
the officer shot him four times, killing him in front of his
fiancée and four year old daughter. Woman Streams Aftermath of
Fatal Officer-Involved Shooting, Cable News Network, July 8,
2016, http://www.cnn.com/2016/07/07/us/falcon-heights-shooting-
minnesota/index.html [https://perma.cc/4P5A-YY28]. In Ohio, the
police stopped Samuel DuBose for failing to display a front
license plate, and fatally shot him during the stop. The
Shooting of Samuel DuBose, New York Times, July 29, 2015. The
South Carolina police stopped Walter Scott for a broken
taillight, and shot him to death as he fled. Carbado, From
Stopping Black People to Killing Black People: the Fourth
Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125, 149
(2017). In Texas, a police officer stopped Sandra Bland for
failing to signal a lane change. Id. at 150. She was found
dead in jail three days later. Id.
3
It goes without saying that this is not a new phenomenon.
Almost twenty years ago, then-Associate Justice Ireland noted
statistics from multiple jurisdictions showing that African-
American and sometimes Hispanic drivers were stopped more often
than Caucasian drivers, even though Caucasian drivers were the
majority group. Commonwealth v. Gonsalves, 429 Mass. 658, 670
(1999) (Ireland, J., concurring).
The reasons for pretextual stops of people of color stem
from explicit bias (i.e., racial profiling), unconscious bias,4
or a combination of both. See Carbado, From Stopping Black
Massachusetts is not immune from traffic stop violence.
Wakeelah Cocroft, an African-American woman, was a passenger in
a vehicle that the police stopped for speeding in Worcester.
Cocroft v. Smith, 95 F. Supp. 3d 119, 123 (D. Mass. 2015).
During the stop, an officer "forcefully threw Cocroft to the
ground and scraped her face against the cement." Id. In a
subsequent civil suit, a jury found that the officer had
unlawfully seized Cocroft. Id. at 122.
It is also important to note that these examples are not
meant to diminish the fact that police officers are at risk
during traffic stops as well. Auburn police officer Ronald
Tarentino, for example, was shot to death during a traffic stop.
Obituary for Fallen Police Officer Ronald Tarentino, Jr., Boston
Herald, May 24, 2016, http://www.bostonherald.com/news/local_
coverage/herald_bulldog/2016/05/obituary_for_fallen_police_
officer_ronald_tarentino_jr [https://perma.cc/8GNT-KQRU].
4
Unconscious or implicit bias is a discriminatory belief or
association likely unknown to its holder. Multiple studies
confirm the existence of implicit bias, and that implicit bias
predicts real-world behavior. See Kang & Banaji, Fair Measures:
A Behavioral Realist Revision of "Affirmative Action," 94 Cal.
L. Rev. 1063, 1071-1073 (2006). That is, even people who do not
believe themselves to harbor implicit bias may in fact act in
ways that disfavor people of color.
4
People to Killing Black People: The Fourth Amendment Pathways
to Police Violence, 105 Cal. L. Rev. 125, 129-130 (2017);
Harris, The Stories, the Statistics, and the Law: Why "Driving
While Black" Matters, 84 Minn. L. Rev. 265, 291-292 (1999);
Ramirez, Hoopes, & Quinlan, Defining Racial Profiling in a Post-
September 11 World, 40 Am. Crim. L. Rev. 1195, 1197-1198 (2003).
See also Greenwald & Krieger, Implicit Bias: Scientific
Foundations, 94 Cal. L. Rev. 945, 951 (2006); Lawrence, The Id,
the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 Stan. L. Rev. 317, 343 (1987). Regardless of the
cause, it is a persistent, pervasive problem that must be
addressed.
The solution, however, is not clear cut. For the reasons
outlined by the court, the answer is not to overrule the
authorization rule articulated in Santana, 420 Mass. at 208-209.
As the court has explained, inquiring into subjective police
intent for traffic stops would lead to several practical
difficulties, not least among them the question of how precisely
to determine intent. Ante at .
In Commonwealth v. Lora, 451 Mass. 425 (2008), the court
reiterated that although "law enforcement officers enjoy
considerable discretion in exercising some selectivity for
purposes consistent with the public interest," that
"selectivity" cannot be based on "an unjustifiable standard such
5
as race, religion or other arbitrary classification"5 (quotations
and citations omitted). Id. at 436-437. The court concluded
that to rebut the presumption that a stop was not undertaken as
a result of an arbitrary classification, a defendant must
present "credible evidence establishing a reasonable inference
of impermissible discrimination." Id. at 443. The court
further held that
"[a]t a minimum, that evidence must establish that the
racial composition of motorists stopped for motor vehicle
violations varied significantly from the racial composition
of the population of motorists making use of the relevant
roadways, and who therefore could have encountered the
officer or officers whose actions have been called into
question."
Id. at 442.
Thus, the court attempted to provide a means of combatting
pretextual stops based on race with statistics. We noted that a
similar approach had been somewhat successful in New Jersey.
Id. at 440-441, citing State v. Soto, 324 N.J. Super. 66 (1996).
As it happened, traffic stop statistics also were being
collected in the Commonwealth. Before Lora was decided, the
Legislature had passed An Act providing for the collection of
data relative to traffic stops (act), St. 2000, c. 228.
Pursuant to the act, Northeastern University analyzed a year's
worth of data collected on racial and gender profiling, and
5
As the court points out, the defendant did not bring a
claim under the equal protection provisions of the Massachusetts
Constitution, another fatal blow to mounting a challenge to
pretextual stops. Ante at .
6
issued a report in 2004. Lora, 451 Mass. at 448. Despite the
Legislature's focus on data collection in this act, the court
acknowledged that the defendant's evidentiary burden was
"daunting." Id. at 445.
In a concurring opinion, then-Justice Ireland pointed out
some of the difficulties involved in collecting the necessary
data, even with the act in place. Id. at 449 (Ireland, J.,
concurring). For example, although the act required law
enforcement agencies that had racially profiled to continue to
gather statistics, it did not contain provisions requiring those
agencies to report the data to anyone or to analyze the data,
severely undercutting any use that data might have had. Id.
(Ireland, J., concurring). Moreover, almost one-half of the
targeted agencies failed to follow the reporting guidelines of
the act, for example by failing to track certain factors or
failing to report at all. Id. (Ireland, J., concurring).
Justice Ireland's concerns were prescient: the act
required governmental data collection for only a limited amount
of time, and the Legislature has not renewed the necessary
funding. See St. 2000, c. 228, § 8 (assigning financial
responsibility to State agencies); id. at § 10 (requiring data
to be transmitted for analysis after one year). Statistics on
traffic stops, thus, are now even more difficult to come by. We
are not aware of any traffic stop cases in which a defendant has
7
been able to gather and use statistics to prove that the stop
violated equal protection principles; it appears that Lora has
not provided the opportunity for defendants that we had hoped it
would.
Concerns about bias in pretextual traffic stops are well
founded, as are concerns about the practical ability of
defendants to show racial bias by way of statistics as suggested
by Lora. Because this is not a "driving while black" equal
protection case, the issue is not squarely before us. However,
it is worth noting that it has been seventeen years since the
Legislature required State agencies to collect data on racial
profiling. We are not aware of the data ever being used to
mount a challenge under Lora, and it is now woefully outdated.
The time has come for the Legislature to address the problem
once more. Publicly available data would not only assist
litigants, but would also inform the public about this ongoing
problem.
In the meantime, our recent holding in Commonwealth v.
Cordero, 477 Mass. 237 (2017), has added to our jurisprudence.
There we held that a traffic stop may go no further than
investigating the alleged traffic violation unless that
investigation leads to information to support reasonable
suspicion of a crime. Id. at 247. See Commonwealth v. Amado,
474 Mass. 147, 151 (2016); Gonsalves, 429 Mass. at 663;
8
Commonwealth v. Torres, 424 Mass. 153, 158-159 (1997). These
cases are by no means a cure for racial profiling in traffic
stops, but they may provide a means to lessen their impact on
drivers and diminish the incentive to conduct pretextual stops.