Commonwealth v. Soriano-Lara ( 2021 )

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19-P-1311 Appeals Court
COMMONWEALTH vs. JOHAN SORIANO-LARA.
No. 19-P-1311.
Suffolk. March 4, 2021. - May 7, 2021.
Present: Milkey, Kinder, & Sacks, JJ.
Controlled Substances. Motor Vehicle. Search and Seizure,
Automobile, Probable cause, Reasonable suspicion, Threshold
police inquiry. Constitutional Law, Probable cause,
Reasonable suspicion, Search and seizure. Probable Cause.
Threshold Police Inquiry. Practice, Criminal, Motion to
suppress.
Indictments found and returned in the Superior Court
Department on November 16, 2016.
A pretrial motion to suppress evidence was heard by Diane
C. Freniere, J., and a conditional plea of guilty was accepted
by Robert L. Ullman, J.
Robert L. Sheketoff for the defendant.
Ian MacLean, Assistant District Attorney, for the
Commonwealth.
SACKS, J. The defendant appeals from a Superior Court
judge's order denying a motion to suppress all evidence obtained
during a traffic stop of the vehicle the defendant was driving.
2
The defendant argues, among other things, that the stop was
unreasonably prolonged, so that any evidence obtained after the
stop should have ended must be suppressed as the fruit of a
poisonous tree. We agree and therefore reverse.
Background. We summarize the judge's pertinent findings of
fact, supplementing with additional facts from testimony that
the judge explicitly or implicitly credited. See Commonwealth
v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818(2008).
Trooper James Farrell has served as a State trooper for
approximately twenty-five years and has extensive,
particularized training in narcotics enforcement, including
training on identifying hidden compartments in motor vehicles.
He has made more than 250 arrests for drug-related offenses,
including approximately thirty arrests that involved identifying
hidden compartments during a motor vehicle stop.
At approximately 2:55 P.M. on September 13, 2016, Farrell
was on uniformed patrol on Route 1A in Lynn.1 As he approached a
left-turn-only lane, Farrell noticed that a vehicle traveling in
front of him, a Volvo XC-90 with Massachusetts license plates,
moved from a travel lane into the left-turn-only lane without
1 Route 1A was known to Farrell as a drug transportation
route between Boston and the cities of Revere, Chelsea, and
Lynn.
3
first signaling. After both vehicles turned left onto a side
street, Farrell pulled the Volvo over.
Farrell approached the Volvo and observed two occupants in
the front seats. Farrell asked the driver, later identified as
the defendant, for his license and registration. The defendant
provided a Rhode Island driver's license. The passenger stated
that her mother owned the vehicle and that she (the passenger)
regularly drove it. The vehicle's registration indicated that
it was registered to a third party in Foxborough.
The Rhode Island license that the defendant handed to
Farrell was for a Carlos Pina-Garay and listed a residential
address in Cranston, Rhode Island. However, when Farrell asked
the defendant where he lived, he replied, "Providence." Farrell
observed that both the defendant and the passenger appeared to
be very nervous; they were breathing heavily and their carotid
arteries were visibly pulsing in their necks.
Farrell returned to his cruiser and determined that the
proffered license was valid and active, that the registration
was active, and that the Volvo had not been reported stolen.
However, based on his observations, Farrell decided to call for
backup. In addition to the apparent discrepancy in the
residence information provided by the defendant,2 Farrell had
2 Farrell was aware that persons with information on their
Massachusetts records that they wish to conceal, such as a
4
observed that when the defendant opened his wallet to retrieve
his license, the wallet contained "religious icons, small
pictures of saints." Moreover, there was a set of rosary beads
hanging from the rearview mirror. Farrell testified that, based
on his training and experience, "religious icons and good luck
symbols, in and of themselves may not mean anything, but
combined with all other indicators could be a[n] indicator of
criminal activity."3
Farrell then returned to the Volvo4 and asked the defendant
where he was coming from. The defendant replied that he was
coming from an auto repair shop where a friend had just repaired
his brakes. In response to further questioning by Farrell, the
defendant could not provide the name of the shop, its location,
or his friend's name. Believing the defendant to be lying,
Farrell then inspected the Volvo's wheel lug nuts and rims and
observed that they were covered in dust, which was inconsistent
with recent brake work. Thereafter, Farrell again asked the
defendant where he lived, to which the defendant replied,
revoked license or an outstanding warrant, will often obtain
false identification from a neighboring State.
3 The judge explicitly declined to credit Farrell's
testimony regarding the significance of the religious items.
4 Farrell did so without waiting for backup. Ten to fifteen
minutes passed before another trooper arrived.
5
"Cranston." Farrell pointed out that the defendant had
initially said he lived in Providence. The defendant replied
that Providence and Cranston were the same place.
At that time, Farrell observed significant wear on the
center console panel near the temperature controls. He further
observed that a carpeted panel around the center console area
had been pulled out of place. On a previous occasion, Farrell
had located a hidden compartment containing drugs in that exact
location in a Volvo XC-90.
Farrell observed that the defendant was becoming agitated.
By this time, a backup trooper had arrived, and Farrell asked
the defendant to step out of the Volvo. The defendant complied,
and Farrell moved him to behind the Volvo, where the defendant
began yelling out in Spanish to the passenger. Farrell asked
the defendant if he could identify any streets around his
proffered license address in Cranston, but the defendant was
unable to do so.5 Farrell asked his age and the defendant said
he was thirty-four, whereas the proffered license indicated that
the holder was thirty-two. The defendant was also asked his
social security number and did not answer. At that point,
5 While in his cruiser, Farrell had checked the Internet for
the names of streets near the Cranston address listed on the
license.
6
Farrell placed the defendant in the rear of his cruiser and then
asked the passenger to step out of the Volvo, which she did.
Farrell then returned to the Volvo's center console, pulled
on the out-of-place carpeted piece, and uncovered a hidden
compartment containing a metal box. Farrell opened the box and
found a bundle of currency and a substance later identified as
cocaine. Farrell arrested both the defendant and the passenger.
After the motion judge denied the defendant's motion to
suppress, the defendant entered a conditional guilty plea to an
indictment for cocaine trafficking; an indictment for money
laundering was dismissed at the Commonwealth's request. See
Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499(2019). The defendant appealed.
Discussion. We accept the judge's subsidiary findings
unless clearly erroneous, see Commonwealth v. White, 374 Mass.
132, 137 (1977), aff'd by an equally divided Court, 439 U.S. 280(1978), and we make an "independent determination on the
correctness of the judge's application of constitutional
principles to the facts as found" (quotation and citation
omitted), Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C.,
398 Mass. 806 (1986).
7
We will assume without deciding that the traffic stop was
valid at its inception6 and proceed directly to the question
whether the stop was unreasonably prolonged. "[T]he tolerable
duration of police inquiries in the traffic-stop context is
determined by the seizure's 'mission' to address the traffic
violation that warranted the stop." Commonwealth v. Cordero,
477 Mass. 237, 241 (2017), quoting Rodriguez v. United States,
575 U.S. 348, 354 (2015). "Police authority to seize an
individual ends 'when tasks tied to the traffic infraction are
–- or reasonably should have been -- completed'" (emphasis
added). Cordero, supra, at 242, quoting Rodriguez, supra. The
Supreme Judicial Court recently summarized the principles
governing this issue as follows:
"A valid investigatory stop cannot last longer than
reasonably necessary to effectuate the purpose of the stop.
The scope of a stop may only extend beyond its initial
purpose if the officer is confronted with facts giving rise
to a reasonable suspicion that further criminal conduct is
afoot. 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" (quotations and citations omitted).
Commonwealth v. Tavares, 482 Mass. 694, 703 (2019).
Here, based on Farrell's initial conversation with the
Volvo's occupants, he knew that there was an apparent
6 We pass over the defendant's claim that he was not
required to activate his turn signal before moving into a left-
turn-only lane.
8
discrepancy between the defendant's claimed residence in
Providence and the proffered license's listing of a Cranston
address, calling into some question the defendant's true
identity.7 The judge reasoned that this information, "[c]oupled
with the fact that the vehicle's registration was not in either
of the defendants' names and their nervous demeanors and
physical manifestations, [gave Farrell] reasonable suspicion
that [the defendant] was lying about his identity." Thus, the
judge reasoned, "Farrell was justified in briefly further
detaining [the defendant and the passenger] and expanding the
scope of his investigation to confirm the identity of the
driver."8
Farrell was of course justified in returning to his cruiser
to try to verify the information he had received. Upon doing
so, Farrell learned that the license was valid, the registration
7 There is at least some force to the defendant's suggestion
that someone might mention his out-of-State residence by
reference to a known city there, i.e., a Chelsea resident, while
in another State, might tell someone that he lived in Boston.
8 The Commonwealth suggests that the calculus should also
include Farrell's knowledge that Route 1A is a drug
transportation route between Boston and cities to the north.
This factor was entitled to little if any weight. Cf. Cordero,
477 Mass. at 244-245. When Farrell approached the Volvo for the
second time, he had at most a hunch, but not a reasonable
suspicion, that the defendant was engaged in transporting drugs,
and the prolongation of the stop cannot be justified on that
ground.
9
was valid, and the Volvo had not been reported stolen.9 Farrell
then approached the Volvo for a second time.
We agree that Farrell still had reason to question the
defendant further in order to ascertain his identity and address
so that Farrell could issue him a citation for the traffic
violation. The problem is that Farrell did not do so. Instead,
he proceeded to question the defendant about where the defendant
was coming from. Upon hearing the defendant's reply -- that he
was coming from a repair shop where a friend had performed brake
work on the Volvo -- Farrell continued to question the defendant
about the name of the shop, the address of the shop, and the
name of the friend who had performed the work. Further,
believing that the defendant's inability to answer these
questions meant he was lying, Farrell proceeded to inspect the
Volvo's four wheels, to see if their rims or lug nuts showed any
signs of recent work. Finding no such signs, Farrell resumed
the questioning. Only at this point did Farrell turn back to
questions that touched on the defendant's identity by asking,
9 The judge concluded that the totality of the information
Farrell initially obtained created a reasonable suspicion that
the defendant was furnishing false information. See G. L.
c. 268, § 34A. Even if the uncertainty initially rose to that
level, it dissipated somewhat once Farrell returned to his
cruiser and learned these additional facts.
10
once again, where he lived. Farrell then saw the displaced
carpeting that led to his discovery of the hidden compartment.
Farrell's digression into general investigative questioning
of the defendant was constitutionally impermissible. "Citizens
do not expect that police officers handling a routine traffic
violation will engage, in the absence of justification, in
stalling tactics, obfuscation, strained conversation, or
unjustified exit orders, to prolong the seizure in the hope
that, sooner or later, the stop might yield up some evidence of
an arrestable crime." Commonwealth v. Gonsalves, 429 Mass. 658,
663 (1999). See Tavares, 482 Mass. at 703. Farrell's authority
to detain the defendant and his passenger ended when the process
of ascertaining the defendant's identity and address to the
extent required to write him a traffic citation "reasonably
should have been" completed.10 Cordero, 477 Mass. at 242,
quoting Rodriguez, 575 U.S. at 349. "The initial stop was
therefore unreasonably extended and constituted an illegal
seizure." Tavares, supra at 704. "As this prolonged detention
was unconstitutional, and the evidence at issue flowed
10Even if Farrell's verification of the validity of the
license and registration was relatively expeditious, he did "not
[thereby] earn 'bonus time' to conduct additional
investigations." Cordero, 477 Mass. at 242.
11
therefrom," such evidence "should have been suppressed as the
fruit of the poisonous tree." Id. at 706, 708.
We do not suggest that any detour from ascertaining a
motorist's identity unreasonably prolongs a stop and thus
requires suppression. But that is not what occurred here. And
even a detour into more general investigative questioning need
not always require suppression. Here, the Commonwealth might
have attempted to show that the evidence in question would have
been "inevitably discovered" once the trooper returned to
questioning the defendant about where he lived and events
unfolded from there. See Commonwealth v. O'Connor, 406 Mass.
112, 115-119 (1989) (discussing inevitable discovery rule and
Commonwealth's burden of proving its applicability). The
Commonwealth did not attempt to do so here, however, nor did the
judge make findings relevant to that issue.
This case is unlike Commonwealth v. Feyenord, 445 Mass. 72(2005), cert. denied, 546 U.S. 1187 (2006), relied upon by the
judge. In that case, during a traffic stop, the driver "could
not produce a valid driver's license, produced a registration in
another person's name, failed to identify himself, and appeared
nervous." Id. at 78. Those circumstances "justified an exit
order and further inquiry" into whether the driver was "engaged
in criminal activity beyond [his] nonpossession of a license and
the vehicle's malfunctioning headlight." Id. Here, in
12
contrast, (1) the defendant produced a license that Farrell
ascertained was valid; (2) although the registration was not in
the defendant's name, the passenger offered a reasonable
explanation (the Volvo belonged to her mother), and Farrell
ascertained that the registration was valid and the Volvo had
not been reported stolen; and (3) the defendant identified
himself. The fourth factor present in Feyenord was nervousness,
but, "in the context of an involuntary police encounter," this
factor, alone or combined with other weak indicia of criminal
activity, cannot generate reasonable suspicion. Cordero, 477
Mass. at 243-246 (motorist's nervousness, evasiveness in
answering questions about trip's starting point and destination,
travel from drug "source city," and record of prior convictions
did not combine to create reasonable suspicion).11
Farrell would have been justified in extending the
encounter in order to resolve the apparent discrepancy between
the defendant's stated city of residence and the one shown on
the proffered license. But Farrell had no reasonable suspicion
of illegal drug activity, and thus he could not permissibly
extend the encounter with questions aimed at pursuing his hunch
that such activity was afoot. As Feyenord itself stated, in
11Cf. Gonsalves, 429 Mass. at 660, 669 (motorist's extreme
nervousness, trembling hands, and heavy breathing did not
establish reasonable suspicion justifying exit order).
13
assessing whether a detention has been unreasonably prolonged, a
court must "examine whether the police diligently pursued a
means of investigation that was likely to confirm or dispel
their suspicions quickly." Feyenord, 445 Mass. at 81, quoting
United States v. Sharpe, 470 U.S. 675, 686 (1985). Even if
Farrell had a reasonable suspicion that the defendant had
proffered false identification, Farrell did not diligently
pursue questioning to confirm or dispel that suspicion quickly.
"This was no 'swiftly developing situation' that prevented
verification or disproof of the officer's suspicions regarding
the defendant's identity . . . through routine computer or radio
checks. . . . Officers' actions must be no more intrusive than
necessary at each step to effectuate both the safe conclusion to
the traffic stop and the further investigation of the suspicious
conduct" (quotations and citations omitted). Commonwealth v.
Brown, 75 Mass. App. Ct. 528, 537 (2009). Here, Farrell's
actions exceeded the latter limitation.
Relying on Commonwealth v. D'Agostino, 38 Mass. App. Ct.
206, S.C., 421 Mass. 281 (1995), the Commonwealth argues that
asking a driver where he is coming from is always permissible in
a routine traffic stop. But there the court stated only that
such questioning need not be preceded by Miranda warnings. Id.
at 208. Nothing in D'Agostino suggests that an officer may
pursue such questioning without regard to whether it
14
unreasonably prolongs a traffic stop. Rather, questioning
during a traffic stop "should pertain to operation of the motor
vehicle: inquiry into the status of the driver as a licensed
operator and the registration of the automobile." Commonwealth
v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996). In Bartlett,
questions about "where [the defendant] was coming from and where
he was going" were held to constitute "investigatory
conversation for which the officer had no lawful basis once he
had received a valid license and registration."12 Id. at 469,
472. See Commonwealth v. Harris, 93 Mass. 56, 63 (2018) (noting
that in Cordero, "police prolonged the stop by questioning the
driver about his travel history that day").
Order denying motion to
suppress reversed.
The Commonwealth also asks us to consider the
12
unreasonable-delay analysis in Commonwealth v. Martin, 91 Mass.
App. Ct. 733 (2017). But that case did not involve a traffic
stop, id. at 734, and thus is not particularly helpful here.