Smith observed Jane Doe engaging in suspicious behavior consistent with drug transactions. He stopped her vehicle based on his experience and observations. When Doe moved her hands toward her waistband upon exiting the vehicle, Smith had her exit for safety reasons without conducting a frisk. Doe admitted to possessing drugs. [Smith lawfully stopped Doe's vehicle based on reasonable suspicion of criminal activity. He properly had her exit the vehicle for safety without a frisk. Providing Miranda warnings did not transform the stop into an arrest requiring probable cause.]

1. SAMPLE WRITING OF MEMO FOR JUDGE
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. BOSTON MUNICIPAL COURT
)
COMMONWEALTH )
)
v. )
)
JANE DOE )
)
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO SUPRESS
INTRODUCTION
After hearing, argument, review of the defendant's motion, accompanying memorandum
of law, and the underlying court case file, this Court finds that the motor vehicle stop to perform
a threshold inquiry was proper under Article 14 and the 4th
Amendment, and that the exit order
following the vehicle stop was proper. Accordingly, for the reasons set forth below, defendant's
motion to suppress is denied.
I. BACKGROUND AND PROCEDURAL HISTORY
On March 21, 2014, Officer Jay Smith (“Smith”), as part of the Boston Police Drug
Control Unit (“DCU”), was stationed at the intersection of Stafford Street and Huntington Street.
Smith was assigned to the intersection to observe potential drug activity in the area. At 5:30PM,
Smith observed two vehicles, one being a black Jeep SUV and the other being a black Hyundai
Sonata, driving awkwardly close to one another through the intersection. Smith ran both vehicles'
license plate numbers through Massachusetts Criminal Justice Information System (CJIS)
database and discovered that the Jeep was registered to Maryellen Doe ("Doe" or "defendant").
Smith also discovered via CJIS that Doe had recently been arrested for drug possession. Smith
and the other members of the DCU continued to observe the movements of the two vehicles as
they approached Davis Street in tandem. As the vehicles stopped at the end of Davis St., Doe
exited the Jeep and entered the front seat of the black Sonata. Doe exited the Sonata and re-
entered her vehicle. After ten (10) minutes had passed, Doe exited her vehicle again and re-
entered the Sonata. This behavior seemed highly suspicious to Smith because it was similar to
the behavior that occurs during a street-level drug transaction. A short time later, Smith observed
a Hispanic male approaching the black Sonata and once he reached the vehicle, Doe exited the
Sonata so he could enter the vehicle. Doe re-entered her Jeep, and the two vehicles continued
traveling in tandem. Smith and the DCU officers continued their surveillance of the vehicles and
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2. followed them to Ashmont Station. Once the vehicles arrived at Ashmont Station, the Hispanic
male exited the vehicle and headed towards the station. At this point, the two vehicles pulled
back into traffic, and both made right-hand turns onto Fuller Street. Once on Fuller St., both
vehicles stopped, and Doe exited her vehicle. Doe approached the passenger-side window of the
black Sonata and leaned through into the door of the vehicle in order to interact with the driver.
Moments later, Doe returned to her vehicle and merged into traffic. Believing that the drug
transaction had just occurred, Smith and the other DCU officers effected a motor vehicle stop of
both vehicles.
Smith approached Doe's vehicle and observed Doe's hands move into her waistband.
Smith, fearing for his safety, ordered Doe out of her vehicle. Smith informed Doe of her Miranda
rights, but since he could see her hands, he did not conduct a pat frisk of Doe's person. Doe
stated that she understood her rights and Smith asked her several questions about her movements
preceding the vehicle stop. Doe was evasive in her answers and some of those answers
contradicted observations made by Smith. Smith informed Doe that he had been monitoring her
movements prior to stopping her and asked if she had any drugs in her possession. Doe stated
“Yes” and that she had drugs in the bulge of her waistband. Doe removed a plastic bag of crack
cocaine from her waistband and stated that she received the drugs from the African-American
female who was driving the black Sonata. The driver of the Sonata was Demetrius Daily
("Daily"), who admitted to other officers on the scene that she received the drugs from the
Hispanic male. Daily was arrested for the distribution of a class B substance, and Doe was
released from the motor vehicle stop. Doe was later charged and summonsed to court for
possession of a class B substance.
II. DISCUSSION
A. Standard of Review
The Commonwealth has the burden of proving that reasonable suspicion exists when an
officer conducts a Terry stop. Commonwealth v. Silva, 366 Mass. 402, 406 (1974). The
reasonable suspicion to stop an individual must “be based on specific and articulable facts and
the specific reasonable inferences which follow from such facts in light of the officer's
experience.” Id. An evidentiary basis must exist within the record for a judge to find that
reasonable suspicion existed to conclude that a person committed a crime. Commonwealth v.
Brazeua, 64 Mass. App. Ct. 65, 67-68 (2005). The officer's experience coupled with observations
of behavior similar to the commission of a crime can be a reasonable justification to conduct a
threshold inquiry. See Commonwealth v. Stephens, 451 Mass. 370, 384-85 (2008). Activities that
seem innocent on the surface can also meet the reasonable suspicion standard that would justify a
threshold inquiry. See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001), quoting
Commonwealth v. Watson, 430 Mass. 725, 729 (2000).
i. Motor Vehicle Stop
Terry v. Ohio, 392 U.S. 1 (1968) established that police officers have the authority to
intrude on a person’s movements based on specific and articulable facts that they are about to
commit a crime or are in the process of committing a crime. The Commonwealth has agreed with
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3. the right of police officers to investigate suspicious activities based on specific and articulable
facts. See Commonwealth v. Silva, 366 Mass. 402, 406 (1974). In Commonwealth v. Damelio, 83
Mass. App. Ct. 32, 35 (2012), the Court states that an officer's observation of a "meaningless
ride" is a proper reason to stop an individual because of the officer's knowledge that meaningless
rides are used to conduct street-level drug transactions. A bright line rule does not yet exist for
what fits into the category of a meaningless ride, but the Court have yielded to the discretion of
the officer in determining if movements in traffic are being used to further the sale of narcotics.
The officer’s observations, the officer’s knowledge about the participant being observed, and his
knowledge about how drug transactions are conducted are all taken into account. Smith's
experience as a member of the DCU alerted him to the fact that Doe was potentially conducting a
street-level drug transaction. Doe entered and exited the black Sonata numerous times, followed
the vehicle after the Hispanic male entered the Black Sonata, followed the Sonata after the
Hispanic male exited the vehicle, and engaged the driver once more before she attempted to
depart. Doe argues that since Smith never saw the transaction, he lacked the requisite facts
needed to justify a Terry stop. While the observation of an exchange supports the specific facts
necessary for a threshold inquiry, it is not required. The Court in Damelio allowed an officer to
stop an individual without seeing the transaction. The principles in Terry and Silva does not
require the criminality of an individual’s actions be known to the officer, just that the officer
suspects the individual’s actions are criminal and that the officer’s suspicion be supported by
specific facts and inferences. Smith first observed Doe closely following Daily’s vehicle in a
high crime area where drug transactions occur. Smith then ran the license plate of the vehicle and
discovered that Doe was recently arrested for drug possession. The specific and articulable facts
presented by the Commonwealth coupled with the knowledge of drug transactions that Smith
possesses provided a basis for reasonable suspicion that would allow Smith to conduct a
threshold inquiry. Smith did not need to be sure that a drug transaction had taken place, instead
he needed to have facts at his disposal that would allow him to draw a reasonable inference that
Doe was involved in a drug transaction. The Commonwealth met their burden of proving that
Smith had enough information to conduct a lawful threshold inquiry. Therefore, the Terry stop
of Doe was proper under Article 14 of the Massachusetts Constitution and the 4th
Amendment.
ii. Exit Order and Miranda Rights
Absent a justifiable concern for one's safety, officers are prohibited from giving random
and arbitrary exit orders to an individual in their vehicle. See Commonwealth v. Gonsalves, 429
Mass. 658, 664 (1999). While a mere hunch that danger is near is not enough to warrant an exit
order, observations of the detainee’s behavior can allow an officer to take measured steps to
ensure their safety. See Commonwealth v. Stampley, 323 Mass. 330 (2002). The Court held in
Commonwealth v. Johnson, 413 Mass. 598, 600-601 (1992) that it is reasonable for an officer to
order a detainee out of their vehicle and perform a pat frisk once the officer observes the
detainee reaching into their waistband. While the facts present in this case fail to rise to the
totality of circumstances present in Johnson, Smith balanced the need for his protection with the
need to respect the rights of Doe. Once Smith approached Doe's vehicle, he observed Doe
adjusting her waistband. Smith suspected that Doe had something in her waistband but was not
reasonably sure it was a weapon. Smith felt that he could maintain the safety of the other officers
as well as himself if Doe were outside of her vehicle. Smith balanced his need for safety during
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4. this encounter with the preservation of Doe's right to avoid unreasonable intrusion of her person
by asking Doe to exit the vehicle, but forgoing a pat frisk. Once outside the vehicle, Doe made
no attempt to reach for her waistband and kept her hands visible, which allowed Smith to
conduct a threshold inquiry safely. The defendant argues that Smith's failure to perform a pat
frisk suggested that he was not in fear of his safety. The Commonwealth argues that police
officers have the discretion to order an individual out of their vehicle for the purpose of
maintaining their safety. The Court states in several cases that during non-routine motor vehicle
stop the police have latitude to order an individual out of their vehicle based on reasonable
suspicion and specific circumstances that arise during the stop. See Commonwealth v. Bostock,
450 Mass. 616, 619-621 (2008); Commonwealth v. Torres, 424 Mass. 153, 159 (1997). Torres
states that more latitude is given to police officers to order individuals from their vehicle than
given to search an individual. So, as the Commonwealth argues, Smith balanced his safety with
the need to uphold the rights afforded Doe to not be subjected to unreasonable searches by the
government. Smith was satisfied with the level of safety he gained by having Doe exit the
vehicle. Smith was aware that his authority to intrude further was limited based on the
knowledge he had at that time. Police officers are allowed a proportionate level of discretion to
protect themselves. A pat frisk would have been improper based on the facts and circumstances
present during the stop and it would be counter-productive for the Court to rule that Smith must
intrude on Doe more than necessary to prove that he was concerned for his safety.
The defendant also argues that providing Doe with her Miranda rights was tantamount to
being placed under arrest, converting the threshold inquiry into a full custodial arrest that
requires probable cause. Generally officers give Miranda rights during custodial arrest, but
Commonwealth v. Gordon, 47 Mass. App. Ct. 825, 827 (1999) states that “Miranda warnings are
necessary even during a Terry stop if the suspect has been taken into custody or if the
questioning otherwise takes place in a police-dominated or compelling atmosphere." quoting
U.S. v. Bautista, 684 F.2d 1286, 1291 (9th Cir. 1982). When Smith stopped Doe's vehicle, it was
mere feet away from the black Sonata also being stopped by fellow DCU officers. The police
presence was heavy in Doe's general vicinity, and a reasonable person would feel compelled to
comply with questioning by officers on the scene. Providing Doe with her Miranda rights was
proper so Doe would know that she was not compelled to answer questions during this
encounter. Therefore, providing Doe with Miranda warnings did not transform the threshold
inquiry into a custodial arrest. Thus, both the motor vehicle stop and exit order were proper, and
any evidence gained subsequent shall be allowed.
So ordered.
__________________________________
Serge Georges, Jr.
Associate Justice, Boston Municipal Court
Dorchester Division
November 4, 2014
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