Commonwealth v. Tompert
Commonwealth v. Tompert
Opinion of the Court
This is an appeal by the Commonwealth from an order of a District Court judge allowing the defendant’s motion to suppress as evidence items (white powder and drug paraphernalia) seized by a State trooper from the defendant’s truck, in which he and another man were sitting while parked in a highway rest area at night. After an evidentiary hearing on the motion, the judge ruled that the trooper had acted on a hunch rather than with a reasonable suspicion or probable cause
I. The Facts.
We relate the facts as found by the judge and as supplemented by details from the transcript of the hearing at which trooper James Conley was the only witness.
It was part of “patrol procedure” to check all rest areas off the highways. Conley drove into the rest area and stopped behind and to the left of the truck. There were two men seated in the truck, and its interior light was on. Conley got out of his cruiser “to check [on] the well-being” of the occupants of the truck. At this time, Conley testified, he had no reason to be suspicious of them. He started to walk toward the truck on the driver’s side.
Just as he began his approach of the truck, Conley saw the men turn and look towards him. The interior light of the truck went off, and Conley saw the men begin “to move about frantically, making furtive movements and moving — moving all about.” Now concerned for his safety — the men were continually looking back to check his progress, the passenger bent or fell out of sight, the driver (the defendant) was turning “towards the right” and the “upper part of his body” was moving — Conley changed his direction “in somewhat of a surprise.” He came up to the truck on the passenger’s side. Without inquiry, Conley opened the door “at an angle for . . . [his] own
Conley then called for “backup” assistance. When the other officers arrived at the scene, they searched the truck, finding a marijuana cigarette, a knife, and a clear bag containing a quantity of white powder.
II. The Defendant’s Fourth Amendment Rights.
It has never been the Commonwealth’s position that the turning off of the interior light and the men’s frantic and furtive movements gave Conley the right to approach the truck and open its door. Rather, the Commonwealth argues that Conley was making a reasonable investigatory check of a vehicle in a rest area in accordance with patrol procedures policy, see Commonwealth v. King, 389 Mass. 233, 242 (1983), and that, in the course of doing so, he became concerned for his safety. His opening of the door and ordering of the men from the truck, the Commonwealth contends, were minimally intrusive acts, warranted by his belief that he was in danger.
Although the truck was parked and Conley did not block its path in any way, compare Commonwealth v. King, 389 Mass. at 236; Commonwealth v. Helme, 399 Mass. 298, 299 (1987), the encounter between the men and Conley implicated their rights under the Fourth Amendment to the United States Constitution. That the defendant might have been free to drive away when Conley approached the truck is irrelevant. There can be no dispute that, when Conley opened the door, the defendant was stopped from doing anything other than what was ordered.
Whether Conley had the right to open the door depends upon whether he was justified in making an investigatory check. Fear of harm, standing alone, does not justify a stop. “Any
HI. The Investigatory Check.
An investigatory check “constitutes a search within the meaning of the Fourth Amendment and is required by the very purpose of the Fourth Amendment to be reasonable. See Delaware v. Prouse, 440 U.S. 648, 653-654 (1979). The test for determining reasonableness requires balancing the need to search against the invasion that the search entails. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). See Delaware v. Prouse, supra at 654.” Commonwealth v. King, 389 Mass. at 241. See also Brown v. Texas, 443 U.S. 47, 50-51 (1979). As Conley testified, his purpose in approaching the truck was to check on the occupants’ “well-being,” which we construe to mean whether assistance or aid was needed.
In Commonwealth v. King, 389 Mass. at 242, the public interest to be served — protecting motorists from the hazards of winter driving — was held to justify the intrusion presented to motorists approached in accordance with a policy of investigating during winter months every stopped or parked vehicle, no matter where situated, to ascertain whether any occupants were in need of aid. However, in Commonwealth v. Helme, 399 Mass. at 302, the policy of checking “all parked automobiles with their interior lights on” was found to be un
We view the policy here in question — to check on all vehicles in highway rest areas to determine if aid or assistance is needed — as furthering a public interest of sufficient concern to justify a nighttime investigatory check. As the check here in issue took place after dark, we need not and expressly do not consider the reasonableness of the policy as it might pertain to the daytime.' Cf. Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974); Commonwealth v. Adams, 389 Mass. 265, 272 (1983); Commonwealth v. Love, 26 Mass. App. Ct. 541, 544-545 (1988).
The very purpose of a highway rest area is to provide motorists with a respite or shelter from the hazards of driving, such as fatigue, illness, or mechanical failure to, name but a few. This is not to say that motorists pull into rest areas only for reasons related to driving hazards. We do not think, however, that it is unreasonable to inquire of a motorist parked in a highway rest area after dark whether aid is needed. Such an inquiry presents a minimum intrusion which ends with a negative response. Further, the policy was not discretionary, it applied to all vehicles, and it was limited to rest areas.
When considered in the circumstance of the nighttime, we cannot say that an investigatory check of the defendant’s truck was unreasonable. We conclude, therefore, that Conley had the right not to avoid the risk he perceived and to carry out the investigatory check procedures to completion.
IV. The Threat of Harm.
Having concluded that Conley was entitled to approach the truck to inquire if assistance was needed, we must now consider whether he was entitled to take the precautions that he did. ‘“The test is an objective one. While the officer need not be absolutely certain that the individual is armed, the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake. Terry v. Ohio, supra at 27. Essentially, the question is whether a reasonably prudent man in the police
Trooper Conley was on duty alone, it was night, there was no other vehicle in the rest area, and he was out of his cruiser before the cause for concern arose. After noting that Conley was approaching, both men began a series of furtive movements, and the interior light went out. Like the police officer in Commonwealth v. Sumerlin, 393 Mass. 127, 129-130 (1984), Conley “had no more than a few seconds in which to assess the extent, if any, of the danger, and to ascertain the most effective and least intrusive means of protecting himself.” As further stated in Sumerlin, supra at 130: “The officer could reasonably have taken into account the ‘inordinate risk confronting an officer as he approaches a person seated in an automobile.’ Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977). See Adams v. Williams, 407 U.S. 143, 148 n.3 (1972). ‘To all of these facts the officer [was] entitled to apply [his] police experience.’ Commonwealth v. Silva, 366 Mass. 402, 407 (1974).” As for ordering the men out of the truck, see and compare Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978), with Commonwealth v. Loughlin, 385 Mass. 60, 62 & n.3 (1982).
Because the defendant never put in issue Conley’s actions after he opened the truck door, we need go no further in our discussion. We conclude that in the circumstances presented, the trooper acted reasonably.
Order allowing motion to suppress reversed.
The motion judge accepted the trooper’s testimony. His ruling is based upon a conclusion of law and not a determination concerning credibility.
The sole issue in the District Court and on appeal is whether the trooper’s actions of investigating the truck and opening its door were lawful. The defendant has never made an argument concerning the search of the truck after the men were ordered from it.
Dissenting Opinion
(dissenting). In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that a frisk for weapons was legitimate as long as the “officer is justified in believing that the individual
Here, the majority concludes that the trooper was justified in opening the door because he reasonably believed that his safety was in jeopardy. Because I believe that the record before us does not support that conclusion, I respectfully dissent.
The “specific and articulable facts” upon which the trooper based his belief that his safety was in jeopardy consisted entirely of his observations of the movements of the occupants (and the fact that the interior light went off) as he approached the truck.
In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court extended Terry v. Ohio, supra, to include automobile “frisks.”
The trooper’s answers on that point are unequivocal.
“Q. Did you have any other reason to open that, open the passenger side door, other than your observation of the movements of the two passengers?
A. Yeah, at that point I was protecting myself.
Q. But the only reason that you felt the need to protect yourself was that you observed movement of the two passengers?
A. Yes; the way they reacted to my presence.”
Commonwealth v. Sumerlin, 393 Mass. 127, 129-130 (1984), relied on by the majority, is not to the contrary. In Sumerlin, the police were investigating an illegally parked automobile in a high crime area where shootings had occurred. In this case, the trooper was not investigating a crime — he was checking on the well-being of the occupants of a truck properly parked in a rest area. There is nothing in the record that shows that the trooper' was aware of any criminal activity whatsoever associated with that particular rest area.
Reference
- Full Case Name
- Commonwealth vs. Steven C. Tompert
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- 15 cases
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- Published