Commonwealth v. Nunez
Commonwealth v. Nunez
Opinion of the Court
At issue is the propriety of a direction, given by a Boston police officer to a passenger in a motor vehicle, to step out of the vehicle after it had been stopped for an infraction.
Facts. We summarize the findings of the motion judge.
While on patrol, the officers observed two cars, side by side, at the stoplight at Columbus Avenue. When the traffic signal turned green, the cars accelerated to a high rate of speed and emitted loud noises from their mufflers. Officer Cutroneo drove alongside the cars and activated the lights and siren on his cruiser, pulling the cars over to the side of the road. When the cars had stopped, Officer Cutroneo parked his cruiser in front of them. The officers got out of the cmiser and instructed both drivers to turn off their cars.
The defendant was a front seat passenger in one of the two cars. Officer McCarthy approached the driver’s side of that vehicle, and Officer Cutroneo approached the passenger’s side.
Officer Cutroneo again directed the defendant to remove his hand from his pocket. When the defendant again complied with that request, Officer Cutroneo instructed him to step out of the car. As the defendant did so, Officer Cutroneo saw a partially smoked marijuana cigarette on the floor of the car and asked the defendant if the cigarette was his; the defendant responded that it was. Officer Cutroneo then conducted a patfrisk of the defendant and found a firearm in the right front pocket of the defendant’s pants. The officer then placed the defendant under arrest.
Discussion. The sole question before us is the propriety of Officer Cutroneo’s order to the defendant to step out of the vehicle.
The defendant argues that any legitimate safety concern subsided when he complied with Officer Cutroneo’s second command to remove his hand from his pocket. However, “the justification for an exit order does not depend on the presence of an ‘immediate threat’ at the precise moment of the order, but rather on the safety concerns raised by the entire circumstances of the encounter.” Commonwealth v. Stampley, 437 Mass. 323, 328 (2002). In the present case, as in Stampley, the encounter was ongoing, and the safety concerns prompted by the defendant’s return of his hand to his pocket after being directed not to do so could not be avoided merely by terminating the stop. See Stampley, supra at 329. “The Constitution does not require officers ‘to gamble with their personal safety.’ ” Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), quoting from Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). Officer Cutroneo could well have believed that he could monitor the defendant’s movements more effectively by removing him from the car, rather than having him remain seated in the car. The
So ordered.
No issue is raised concerning the propriety of the stop.
A single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to appeal the order. Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The single justice reported the case to the Appeals Court.
The findings of the motion judge are particularly clear, thorough, and detailed, and neither party asserts any error in them. Though we reach a different conclusion concerning the application of constitutional principles to the facts as found, see Commonwealth v. Mercado, 422 Mass. 367, 369 (1996), we acknowledge and appreciate the care evident in the judge’s findings.
Officer Joyce and Detective Collins approached the other vehicle.
As noted above, see note 1, supra, no issue has been raised concerning the propriety of the stop. In addition, upon Officer Cutroneo’s observation of the marijuana cigarette on the floor of the car and the defendant’s acknowledgment that the cigarette was his, the officer had probable cause to arrest the defendant, and the ensuing patfrisk was justified as a search incident to an arrest. Officer Cutroneo’s observation of the marijuana cigarette, however, occurred during the defendant’s compliance with the exit order and, accordingly, cannot support the subsequent search if the exit order was unjustified.
The judge’s findings do not describe the basis for Officer McCarthy’s initial warning to “watch out” for the passenger’s hands. Without an indication in the findings that the warning had a reasonable basis in fact, we place no reliance on it in assessing the reasonableness of Officer Cutroneo’s fear for his safety. However, Officer McCarthy’s warning at a minimum explains how Officer Cutroneo’s attention was drawn to the defendant’s hands.
The defendant attempts to minimize the significance of his violation of Officer Cutroneo’s direction to keep his hands in view, suggesting that Officer Cutroneo’s initial directive (not to move and to keep his hands in view) was internally inconsistent and could have confused the defendant. The argument is unpersuasive. If the defendant believed he was to remain motionless, he would not have removed his hand from his pocket initially, and we see nothing particularly confusing or ambiguous about the officer’s instruction to the defendant to keep his hands in view. In any event, the question is not whether the defendant could reasonably have believed he was permitted to return his hands to his pockets, but whether Officer Cutroneo could reasonably have believed the defendant’s actions in doing so posed a risk of danger.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.