PAX Centurion - September / October 2013

Page 32 • PAX CENTURION • September/October 2013 617-989-BPPA (2772) proper, how are you supposed to make split second decisions when you are out on the street by yourself? The facts of Rosado are as follows: At 1:55 a.m., a trooper on “drunk driving” patrol in Holyoke saw a vehicle without a front license plate. The car had “red plates” and, by law, was supposed to have both a front and back plate. The trooper also noticed that the rear plate light was out. He activated his lights and siren and made a motor vehicle stop, after which the driver ducked his head down momen- tarily before bringing his head back up. The trooper put the spot light from his unmarked cruiser on the operator’s vehicle and approached. When the trooper got to the driver’s side door, the operator told the trooper he knew he was stopped because he did not have an inspection sticker, telling the trooper he had been stopped earlier that day for the same infraction. The trooper noticed the front license plate was actu- ally on the driver’s side dashboard by the windshield. As the operator reached toward the glove box to get his registration, the trooper noticed a wooden or leather handle between the driver’s door and the driver’s seat. The trooper was admittedly not sure what this handle was to, but he believed it was part of nunchucks, a dangerous weapon per se under G.L. c. 269, §10(b). The trooper then twice told the operator to put his hands on the steering wheel before the operator complied, after which the trooper opened the driver’s door to retrieve what he suspected were nunchucks. While the trooper opened the door, the operator took his right off of the steering wheel and reached toward his right hip. The trooper determined that what he believed were nunchucks was actually a bull whip which he removed and placed onto the roof of the car. He then ordered the operator to get out of the car while physically holding his left upper arm and left wrist in an “escort” hold. Once the operator was out of the motor vehicle, he again tried to reach toward his right hip with his right hand. After the suspect reached for his right hip a second time, the trooper twice told the suspect to put his right hand on top of his head. The operator then tensed up his body and, after a bit of effort, the suspect was handcuffed. The suspect then again reached for his right side and the trooper saw him holding something in his cupped right hand. The trooper ordered him to drop the item and the suspect then dropped eight packets of heroin wrapped in a rubber band. The suspect was then arrested for possession of a Class A substance (heroin). A search of the vehicle revealed two vials of Lidocaine (a cutting agent for cocaine), eighty packets of heroin, fifty pirated DVDs, and $1,950 in cash. In analyzing the trooper’s actions, the Massachusetts Appeals Court noted that not only are these search and seizure cases fact intensive and time dependent, but they are also interconnected and dynamic (whatever that means). To justify their actions, a police officer needs to point to some fact or facts in the totality of the circumstances that would create a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner. Taking the trooper’s actions from the beginning, the majority decision noted that the stop of the vehicle itself was proper as there was a civil motor vehicle infraction includ- ing the missing front license plate and the non-illuminated rear plate. When the trooper saw what he suspected were nunchucks -- a pro- hibited dangerous weapon, as well as something that posed a safety threat to the officer -- he did not need to inquire about the item before opening the door and removing it himself. Although the trooper was not sure if the item (which turned out to be a bull whip) was in fact nunchucks, this uncertainty was not controlling. The standard was reasonable suspicion and not certainty. The majority of the Massachusetts Appeals Court also held that the trooper did not need to end his investigation when he found the item was a bull whip and not nunchucks. During this time, the sus- pect had pulled his hands off of the steering and had reached toward his hip which justified the trooper in taking him out of the car. It was found that the trooper’s actions of placing his hands on the suspect’s left arm to remove him from the car was not disproportionate to the potential risk, and asking the defendant to place his right hand on the top of his head was also found to be proportionate to the risk faced by the trooper. Similarly, the majority held that the trooper was justified in handcuffing the operator for his safety when ascertaining if he had a weapon, “a reasonable and proportional measure” given the facts faced by the trooper. Finally, it was proper for the trooper to order the suspect to drop the item he had in his right hand. This, of course, justified the arrest which justified the search of the vehicle. As I have told you, the third justice from the Massachusetts Appeals Court saw things differently. Without being reasonably certain that the item between the driver’s side door and the driver was nunchucks, the dissenting justice found “the arresting officer lacked reasonable grounds (1) to open the car door, (2) to remove the defendant from the car, and (3) to handcuff and search him outside of the vehicle. At each stage he violated a constitutional standard. Any one of the violations requires suppression of the resulting evidence.” Id . at 217. In a nutshell, the dissenting judge found that since the trooper did not know specifically what the item was between the driver’s seat and the door, he should have issued a citation to the operator and let the operator leave. There was no basis for ordering/taking the operator out of the vehicle, and once the bull whip was located and placed on the roof of the vehicle, there was no threat justifying any further investigation and no danger that warranted taking the operator out of the car. Although the trooper testified that the discovery of the bull whip “heightened my concern that in the area of Holyoke you probably do not raise oxen or drive bull,” the dissenting judge felt a citation should have been issued and that should have been the end of the story. Where does this leave you? As seen above, when four judges cannot agree on the propriety of the actions at a car stop that occurred at 1:55 a.m., the choices you face in similar situations are not easily discernable.You have to rely on your training, your instincts, and your desire to go home safely at the end of the shift. Things move quickly and, as was seen this sum- mer, your job is both unpredictable and dangerous. Try to learn from the lessons of others, watch out for each other, and do your best to stay safe out there. Split second decisions that will be Monday morning quarterbacked From Split Second on page 31 Attention To all members of the Boston Police Relief Association – Active Duty or Retired If you need to change your beneficiary or you are not sure of who your beneficiary is you can con- tact the relief office at 617-364-9565. If you leave a message your call will be returned and if necessary the paperwork will be sent out to you. Thank you. – William F. Carroll, Clerk, Boston Police Relief Association