MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
After Lawrence police officer Timothy Dube stopped a vehicle operated by defendant Jose Santos and issued an exit order to Santos and his passenger, defendant Anderson Garcia, Dube discovered a loaded firearm on the floor of the front passenger seat of the vehicle. Both defendants were charged with carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n), among other offenses.2 The defendants filed motions to suppress, contending that the exit order was not justified and that Dube had exceeded the permissible scope of the stop. Following an evidentiary hearing at which Dube was the only witness, a judge in the District Court allowed the motion. The Commonwealth obtained permission for an interlocutory appeal and the case was reported to us by a Single Justice of the Supreme Judicial Court. See G. L. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). For the reasons that follow, we reverse the order allowing the motion to suppress.
Dube was on routine patrol at about 5:15 A.M., on November 30, 2014, when he observed a motor vehicle with its lights off stopped in the middle of the travel lane on Saunders Street in Lawrence. Dube saw that the occupants were talking to an individual in another vehicle parked on the street. When Dube pulled up behind the car, it slowly drove away. The driver, later identified as Santos, made a turn without signaling. Dube activated his lights and siren and stopped the car without incident. As he parked his cruiser behind the vehicle, Dube "observed the occupants . . . moving quite a bit in the passenger compartment." He saw Santos's head disappear down and toward the passenger side of the vehicle several times. Dube, an experienced police officer, testified that the movements were unexpected and not consistent with reaching over to the glove compartment to retrieve a license or registration. Dube became "a little concerned for [his] safety" and radioed for backup. Once another officer arrived, Dube ordered Santos and Garcia out of the car. The defendants were pat frisked and taken to the rear of their vehicle. Dube returned to the passenger door and, with his flash light, observed the handle of a handgun protruding from under the passenger seat. Dube seized the firearm, which was loaded, and determined that neither defendant possessed a license to carry a loaded firearm.
The judge concluded that the stop was lawful based upon Dube's observation of motor vehicle infractions, but that the exit order was not justified because there was insufficient evidence to suggest "that the [d]efendants had committed or were in the process of committing a crime." While he credited Dube's observations of "movement on the part of the occupants at the time of the stop," the judge found no basis for Dube to be concerned for his safety and held that "any safety concerns on the part of Officer Dube were mitigated by the backup provided by his fellow officer." The judge concluded that the exit order exceeded the scope of the stop, and he allowed the motion to suppress.
"In reviewing a decision on a motion to suppress, `we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [his] ultimate findings and conclusions of law.'" Commonwealth v. Ramos, 470 Mass. 740, 742 (2015), quoting from Commonwealth v. Colon, 449 Mass. 207, 214 (2007), cert. denied, 552 U.S. 1079 (2007). Because the Commonwealth does not challenge the judge's factual findings, we focus on his ultimate conclusion that the exit order was not justified.
There is no question that Dube could stop the vehicle on the basis of traffic violations he observed. See G. L. c. 90C, § 2. But, before he could order the defendants out of the car, Dube "must have [had] a reasonable belief that [his] safety or the safety of others [wa]s in danger."4 Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). In deciding whether Dube's belief was reasonable, "we ask `whether a reasonably prudent man in the policeman's position would be warranted' in such a belief." Commownealth v. Torres, 433 Mass. 669, 673 (2001), quoting from Commonwealth v. Vazquez, 426 Mass. 99, 103 (1997).
Dube testified that the defendants repeatedly ducked down and moved toward the passenger seat floor area in a manner not consistent with reaching for a license or registration. "Numerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop." Commonwealth v. Stampley, 437 Mass. 323, 327 (2002), and cases cited. The fact that there were two occupants "is relevant on the issue of the increased threat of danger to the officer," Commonwealth v. Sumerlin, 393 Mass. 127, 131 (1984), and the fact that Dube, an experienced police officer, called and waited for backup before approaching the vehicle supports a conclusion that he issued the exit order because of "the safety concerns raised by the entire circumstances of the encounter," Stampley, supra at 328, and not on the basis of "a mere hunch," Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). See Stampley, supra at 330 ("A measured response gauged to the precise unfolding of the encounter, rather than hasty reaction to the first ambiguous suggestion of possible trouble, is the hallmark of reasonableness on the part of officers conducting a stop"). "[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns," Gonzalves, supra, and, on the facts found by the judge, we conclude that Dube's concern for his safety was reasonable.
Once the defendants were removed from the vehicle and no contraband was discovered on their persons, Dube could return to the vehicle in search of objects "within reach of the two men in the car[.]" Sumerlin, supra at 130. His seizure of the handgun was "constitutionally valid," because it came into plain view as Dube shown his flashlight into the front passenger seat area. Commonwealth v. Silva, 366 Mass. 402, 409-410 (1974). Accordingly, the motion to suppress should have been denied.
The order allowing the motion to suppress is reversed and a new order is to enter denying the motion.