Nos. 20-P-125, 20-P-126.

COMMONWEALTH, vs. DENNIS Y. SAXTON (and three companion cases).

Appeals Court of Massachusetts.

August 12, 2021.


NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

The defendants, Dennis Y. Saxton and Amanda Gilbar, bring this interlocutory appeal from a District Court order denying their motions to suppress evidence and statements stemming from a motor vehicle stop. They challenge, inter alia, the legality of the exit orders and the length and scope of the stop. We affirm.


We recount the facts as the motion judge found them,2 reserving certain details for discussion, supplemented by uncontested facts in the record.3 See Commonwealth v. Cordero, 477 Mass. 237, 238 (2017). On May 9, 2015, Lieutenant Brendan Shugrue of the State police observed a black Jeep Cherokee speeding at an estimated eighty to eighty-five miles per hour in a sixty-five miles per hour speed zone on Route 91 near Springfield. Lieutenant Shugrue followed the vehicle and saw it "drift right over the lane marker, correct itself, and then move into the right lane." The vehicle's speed was now sixty to sixty-two miles per hour in a forty-five miles per hour speed zone. Lieutenant Shugrue then "activated his blue lights." Although the vehicle reduced its speed, it continued traveling for another quarter of a mile without stopping. As Lieutenant Shugrue followed the vehicle, he saw the driver look at the passenger seat area as the "front seat passenger bent down completely out of sight." The vehicle did not pull over until the passenger sat back up.

In the breakdown lane, Lieutenant Shugrue exited his cruiser and approached the passenger side of the Jeep. Saxton occupied the driver's seat and Gilbar was the front-seat passenger. A baby was in a car seat in the rear of the vehicle. Lieutenant Shugrue requested Saxton's license and Gilbar's license after she claimed ownership of the vehicle.4 Gilbar appeared to be "breathing heavily, almost to the point of hyperventilating, shaking, and twitchy." Lieutenant Shugrue "has never encountered someone so nervous in his career, aside from a man who had passed out during a traffic stop." Gilbar refused an ambulance.5 Saxton, "who was initially calm, began rocking back and forth in his seat in a nervous manner." Shugrue called for backup out of concern for officer safety.

Shugrue returned to his cruiser to check the defendants' licenses and registration. Troopers Mielke and Tudryn arrived about ten minutes after Shugrue requested assistance. As Shugrue ran the record checks and wrote a warning for speeding, Troopers Mielke and Tudryn spoke with the defendants.6 At the Jeep, Gilbar told trooper Mielke that they had left Vermont at 9:00 A.M. and then left Saxton's sister's home in Connecticut at 1:00 P.M. because they were having car trouble. When Trooper Mielke asked if they had used drugs, Saxton admitted to prescription drug use. Trooper Tudryn conducted a horizontal gaze nystagmus test (HGN test) on Saxton to "insure he was okay to drive," and "observed six clues that indicated impairment."

The troopers left the Jeep and reported to Lieutenant Shugrue that Gilbar continued to be nervous such that "she was visibly shaking" and "avoiding eye contact." All three officers returned to the Jeep. The judge found that, at this point, twenty minutes had elapsed since Lieutenant Shugrue initiated the stop. Lieutenant Shugrue verbally issued "complete and accurate" Miranda7 warnings to the defendants. "Both indicated that they understood their rights and agreed to answer questions." Lieutenant Shugrue asked if there were narcotics in the vehicle, which the defendants denied. With Gilbar's consent, Lieutenant Shugrue conducted an HGN test on her because her "constricted pupils" led him to believe she had used narcotics. Lieutenant Shugrue instructed Trooper Tudryn to give Saxton field sobriety tests (FSTs). "Saxton was ordered from the Jeep" and pat frisked for weapons due to concerns for officer safety. The assessment took five to ten minutes to complete, during which time Lieutenant Shugrue told Gilbar that "he believed there were drugs in the car; and, if she produced them, she would not be arrested." Gilbar denied the presence of drugs. Lieutenant Shugrue requested to search the vehicle, and Gilbar consented. Lieutenant Shugrue then called an officer with a drug-detection dog to the scene.

Before the canine unit arrived, Lieutenant Shugrue and Trooper Tudryn ordered Gilbar out of the vehicle8 and searched the passenger compartment of the car.9 They found empty sandwich bags, a sandwich bag containing two condoms in Gilbar's purse that she had left in the car, $1205 in cash held together by a black elastic in Saxton's wallet, and another black elastic on the driver's seat. Based on their training and experience, "Tudryn and Shugrue knew that black elastics are commonly used in the packaging of heroin and that condoms are used to hide drugs in body cavities."

Trooper Tudryn asked the defendants "about whether or not there was `body packing.'"10 Gilbar asked to speak with Saxton in private, which the troopers permitted. Saxton then produced a silver pill bottle containing a white substance that he identified as heroin. Lieutenant Shugrue confirmed that the defendants remembered their Miranda rights and the troopers seized the drugs. After the defendants again conferred in private, "they agreed to give up additional contraband." Trooper Tudryn asked Saxton "if the drugs were in Gilbar and he said yes." "Gilbar informed the officers that she had drugs on her person," and she was allowed into a cruiser "to remove the drugs." Gilbar gave Trooper Tudryn a plastic evidence bag with "two condoms containing several bags of what the defendants admitted was heroin." Lieutenant Shugrue confirmed again that the defendants remembered their Miranda rights. The troopers permitted the defendants to leave with a written warning for speeding. The roadside interaction lasted for "about [fifty] minutes" in total.

The defendants were later summonsed to court on criminal charges of possession with intent to distribute a class A substance and with conspiracy to violate a drug law. The defendants moved to suppress the physical evidence seized and the statements made during the stop. The judge denied the motion. A Single Justice of the Supreme Judicial Court allowed this interlocutory appeal of the judge's order.


1. Standard of review.

In reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error," but we "review independently the application of constitutional principles to the facts found." Cordero, 477 Mass. at 241, quoting Commonwealth v. Amado, 474 Mass. 147, 151 (2016).

2. Exit orders.

Because the defendants concede the initial traffic stop was valid,11 we first address their challenges to the troopers' exit orders.

"[A]n exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020).

Regarding Saxton's exit order, we discern no error in the judge's conclusion that the order was based on reasonable suspicion that Saxton was driving impaired.12 See Torres-Pagan, supra (exit order justified if "police have reasonable suspicion of criminal activity"). Where Lieutenant Shugrue observed the Jeep driving erratically and Saxton admitted to prescription drug use, Trooper Tudryn was warranted in conducting an HGN test to assess if Saxton was impaired. Indeed, Trooper Tudryn observed "six clues that indicated impairment." The results of the HGN test, coupled with the erratic driving and admission to prescription drug use, provided reasonable suspicion that Saxton was impaired, justifying the exit order and request that Saxton complete additional FSTs. See Commonwealth v. Blais, 428 Mass. 294, 298 (1998) ("it is appropriate for an officer with reasonable suspicion that a person is operating a vehicle while under the influence of drugs or alcohol" to administer tests to determine impairment). That additional indicia of Saxton's impairment arose after his initial exchange with Lieutenant Shugrue does not change this analysis. See Commonwealth v. Ciaramitaro, 51 Mass.App.Ct. 638, 642 (2001).

Gilbar challenges her exit order on the basis that it was illegal for Lieutenant Shugrue to request and retain her driver's license; therefore, all evidence obtained afterwards requires suppression and any consent given was "tainted." This argument is unavailing. Lieutenant Shugrue requested Gilbar's license as part of his threshold inquiry because she claimed ownership of the Jeep. See Commonwealth v. Wright, 85 Mass.App.Ct. 380, 381, 383 (2014). Contrast Commonwealth v. Washington, 459 Mass. 32, 38 (2011) ("police officer generally has no right automatically to demand identification from a passenger in a motor vehicle"). Turning to the exit order, Gilbar was ordered from the Jeep to allow for the consented-to search of the vehicle. We further note that where the vehicle did not stop despite Lieutenant Shugrue's signal to do so; the vehicle's continuation for another quarter mile; the observation of the passenger ducking out of sight; the vehicle refusing to pull over and stop until the passenger reappeared; and the extraordinary and ongoing shaking and nervousness of Gilbar, Lieutenant Shugrue had ample reason to be concerned for officer safety. The order was proper. See Torres-Pagan, 484 Mass. at 38.

3. Length and scope of stop.

The defendants next contend that the traffic stop was unreasonably prolonged and went beyond the scope of the initial stop.

"A routine traffic stop may not last longer than `reasonably necessary to effectuate the purpose of the stop.'" Cordero, 477 Mass. at 241, quoting Amado, 474 Mass. at 151. "In order to expand the threshold inquiry of a routine traffic stop, an officer must have a reasonable suspicion, based on specific and articulable facts, that criminal conduct is afoot." Wright, 85 Mass. App. Ct. at 383.

As delineated, supra, Lieutenant Shugrue observed the Jeep speeding and drifting over the marked lanes and made a valid traffic stop. Lieutenant Shugrue's observations of erratic driving, furtive movement, extreme nervousness from Gilbar and apparent nervous behavior from Saxton,13 and where he was outnumbered, warranted him to call for backup out of concern for officer safety. Cf. Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 349-350 (2010). Troopers Tudryn and Mielke arrived and spoke with the defendants while Lieutenant Shugrue conducted routine tasks associated with the traffic stop. Calling for backup and the presence of backup did not unreasonably prolong or exceed the scope of the stop. Cf. Commonwealth v. Buckley, 478 Mass. 861, 873-874 (2018). Moreover, these facts, combined with Saxton's admission of prescription drug use and the subsequent results of his HGN test, supported expanding the scope of the stop to investigate whether Saxton was driving impaired. See Wright, 85 Mass. App. Ct. at 384. See also Blais, 428 Mass. at 297-298.

Contrary to the defendants' claim that there was no basis to investigate narcotics-related crimes, the consented-to search of the vehicle led to additional facts — including the presence of black rubber bands and condoms — that, when viewed in conjunction with the defendants' nervousness and Gilbar's furtive movements, provided reasonable suspicion of drug possession and possible "body packing." This permitted the troopers to expand their investigation further.14 See Wright, 85 Mass. App. Ct. at 384. Where the troopers had reasonable suspicion to investigate Saxton's impaired driving and the defendants' possession of contraband, the length and scope of the stop was proper.15 Contrary to Saxton's argument, the detention of the defendants during the troopers' investigation was reasonable and proportionate to the changing nature of the stop, and it did not amount to an arrest-in-fact. See Commonwealth v. Sinforoso, 434 Mass. 320, 325-326 (2001).

4. Additional issues.

Saxton argues that the judge should have suppressed his statements as a "product of undue coercion." Although Saxton averred that his statements were involuntary in his affidavit accompanying his motion to suppress, on the record before us, his arguments to the judge focused on the distinct issue of the voluntariness of his Miranda waiver. Saxton's argument regarding the voluntariness of his statements is therefore waived.16 See Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011) ("At a suppression hearing, a defendant's statement initially is presumed to be voluntary, placing the burden on the defendant to produce evidence tending to show otherwise").

Gilbar contends that her consent to search the car and to perform "a self-imposed body-cavity search" was involuntary because the seizure of her driver's license was illegal, and the troopers' used "coercive tactics."17 Because we conclude that it was permissible for Shugrue to request Gilbar's license, see supra, we address whether Gilbar's consent was voluntary. "As with all warrantless searches, the Commonwealth bears the burden of proof that consent was `freely and voluntarily given.'" Buckley, 478 Mass. at 875, quoting Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995). Voluntariness of consent is a question of fact, and, as a question of fact, "it should not be reversed absent clear error by the judge." Buckley, supra, quoting Commonwealth v. Gray, 465 Mass. 330, 343, cert. denied, 571 U.S. 1014 (2013).

Here, Shugrue gave Miranda warnings prior to requesting to search the vehicle. Gilbar confirmed she understood and agreed to answer questions. We note that Gilbar had prior police experience. While Lieutenant Shugrue conducted an HGN test on Gilbar, the record does not indicate that Gilbar was so impaired as to vitiate her consent. When Lieutenant Shugrue then asked if he could search the vehicle, Gilbar — the owner of the Jeep — agreed. Although the judge concluded she was in custody at the time she gave her consent, that does not preclude her consent from being voluntary. See, e.g., Commonwealth v. Kipp, 57 Mass.App.Ct. 629, 635 (2003). While Lieutenant Shugrue told Gilbar that if she produced the drugs she would not be arrested, we discern no error in the judge's determination that this was not unlawful coercion. Compare Commonwealth v. Carr, 458 Mass. 295, 302-303 (2010) ("an objective person would not have felt able to refuse the officer's request"). In addition, there is no evidence that the troopers coerced Gilbar into performing a "self-imposed body search." To the contrary, it was only after the defendants spoke in private that Gilbar volunteered that she possessed additional drugs and agreed to remove them from her person.18

Orders denying motions to suppress affirmed.


1. One against Dennis Y. Saxton and two against Amanda Gilbar.
19. The panelists are listed in order of seniority.
2. We acknowledge the judge's comprehensive memorandum and order on the defendants' motions to suppress.
3. Due to a technical error, the transcript of the motion hearing was unavailable. The defendants and the Commonwealth submitted a joint agreed statement of facts. See Mass. R. A. P. 8(c) & (d), as appearing in 481 Mass. 1611 (2019).
4. The defendants produced New Hampshire licenses and Gilbar provided a Vermont registration. They stated that they lived in Vermont.
5. In view of Gilbar's continued heavy breathing and extreme nervousness, the troopers asked her two more times if she needed an ambulance. Although she stated that she had asthma, she refused each offer.
6. Shugrue determined that the licenses and the registration were valid and that the defendants both had criminal records. The judge found that out-of-state record checks take more time to complete than in-state record checks.
7. See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).
8. Gilbar was not patfrisked.
9. The canine unit arrived ten minutes after Lieutenant Shugrue's call, approximately forty minutes after the initial stop. The dog "exhibited no positive reaction for the presence of contraband" in its "sniff search" of the Jeep.
10. The judge inferred that "`body packing' is the practice of hiding drugs inside a person's orifice(s)".
11. Gilbar asserts in her reply brief that this was a pretextual stop. We decline to address this argument where it was not raised in her pretrial motion to suppress or elsewhere on the record before us, and the record is not adequately developed to address this claim. See Commonwealth v. Santos, 95 Mass.App.Ct. 791, 797-798 (2019).
12. Saxton does not challenge the patfrisk.
13. Although nervousness cannot alone support a finding of reasonable suspicion, see Cordero, 477 Mass. at 243-244, it was one of several articulable facts apparent here. See Wright, 85 Mass. App. Ct. at 384.
14. We agree with the judge that these facts gave rise to reasonable suspicion supporting the canine unit's search and that the request for a drug-detection dog did not "unreasonably delay" the stop where the canine unit arrived within ten minutes of the request, during which time Lieutenant Shugrue and Trooper Tudryn searched the vehicle. See Wright, 85 Mass. App. Ct. at 384.
15. This case is unlike cases in which this court and the Supreme Judicial Court have held that the continued detention of a vehicle's occupants went beyond the scope permitted. See, e.g., Cordero, 477 Mass. at 243-247; Commonwealth v. Torres, 424 Mass. 153, 162-163 (1997); Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 556-557 (1996). Here, the myriad facts known to the troopers — e.g., the furtive movement, extreme nervous behavior, indicia of impairment, and presence of black rubber bands and condoms — permitted the troopers to expand the scope of the stop. See Wright, 85 Mass. App. Ct. at 384.
16. Regardless, the argument is unavailing. Lieutenant Shugrue gave "complete and accurate" Miranda warnings prior to Saxton's field sobriety tests and reminded the defendants of those warnings twice more. Each time, Saxton confirmed that he understood. We note that Saxton's prior convictions demonstrate he had experience with law enforcement and that, before he made statements regarding drug possession, he spoke in private with Gilbar. Although Lieutenant Shugrue told Gilbar that she would not be arrested if she cooperated, this did not amount to an offer of leniency that would affect the voluntariness of Saxton's statements. See Commonwealth v. Tolan, 453 Mass. 634, 643 (2009). Furthermore, contrary to the defendants' claims, there is nothing in the record to suggest that the troopers made any references to the defendants' child. Contrast Commonwealth v. Monroe, 472 Mass. 461, 469 (2015). Finally, while there was evidence of Saxton's impairment; the record does not suggest, and he does not argue, that he was so impaired as to make his statements involuntary. The totality of the circumstances demonstrates that Saxton's statements were voluntary. See Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011). Saxton also argues that the judge erred in considering only whether his impairment invalidated the Miranda waivers. For the reasons discussed supra, we conclude that the Miranda waivers were voluntary. See Commonwealth v. Williams, 486 Mass. 646, 659 (2021) (test for voluntariness of Miranda wavier and voluntariness of particular statement made during custodial interrogation is "essentially the same" [citation omitted]). See also Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate court may affirm on different grounds provided record supports basis for affirmance).
17. Gilbar also argues that Lieutenant Shugrue's initial inquiries when he stopped the vehicle went beyond the scope of the stop and that Troopers Mielke and Tudryn should have provided Miranda warnings prior to their initial conversation with her. We agree with the judge that, prior to the first set of Miranda warnings, the troopers' questioning was proper for the purposes of fact finding and did not require Miranda warnings. See Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007).
18. To the extent that we have not specifically addressed any subsidiary arguments in the parties' briefs, they have been considered, and do not warrant further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


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