U.S. v. STARKS

301 F.Supp.2d 76 (2004) | Cited 2 times | D. Massachusetts | February 2, 2004

MEMORANDUM AND ORDER CONCERNING MOTION TO SUPPRESS

Defendant Michael Starks, accused of being a felon in possession of afirearm, moves to suppress the firearm and ammunition seized by policefollowing a pat frisk of him on January 31, 2003. I find that the seizurewas not supported by reasonable suspicion that Starks was engaged incriminal activity, and will allow the motion to suppress on grounds thatthe seizure violated the Fourth Amendment.

I. BACKGROUND

A. Findings of Fact

In the early morning hours of January 21, 2003, Starks was a passengerin a black Jeep Grand Cherokee driven by Wanda Crosby in Brockton,Massachusetts. Brockton police officers Andrew Kalp and John Leary weremonitoring traffic at that time from the parking lot of a strip mall onWestgate Drive in Brockton. Among Brockton police, this general area ofBrockton is well known as an area for drug trafficking.Page 2

Approximately fifty feet from the police cruiser was an entrance toWestgate Drive Extension, formerly known as Holiday Inn Drive, a roughlysemicircular access road that serves a Holiday Inn and is connected atboth ends to Westgate Drive.

At approximately 3:30 AM, Officer Kalp observed the black Jeep; whetherit was on Westgate Drive proper or the access road, he does not recall.Soon after initially observing the Jeep, Officer Kalp noticed that therear license plate light was not illuminated; when he observed this, theJeep was on the access road, heading towards the Holiday Inn. OfficerKalp decided to stop the vehicle for a violation of Mass. Gen. Laws ch.90, § 6.1

The officers pulled the Jeep over in the Holiday Inn parking lot infront of the entrance to the hotel. Officer Kalp approached the driver'sside of the Jeep and Officer Leary approached the passenger's side.Officer Kalp asked for (and received) Crosby's license and registration.Officer Leary asked for Starks' identification; Starks, who apparentlydid not hold a driver's license, gave him a Massachusetts stateidentification card. The officers then returned to their cruiser. Starkswas neither instructed to remain in the vehicle, nor informed that hecould leave. Back in the police cruiser, Officer Kalp checked the statusof Crosby's license via the mobile data terminal. ThePage 3computer check revealed that Crosby's license was suspended.2

The officers then returned to the Jeep, with Officer Kalp againapproaching the driver's side and Officer Leary the passenger's side.Officer Kalp asked Crosby to exit the car. Starks, meanwhile, asked Learyfor his identification back; Officer Leary told him to wait in the Jeep.The officers then returned to the police cruiser, this time with Crosby.

Inside the cruiser, Officer Kalp informed Crosby that he would issueher a citation for operating with a suspended driver's license and adefective rear license plate light, and that she would be free to leaveonce he had issued the citation. Although it was not expressed in therecord, apparently Officer Kalp intended that she would have to arrangefor a licensed driver to remove the car.

While he was writing the ticket, or shortly afterwards, a conversationensued, and it somehow emerged that Crosby had a pending drug traffickingcase. This pending case, combined with the general reputation of the areafor drug trafficking and the early morning hour, aroused Officer Kalp'ssuspicion. He asked for consent to search the Jeep, and Crosby consented.

The officers again approached the Jeep so that Officer Kalp couldsearch it.3 Officer Leary decided to conduct a pat friskPage 4of Starks, based on Crosby's drug arrest, the time of day, and hisconcern for safety during Kalp's impending search of the vehicle,particularly on the assumption that drugs and weapons often go together.Officer Leary stood directly in front of the Jeep's passenger door andtold Starks to step outside.

Starks exited the vehicle, coming very close to Officer Leary, whostood in front of the door. Officer Leary then reached out and placed hishand on Starks, who said words to the effect of, "I gave you my I.D., whydo you have to search me?" Officer Leary told Starks that because oftheir close proximity, he wanted to ensure that Starks was not carrying aweapon. Leary then attempted again to frisk Starks, who backed awaytowards the rear of the vehicle and raised his hands in an open-handedgesture of surrender, to indicate that he was not carrying a weapon.

Officer Kalp then came around from the driver's side of the vehicle.The two officers grabbed Starks' arms and pinned him against the Jeep,where Leary frisked him. Leary felt the butt of a gun, and removed aloaded Clock. 40 caliber pistol from Starks' waistband. The record doesnot reflect whether the search of the car yielded any contraband or otherevidence of a crime.

B. Procedural History

On April 10, 2003, over two months after the encounter in the HolidayInn parking lot, an agent of the Bureau of Alcohol, Tobacco, and Firearmsswore out a criminal complaint againstPage 5Starks, alleging that Starks was a felon in possession of a firearm inand affecting interstate commerce, in violation of18 U.S.C. § 922(g)(1). On May 28, 2003 the grand jury indicted Starkson that charge.

On October 20, 2003 Starks moved to suppress all evidence derived from,and fruits of, the January 31 search, on the grounds that the police hadneither a warrant, probable cause, nor reasonable suspicion to searchhim. An evidentiary hearing was conducted on November 19, 2003, duringwhich Starks, Kalp, and Leary testified, and during which Starks moved tosuppress on the additional ground that the initial traffic stop wasimproper because Westgate Drive Extension is not a "way" within themeaning of Mass. Gen. Laws ch. 90, § 6.

I ordered the parties to submit additional briefs concerning the "way"question, and the authority of police officers to conduct a pat frisk ofan individual present during the course of a consent search. A finalhearing was conducted on January 28, 2004.

II. DISCUSSION

Starks moves to suppress the evidence obtained from the frisk, andidentifies three separate points in time when the officers allegedlyviolated the Fourth Amendment to the United States Constitution.4Stated chronologically for purpose ofPage 6clarity, those three grounds are: (1) that the traffic stop itselfwas an unconstitutional seizure, because the officers did not haveprobable cause to believe a traffic violation had occurred, sinceWestgate Drive Extension is not a "way" within the meaning of Mass. Gen.Laws ch. 90, § 6; (2) that even assuming the validity of the stop,the officers' temporary detention of Starks was (or, after Officer Kalpissued Crosby's citation, became) an unconstitutional seizure, becausethe officers lacked any particular reasonable suspicion that Starks wascarrying contraband or a weapon; and (3) that even assuming the validityof Starks' detention, the frisk was an unconstitutional search. I willaddress these arguments in turn.

A. The Traffic Stop

Starks first argues that the stop was invalid because the officers didnot have probable cause to believe that a traffic violation hadoccurred. "As a general matter, the decision to stop an automobile isreasonable where the police have probable cause to believe that a trafficviolation has occurred." Whren v. United States, 517 U.S. 806, 810(1996). Indeed, the police may stop a vehicle on less than probablecause; an investigative stop can be justified by "a reasonable andarticulable suspicion of criminal activity." United States v. Chhien,266 F.3d 1, 6Page 7(1st Cir. 2001). However, without reasonable suspicion, the stop isunlawful. See, e.g., United States v. Johnson, 256 F.3d 214, 216-17 (4thCir. 2001) (stop was unlawful, where officer had no reasonable suspicionto believe that car with Georgia license plate was subject to SouthCarolina "window tinting" law, which only applied to cars required to beregistered in South Carolina); United States v. Freeman, 209 F.3d 464,466 (6th Cir. 2000) (stop was unlawful because officer, having observed"one isolated incident of a large motor home partially weaving into theemergency lane for a few feet and an instant in time," lacked probablecause to believe that it had violated statute required vehicle to be"driven as nearly as practicable entirely within a single lane").

Even an officer's good-faith belief that a law has been violated isinsufficient if the officer has misunderstood the law. See United Statesv. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000) (where an officer thoughtthat Michigan required cars to have two license plates, but it indeedonly required one, a stop based on the two-plate theory was not based onreasonable suspicion); United States v. Lopez-Valdez, 178 F.3d 282, 288(5th Cir. 1999) (stop was unlawful where state trooper had good-faith buterroneous belief that vehicle's broken taillight violated Texas law)."[T]he officer need not perfectly understand the law when he stops thevehicle, [but] his observation must give him an objective basis tobelieve that the vehicle violates the law." Twilley, 222 F.3d at 1096.Page 8

Here, driving without an illuminated license plate is a trafficviolation when the vehicle is "operated in or on any way in [the]commonwealth." Mass. Gen. Laws ch. 90, § 6. Thus, if Westgate DriveExtension is not, in fact, a "way," then the Jeep would not have violatedthe statute. In Chapter 90, Massachusetts has defined a "way" as "anypublic highway, private way laid out under authority of statute, waydedicated to public use, or way under the control of park commissionersor body having like powers." Id. ch. 90, § 1. Officer Kalp does notrecall where the Jeep was when he first saw it. (Tr. 18) However, it wasabout a quarter of the way up the access road when he noticed that it hada defective plate light. (Id.) Thus, Starks argues, Officer Kalp onlyobserved it on Westgate Drive Extension, which Starks contends is not a"way," and therefore there was no violation.

The government presents the affidavit of Howard Newton, Superintendentof Engineering for the City of Brockton, who avers that Westgate DriveExtension, though a "private way," is in fact "dedicated to public use."(Newton Aff., Doc. 32, ¶ 3.) I need not explore the precisedefinition of "way" for purposes of § 6 or determine if a "privateway" may also be a "way dedicated for public use" under the statutebecause, even if Westgate Drive Extension is not a "way" for purposes ofthe license plate illumination law, it is undisputed that Westgate Driveitself is a public way. Based on the fact that the Jeep was observeddriving with a defective license plate light just a quarter ofPage 9the distance from the intersection of Westgate Drive, Officer Kalpcould reasonably have inferred that the light had not suddenly failedwhen the Jeep had turned onto the access road, but rather had beendefective all along.5 I find that Officer Kalp had reasonablesuspicion, and in fact probable cause, to believe that a trafficviolation had occurred.

B. The detention of Starks

Starks next argues that, even if the stop was justified, his detentionwas not. Starks was "seized" within the meaning of the Fourth Amendmentbecause the police took his identification and ordered him to remain inthe car. (Tr. 61-62) "Temporary detention of individuals during the stopof an automobile by the police, even if only for a brief period and for alimited purpose, constitutes a `seizure' of `persons'" under the FourthAmendment. Whren, 517 U.S. at 809-10. Furthermore, the officers had noparticularized reasonable suspicion that Starks was carrying contraband ora weapon. Indeed, he had not acted in a suspicious manner, and neitherofficer believed he was armed or dangerous. (Tr. 28, 50)

The validity of Starks' detention may be analyzed in two discrete timeperiods: whether the detention was valid at the outset, and whether, evenif the detention was initially valid,Page 10it remained valid after Crosby's citation had been completed.

Whether an officer may detain a passenger during a traffic stop is anopen question. It is settled that "an officer making a traffic stop mayorder passengers to get out of the car pending completion of the stop."Maryland v. Wilson, 519 U.S. 408, 415 (1997). This is justified byconcerns for officer safety. However, the Supreme Court "express[ed] noopinion" on whether "an officer may forcibly detain a passenger for theentire duration of the stop." Id. at 415 n.3. The First Circuit has heldthat an officer may order the driver to remain in the vehicle while heinvestigates the passenger outside. See United States v. Sowers,136 F.3d 24, 28 (1st Cir. 1998). While neither the Supreme Court nor theFirst Circuit has reached the mirror case, such as that presented here,the Third Circuit has, and has concluded that an officer may order apassenger to remain in the car with hands raised. United States v.Moorefield, 111 F.3d 10, 13 (3d Cir. 1997).

In general, the trend in the Supreme Court's jurisprudence has been totreat drivers and passengers alike for Fourth Amendment purposes in thecontext of a traffic stop. For example, Wilson relied heavily onPennsylvania v. Mimms, 434 U.S. 106 (1977), in which the Court had ruledthat the Fourth Amendment was not offended by an officer's order to adriver to exit the vehicle. The Wilson Court recognized that the sameofficer safety and personal liberty concerns apply to passengers asdrivers and therefore extended the rule of Mimms toPage 11passengers. See Wilson, 519 U.S. at 413-15. For this reason, I hold thatan officer may, consistent with the Fourth Amendment, detain a passengerduring a traffic stop, even without particularized reasonable suspicionthat the passenger has committed any crime.

That said, the authority of the police to detain even the driver islimited to the time "pending completion of the stop." Wilson, 519 U.S. at415. "[A] Fourth Amendment violation occurs when the detention extendsbeyond the valid reason for the stop. Once a computer check is completedand the officer either issues a citation or determines that no citationshould be issued, the detention should end and the driver should be freeto leave." United States v. Santiago, 310 F.3d 336, 341-42 (5th Cir.2002); United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) ("Once thepurposes of the initial traffic stop were completed, there is no doubtthat the officer could not further detain the vehicle or its occupantsunless something that occurred during the traffic stop generated thenecessary reasonable suspicion to justify a further detention."); UnitedStates v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994) ("When the driverhas produced a valid license and proof that he is entitled to operate thecar, he must be allowed to proceed on his way, without being subject tofurther delay by police for additional questioning. . . .[unless] duringthe course of the traffic stop the officer acquires an objectivelyreasonable and articulable suspicion that the driver is engaged inillegal activity," or the driver consents).Page 12

Here, the purpose of the stop was completed once Officer Kalp issuedCrosby's citation. See United States v. Beck, 140 F.3d 1129, 1136 (8thCir. 1998) (purpose of stop completed once officer completed license andcriminal history check on driver, and gave him oral warning for followingtoo closely). The only new information that the officers gained, andwhich, they asserted, warranted further investigation, was Crosby'spending drug trafficking case followed by Crosby's consent to the searchof the automobile. But this does not justify further detention ofCrosby, let alone Starks. Cf. United States v. Garcia, 23 F.3d 1331,1335-36 (8th Cir. 1994) (after initial stop had ended, officer learnedthat passenger had been arrested for a firearms violation, and called inbackup to stop vehicle again; second stop violated the Fourth Amendmentbecause subsequent information about arrest did not create reasonablesuspicion). Indeed, even after learning of this pending traffickingcase, Officer Kalp informed Crosby that she would be "free to leave once[he] had issued her the citation."6 (Tr. 25)

Starks' continued detention might have been justified if the officershad developed a reasonable suspicion that he himself was armed orcarrying contraband. However, no such reasonable suspicion was developed.While the officers did not preciselyPage 13articulate a basis for the continued detention distinct from OfficerLeary's proffered basis for the frisk, I will assume that the sameconcerns motivated the continued detention.7 Even assuming that thoseconcerns — the early morning hour, the location known for drugactivity, and Crosby's pending drug trafficking case — couldgenerate new reasonable suspicion as to Crosby, they could not constitutereasonable suspicion as to Starks.

Starks had not acted suspiciously during the stop; neither officertestified that he suspected that Starks might be armed; and Officer Kalpeven agreed that "there was no reason to keep him there." (Tr. 28,44-45, 50, 55-56.) The fact that he was in a car with Crosby did nottaint Starks with reasonable suspicion. Reasonable suspicion does notarise even if the defendant is observed talking to "known narcoticsaddicts" over an eight-hour period. Sibron v. New York, 392 U.S. 40, 64(1968) (decided the same day as Terry). Nor does it arise where adefendant, who has a prior criminal record, notices a detective, veersaway, andPage 14walks away at an increased pace. United States v. Santillanes,848 F.2d 1103, 1105 (10th Cir. 1988). A fortiori, it follows thatreasonable suspicion does not arise from the fact that a defendant, whomthe police do not know to have a criminal record, and who complies withall police instructions, associates with a person with one pendingnarcotics case.

This case is easily distinguished from cases where a police officercould reasonably conclude that a passenger and driver were engaged in acommon criminal enterprise. Early in the current Term, the Supreme Courtin Maryland v. Pringle, ___ U.S. ___, 124 S.Ct. 795 (2003), addressed acase where a police officer discovered cocaine on a consent search of anautomobile. Since the officer had probable cause to believe a felony hadbeen committed, the Court ruled that the officer was entitled to concludethat "any or all three of the occupants had knowledge of, and exerciseddominion and control over, the cocaine," and therefore that probablecause existed as to the defendant, who was the front-seat passenger. Id.at 800. The instant case is similarly unlike United States v. Sakyi,160 F.3d 164, 170 (4th Cir. 1998), where the officer was "entitled toconclude that [the passenger] was voluntarily in the vehicle and that[the passenger] and the driver were proceeding on a common course with acommon purpose," such that the presence of (arguable) drug paraphernalia"cast suspicion not only on the driver, but also on [the passenger]."

Both Pringle and Sakyi involved specific evidence of drugsPage 15in the vehicle, and the officers in those cases were entitled toassume that all occupants had some connection to the drugs. Here, even ifCrosby's prior drug arrest could create reasonable suspicion as to her,it had no nexus with Starks. It is unreasonable to conclude that, becausethe driver had once been arrested for drug trafficking, the passenger istherefore potentially armed or involved with contraband. In fact, theofficers did not appear to actually suspect that Starks might be armed;they left him "essentially unattended" during the time that they were inthe cruiser with Crosby.8 (Tr 41-42)

One other potential justification for Starks' continued detentionshould be addressed. Since Crosby did not have a valid license, and sincethe Jeep was blocking the hotel entrance, the police had a valid interestin finding a lawful way for the vehicle to be removed. Officer Kalp toldCrosby that "we would allow the passenger of the vehicle to operate itfrom the scene provided he had an active Massachusetts license." (Tr. 25)Officer Kalp recalls that Starks' license status was checked by one ofthe two officers, but does not recall which; Officer Leary believes thathe took Starks' identification, but did not check to see if he actuallyhad a valid license. (Tr. 25, 52) Since Starks testified that OfficerLeary took Starks' identificationPage 16at the beginning of the stop, at the same time that Officer Kalp tookCrosby's license, the most natural reading of the officers' testimony isthat Leary took Starks' Massachusetts state identification card (which isnot a driver's license, and does not look like one) at the beginning ofthe encounter, and never did anything further with it. (See Tr. 61) Itappears that Officer Leary did not inform Officer Kalp that Starks hadpresented an identification card that was not a driver's license. In anycase, neither officer testified that they approached the Jeep for thefinal time, or continued to detain Starks, for the purpose ofascertaining whether he could lawfully drive the vehicle away.9Therefore, this purported justification — advanced in thegovernment's briefs, but not by either police witness — cannotjustify Starks' continued detention.

For these reasons, I find that the detention of Starks beyond thecompletion of Crosby's citation violated the Fourth Amendment.

C. The frisk

1. The reasonable suspicion standard

Even if I were to hold that Starks was validly detained beyond thecompletion of Crosby's citation — perhaps on the theory, notsupported by any testimony, that Officer Leary wasPage 17preparing to return his identification and tell him he was free toleave while Officer Kalp searched the Jeep — I would still findthat the frisk violated the Fourth Amendment.

As a general matter, a police officer may frisk a person upon areasonable suspicion "that he is dealing with an armed and dangerousindividual, regardless of whether he has probable cause to arrest theindividual for a crime." Terry v. Ohio, 392 U.S. 1, 27 (1968). The testis "whether a reasonably prudent man in the circumstances would bewarranted in the belief that his safety or that of others was in danger."Id. The officer may not rely on an "inchoate and unparticularizedsuspicion or `hunch,'" but rather only on "specific reasonable inferenceswhich he is entitled to draw from the facts in light of his experience."Id. Furthermore, the Fourth Amendment does not "permit[] a frisk where,although the circumstances might pass an objective test, the officers inthe field were not actually concerned for their safety." United Statesv. Lott, 870 F.2d 778, 783-84 (1st Cir. 1989).

Both before and after Terry, the Supreme Court has repeatedlyemphasized that the police may not frisk persons simply because theyhappen to be in the same place as someone whom the police may lawfullysearch. See Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979) (police, whohad warrant to search bar and bartender for unlawful drugs, could notfrisk a customer who happened to be in the bar without "a reasonablebelief that he was armed and presently dangerous"); United States v. PiRe,Page 18332 U.S. 581, 583 (1948) (police, who had arrested driver of car pursuantto informant's tip that he was selling counterfeit ration coupons, couldnot frisk passenger who happened to be in car). Even when police haveprobable cause to search the car for a contraband object, they arepermitted to "inspect passengers' belongings found in the car that arecapable of concealing the object of the search," Wyoming v. Houghton,526 U.S. 295, 307 (1999), but this authority "does not extend to thesearch of a person found in that automobile," id. at 308 (Breyer, J.,concurring) (distinguishing Ybarra and Di Re as involving search ofpersons, which constituted greater intrusion than search of things).

To be sure, the police may take a variety of safety measures as part ofan investigative stop, even without particularized reasonable suspicion.An officer may order the occupants out of the vehicle. Wilson, 519 U.S.at 414-15 (passengers); Mimms, 434 U.S. at 111 (driver). If the officerdevelops a reasonable suspicion that an occupant is dangerous, the policemay search for weapons in the vehicle's passenger compartment. Michiganv. Long, 463 U.S. 1032, 1049 (1983). But this does not provide a basis tofrisk a passenger, as part of a consent search of the vehicle, withoutparticularized reasonable suspicion as to that passenger. In fact, thepolice cannot even search the car without reasonable suspicion. Knowlesv. Iowa, 525 U.S. 113, 117-18 (1998). Moreover, neither the police nor acourt may "rely on a generalized risk to officer safety to justify aPage 19routine `pat-down' of all passengers as a matter of course." Sakyi, 160F.3d at 168-69; cf. United States v. Paradis, 351 F.3d 21, 29 (1st Cir.2003) (where government arrested defendant in girlfriend's apartmentpursuant to warrant, but then searched apartment, search could not bejustified as "protective sweep" because "officers had no reason tobelieve that there might be an individual posing a danger to the officersor others").

2. Protective frisk incident to consent search

The government's strongest argument is that, once the police hadreceived Crosby's consent to search the car, they had to remove Starksfrom the car in order to search it, and, since he might be armed, it wasreasonable for them to frisk him before placing themselves in avulnerable position.

Neither the Supreme Court nor the First Circuit have addressed whetheran officer may perform a protective frisk of a passenger in order toeffectuate an automobile search justified by the consent of the driver.In Sakyi, the Fourth Circuit held that "in connection with a lawfultraffic stop of an automobile, when the officer has a reasonablesuspicion that illegal drugs are in the vehicle, the officer may, in theabsence of factors allaying his safety concerns, order the occupants outof the vehicle and pat them down briefly for weapons to ensure theofficer's safety and the safety of others." 160 F.3d at 169. However,Sakyi is not on point here because the officers there had reasonablesuspicion that, even if not particularized to each of the occupants, wassufficient to taint all of them. See id.Page 20at 170; see also Pringle, 124 S.Ct. at 800. Here, even if the police hadreasonable suspicion sufficient to frisk Crosby, that reasonablesuspicion did not taint Starks.

The only case that lends some support to the government's position isUnited States v. Maniarrez, 348 F.3d 881 (10th Cir. 2003). There, a loneofficer conducted a consent search of the defendant's vehicle after thestop had concluded, and frisked the defendant before that search. Id. at881. While the frisk yielded no evidence, the consent search did, and thedefendant moved to suppress the evidence obtained from the search on thegrounds that the frisk vitiated the prior consent. Id. at 885. The TenthCircuit was "unable to discern how a subsequent pat-down, lawful or not,could bear upon the voluntariness of Defendant's prior consent." Id. at887. Nevertheless, arguably in dictum, the court reached the question ofwhether the frisk was unlawful. It decided that the frisk was lawful,because the trooper, who was alone, was reasonably concerned for his ownsafety. Id. at 887-88. This case is easily distinguished, because twoofficers were present. Since the officers had already decided that Crosbywas not dangerous — not only had they not decided to frisk her, butthey had left her standing by the hotel entrance while they approachedthe Jeep to search it — one of them could have easily kept a closeeye on Starks while the other searched the car.

Perhaps most importantly, the government's reasoning would allow thepolice to create a potential risk, and then exploitPage 21that purported risk to the detriment of a passenger's Fourth Amendmentrights. The officers had no reasonable suspicion that either Crosby orStarks was dangerous. Nevertheless, Officer Kalp voluntarily decided toask for Crosby's consent to search the car. By doing so, Kalp created the"threat" (if any) to officer safety.10 The officers could not thenexploit this threat to frisk a passenger, against whom they had noreasonable suspicion, to protect themselves from this self-protecteddanger. As Justice Marian's influential Terry concurrence observed: Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection.Terry, 392 U.S. at 32-33 (Harlan, J., concurring) (emphasis added). Itherefore hold that the police may not frisk a passenger on the merebasis that the driver had consented to a search of the automobile,without particularized reasonablePage 22suspicion as to the passenger or concerns for officer safety notpresent here.

III. CONCLUSION

For the reasons set forth more fully above, Starks' motion to suppressis GRANTED.

1. "Every motor vehicle . . . when operated in or on any way inthis commonwealth shall have its register number displayed conspicuouslythereon by the number plates. . . . and during the period when thevehicle or trailer is required to display lights the rear register numbershall be illuminated so as to be plainly visible at a distance of sixtyfeet."

2. The officers apparently did not check Starks' identification cardthrough the mobile data terminal. (Tr. 25, 52.)

3. Crosby was at this point standing outside, somewhere near thehotel entrance.

4. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

5. Officer Kalp's failure to observe the plate light while the Jeepwas still on Westgate Drive would of course bear on whether the inferenceis sufficiently compelling to establish Crosby's guilt on the Mass. Gen.Laws ch. 90, § 6 charge. But the existence of the inference isplainly sufficient to establish reasonable suspicion.

6. Based on the officers' testimony at the evidentiary hearing, itappears that Officer Kalp did not intend to, or anticipate, furtherdetaining or frisking Starks, and that Officer Leary's attempts to friskStarks came as something of a surprise to Officer Kalp. See infra note8.

7. In all likelihood, the officers did not think of the situation as acontinued detention. Probably very little time elapsed from the momentwhen Crosby's citation was completed to the moment when Starks wasordered out of the car. Indeed, Officer Kalp testified that "there was noreason to keep him there" and that, had he been in Officer Leary'sposition, he "would have allowed" Starks to simply walk away. (Tr. 44-45)Nevertheless, because Starks was not informed that he was free to leave,and in fact Officer Leary ordered Starks to exit the car while standingdirectly in front of him, Starks was detained after the purpose of thetraffic stop had ended. Because the frisk took place in the context ofthis further detention, if the detention was unlawful, then the frisk wasunlawful as well.

8. Kalp did not intend or expect to frisk Starks, and only learnedthat Officer Leary had decided to frisk Starks "[a]fter [they] handcuffedMr. Starks and discussed the situation." He does not know "exactly when[Officer Leary] formulated" the idea of frisking Starks, and it came as"absolutely" a "complete surprise" when Officer Leary frisked Starks.(Tr. 42)

9. Officer Kalp did testify that he had no intention of towing theJeep, possibly because he believed that it could be left in the hotelparking lot until Crosby could arrange for a licensed driver to move itfor her. (Tr. 28, 32-33)

10. I do not mean to suggest that there can be no threat to officersafety under circumstances such as these, although here neither officeroffered any basis to believe that there was any particularized basis tohave concern for safety. In any event, the information that the officershad at the time did not give rise to reasonable suspicion that there was.The police no doubt occasionally, out of concern for officer safety, takecertain precautions that exceed the bounds of what the Fourth Amendmentpermits. Perhaps, for purposes of officer safety, they are prudent to doso. But for purposes of obtaining a criminal conviction, the evidenceobtained by such methods will be inadmissible.

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