Commonwealth v. Buckley

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SJC-12344

              COMMONWEALTH   vs.   ROGELIO R. BUCKLEY.



      Plymouth.      October 5, 2017. - February 14, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Controlled Substances. Constitutional Law, Search and seizure,
     Reasonable suspicion, Investigatory stop. Search and
     Seizure, Threshold police inquiry, Reasonable suspicion,
     Consent, Motor vehicle. Threshold Police Inquiry.
     Practice, Criminal, Motion to suppress.



     Indictments found and returned in the Superior Court
Department on April 19, 2013.

     A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J., and the cases were tried before
Richard J. Chin, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Matthew Malm for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
     The following submitted briefs for amici curiae:
     Ivan Espinoza-Madrigal, of New York, Oren M. Sellstrom, &
Oren N. Nimni for Lawyers' Committee for Civil Rights and
Economic Justice & others.
                                                                   2


     Rebecca Kiley, Committee for Public Counsel Services, &
Derege B. Demissie for Committee for Public Counsel Services &
another.
     Jeff Goldman, Vanessa M. Brown, Matthew R. Segal, Rahsaan
D. Hall, Jessie J. Rossman, & Carlton E. Williams for American
Civil Liberties Union of Massachusetts.
     Daniel F. Conley, District Attorney, & John P. Zanini,
Cailin M. Campbell, & David D. McGowan, Assistant District
Attorneys, for District Attorney for the Suffolk District.


    CYPHER, J.   In this appeal we are asked to reconsider one

tenet of our search and seizure jurisprudence:   that a traffic

stop constitutes a "reasonable" "seizure" for purposes of art.

14 of the Massachusetts Declaration of Rights where a police

officer has observed a traffic violation, notwithstanding the

officer's underlying motive for conducting the stop.   See

Commonwealth v. Santana, 

 (1995).   For the sound

legal and practical reasons discussed below, we decline to

depart from that tenet as the general standard governing the

validity of traffic stops under art. 14.   We affirm the denial

of the defendant's motion to suppress, and we also affirm the

judgment of conviction.

    Facts. We recount the facts found by the motion judge,

supplemented by uncontroverted testimony at the motion hearing.

Commonwealth v. Cordero, 

 (2017).

On January 25, 2013, Whitman police Detectives Joseph Bombardier

and Eric Campbell were conducting surveillance of a three-unit

apartment building out of which they suspected drug activity was
                                                                    3


being conducted.1   At approximately 10:50 P.M. that evening, the

detectives observed a vehicle park nearby, and its two occupants

enter the building.   Those same two individuals reemerged a few

minutes later, returned to the vehicle, and drove away without

the vehicle's headlights on.   Bombardier instructed fellow

Officer Gary Nelson to stop the vehicle for suspected drug

activity.    Nelson did so a few minutes later, upon observing

the vehicle traveling above the speed limit along a road in

Whitman.2   Nelson radioed Bombardier that he had stopped the

vehicle.

     When the detectives arrived, Nelson was standing at the

vehicle's driver's side.   Bombardier likewise approached the

driver, and in doing so he noticed a strong odor of marijuana

emanating from inside the vehicle.   Bombardier asked the driver

if she had any marijuana in the vehicle.3   She told him that she


     1
       Detective Joseph Bombardier had received complaints from
one of the apartment's residents concerning heavy foot traffic
going in and out of the building at all hours. Bombardier
determined that another of the building's residents had
previously been charged with drug-related offenses. He
therefore decided to conduct surveillance of the building, and
suspected, based on his training and experience, that drug
activity was being conducted out of the building.
     2
       Officer Gary Nelson testified that he measured the vehicle
traveling forty-two miles per hour in a thirty mile per hour
zone. There is no testimony indicating that the vehicle's
lights were still off at the time of the traffic stop.
     3
       This stop occurred after the decriminalization of
marijuana possession under State law and this court's opinion in
                                                                     4


did not think so, and said that he could check.     After

instructing the driver to step out, Bombardier used his

flashlight to search the interior of the driver's seat area.

Finding nothing, he directed Campbell to ask the front seat

passenger, the defendant, to leave the vehicle.     When the

defendant stepped out, Campbell observed what he believed to be

a firearm under the front passenger seat.4    The officers arrested

the defendant and the driver, placed them in separate cruisers,

and advised them of the Miranda rights.    Another officer later

observed a plastic bag on the floor of the cruiser between the

defendant's feet that appeared to contain "crack" cocaine.     The

defendant was subsequently indicted for possession with the

intent to distribute cocaine, as well as with firearm offenses

and other offenses with enhanced penalties.

     Prior to trial, the defendant moved to suppress the

evidence seized during the traffic stop.     The motion judge held

an evidentiary hearing, and thereafter, he denied the

defendant's motion.   In April, 2015, a jury convicted the

defendant on the lesser included offense of cocaine possession,



Commonwealth v. Cruz, 

 (2011), which held that, in
light of the changed status of marijuana, "the odor of burnt
marijuana alone no longer constitutes a specific fact suggesting
criminality." Commonwealth v. Overmyer, 

(2014), citing 

.
     4
       The defendant does not challenge the officer's testimony
that he saw a firearm.
                                                                   5


and he was sentenced to one year in jail.   The defendant timely

filed this appeal from the judgment of conviction, and on

appeal, he challenges only the denial of his pretrial motion to

suppress.

     Discussion.5   The defendant challenges the denial of his

motion to suppress on three grounds.   First, he argues that the

evidence against him should be suppressed as the product of a

pretextual stop, where the Whitman officers stopped the vehicle

the defendant occupied not because it was speeding, but because

the police suspected that its occupants were involved in drug

activity.   The defendant contends that all such pretextual

stops, which generally are legitimated on the basis of an

observed civil traffic violation yet motivated by a desire to

investigate suspected criminal wrongdoing as to which the police

lack reasonable suspicion or probable cause to justify an


     5
       We acknowledge the briefs submitted by the following amici
curiae: Lawyers' Committee for Civil Rights and Economic
Justice, Urban League of Eastern Massachusetts, Charles Hamilton
Institute for Race and Justice, Massachusetts Law Reform
Institute, Union of Minority Neighborhoods, Boston Police Camera
Action Team, GLBTQ Legal Advocates & Defenders, MassEquality,
The Network/La Red, Interact: Advocates for Intersex Youth,
Theater Offensive, Greater Boston PFLAG, Centro Presente,
Brazilian Worker Center, Justice at Work, Justice Resource
Institute, Jewish Alliance for Law and Social Action,
Massachusetts Associate of Hispanic Attorneys, and Massachusetts
Black Lawyers Association; Committee for Public Counsel Services
and Massachusetts Association of Criminal Defense Lawyers;
American Civil Liberties Union of Massachusetts, Inc.; and the
District Attorney for the Suffolk District.
                                                                    6


investigatory stop, violate art. 14 and its protection against

unreasonable seizures.6   On this point, the defendant asks that

we overturn our decision in Santana, 

, which holds

that an observed traffic violation is itself a lawful basis for

the police to conduct a traffic stop regardless of the officer's

underlying motive.

     Second, the defendant argues that the police impermissibly

expanded the scope of the stop when detectives Bombardier and

Campbell approached the vehicle during Nelson's traffic inquiry

and asked the driver about the smell of marijuana.    Last, the

defendant challenges the motion judge's finding that the

driver's consent to the search of the vehicle was freely and

voluntarily given.

     We review these arguments in turn.    In doing so, "we adopt

the motion judge's subsidiary findings of fact absent clear

error, but we independently determine the correctness of the

judge's application of constitutional principles to the facts as

found."   Commonwealth v. Catanzaro, 

 (2004).

     1.   Pretext.   The parties dispute, as a threshold matter,

whether the defendant adequately raised this issue before the

motion judge.   We conclude that he did.   The first section of

     6
       The Commonwealth conceded that the Whitman police did not
have reasonable suspicion of criminal activity justifying an
investigatory stop. We do not address whether this was a
necessary concession and focus exclusively on the asserted legal
basis for the stop, an observed traffic violation.
                                                                   7


the defendant's memorandum of law in support of his motion to

suppress asserted that "[t]he car stop was effectuated so that

the occupants could be identified and the car searched."    The

motion judge's written opinion likewise acknowledged "[t]he

defendant['s] argu[ment] that the stop for the traffic offense

was a pretext."   The fact that the defendant did not

specifically state that he challenged the continued viability of

Santana does not preclude our review of this issue, given both

its treatment below and the fact that the motion judge was bound

to apply Santana regardless of the defendant's position.    See

generally Commonwealth v. Vasquez, 

(2010).7

     Article 14, like the Fourth Amendment to the United States

Constitution, guarantees "a right to be secure from all

unreasonable searches[] and seizures."8   Because "[a] police stop

of a moving automobile constitutes a seizure," Commonwealth v.


     7
       This is not to say that challenges to established law need
not be raised during trial court proceedings in order for them
to be entertained on appeal. Such arguments still must be
raised below. See, e.g., Commonwealth v. Barnes, 

 (1987) (appellate court not obliged to consider grounds
argued on appeal but not raised in motion to suppress).
     8
       Article 14 of the Massachusetts Declaration of Rights and
the Fourth Amendment to the United States Constitution are
distinct sources of this right to be free from arbitrary
government action, and in some circumstances, "art. 14 provides
more substantive protection to criminal defendants than does the
Fourth Amendment in the determination of probable cause."
Commonwealth v. Upton, 

 (1985).
                                                                   8


Rodriguez, 

 (2015), that stop must be

reasonable in order to be valid under the Fourth Amendment and

art. 14.   A passenger in a vehicle may challenge the

constitutionality of a stop.    See Commonwealth v. Quintos Q.,

 (2010), citing Brendlin v. California, 

 (2007).

     In Santana, 

, we articulated the current

State constitutional standard for evaluating the validity of a

traffic stop.   Under that rule, called the authorization

approach, a traffic stop is reasonable for art. 14 purposes "so

long as the police are doing no more than they are legally

permitted and objectively authorized to do," regardless of the

underlying intent or motivations of the officers involved.

 quoting United States v. Trigg, 

 (7th Cir. 1989), cert. denied sub nom. Cummins v. United

States, 

 (1991).9   Stated differently, under the

authorization test, a stop is reasonable under art. 14 as long

as there is a legal justification for it.   We have long held

that an observed traffic violation is one such justification.

See, e.g., Commonwealth v. Bacon, 

 (1980)

("Where the police have observed a traffic violation, they are


     9
       One year after Santana, the United States Supreme Court
decided Whren v. United States, 

 (1996), in
which the Court adopted an identical test for evaluating the
reasonableness of a traffic stop under the Fourth Amendment.
                                                                    9


warranted in stopping a vehicle"); Commonwealth v. Amado, 

 (2016) (valid stop where "unlit registration

plate"); Commonwealth v. Feyenord, 

 (2005),

cert. denied, 

 (2006) (valid stop where inoperable

headlight in daylight); Santana, 

 (valid stop

where defective taillight).   Cf. Commonwealth v. Lora, 

 (2008), quoting Whren v. United States, 

 (1996) ("the decision to stop an automobile is reasonable

for Fourth Amendment purposes 'where the police have probable

cause to believe that a traffic violation has occurred'").     As

Santana makes clear, the authority to conduct a traffic stop

where a traffic violation has occurred is not limited by "[t]he

fact that the [police] may have believed that the [driver was]

engaging in illegal drug activity."   

.

     In the defendant's view, however, evaluating the

reasonableness of a traffic stop on the basis of legal

justification alone is not enough, because this creates the risk

that the police might use an observed traffic violation as a

pretext for investigating other suspected wrongdoing.10   In place


     10
       The defendant's general position against pretextual
traffic stops mirrors that of the petitioners in Whren, 

, which the Supreme Court succinctly summarized: "[The
petitioners] argue . . . that 'in the unique context of civil
traffic regulations' probable cause [to believe that a traffic
violation has occurred] is not enough. Since, they contend, the
use of automobiles is so heavily and minutely regulated that
total compliance with traffic and safety rules is nearly
                                                                 10


of the authorization test, the defendant seeks a new art. 14

standard for traffic stops that looks beyond objective legal

justification in order to examine the police's underlying

motives for conducting the stop.   Specifically, the defendant

asks that when considering a motion to suppress a judge should

examine whether a given traffic stop was only a pretext for the

police's underlying "true" motive to investigate suspected

criminal conduct, as to which the police lacked the requisite

reasonable suspicion or probable cause to justify a bona fide

investigatory stop.   As the primary basis for this position, the

defendant relies on a series of cases and academic articles

discussing the connections between traffic stops and racial

profiling.   He also argues that because Massachusetts courts

have considered the issue of pretext when evaluating the

reasonableness of inventory or administrative searches, so too

should they consider pretext when analyzing the validity of

traffic stops.   Before addressing these specific points, we

examine the underpinnings of Santana's authorization test.

    Santana is predicated on the general constitutional

principle, reflected in both art. 14 and Fourth Amendment

jurisprudence, that "police conduct is to be judged 'under a


impossible, a police officer will almost invariably be able to
catch any given motorist in a technical violation. This creates
the temptation to use traffic stops as a means of investigating
other law violations, as to which no probable cause or even
articulable suspicion exist."
                                                                   11


standard of objective reasonableness without regard to the

underlying intent or motivation of the officers involved.'"

Santana, 

, quoting Commonwealth v. Ceria, 

 (1982).11    See Lora, 

,

quoting Whren, 

 ("Subjective intentions play no

role in ordinary, probable cause Fourth Amendment analysis");

 and cases cited.   Evaluating the validity of

police conduct on the basis of objective facts and

circumstances, without consideration of the subjective

motivations underlying that conduct, is justified in part based

on the significant evidentiary difficulties such an inquiry into

police motives would often entail.    This would require that

courts discern not only whether the police initially possessed

some underlying motive that failed to align with the legal


     11
       We have applied this same standard of objective
reasonableness when assessing, for instance, the validity of a
Terry-type investigatory stop, Commonwealth v. Smigliano, 

 (1998) ("Because the facts and circumstances
known to the officer are sufficient to create a reasonable
suspicion . . . in a reasonable police officer, a Terry stop is
justified regardless of the officer's subjective state of
mind"); the reasonableness of a search conducted pursuant to the
emergency aid exception, Commonwealth v. Tuschall, 

 (2017) (officers must possess "an objectively
reasonable basis" for conclusion that intervention is necessary
to save someone who is injured or in imminent danger); and the
appropriate scope of a consent-based search, Commonwealth v.
Gaynor, 

 (2005), quoting Florida v. Jimeno,

 (1991) (scope determined based on "objective
reasonableness -- what would the typical reasonable person have
understood by the exchange between the officer and the
suspect?").
                                                                   12


justification for their actions, but also whether the police

were acting on that "improper" motive (i.e., the pretext), as

opposed to the "proper" motive, when engaging in the challenged

action.   Both judges and legal commentators have questioned the

ability of courts -- venues of limited insight -- to reach

accurate and satisfactory answers to these questions, which may

be more appropriately handled by psychologists or philosophers

than lawyers.   See, e.g., United States v. Arra, 

 (1st Cir. 1980) (one "problem" with this subjective

approach is "the premium it would place on dissemblance," and

that "it may be little more than guesswork for a court to

determine what the true motivation was"); 1 W.R. LaFave, Search

and Seizure § 1.4(e) (5th ed. 2012) (there is "no reason to

believe that courts can with any degree of success determine in

which instances the police had an ulterior motive," and

"[p]resence of an ulterior motive may show why an officer might

want to depart from the usual procedure but does not show that

he has done so").

    The authorization test avoids this often-speculative

probing of the police's "true" motives, while at the same time

providing an administrable rule to be applied by both law

enforcement in the field as well as reviewing courts.   Like its

Federal counterpart, art. 14 must often "be applied on the spur

(and in the heat) of the moment, and the object in implementing
                                                                   13


its command of reasonableness is to draw standards sufficiently

clear and simple to be applied with a fair prospect of surviving

judicial second-guessing months and years after an arrest or

search is made."    Atwater v. Lago Vista, 

(2001).    The bright-line standard of legal justification

achieves this by clarifying exactly when the police may conduct

a traffic stop:    where an officer has observed a traffic

violation.   "If this were not so, [a traffic stop's] validity

could not be settled until long after the event; it would depend

not only on the psychology of the arresting officer but on the

psychology of the judge."    United States v. McCambridge, 

 (1st Cir. 1977).12

     Moreover, this rule also ensures that the same

constitutional protections under art. 14 are afforded to all

Massachusetts drivers where the same factual circumstances are

present.   As we observed in Santana, "the defendants' contention

might yield the illogical result of allowing stops of nonsuspect

drivers who violate motor vehicle laws, but forbidding stops of

suspected criminals who violate motor vehicle laws."    Santana,

     12
       The United States Court of Appeals for the First Circuit
also noted that a rule of reasonableness that hinges on the
purity of law enforcement intentions may be all too easily
manipulated: "As law enforcement personnel learn that a
particular motivation is improper because it will render an
otherwise valid search invalid, they may not have difficulty
convincing themselves that their conduct was prompted not by the
improper reason but the proper one." United States v. Arra, 

, 845 n.12 (1st Cir. 1980).
                                                                    14

 n.3.     Application of the exclusionary rule in

these circumstances, as the defendant requests, would be

contrary to that rule's purpose, which is to "deter intentional

unconstitutional behavior."     Lora, 

.   Its effect

here would be to deter the police from carrying out one of their

primary objectives:     investigating, within permissible legal

boundaries, suspected criminal behavior.

    Beyond these legal and practical justifications, Santana's

authorization test is grounded in sound policy.     We have noted

that "allowing police to make [traffic] stops serves [the]

significant government interest" of ensuring public safety on

our roadways.   Rodriguez, 

.    As Rodriguez more

fully explains:

    "[M]any of our traffic violation statutes regulate moving
    cars and relate directly to the promotion of public safety;
    even those laws that have to do with maintaining a
    vehicle's equipment in accordance with certain standards
    may also be safety-related. . . . Permitting stops based
    on reasonable suspicion or probable cause that these laws
    may have been violated gives police the ability to
    immediately address potential safety hazards on the road.
    Thus, although a vehicle stop does represent a significant
    intrusion into an individual's privacy, the government
    interest in allowing such stops for the purpose of
    promoting compliance with our automobile laws is clear and
    compelling" (citation omitted).

.   Therefore, the fact that a traffic law has been

violated is, generally speaking, a legally sufficient basis to

justify stopping a vehicle, irrespective of any additional

suspicions held by the officer(s) conducting the stop.      See,
                                                                    15


e.g., Commonwealth v. Cruz, 

 (2011) ("officers

validly 'stopped' the car for parking in front of a fire

hydrant, a civil traffic violation . . . .    Thus, the officers'

presence at the side of the car was appropriate" [citations

omitted]); Santana, 

 ("By driving an automobile

with a broken taillight, the defendants took the risk of being

stopped").   In that sense a traffic stop cannot be "arbitrary,"

because it is predicated on a driver violating a traffic law.13

     Still, the defendant urges that we overturn Santana on the

ground that the authorization test countenances pretextual stops

-- and more specifically, stops motivated by the race of the

driver (i.e., racial profiling).   In the defendant's view, this

court's previous attempt to address the problem of racial bias

in traffic stops, Lora, 

, has failed to

provide a meaningful remedy.   Lora held that where a driver

produces "sufficient evidence to raise a reasonable inference,"

, that the stop at issue "is the product of the

selective enforcement predicated on race," evidence seized in

the course of that stop must be suppressed under the

exclusionary rule.   

.   The surest way to effectively

remedy that issue now, the defendant contends, is simply to do

away with Santana's authorization test, and instead hold that

     13
       We have also recognized that "[a]n arrest or prosecution
based on probable cause is ordinarily cloaked with a presumption
of regularity." Lora, 

.
                                                                     16


all pretextual stops, regardless of the particular motive

(whether it be the race of a driver, or, as here, a desire to

investigate suspected criminal wrongdoing) violate art. 14.

There are at least two deficiencies in this argument.

    First, to the extent the defendant appeals to our

consideration of the motivations underlying a traffic stop in

the racial profiling context as a basis for doing so in this and

similar cases, he ignores any distinction between art. 14 and

the equal protection principles of arts. 1 and 10 of the

Massachusetts Declaration of Rights.   In Lora we observed that

racial profiling "is at base a claim that [the police]

selectively enforced the laws in contravention of the Fourteenth

Amendment and arts. 1 and 10."   Lora, 

.     We

permitted inquiry into officers' subjective motives in that case

because Lora, unlike Santana or Whren, "involved a challenge to

[a] traffic stop[] based on equal protection grounds."     

   At the same time, we observed that "'[s]ubjective

intentions play no role in ordinary, probable cause Fourth

Amendment analysis.'   Our holding in [Santana] is not to the

contrary."   

 quoting Whren, 

.   See 

 quoting 

 ("the constitutional basis for

objecting to intentionally discriminatory application of laws is

the Equal Protection Clause, not the Fourth Amendment").     Thus,

Lora makes clear that to the extent we do consider the purpose
                                                                    17


of a stop when assessing its validity, we do so pursuant to the

equal protection principles of arts. 1 and 10 -- not art. 14's

guarantee against unreasonable seizures -- and only where a

driver has alleged that race was the reason for the stop.

     This brings us to the more obvious deficiency in the

defendant's appeal to the racial profiling context:   the fact

that racial profiling is not an issue in this case.    Unlike the

Lora defendant, the defendant here has raised no allegation of

impermissible discrimination, and he does not challenge the

traffic stop on equal protection grounds.   To the contrary, he

acknowledges in his brief that he is "is not arguing (and has

never argued) that he was racially profiled"14 (emphasis added).

Although we certainly do not dispute, as a general matter, the

enormity or relevance of the problem of racial profiling, it is

not an appropriate basis for overturning our general art. 14

standard governing the reasonableness of traffic stops where the

defendant has expressly disavowed any such argument that race

was a factor in the stop at issue.

     At the same time, the defendant and the concurring Justice

raise considerable, legitimate concerns regarding racial

profiling and the impact of such practices on communities of

color.    We share these sentiments, which echo those expressed by


     14
       The defendant is an African-American male; the driver is
a Caucasian female.
                                                                    18


past members of this court.    See, e.g., Lora, 

,

and cases cited ("Justices of this court have expressed

considerable concern about the practice of racial profiling in

prior decisions").   We likewise acknowledge their valid

questions regarding the lasting efficacy of Lora for addressing

the issue of pretextual stops motivated by race, given that in

the near-decade since that decision, we are not aware of a

single reported case suppressing evidence under its framework.

We take this opportunity to encourage lawyers to use the Lora

framework in cases where there is reason to believe a traffic

stop was the result of racial profiling.   To the extent we must

review the adequacy of our decision in Lora, however, or address

these issues in depth, we wait to do so in a case where a driver

has actually alleged and laid a proper foundation for a claim

under Lora.   We cannot evaluate the efficacy of the Lora

framework without a record.

    As an alternative basis for his request that we overturn

Santana, the defendant cites cases from "other areas of criminal

law" where he contends Massachusetts courts "identify pretext" -

- namely, searches conducted for the purposes of inventory or

administrative regulation.    But the defendant's conclusion that

"there is no good reason for the distinction" between the

constitutional analysis in these cases versus traffic stops

ignores at least one reason.    Inventory and administrative
                                                                    19


searches -- as distinct from traffic stops, which involve only a

temporary seizure, see Rodriguez, 

 -- are unique

in that they are conducted in the absence of probable cause or

reasonable suspicion, for purely noninvestigatory reasons.       See,

e.g., Commonwealth v. Vuthy Seng, 

, cert.

denied, 

 (2002).    In these contexts, the burden

rests with the Commonwealth to demonstrate that the search "was

conducted for some legitimate police purpose other than a search

for evidence."   Commonwealth v. Benoit, 

(1981), S.C., 

 (1983).    From the start, then,

consideration of an officer's "purpose" for conducting the

search is relevant to an assessment of the lawfulness of the

search itself.   Thus, where it appears that the "sole purpose"

of that search was in fact criminal investigation, rather than

inventory or administrative regulation, any evidence unlawfully

seized must be suppressed.     See, e.g., Benoit, supra at 219

("The record clearly reveals that the only purpose for the entry

into this suitcase . . . was to seize evidence.    The search and

seizure without a warrant was, therefore, illegal");

Commonwealth v. Ortiz, 

 (2015)

(affirming suppression of evidence found in course of inventory

search where officer testimony showed that "sole purpose of

impounding and searching the defendant's vehicle and its

contents" was to search "for evidence of drug activity without a
                                                                  20


warrant").15   A traffic stop poses no such question regarding the

actual legal authority for the police conduct at issue, because,

as mentioned, "[w]here the police have observed a traffic

violation, they are warranted in stopping a vehicle."   Bacon,

.   Cf. Whren, 

 (declining to

import principles of cases "addressing the validity of a search

conducted in the absence of probable cause" to cases involving

"police conduct that is justifiable on the basis of probable

cause to believe that a violation of law has occurred").

     Having considered the defendant's arguments, we decline to

disturb our general rule that the reasonableness of a traffic

stop under art. 14 is evaluated according to the authorization

test articulated in Santana.   Outside of the racial profiling

context -- as this case is -- the reasonableness of a traffic

     15
       The defendant quotes extensively from Commonwealth v.
Ortiz, 

 (2015), to argue that we
should consider pretext here. In Ortiz, the defendant, who was
the subject of surveillance as part of an investigation into
cocaine trafficking, was stopped and arrested for switching
lanes without signaling; a subsequent inventory search of his
vehicle yielded cocaine. 

. The arresting officer
testified that he would not have conducted either the stop or
the arrest absent the intention "to employ the inventory policy
to search [a] backpack for drugs." 

. The Appeals
Court affirmed the trial judge's suppression of the evidence on
the ground that the inventory search "was simply a pretext for
using the inventory policy to conduct an investigatory search."

. Significantly, however, the Appeals Court made no
such determination regarding the validity of the initial stop;
to the contrary, it correctly acknowledged that "the
constitutional reasonableness of traffic stops 'does not depend
on the actual motivations of the officer involved.'" 

 at 575
n.5, quoting Whren, 

.
                                                                     21


stop does not depend upon the particular motivations underlying

the stop.     For the sound legal and practical reasons previously

described, legal justification alone, such as an observed

traffic violation, is sufficient.

    Applying that principle here, the motion judge credited

Nelson's testimony that before conducting the traffic stop at

issue, Nelson observed the vehicle traveling above the speed

limit.     We therefore affirm the judge's conclusion that "the

stop was warranted by the observed traffic violation."       "The

fact that the [police] may have believed that the defendants

were engaging in illegal drug activity does not limit their

power to make an authorized stop."     Santana, 

.

    2.     Scope of the stop.   In addition to challenging the

legality of the stop itself, the defendant argues that the

Whitman police exceeded the permissible scope of the stop when

the plainclothes detectives joined Nelson at the scene and asked

the driver about the odor of marijuana emanating from the

vehicle.    "In evaluating whether the police exceeded the

permissible scope of a stop, the issue is one of proportion."

Commonwealth v. Sinforoso, 

 (2001).     "The

nature of the stop, i.e., for a traffic offense, defines the

scope of the initial inquiry by a police officer."     Commonwealth

v. Bartlett, 

 (1996).     See

Commonwealth v. Cordero, 

 (2017) ("A routine
                                                                    22


traffic stop may not last longer than reasonably necessary to

effectuate the purpose of the stop" [quotations and citation

omitted]).   "Where an officer conducts an uneventful threshold

inquiry giving rise to no further suspicion of criminal

activity, he may not prolong the detention or expand the

inquiry."    Feyenord, 

 n.5.

    As discussed, the stop at issue was justified based on

Nelson's observation of the vehicle speeding.    This defines the

permissible scope of the officers' inquiry.     The defendant fails

to cite any authority suggesting that it was impermissible for

the plainclothes detectives to join Nelson at the location of

the stop.    The stop remained constitutional so long as the

officers did not exceed its permissible scope.     There is nothing

in the record to indicate that the "tasks tied to the traffic

infraction . . . [were already] complete[]," Rodriguez v. United

States, 

 (2015), by the time Bombardier and

Campbell arrived, or that Nelson unnecessarily prolonged the

stop to await the detectives' arrival.    See Cordero, 

 ("The police do not earn 'bonus time' to conduct

additional investigations by an expeditious performance of the

traffic-related investigation").    The motion judge found that

the detectives arrived while "Nelson [was] standing at the

driver's side of the vehicle."     Nelson testified that, after

stopping the vehicle, he explained to the driver that he had
                                                                    23


stopped her for speeding and requested her license and

registration; she produced a registration certificate but was

unable to produce a license.   Nelson recalled that he had been

speaking with the driver for "[a]pproximately a minute," and had

yet to confirm her name and date of birth, see 

 (tasks

during routine traffic stop reasonably include "confirmation of

the identity of the driver"), when Bombardier and Campbell

arrived and spoke to the driver about the smell of marijuana.

At that point Nelson returned to his cruiser to confirm

McGovern's information.   Contrast 

 (continued

detention of defendant unreasonable where "the investigation of

the civil traffic violations" justifying stop "was complete").

    We also reject the defendant's argument that Bombardier's

question to the driver about the smell of marijuana fell beyond

the permissible scope of the stop.   That argument is foreclosed

by this court's opinion in Commonwealth v. Cruz, 

(2011).   Cruz was decided following the enactment of G. L.

c. 94C, §§ 32L-32N, which "changed the status of the possession

of one ounce or less of marijuana from a criminal to a civil

offense."   Id. at 464.   In Cruz, an officer who had conducted a

valid traffic stop detected an odor of burnt marijuana as he

approached the driver's side window; we held that the officer's

"asking the driver whether he had been smoking marijuana" did

not constitute an impermissible expansion of the scope of the
                                                                      24


stop, "because the officers could potentially have issued the

driver a civil citation pursuant to G. L. c. 40, § 21D."        Id. at

466.16      The stop at issue here took place in January, 2013 --

after the Cruz decision, while possession of marijuana remained

a civil offense.17      As in Cruz, then, Bombardier did not exceed

the scope of the stop when inquiring about the smell of

marijuana emanating from the vehicle, given his authority to

issue a civil citation.      "Once in the process of making a valid

stop for a traffic violation," as here, "officers are not

required to 'ignore what [they] see[], smell[] or hear[].'"

Cruz, 

, quoting Bartlett, 

.

       3.    Consent.   The defendant argues that the evidence should

be suppressed because the driver did not voluntarily consent to

the search of the vehicle.       See Commonwealth v. Podgurski, 

 (1982), cert. denied, 

 (1983)

(passenger may object to validity of vehicle search).       A

warrantless search such as this is presumptively unreasonable

under both the Fourth Amendment and art. 14 unless one of the

       16
       See G. L. c. 94C, § 32N (directing police departments to
"enforce [G. L. c. 94C, § 32L,] in a manner consistent with the
non-criminal disposition provisions of [G. L. c. 40, § 21D]").
       17
       Effective December, 2016, the Regulation and Taxation of
Marijuana Act states, in pertinent part, that adults shall not
be penalized or sanctioned "under the laws of the commonwealth
in any manner" for possessing an ounce or less of marijuana.
See G. L. c. 94H, § 7 (a) (1).
                                                                   25


"few specifically established and well-delineated exceptions" to

the warrant requirement apply.     Commonwealth v. Johnson, 

 (2011), quoting Coolidge v. New Hampshire, 

 (1971).   A search authorized by consent is one such

exception.    See Commonwealth v. Buswell, 

(2014).   As with all warrantless searches, the Commonwealth

bears the burden of proof that consent was "freely and

voluntarily given," Commonwealth v. Krisco Corp., 

 (1995), quoting Bumper v. North Carolina, 

, 548-

549 (1968), meaning it was "unfettered by coercion, express or

implied."    Commonwealth v. Harmond, 

 (1978)

quoting Commonwealth v. Walker, 

, cert.

denied, 

 (1976).     "Voluntariness of consent 'is a

question of fact to be determined in the circumstances of each

case.'"   Id., quoting Commonwealth v. Aguilar, 

 (1976).   As a question of fact, "it should not be reversed

absent clear error by the judge."     Commonwealth v. Gray, 

, cert. denied, 

 (2013), citing

Commonwealth v. Carr, 

 (2010).

    We discern no error here.     The motion judge, who "was in

the best position to assess the weight and credibility of the

testimony given at the [suppression] hearing," 

concluded that the driver freely and voluntarily consented to

the search of the vehicle.    This was based in part on the
                                                                    26


judge's finding that when Bombardier "asked [the driver] if she

had any marijuana in the car.    She told him she did not think so

and said that he could check."    The fact that the driver

affirmatively offered the search naturally supports the judge's

conclusion that her consent was voluntary.     See Commonwealth v.

Sanna, 

 (1997) (concluding that "the police

had properly entered the defendant's home on the consent given

by the father").    Further, the record lacks any evidence to

suggest that the officers' conduct during the vehicle stop was

at all coercive.    See Commonwealth v. Cantalupo, 

 (1980).    Contrast Carr, 

 (consent

not voluntary where armed officers "completely blocked the only

exit" from premises, officer who sought permission to search

"signaled his distrust of the defendants," and request to search

"sounded more like an order").    Finally, that the police did not

inform the driver of her right to refuse does not, as the

defendant argues, invalidate her consent.    "The fact that a

person is not informed by the police that he has a right to

refuse to consent to an entry or search is a factor to be

considered on the issue of voluntariness, but is not

determinative of the issue."     Sanna, 

 n.10.

Given the absence of record evidence to the contrary, we

conclude that the motion judge did not err in finding that the
                                                               27


driver freely and voluntarily consented to the search of the

vehicle.

    Conclusion.    For the foregoing reasons, we affirm the

denial of the defendant's motion to suppress the evidence

against him.   We also affirm the judgment of conviction of

unlawful possession of a controlled substance.

                                    So ordered.
     BUDD, J. (concurring). I join the opinion of the court

because I agree that it is unworkable to strike down the

authorization rule articulated in Commonwealth v. Santana, 

 (1995).   However, I write separately because, although

-- as the court points out -- the driver here was not stopped

for "driving while black," it is important to highlight how

pretextual stops disproportionately affect people of color, and

to explore what can be done to mitigate the harm caused by this

practice.

     Years of data bear out what many have long known from

experience:   police stop drivers of color disproportionately

more often than Caucasian drivers for insignificant violations

(or provide no reason at all).   In 2017, the Stanford Open

Policing Project found that police stopped African-American

drivers more than Caucasian drivers, controlling for population

makeup, both nationally and in Massachusetts.1   Stanford Open

Policing, Stop Rates, 2017, https://openpolicing.stanford.edu

/findings/ [https://perma.cc/F6HT-87WE].   See United States

Department of Justice, Office of Justice Programs, Bureau of

Justice Statistics, Special Report, Police Behavior During

     1
       I note that although most of the data focuses on people of
color, other marginalized communities, i.e., groups of people
who have historically experienced some form of oppression or
exclusion, are also the target of heightened police attention.
Transgendered people, for example, have reported facing
disproportionate harm by encounters with law enforcement.
Activists Say Police Abuse of Transgender People Persists
Despite Reforms, New York Times, Sept. 6, 2015.
                                                                    2

Traffic and Street Stops, 2011, at 3 (rev. October 27, 2016),

https://www.bjs.gov/content/pub/pdf/pbtss11.pdf

[https://perma.cc/2ML3-UWY9].

     In effectuating traffic stops, most officers act in good

faith.   Even where they do, to a Caucasian driver a traffic stop

may be annoying or embarrassing, but for a driver of color, such

a stop can be humiliating and painful.2   Commonwealth v.

Feyenord, 

 (2005), cert. denied, 

(2006) (Greaney, J., concurring).   Further, recent tragic events

have shown that the fear people of color have of being stopped

by police is justified:   African-Americans have been killed

during routine traffic stops.3


     2
       In Commonwealth v. Warren, 

 (2016), when
we discussed the related problem of racial profiling in Terry-type stops, we noted "the recurring indignity of being racially
profiled."
     3
       The following are a few recent examples that have gained
national attention. A police officer in Minnesota stopped
Philando Castile for a broken taillight. During the encounter,
the officer shot him four times, killing him in front of his
fiancée and four year old daughter. Woman Streams Aftermath of
Fatal Officer-Involved Shooting, Cable News Network, July 8,
2016, http://www.cnn.com/2016/07/07/us/falcon-heights-shootingminnesota/index.html [https://perma.cc/4P5A-YY28]. In Ohio, the
police stopped Samuel DuBose for failing to display a front
license plate, and fatally shot him during the stop. The
Shooting of Samuel DuBose, New York Times, July 29, 2015. The
South Carolina police stopped Walter Scott for a broken
taillight, and shot him to death as he fled. Carbado, From
Stopping Black People to Killing Black People: the Fourth
Amendment Pathways to Police Violence, 

, 149
(2017). In Texas, a police officer stopped Sandra Bland for
failing to signal a lane change. 

. She was found
dead in jail three days later. 

                                                                   3

     It goes without saying that this is not a new phenomenon.

Almost twenty years ago, then-Associate Justice Ireland noted

statistics from multiple jurisdictions showing that African-

American and sometimes Hispanic drivers were stopped more often

than Caucasian drivers, even though Caucasian drivers were the

majority group.   Commonwealth v. Gonsalves, 

(1999) (Ireland, J., concurring).

     The reasons for pretextual stops of people of color stem

from explicit bias (i.e., racial profiling), unconscious bias,4

or a combination of both.   See Carbado, From Stopping Black



     Massachusetts is not immune from traffic stop violence.
Wakeelah Cocroft, an African-American woman, was a passenger in
a vehicle that the police stopped for speeding in Worcester.
Cocroft v. Smith, 

 (D. Mass. 2015).
During the stop, an officer "forcefully threw Cocroft to the
ground and scraped her face against the cement." 

 In a
subsequent civil suit, a jury found that the officer had
unlawfully seized Cocroft. 

.

     It is also important to note that these examples are not
meant to diminish the fact that police officers are at risk
during traffic stops as well. Auburn police officer Ronald
Tarentino, for example, was shot to death during a traffic stop.
Obituary for Fallen Police Officer Ronald Tarentino, Jr., Boston
Herald, May 24, 2016, http://www.bostonherald.com/news/local_
coverage/herald_bulldog/2016/05/obituary_for_fallen_police_
officer_ronald_tarentino_jr [https://perma.cc/8GNT-KQRU].
     4
       Unconscious or implicit bias is a discriminatory belief or
association likely unknown to its holder. Multiple studies
confirm the existence of implicit bias, and that implicit bias
predicts real-world behavior. See Kang & Banaji, Fair Measures:
A Behavioral Realist Revision of "Affirmative Action," 

, 1071-1073 (2006). That is, even people who do not
believe themselves to harbor implicit bias may in fact act in
ways that disfavor people of color.
                                                                    4

People to Killing Black People:    The Fourth Amendment Pathways

to Police Violence, 

, 129-130 (2017);

Harris, The Stories, the Statistics, and the Law:    Why "Driving

While Black" Matters, 

, 291-292 (1999);

Ramirez, Hoopes, & Quinlan, Defining Racial Profiling in a Post-

September 11 World, 

, 1197-1198 (2003).

See also Greenwald & Krieger, Implicit Bias:    Scientific

Foundations, 

, 951 (2006); Lawrence, The Id,

the Ego, and Equal Protection:    Reckoning with Unconscious

Racism, 

, 343 (1987).    Regardless of the

cause, it is a persistent, pervasive problem that must be

addressed.

    The solution, however, is not clear cut.    For the reasons

outlined by the court, the answer is not to overrule the

authorization rule articulated in Santana, 

.

As the court has explained, inquiring into subjective police

intent for traffic stops would lead to several practical

difficulties, not least among them the question of how precisely

to determine intent.   Ante at     .

    In Commonwealth v. Lora, 

 (2008), the court

reiterated that although "law enforcement officers enjoy

considerable discretion in exercising some selectivity for

purposes consistent with the public interest," that

"selectivity" cannot be based on "an unjustifiable standard such
                                                                    5

as race, religion or other arbitrary classification"5 (quotations

and citations omitted).   

.   The court concluded

that to rebut the presumption that a stop was not undertaken as

a result of an arbitrary classification, a defendant must

present "credible evidence establishing a reasonable inference

of impermissible discrimination."   

.   The court

further held that

     "[a]t a minimum, that evidence must establish that the
     racial composition of motorists stopped for motor vehicle
     violations varied significantly from the racial composition
     of the population of motorists making use of the relevant
     roadways, and who therefore could have encountered the
     officer or officers whose actions have been called into
     question."

.

     Thus, the court attempted to provide a means of combatting

pretextual stops based on race with statistics.   We noted that a

similar approach had been somewhat successful in New Jersey.

, citing State v. Soto, 

 (1996).

As it happened, traffic stop statistics also were being

collected in the Commonwealth.   Before Lora was decided, the

Legislature had passed An Act providing for the collection of

data relative to traffic stops (act), St. 2000, c. 228.

Pursuant to the act, Northeastern University analyzed a year's

worth of data collected on racial and gender profiling, and

     5
       As the court points out, the defendant did not bring a
claim under the equal protection provisions of the Massachusetts
Constitution, another fatal blow to mounting a challenge to
pretextual stops. Ante at     .
                                                                         6

issued a report in 2004.     Lora, 

.   Despite the

Legislature's focus on data collection in this act, the court

acknowledged that the defendant's evidentiary burden was

"daunting."    

.

    In a concurring opinion, then-Justice Ireland pointed out

some of the difficulties involved in collecting the necessary

data, even with the act in place.     

 (Ireland, J.,

concurring).    For example, although the act required law

enforcement agencies that had racially profiled to continue to

gather statistics, it did not contain provisions requiring those

agencies to report the data to anyone or to analyze the data,

severely undercutting any use that data might have had.       

(Ireland, J., concurring).     Moreover, almost one-half of the

targeted agencies failed to follow the reporting guidelines of

the act, for example by failing to track certain factors or

failing to report at all.    

 (Ireland, J., concurring).

    Justice Ireland's concerns were prescient:     the act

required governmental data collection for only a limited amount

of time, and the Legislature has not renewed the necessary

funding.   See St. 2000, c. 228, § 8 (assigning financial

responsibility to State agencies); id. at § 10 (requiring data

to be transmitted for analysis after one year).    Statistics on

traffic stops, thus, are now even more difficult to come by.        We

are not aware of any traffic stop cases in which a defendant has
                                                                     7

been able to gather and use statistics to prove that the stop

violated equal protection principles; it appears that Lora has

not provided the opportunity for defendants that we had hoped it

would.

    Concerns about bias in pretextual traffic stops are well

founded, as are concerns about the practical ability of

defendants to show racial bias by way of statistics as suggested

by Lora.   Because this is not a "driving while black" equal

protection case, the issue is not squarely before us.     However,

it is worth noting that it has been seventeen years since the

Legislature required State agencies to collect data on racial

profiling.   We are not aware of the data ever being used to

mount a challenge under Lora, and it is now woefully outdated.

The time has come for the Legislature to address the problem

once more.   Publicly available data would not only assist

litigants, but would also inform the public about this ongoing

problem.

    In the meantime, our recent holding in Commonwealth v.

Cordero, 

 (2017), has added to our jurisprudence.

There we held that a traffic stop may go no further than

investigating the alleged traffic violation unless that

investigation leads to information to support reasonable

suspicion of a crime.   

.   See Commonwealth v. Amado,

 (2016); Gonsalves, 

;
                                                                  8

Commonwealth v. Torres, 

 (1997).   These

cases are by no means a cure for racial profiling in traffic

stops, but they may provide a means to lessen their impact on

drivers and diminish the incentive to conduct pretextual stops.