COMMONWEALTH vs. KENTON W. FEYENORD.

CORDY, J. A jury convicted the defendant, Kenton W. Feyenord, of trafficking between one hundred and 200 grams of cocaine in violation of G. L. c. 94C, § 32E (b) (3). A divided

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panel of the Appeals Court affirmed the conviction. Commonwealth v. Feyenord, 62 Mass. App. Ct. 200 (2004). We granted further appellate review, limited to consideration of two issues: the denial of Feyenord's motion to suppress cocaine found by the police in the vehicle he was driving; and the sufficiency of the evidence. [Note 1] We conclude that the exterior sniff of a properly stopped motor vehicle, by a dog trained in drug detection, is not a search within the meaning of the Massachusetts Declaration of Rights. We also conclude that Feyenord's extended detention, after his motor vehicle was stopped for a traffic violation, for the purpose of summoning a canine unit, was reasonable and proportional to the unfolding circumstances that suggested his involvement in criminal activity beyond the violation for which he was initially detained. Consequently, Feyenord's motion to suppress was properly denied. We finally conclude that the evidence at trial was sufficient to support the jury's verdict and affirm the conviction.

1. Motion to suppress. We accept the motion judge's findings of fact and the undisputed evidence consistent with those findings adduced at the hearing on Feyenord's motion to suppress. [Note 2] See Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990). On May 4, 2000, at approximately 5:45 P.M., State Trooper William Pinkes was traveling on Route 395 in Auburn when he noticed a vehicle traveling behind him with one headlight out. The weather did not require the use of headlights, and it was daylight. After Pinkes allowed the vehicle to pass his marked police cruiser, he activated the cruiser's blue lights, and the driver pulled over. Inside were Feyenord and a passenger. Pinkes approached the vehicle and asked Feyenord for his driver's license and automobile registration. Feyenord was visibly nervous, and his hands were shaking. He was unable to produce a license but did hand Pinkes a Massachusetts registration that was apparently valid but not in his name. Pinkes asked the passenger

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for identification, and the passenger produced a photographic identification card from the country of Jamaica that identified him as a Jamaican national named Junior Cox. When Feyenord did not provide an intelligible response to Pinkes's request for his name, Pinkes ordered him out of the vehicle. Cox remained in the passenger seat.

Having separated Feyenord from Cox, Pinkes went back and forth between them to ask basic questions about their identities and destination. Standing outside the vehicle, Feyenord told Pinkes that his name was Kadari Bowen and his birthday was June 6, 1978. When asked his age, however, Feyenord struggled with the answer, providing one age and then another. Feyenord told Pinkes that Cox was his brother-in-law and the father of his sister's child, and that he had known Cox for twelve years. Feyenord also said that he had a New York driver's license and he and Cox were traveling to visit a friend in Putnam, Connecticut, for whom he could produce neither an address nor a telephone number. In contrast, Cox, still seated in the vehicle, told Pinkes that he had known Feyenord for two to three years, knew him only as "Pat," did not know his last name, and was not acquainted with any members of his family. Cox also said that they were headed to Brooklyn, New York.

These preliminaries lasted between five and ten minutes. At this point, Pinkes ordered Feyenord to sit in the back seat of the cruiser (unhandcuffed), telling him that he was not under arrest but was not free to leave. Pinkes then radioed for assistance from a canine officer, State Trooper James Devlin, who arrived at the scene within fifteen to twenty minutes with a drug-sniffing dog. Devlin proceeded to direct the dog around the vehicle. The dog displayed a heightened interest in an area near the left rear of the vehicle's trunk. The officers proceeded to open the trunk and place the dog inside. [Note 3] The dog again became excited in the area of the trunk near the left taillight. Pinkes then searched the trunk, discovering an access panel in the area that had caused

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the dog's agitation. Once he removed this panel, Pinkes found a gray plastic bag and, within, a digital scale and small black plastic bags each containing a quantity of a substance that appeared to be crack cocaine.

a. The traffic stop. Feyenord first argues that the judge should have granted his motion to suppress the cocaine because the police had no justification to stop him for driving a vehicle with one inoperable headlight in daylight. We disagree. General Laws c. 90, § 7, provides that "[e]very motor vehicle operated in or upon any way . . . shall be provided with . . . suitable lamps." We interpret this language to mean that a motor vehicle's headlamps must be suitable at all times so that they are capable of being illuminated whenever road conditions might warrant. [Note 4] Neither the time of day nor the weather conditions during the operation of the motor vehicle has any bearing on this requirement. Although some vehicles driven during daylight may have defective headlights but escape detection by police, Feyenord was nonetheless operating his vehicle in violation of the statute. Pinkes's stop of Feyenord's vehicle was lawful. Commonwealth v. Santana, 420 Mass. 205, 207 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle").

b. The exit order. Feyenord next argues that the judge should have granted his motion to suppress because Pinkes ordered him to leave the vehicle without a reasonable suspicion of danger. We conclude that the exit order was proper.

Under art. 14 of the Declaration of Rights of the Massachusetts Constitution, "a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle." Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999). However, "[w]hile a mere hunch is not enough . . . it does not take much for a police officer to

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establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order." Id. at 664.

Here, Feyenord could not produce his driver's license, and Pinkes had been unable to ascertain his identity. Commonwealth v. Santana, supra at 213-214 n.8, and cases cited. Feyenord was visibly nervous and with a companion. Pinkes was alone. Although the exit order was not predicated on suspicious movements or the visible presence of a weapon or possible contraband, police officers need not "gamble with their personal safety," and the course of events after the stop sufficiently gave "rise to legitimate safety concerns" to justify the taking of the reasonable precaution of separating Feyenord from Cox and ordering Feyenord from the vehicle. Commonwealth v. Haskell, 438 Mass. 790, 794 (2003), quoting Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). See Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) ("justification for an exit order does not depend on the presence of an 'immediate threat' at the precise moment of the order, but rather on the safety concerns raised by the entire circumstances of the encounter"). The order also served a valid investigatory purpose. See Commonwealth v. Torres, 433 Mass. 669, 675 (2001) ("officer acted reasonably and within the limits of both Fourth Amendment and art. 14" because exit order was "no more intrusive than necessary . . . to effectuate both the safe conclusion to the traffic stop and the further investigation of the suspicious conduct"). See also Commonwealth v. Riche, 50 Mass. App. Ct. 830, 833-834 (2001) (exit order justified where "tender of a registration not crediting ownership of the vehicle to any occupant raised a question whether the car was stolen," and order served "special practical purpose" of "separating those in a stopped car from each other to frustrate interchange or collaboration among them"). Feyenord's claim that the fruits of the subsequent investigation should be suppressed because the exit order was unlawful is without merit.

c. Feyenord's further detention. Feyenord next argues that his motion to suppress should have been granted because he was unreasonably detained while the police, without reasonable suspicion of drug-related activity, summoned a canine officer

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with a drug-sniffing dog to the scene, thereby impermissibly broadening the scope of the inquiry under art. 14 and the Fourth Amendment. We have not had occasion to decide what type of suspicion police officers must have to escalate a general inquiry of a motorist in connection with a violation of traffic laws to an investigation that utilizes a drug-sniffing dog and justifies the prearrest detention of a motorist for such purpose. We are, however, aided by the progeny of Terry v. Ohio, 392 U.S. 1 (1968), applicable to traffic stops and temporary detentions. Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (investigative stop of a vehicle by police is "analogous to a so-called 'Terry stop' ").

In considering the temporary detention of a motorist, we begin with the "settled principle that '[a] justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop.' " Commonwealth v. Torres, 424 Mass. 153, 162 (1997), quoting Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 557 (1996). "In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion. 'The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct.' " Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), quoting Commonwealth v. Williams, 422 Mass. 111, 116 (1996). In order to expand a threshold inquiry of a motorist and prolong his detention, an officer must reasonably believe that there is further criminal conduct afoot, and that belief must be based on "specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Commonwealth v. King, 389 Mass. 233, 243 (1983), quoting Commonwealth v. Silva, 366 Mass. 402, 406 (1974). See Commonwealth v. Williams, supra at 116 ("We view the facts and circumstances as a whole in assessing the reasonableness of the officer['s] conduct"); Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) ("a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief"); Commonwealth v. Wren, 391 Mass. 705, 707 (1984), and cases cited ("A hunch will not suffice").

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In this case, Pinkes conducted a threshold inquiry in which Feyenord could not produce a valid driver's license, produced a registration in another person's name, failed to identify himself, and appeared nervous. As discussed above, these circumstances justified an exit order and further inquiry. [Note 5] After additional questioning of Feyenord and Cox, Pinkes made several decisions: (1) he chose not to arrest Feyenord, as an out-of-State driver without a license, despite having probable cause to do so, see G. L. c. 90, §§ 10, 21; (2) he focused his investigation on the possibility that the vehicle contained drugs by summoning a canine unit; and (3) he opted to detain Feyenord in the rear of his cruiser for fifteen to twenty minutes while awaiting the arrival of the canine unit. [Note 6] Feyenord contends that this set of actions constituted a violation of his Fourth Amendment and art. 14 rights. We disagree.

In the course of questioning Feyenord and Cox about their identities and destination, Pinkes uncovered significant inconsistencies. Given Feyenord's inability to produce a valid driver's license, his nervous behavior, and these unsettling inconsistencies, Pinkes could reasonably have concluded, based on "specific and articulable facts and the specific reasonable inferences which follow from such facts," that Feyenord and Cox were engaged in criminal activity beyond Feyenord's nonpossession of a license and the vehicle's malfunctioning headlight. Commonwealth v. King, supra at 243. Pinkes was thus justified in further detaining Feyenord and Cox and expanding the scope of his investigation beyond mere motor vehicle violations. See Commonwealth v. Wilson, 360 Mass. 557, 559-560 (1971) (defendant's incredible claim of ignorance about provenance of water pistol in vehicle justified further inquiry); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995)

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("Inability to produce a license or a registration reasonably gives rise to a suspicion of other offenses, such as automobile theft . . ."). See also 4 W. R. LaFave, Search and Seizure § 9.2(f), at 334-335 (4th ed. 2004), and cases cited ("if the suspect's explanation needs to be checked out, and in particular if his explanation is known to be false in some respects, there is reason to continue the detention somewhat longer while the investigation continues").

Having concluded that Pinkes was entitled to extend Feyenord's detention and expand the scope of his investigation, we must consider whether his decision to summon and employ a drug-sniffing dog required additional facts that specifically pointed to Feyenord's involvement in drug-related activity. [Note 7] See, e.g., Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 213 (2004) (Greenberg, J., dissenting) (facts must specifically arouse suspicion of narcotics trafficking in order to justify detaining the driver for the purpose of calling canine unit to conduct drug sniff), citing United States v. Perkins, 348 F.3d 965, 970-971 (11th Cir. 2003) [Note 8] and People v. Caballes, 207 Ill. 2d 504, 509-510 (2003), vacated, 543 U.S. 405 (2005). See also State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002)

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("reasonable, articulable suspicion of drug-related criminal activity" necessary to conduct dog sniff after vehicle stopped for routine equipment violation). Because we conclude that Pinkes's course of action was reasonable, it did not impermissibly expand the scope of his investigation.

Although the facts supported the trooper's suspicion that criminal activity was "afoot," Terry v. Ohio, 392 U.S. 1, 30 (1968), the specific type of criminal activity that might be "afoot" was decidedly uncertain. The facts were consistent with a number of possibilities, including automobile theft, fugitive flight, and the transportation of contraband, to list just a few. "An expeditious collateral inquiry which might result in the suspect['s] arrest or prompt release is not unreasonable when done to meet 'the practical demands of effective criminal investigation and law enforcement.' " Commonwealth v. Barros, 425 Mass. 572, 585 (1997), quoting Commonwealth v. Salerno, 356 Mass. 642, 646-647 (1970). Faced with facts such as those presented here, an officer must make judgments about what resources are readily available to him that might quickly dispel or confirm his suspicion that the driver is involved in some form of criminal activity. [Note 9] Such judgments should not be second guessed by courts, particularly where "the police are acting in a swiftly developing situation." Commonwealth v. Sinforoso, supra at 325, quoting United States v. Sharpe, 470 U.S. 675, 686 (1985). We are disinclined to promulgate a rule artificially prioritizing or limiting the investigative methods that an officer may utilize in these circumstances. The test is one of reasonableness, and the decision to call a canine officer and drug-sniffing dog stationed nearby to confirm or dispel the possibility of drug transportation was far from unreasonable in this case. [Note 10]

Equally important, the detention of Feyenord (while potentially

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embarassing) was not overly prolonged or onerous in duration. As with all investigative stops of this nature, the police had a responsibility to proceed expeditiously with their investigation. "In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." United States v. Sharpe, supra. In this case, Pinkes followed his inquiry of the occupants of the vehicle by promptly summoning the canine unit, and the total detention lasted no longer than thirty minutes. [Note 11] See Commonwealth v. Sinforoso, supra at 325-326.

In sum, we conclude that "the conduct of the officer[] was proportional to the escalating suspicion that emerged over the course of the stop." Commonwealth v. Sinforoso, supra at 323. Consequently, Feyenord's detention for the purpose of summoning

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a canine unit with a drug-sniffing dog was not contrary to either the Fourth Amendment or art. 14.

d. The dog sniff of the vehicle. Finally, Feyenord argues that the motion to suppress was improperly denied because the use of the dog to ascertain the presence of drugs in the vehicle was an unreasonable "search" contrary to the Fourth Amendment and art. 14. Feyenord's Fourth Amendment argument is foreclosed by decisions of the Supreme Court, including Illinois v. Caballes, 543 U.S. 405, 410 (2005) ("dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment"), and Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (while vehicle stop effectuates Fourth Amendment seizure, use of narcotics-detection dog around vehicle's exterior does not transform seizure into search). It remains for us to consider whether such a canine sniff is a search under art. 14. See, e.g., Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999), and cases cited ("[w]e have expressly granted . . . protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment").

"When we confront the question whether police activities amount to a search or seizure within the meaning of art. 14, we ask 'whether the defendants' expectation of privacy [in the circumstances] is one which society could recognize as reasonable.' " Commonwealth v. Blood, 400 Mass. 61, 68 (1987), quoting Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982). See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). We agree with the Appeals Court that "the dog's sniff and resulting 'alert' would constitute a search only if society were prepared to say that the defendant was reasonable in his subjective expectation of privacy in the odor of cocaine emanating from his car. We think that society is wholly unprepared and unwilling to take that step." Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 207-208 (2004). Accordingly, we conclude that a dog sniff of a properly stopped vehicle is not a search

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under art. 14. [Note 12] See Illinois v. Caballes, supra at 409; Indianapolis v. Edmond, supra at 40; Commonwealth v. Sinforoso, supra at 324, citing United States v. Place, supra at 707. See also State v. Wiegand, 645 N.W.2d 125, 132-133 (Minn. 2002) (canine sniff of automobile not "search" under Minnesota Constitution; "we perceive no sound basis on which to reject the U.S. Supreme Court's approach to the Fourth Amendment issue presented in this case"). [Note 13]

After "the dog indicated the presence of narcotics in the rear of the car, the police had probable cause to search the car." Commonwealth v. Sinforoso, supra at 324, citing Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). Consequently, the discovery and seizure of the contraband was proper and Feyenord's motion to suppress was correctly denied.

2. Sufficiency of the evidence. Feyenord argues that the judge erred in denying his motion for a required finding of not guilty, which he made at the close of the Commonwealth's case and at the close of all the evidence, because the evidence did not demonstrate his participation in a joint venture to traffic in

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cocaine. "The essential question in evaluating the denial of a motion for a required finding of not guilty is whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury "might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.' " Commonwealth v. Pope, 406 Mass. 581, 584 (1990), quoting Commonwealth v. Clary, 388 Mass. 583, 588 (1983). "It is not essential that the inferences drawn from facts or circumstances be necessary inferences. . . . It is enough if the inferences drawn from the circumstances be reasonable and possible. . . . The weight of the evidence is for the jury." (Citations omitted.) Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968), cert. denied sub nom. Bernier v. Massachusetts, 393 U.S. 1058 (1969).

State Troopers Pinkes and Devlin testified at trial, providing much the same account as offered at the hearing on Feyenord's motion to suppress and credited by the judge in his findings on the motion. [Note 14] After the troopers arrested Feyenord, they discovered $510 on his person, including twenty-five twenty dollar bills and one ten dollar bill. A State trooper specializing in narcotics investigations testified that later testing of the substance discovered in the vehicle revealed that the bags contained 163 grams of sixty-one per cent concentration crack cocaine, the street value of which was more than $16,000. The State trooper testified that the purity and packaging of the cocaine and the discovery of a scale with the drugs were consistent with drug dealing.

In Feyenord's defense, a former girl friend of Feyenord's uncle testified that Feyenord had stayed in her Worcester home the night before his arrest, after he arrived on a bus from New York City. She also testified that she gave Feyenord permission to drive her vehicle back to New York so long as he returned it the same day, but indicated that there were no drugs in the

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vehicle when she lent it to him. Feyenord testified in his own defense and denied that he had any knowledge of the cocaine found in the vehicle. He claimed that he was in Massachusetts investigating the possibility of moving here from New York. [Note 15] On the day of his arrest, he borrowed the vehicle to help his friend Junior Cox, with whom he had traveled from New York City, transport numerous shopping bags back home. Feyenord asserted that, while Cox had placed his parcels in the trunk, he had not looked in the trunk himself. He explained that he gave a false name, the name of a cousin, to Pinkes at the traffic stop because he was wanted on an outstanding default arrest warrant from 1995, which he did not want discovered. Feyenord also testified that the large sum of cash on his person had been wired to him for work he performed as an auto detailer while in New York City, although the defense did not further substantiate the claim.

At trial, the Commonwealth argued alternatively that Feyenord was guilty of cocaine trafficking as a principal or as a participant in a joint venture. The jury found Feyenord guilty solely as a joint venturer. [Note 16] In order to succeed on a theory of joint venture, the Commonwealth must prove that the defendant was "(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Charros, 443 Mass. 752, 758-759 (2005), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983). We conclude that the evidence was sufficient to support the jury's verdict. See Commonwealth v. Charros, supra at 759; Commonwealth v. Sabetti, 411 Mass. 770, 780 (1992).

The jury could have reasonably concluded that Feyenord knew of the large quantity of drugs stored in the vehicle he was driving because Feyenord appeared nervous when approached by Pinkes and provided false, evasive, and implausible answers

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to police questions. See Commonwealth v. Sinforoso, 434 Mass. 320, 328-329 (2001) (nervousness and responses to police questions that are inconsistent and implausible suggest defendant's connection to drugs); Alicea v. Commonwealth, 410 Mass. 384, 387-388 (1991) (defendant's agitation may support inference that he knew drugs were present). In addition, Feyenord possessed a large sum of cash when arrested, in denominations consistent with his involvement with drug dealing. See, e.g., Commonwealth v. Brzezinski, 405 Mass. 401, 410 (1989). From this evidence, the jury could have inferred that Feyenord was at least assisting Cox with the enterprise of trafficking cocaine.

As Feyenord was driving a vehicle containing a large quantity of cocaine and the Commonwealth's case permitted a reasonable inference that Feyenord knew of the cocaine and intended to assist Cox with trafficking it, the evidence supports the jury's verdict of Feyenord's guilt as a joint venturer. We see no error in the denial of Feyenord's motions for a required finding of not guilty.

Judgment affirmed.

GREANEY, J. (concurring). I agree with the court that the defendant's motion to suppress was properly denied because the police acted lawfully. In the circumstances that occurred, when a police officer harbors a reasonable suspicion that a crime has been committed, and that suspicion escalates, based on multiple false and evasive responses, and then reasonably focuses on the possibility of drug-related criminal activity, [Note Greaney-1] a dog sniff around the exterior of an otherwise lawfully stopped vehicle is a permissible investigative technique. I write separately, however, to

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voice my concern that it not become a routine occurrence to summon a drug sniffing dog to the scene whenever the operator, or passengers, of a vehicle that has been stopped for a minor traffic violation, appear nervous or answer an officer's questions inconsistently.

In our democratic society, special concern must be vigilantly exercised by the courts to balance the rights of the police under the principles of Terry v. Ohio, 392 U.S. 1 (1968) (which have expanded considerably over the years since Terry was decided), with the protections afforded less powerful citizens who often feel the brunt of Terry-type stops. Many of these citizens (some even noncitizens), because of their economic standing, will be driving vehicles with defective equipment or driving them without proper licenses or registrations. Moreover, these vehicles will frequently be operated in areas of cities that have known drug zones (Lowell, Holyoke, Springfield, parts of Boston, to mention a few). The police, endeavoring to stamp out drug commerce and use, will invariably be making traffic stops in these zones. The lack of a license or proper registration or the commission of a routine traffic violation, coupled with nervousness, or even some evasion on the part of the operator or others in the vehicle, may provide a basis to continue detention under Terry principles, but should not, by themselves, provide a basis to bring in a drug-sniffing dog. As cogently noted by Professor LaFave:

"Allowing . . . dogs to be used serves only as a positive encouragement for police to engage in pretext and subterfuge, hardly a defensible move given the common knowledge that traffic-law enforcement has been diverted from its justified objectives to serve as a means for seeking out drugs. Allowing use of the drug dogs at all in conjunction with traffic stops can only encourage the making of stops for insignificant and technical violations on the basis of unarticulated suspicions and mere hunches or, at worst, on totally arbitrary and discriminatory bases. Moreover, allowing use of the dogs at all adds to the process another decision, whether to summon a drug dog, that the cases indicate requires no reasonable suspicion nor, for that matter, any justification whatsoever, but that

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the practice indicates is also likely to be made on an arbitrary basis." (Footnotes omitted.)

LaFave, The "Routine Traffic Stop" From Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1896 (2004). See 4 W.R. LaFave, Search and Seizure § 9.3(f), at 400 (4th ed. 2004).

This case also provides an opportunity to speak directly to the subject of racial or ethnic profiling in the context of the use of drug sniffing dogs during traffic stops. The majority of police officers proceed in good faith when making traffic stops. Some officers, however, do not and proceed more on stereotypical thinking and hunches, using dubious investigative techniques that result in the harassment of racial and ethnic minorities. In his concurring opinion in Commonwealth v. Gonsalves, 429 Mass. 658 (1999), Justice Ireland wrote of "the dangers posed by unfettered police power to order individuals out of automobiles without any justification" and of documented "widespread public concerns about police profiling, commonly referred to as 'DWB -- driving while black.' " Id. at 669, 670 (Ireland, J., concurring). The same kind of discriminatory conduct is also directed at other ethnic groups, especially Hispanics. A motorist must never be stopped based on his or her race or ethnicity without legally sufficient cause. Getting a traffic ticket is never a happy experience. Getting a traffic ticket if you are a black or Hispanic person who has committed a minor traffic violation and then been questioned in public view by an armed police officer determined to find a basis, or extract consent, to bring in a police dog, is humiliating, painful, and unlawful. See generally S.R. Gross, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651 (2002).

A dog sniff is not a search under the Fourth Amendment to the United States Constitution, see Illinois v. Caballes, 543 U.S. 405, 407-410 (2005); United States v. Place, 462 U.S. 696, 707 (1983), and the court correctly concludes that a dog sniff of the exterior of an automobile is likewise not a search within the meaning of art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 607-609 (1993) (helicopter surveillance of backyard

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of private home not a search); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991) (measure of expectation of privacy under art. 14 is "(1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable"). I would pursue the art. 14 analysis a step further, however, and candidly acknowledge that the use of a dog during a traffic stop, while not a full search in the constitutional sense, is more than a de minimis intrusion into the detained individual's privacy interests. See Commonwealth v. Gonsalves, supra at 662-663 (art. 14 extends protections to drivers and occupants of motor vehicles beyond those granted by Fourth Amendment and protects Massachusetts citizens from being subjected to unjustified exit orders during routine traffic stops). I would recognize that the act of summoning a dog heightens the tension inherent in any traffic stop to a measurable degree, and that the use of a drug-sniffing dog, even around the exterior of a vehicle, sends a clear public signal, not only to the detained motorist, but to all others passing by, that a drug investigation is in progress. See 4 W.R. LaFave, Search and Seizure, supra at § 9.3(f), at 401. In sum, "[i]njecting [a dog] into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer." Illinois v. Caballes, supra at 421 (Ginsburg, J., dissenting). Taking a broader perspective, there is something viscerally disturbing about the use of police dogs in traffic stops -- something that hints at the oppressive measures used by police in societies where respect for personal freedom and privacy are devalued or nonexistent.

In my view, we should clearly delineate the permissible bounds of a routine traffic stop, beyond which police officers may not go, in order fully to protect the art. 14 rights of all our citizens and to avoid even the appearance of having countenanced official discrimination and harassment. A police officer conducting a traffic stop may not summon a canine officer and dog on a mere hunch or unarticulated suspicion that drugs might be discovered in the stopped vehicle. See State v. Wiegand, 645 N.W.2d 125, 136-137 (Minn. 2002). Nor may the officer continue to engage the vehicle's occupants in arbitrary or dilatory

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questioning, thus surreptitiously enlarging the duration and scope of the stop, in the expectation that circumstances may turn up justification, or consent obtained, to initiate a dog sniff of the vehicle. See People v. Cox, 202 Ill. 2d 462, 470-471 (2002), cert. denied, 539 U.S. 937 (2003); State v. Mitchell, 265 Kan. 238, 244-245 (1998). Even when an officer's decision to summon a dog is based on a justifiable suspicion of drug-related activity that arose during the course of the stop, the dog sniff and its fruits should be suppressed if tainted by the officer's protracted detention of the vehicle's occupants and failure promptly to terminate the stop when its original lawful objectives are accomplished. See Commonwealth v. McCleery, 345 Mass. 151, 153-154 (1962). The court recognizes this to be true, ante at 78 n.5, but, nonetheless, considers it significant that the defendant's detention "was not overly prolonged or onerous in duration" and "lasted no longer than thirty minutes." Ante at 81. In the usual case, thirty minutes is too long to detain a motorist, in order to effectuate a dog sniff of the vehicle, in the absence of a reasonable articulable suspicion of drug-related activity. An officer's conduct during a Terry-type stop of a motor vehicle must be at all times lawfully related in scope to the circumstances that justified the stop in the first place, or to unfolding circumstances as they develop. See Terry v. Ohio, supra at 19-20. We must ensure that, under art. 14, the use of a drug-sniffing dog in connection with a routine traffic stop remains the exception and does not become the rule.

MARSHALL, C.J. (dissenting, with whom Ireland, J., joins). Today the court holds that the police may use a drug-sniffing dog to make a public and targeted investigation of an automobile driver pulled over for a routine traffic violation (driving during the day time with only one working headlight), even though the police have no reason to suspect that he is involved in any illicit drug activity. Because the scope of the canine detection in this case was neither reasonable in the circumstances nor proportional to the investigating officer's actual suspicions, as is required by our settled jurisprudence, I respectfully dissent.

It is black letter law that, to withstand a challenge to evidence

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seized during an investigatory stop, the Commonwealth must show that "it was permissible to initiate" the stop and that "the scope of the seizure was justified by the situation." Commonwealth v. Williams, 422 Mass. 111, 116, 118 (1996), citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968). I agree with the court that, in this case, the stop was legal. Ante at 75.

Our interpretation under art. 14 of the Massachusetts Declaration of Rights of the permissible "scope" of any ensuing investigation is equally settled. Any broadening in the scope of the investigatory stop must be "reasonable" and "proportional" in light of the "degree of suspicion the police reasonably harbor." Commonwealth v. Williams, supra at 116, 117. See Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001) ("In evaluating whether the police exceeded the permissible scope of a stop, the issue is one of proportion"); Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 665 (1999) (reasonableness requirement in escalation of scope of traffic stops helps prevent arbitrary or harassing police conduct). I cannot agree with the court's conclusion that the decision by the state trooper to summons a narcotics sniffing dog was "reasonable." Ante at 80.

It is uncontested in this case that the investigating state trooper had no reason to suspect that the defendant was involved in any drug activity when he ordered the canine search. Rather, as the court candidly recognizes, the trooper had only a generalized suspicion that something might be afoot. What that something was, was "decidedly uncertain," and "consistent with a number of possibilities." Ante at 80. There is nothing in the record to indicate that the police "reasonably focuse[d] on the possibility of drug-related criminal activity." Ante at 86. A motorist's nervousness and false responses to police questions, without more, does not permit the police to conclude that illegal narcotics activity is afoot. [Note Marshall-1] In this case, as the Appeals Court

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noted, at the point he decided to summon a police dog trained "to detect marijuana, cocaine, hashish, and heroin," the trooper had determined only that "something meriting further investigation was afoot" (emphasis added). Commonwealth v. Feyenord, 62 Mass. App. Ct. 200, 203 (2004).

I conclude that the use of a drug-detection dog is not "proportional" or "justified" during a routine traffic stop unless the police have a reasonable suspicion that the detained individual is engaged in unlawful drug-related activities. See Illinois v. Caballes, 543 U.S. 405, 418-422 (2005) (Ginsburg, J., dissenting) (use of drug-sniffing dog during traffic stop "broaden[s] the scope of the traffic-violation-related seizure" and therefore ought to require reasonable suspicion). This is not only required, as I shall explain, by our art. 14 jurisprudence, but also is consistent with the conclusions of numerous other State courts of last resort, examining the limits imposed by their respective State Constitutions on targeted canine drug sniffing. See, e.g., State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002) (reasonable suspicion of drug activity required before initiation of canine sniff); State v. Pellicci, 133 N.H. 523, 534 (1990) (same); People v. Dunn, 77 N.Y.2d 19, 26 (1990), cert. denied, 501 U.S. 1219 (1991) (same); Commonwealth v. Johnston, 515 Pa. 454, 465-467 (1987) (same). See also State v. Tackitt, 315 Mont. 59, 69-70 (2003) ("particularized suspicion" of narcotics required to initiate sniff).

A canine drug sniff conducted during the course of a traffic

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stop is intrusive, embarrassing, and anxiety inducing. [Note Marshall-2] That " 'drug dogs are not lap dogs' . . . changes the character" of an interaction between a police officer and a private citizen, which "becomes broader, more adversarial, and (in at least some cases) longer" when the police officer insists on probing the citizen with a drug sniffing dog. Illinois v. Caballes, supra at 421 (Ginsburg, J., dissenting), quoting United States v. Williams, 356 F.3d 1268, 1276 (10th Cir.) (McKay, J., dissenting), cert. denied, 543 U.S. 852 (2004). See 1 W.R. LaFave, Search and Seizure § 2.2(g), at 537 (4th ed. 2004) (canine search of persons "is embarrassing, overbearing and harassing, and thus should be subject to Fourth Amendment restraints"). Traffic stops occur in public places, and the motorist involved may often be known to others passing by. As Justice Greaney notes, a canine search "sends a clear public signal, not only to the detained motorist, but to all others passing by, that a drug investigation is in progress." Ante at 89. See 4 W.R. LaFave, Search and Seizure § 9.3(f), at 401 (4th ed. 2004). I cannot agree with the court that detaining a motorist at the side of the road while the police use a dog to sniff his vehicle is merely "potentially embarrassing." Ante at 80-81. Rather, I share Justice Greaney's concerns that the use of drug-sniffing dogs, when used during a traffic stop, "is more than a de minimis intrusion into the detained individual's privacy interests." Ante at 89. For these reasons, the use of a narcotics detection dog is "intimidating" and "upsetting to the innocent motorist." Y. Kamisar, W.R. LaFave, J.H. Israel, & N.J. King, Modern Criminal

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Procedure 430-431 n. (11th ed. 2005), quoting 4 W.R. LaFave, supra at § 9.3(f). No individual should be individually probed in this manner unless the police have reasonable suspicion that drug activity is afoot. [Note Marshall-3]

In my judgment, that conclusion is compelled by our art. 14 jurisprudence. In Commonwealth v. Gonsalves, supra at 663, we held that a police officer must have "a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a [person] out of a motor vehicle." In other words, even if a police officer has a legitimate basis for extending a traffic stop (in Commonwealth v. Gonsalves, supra at 660, the police suspected some illegal activity because the defendant passenger was "extremely nervous" and "appeared to be breathing heavily"), the officer cannot order a person out of a vehicle unless the officer has a reasonable belief that removal from the vehicle is required for reasons of safety. We explained in that case that our "rule" is rooted in art. 14's requirement that the police respect the privacy of motorists, avoid unnecessary delay and inconvenience in making traffic stops, id. at 663-664, and act at all times "in a reasoned way." Id. at 665. [Note Marshall-4] If our Constitution requires a "reasonable" fear for safety to justify ordering a motorist out of an automobile during a traffic stop, surely it requires no less before a canine drug sniff can be initiated against an individual stopped for a routine traffic violation:

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ordering a person from an automobile typically is less intrusive than conducting a canine narcotics sniff. A particularized "reasonable suspicion" requirement for canine drug detection during traffic stops prevents baseless harassment of citizens, without erecting any barrier to legitimate law enforcement activities. See Commonwealth v. Gonsalves, supra at 662-664.

The targeted use of a narcotics detection dog against a particular individual stopped for a routine traffic stop is entirely distinguishable from properly conducted police efforts to ensure public safety. The use of specially trained dogs in airports, schools, subway stations, or other such public arenas gives rise to issues not present in this case. See, e.g., Illinois v. Caballes, supra at 424-425 (Ginsburg, J., dissenting) (distinguishing search and seizure standards involving "general interest in crime control" from those involving "more immediate threats to public safety"), and cases cited. Reasonable canine detection can be utilized for public safety purposes without violating our carefully developed art. 14 jurisprudence.

The court's conclusion that canine narcotics detection is permissible in this case means necessarily that drug-sniffing dogs may be called in any time the police sense that the subject of a routine traffic stop is engaged in "some" unspecified wrongdoing. In so holding, the court departs (without reason or explanation) from our settled jurisprudence and deprives our citizens of meaningful protection from an investigatory tactic widely recognized as intrusive and "viscerally disturbing." Ante at 89. I respectfully dissent.