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13-P-837 Appeals Court

COMMONWEALTH vs. CYRUS S. FISHER.

No. 13-P-837.

Hampshire. May 9, 2014. - July 22, 2014.

Present: Cohen, Sikora, & Agnes, JJ.

Search and Seizure, Motor vehicle, Reasonable suspicion.

Controlled Substances. Constitutional Law, Search and 

seizure, Reasonable suspicion. Practice, Criminal, Motion 

to suppress, Interlocutory appeal.

Complaint received and sworn to in the Northampton Division 

of the District Court Department on November 26, 2012.

A pretrial motion to suppress evidence was heard by Jacklyn 

M. Connley, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Barbara A. Lenk, J., in the Supreme 

Judicial Court for the county of Suffolk, and the appeal was 

reported by her to the Appeals Court.

Michael J. Russo, III, Assistant District Attorney (Thomas 

H. Townsend, Assistant District Attorney, with him) for the 

Commonwealth.

Leah R. Kunkel for the defendant.
2

AGNES, J. This is an interlocutory appeal by the

Commonwealth from an order of a District Court judge allowing 

the defendant's motion to suppress evidence. See Mass.R.Crim.P. 

15, as appearing in 422 Mass. 1501 (1996). The judge found, on 

the basis of the undisputed evidence, that the police were 

lawfully engaged in a community caretaking function when they 

responded to a report that a person in a car may be either 

having a seizure or suffering from a drug overdose. What 

followed, as the facts below indicate, was the discovery of 

evidence indicating that the person in the vehicle, later 

identified as the defendant, Cyrus S. Fisher, possessed cocaine, 

a Class B controlled substance, and additional contraband. For 

the reasons that follow, we conclude the judge erred in finding

that the officer exceeded the scope of his authority when,

during a well-being check, he ordered the defendant to step out 

of his motor vehicle. Accordingly, we reverse the order 

allowing the defendant's motion to suppress.

Background. The essential facts are not in dispute. The 

only witness to testify at the hearing on the defendant's motion 

to suppress was Northampton police Officer Brendan McKinney. He 

was the second police officer to arrive at the scene, a gasoline

station and convenience store located on King Street. It was 

approximately 1:25 A.M. on November 24, 2012, when he arrived 

and found Officer McGrath already on scene. A third police 
3

cruiser and the fire department soon arrived. Officer McKinney 

observed Officer McGrath engaged in conversation with the 

defendant, who was seated in a vehicle with the driver's side 

door open.1 The defendant was asked if he had consumed any drugs 

or alcohol that evening and if he needed medical attention. He 

answered both questions in the negative, but his speech was 

slurred, his eyes were half-closed, and he was nodding his head 

up and down. There was no odor of an alcoholic beverage

emanating from the defendant or the vehicle. The defendant was 

wearing baggy pants with a cargo pocket that was partly open and 

visible from outside the vehicle. What occurred at this point 

according to the judge's succinct findings of fact is the 

following:

"[W]hen McKinney shined his flashlight on the pants, he saw 

a baggie sticking out of the pocket. He also saw what 

looked like a white powder in the baggie. He asked the 

defendant what it was, and asked him to take it out of his 

pocket. The defendant did, but he couldn't see immediately 

what it was because of the way the defendant held it in his 

hand. McGrath asked the defendant to exit the car, he was 

searched and found to be in possession of crack cocaine.

During an inventory of the car, located on the driver, seat

[sic] was an envelope containing baggies with what was 

believed to be [phencyclidine (PCP), a Class B controlled 

substance]. The defendant was placed under arrest."

1 No evidence was presented at the hearing as to who opened 

the car door or when it was opened. Like the trial judge, we 

assume that the opening of the vehicle's door was not the result 

of a search. See Commonwealth v. Evans, 436 Mass. 369, 372-373

(2002) (when facts, viewed objectively, indicate driver who may 

be in need of medical attention, police may open car door to 

perform well-being check of driver without any further 

justification).

 
4

Standard of review. In reviewing a ruling on a motion to 

suppress evidence, we accept the judge's subsidiary findings of 

fact unless they are clearly erroneous. See Commonwealth v.

Isaiah I., 450 Mass. 818, 821 (2008). We give substantial 

deference to the judge's ultimate findings and rulings. See 

Commonwealth v. Eckert, 431 Mass. 591, 593 (2000). However, we

independently review the correctness of the judge's application 

of constitutional principles to the facts as found. See

Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).

The defendant maintains that the judge determined the 

credibility and weight of Officer McKinney's testimony and found 

that McKinney did not know what was in the baggie until after 

the defendant was removed from his car and searched. It is 

settled that the credibility of the witnesses and weight to be 

given their testimony are matters reserved exclusively for the 

judge. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). 

When, as in this case, the evidence consists exclusively of the 

oral testimony of a witness, the judge's subsidiary findings are 

accepted on appeal unless they are clearly erroneous. 

Commonwealth v. Jones, 375 Mass. 349, 353-354 (1978).

The judge found that Officer McKinney "saw what looked like 

a white powder in the baggie." In the absence of any further 

finding with respect to the credibility of the witness, a 
5

finding that the officer observed what appeared to be white 

powder in a plastic baggie, as distinct from a finding that the 

officer observed white powder in a plastic baggie, is not 

constitutionally significant.2 See Commonwealth v. Whitehead, 85 

Mass. App. Ct. 134, 138 (2014) (reasonable suspicion turns on 

probabilities, not hard certainties). See also Commonwealth v. 

Spagnolo, 17 Mass. App. Ct. 516, 522 n.7, 523 n.9 (1984) (on 

motion to suppress, judge's task is to determine whether 

underlying basis for officer's action was sufficient; officer 

used word "guess" to describe reasonable and possible 

inference); Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 214

n.7 (2013) (we do not read finding of fact stating that officer 

was not certain about observation, without more, as 

determination that testimony lacked credibility).

2 When a judge makes subsidiary findings of fact, it is open 

to an appellate court to imply additional findings of fact so 

long as (1) "the evidence is uncontroverted," and (2) "the judge 

explicitly or implicitly credited the witness's testimony." 

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 

Mass. 818 (2008). In such a case, the ultimate result is 

governed by principles of law and may not be in agreement with 

the result reached by the judge. An appellate court may not 

fill in gaps in a judge's findings of fact when they are 

materially incomplete or clearly erroneous, or when they lack a 

determination as to credibility. Commonwealth v. Isaiah I., 450 

Mass. at 819-821 & n.4. See Commonwealth v. Rosado, 84 Mass.

App. Ct. 208, 221 n.4 (2014) (Sikora, J., dissenting) ("A judge 

disbelieving testimony, as either inadvertent error or 

intentional misstatement, must make the discrediting finding or 

risk a misunderstanding by the reviewing court").

 
6

Discussion. The community caretaking doctrine is 

applicable principally to a range of police activities involving 

motor vehicles, see Commonwealth v. Duncan, 467 Mass. 746, 750 

n.3 (2014), in which there are objective facts indicating that a 

person may be need of medical assistance or some other 

circumstance exists apart from the investigation of criminal 

activity that supports police intervention to protect an 

individual or the public. See Commonwealth v. Murdough, 428 

Mass. 760, 762-764 (1999). The existence of objective grounds 

supporting police intervention for legitimate, noninvestigatory 

reasons excuses the need for a warrant, probable cause, or even 

reasonable suspicion. See Commonwealth v. McDevitt, 57 Mass.

App. Ct. 733, 736 (2003).3

The law does not demand that an alert police officer must 

suppress his or her training and investigatory experience in 

carrying out the myriad of community caretaking functions 

society expects police officers to undertake for its protection.

3 There are "multitudinous everyday contacts between police 

officers and individuals" that do not involve "forcible 

intrusions on privacy" and for which no justification is 

required. Commonwealth v. Canavan, 40 Mass. App. Ct. 642, 646 

(1996). Thus, it is settled that a police officer may approach 

a person on the street or sitting in a parked motor vehicle and 

engage the person in conversation without any justification. 

See Commonwealth v. Lyles, 453 Mass. 811, 815 (2009). It is 

only when a seizure takes place that justification in terms of 

objective evidence of criminal activity or the need to perform a 

community caretaking function is required. See Commonwealth v. 

Eckert, 431 Mass. at 593-594.

 
7

See id. at 736-737. So long as the officer's conduct at the 

outset and throughout the course of exercising a community 

caretaking function is justified by the doctrine, the law does 

not attach significance to the officer's subjective motives. 

See Commonwealth v. Murdough, 428 Mass. at 762, quoting from 

Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 740 (1998) ("an 

officer's motive [does not] invalidate[] objectively justifiable 

behavior").

In performing a community caretaking function, a police 

officer's decision to detain a motorist for a brief period of 

time or to take other reasonable steps that intrude on a 

motorist's liberty in an effort to confirm whether emergency 

medical assistance is required or to determine the nature of the 

individual's apparent illness or impairment is not invalid 

because the acts taken by the officer also serve to uncover 

evidence of criminal activity. Thus, it has been noted that 

"[c]ommunity care-taking functions sometimes blend almost 

imperceptibly into the investigation of criminal activity." 

Grasso & McEvoy, Suppression Matters Under Massachusetts Law 

§ 4-2[f][1], at 4-32 (2013-2014 ed.).

In the present case, the judge correctly ruled that Officer 

McGrath and Officer McKinney acted reasonably in questioning the 

defendant to determine whether he needed medical assistance.

The police officers faced a situation in which the operator of a 
8

motor vehicle was impaired (slurred speech, eyes closing, head 

nodding). While alcohol intoxication was certainly a 

possibility, the absence of the tell-tale odor of an alcoholic 

beverage made it reasonable for the officers to explore other 

causes. Officer McKinney would have been derelict in his duty 

as a police officer if he did not take reasonable steps to 

determine the cause and extent of the defendant's impairment.

See Irwin v. Ware, 392 Mass. 745, 762 (1984).

The judge ruled that the observation of the plastic baggie 

in the defendant's open pocket and the presence of what appeared 

to be white powder did not contribute in a meaningful way to the 

officer's suspicion because "[a] mere hunch is not enough to 

justify an exit order." Although this is a correct statement of 

the law, it does not accurately fit the facts found by the 

judge. "Where police officers have a reasonable, articulable 

suspicion that a person in a vehicle has committed, is 

committing, or is about to commit a crime, they may stop that 

vehicle, issue an exit order, and conduct a threshold inquiry.

Though the officers were admittedly uncertain that a specific 

crime had occurred, their observations to that point were 

sufficient to raise a reasonable suspicion of criminal 

activity." Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 

616 (2011) (citations omitted).
9

Considering the totality of the factual circumstances -- a 

driver who exhibited signs of impairment, but who was not 

presenting with the constellation of symptoms commonly 

associated with alcohol intoxication, and the presence of a 

plastic baggie sticking out of his pants containing what 

appeared to be a white powder -- it was reasonable for the 

police officers to suspect that the defendant was in possession 

of narcotic drugs. In such circumstances, an exit order is 

allowed because it is proportional to the suspicion that arose 

once the plastic baggie was observed.4

 See Commonwealth v.

Bostock, 450 Mass. 616, 622 (2008) (upholding exit order to 

prevent defendant's flight when reasonable suspicion of criminal 

activity arose during nonroutine motor vehicle stop). See also 

Commonwealth v. Watson, 430 Mass. 725, 732 (2000). The police 

4

 Our decision that the exit order was justified is based 

on our determination that the officers had reasonable grounds to 

believe the defendant had cocaine in his possession. However, 

this should not be read to mean that an exit order was not a 

reasonable measure in support of their community caretaking 

responsibilities. Viewed objectively, the facts known to the 

police were that the defendant was impaired due to a cause that 

was probably not alcohol related. The police had an objectively 

reasonable belief that the defendant's safety and well-being 

were at risk, see Commonwealth v. Brinson, 440 Mass. 609, 615 

(2003), and had a responsibility to ascertain the cause of the 

impairment, and whether immediate medical attention was required 

or whether the defendant was capable of driving or making other 

arrangements for transportation. Commonwealth v. Murdough, 428 

Mass. at 762-764 (1999). In applying the community caretaking 

function, "[t]he ultimate standard . . . is reasonableness."

Cady v. Dombrowski, 413 U.S. 433, 439 (1973).

 
10

had a right to avoid the potential danger to themselves and to 

the public, as well as to the defendant himself, if he had 

attempted to drive away.5

Conclusion. The motion judge properly recognized the 

distinction between the investigative functions and the 

community caretaking functions of the police, and that the 

latter are "totally divorced from the detection, investigation, 

or acquisition of evidence relating to the violation of a 

criminal statute." Commonwealth v. Evans, 436 Mass. 369, 372 

(2002), quoting from Cady v. Dombrowski, 413 U.S. 433, 441

(1973). However, in performing a community caretaking function, 

the reasonable steps taken by the police to protect an 

individual or the public may lead to the discovery of evidence 

of a crime. When this occurs, the police are no less entitled 

to seize the evidence and pursue the matter as a criminal case 

than they would be if the evidence was discovered inadvertently 

during a criminal investigation.

Order allowing motion to

 suppress reversed.

5 The search of the defendant's person yielding evidence of 

"crack" cocaine and the subsequent seizure from the vehicle of 

PCP are not at issue in this appeal.