1

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

20-P-538

MELISSA V. SANTOS-MEDINA Defendant/Appellant

v.

COMMONWEALTH Appellee

DEFENDANT/APPELLANT’S APPLICATION FOR FURTHER APPELLATE REVIEW

NOW COMES the defendant/appellant, Melissa

Santos-Medina (hereinafter referred to as “Ms. Santos-

Medina”) and pursuant to Mass. R. App. P. 27.1(b),

hereby requests leave to obtain further appellate

review following the trial court’s denial of her

motion to suppress evidence and the Appeals Courts’

affirmation of that denial. In support thereof, the

defendant/appellant submits the following.

STATEMENT OF PRIOR PROCEEDINGS

Melissa V. Santos-Medina (hereinafter referred to

as “Ms. Santos-Medina”) was arrested by Trooper

William McSweeney for operating without a license on

July, 17, 2017. Prior to being placed in custody,

Trooper McSweeney searched the trunk of the vehicle

Ms. Santos-Medina was operating and discovered a bag

Supreme Judicial Court for the Commonwealth FAR: FAR-28142 Filed: 3/11/2021 4:59 PM

2

of suspected fentanyl and other contraband indicating

and intent to distribute. During booking, an

additional amount of fentanyl was discovered in Ms.

Santos-Medina’s pants. Ms. Santos Medina was

subsequently indicted for trafficking in fentanyl over

18 grams, and possession with intent to distribute a

class B drug, also fentanyl.

Prior to trial, defense counsel filed a motion to

suppress evidence seized pursuant to a warrantless

search. The motion focused on the unlawful arrest of

the defendant for operating with out a license, and

the illegal exit order issued by the Trooper McSweeney

to arrest her for that offense. 1 On January 25, 2019,

the Court (Buckley, J.) conducted an evidentiary

hearing on the motion. On February 14, 2019, the

Court (Buckley, J.) issued its Memorandum of Decision

and Order on Defendant’s Motion to Suppress Evidence,

denying said motion (hereinafter referred to as the

“Decision”). A true and accurate copy of the Decision

is included in the Addendum, p. 15.

1 Ms. Santos-Medina was not indicted for operating without a license, Appendix, p. 13., and the Commonwealth later conceded during the motion to suppress hearing that she was operating the vehicle lawfully, with a valid Dominican Driver’s license. See STATEMENT OF FACTS, below.

3

Defendant filed her Notice of Appeal and Motion

for Extension of Time to File Interlocutory Appeal on

February 26, 2019. The Motion for Extension of Time

was granted, allowing defendant the right to file an

interlocutory appeal after the Court heard and decided

the defendant’s Motion to Reconsider Denial of Her

Motion to Suppress Evidence. The Defendant’s Motion

to Reconsider and Request for Hearing were both filed

on March 11, 2019. The Trial Court (Buckley, J.)

denied both motions on March 15, 2019. The

Commonwealth’s Opposition to the defendant’s Motion to

Reconsider was filed on March 19, 2019. Defendant’s

Second Notice of Appeal was filed April 4, 2019.

On March 25, 2019, the Defendant’s Application

for Leave to File Interlocutory Appeal From the Denial

of Her Motion to Suppress was filed with the Single

Justice. On April 25, 2019, the Single Justice

(Kafker, J.) denied the defendant’s application.2

2 The Single Justice (Kafker, J.) erroneously found the defendant failed to file a notice of appeal following the March 18, 2019 denial of her motion to reconsider – that notice of appeal was filed by the defendant on April 4, 2019. The Single Justice (Kafker, J.) also ruled that the administration of justice would not be facilitated by granting the application for interlocutory appeal.

4

On October 1, 2019, the defendant waived her

right to jury trial and was convicted by the Court

(Cosgrove, J.) of the charged narcotics offenses.

Following the jury waived trial, the Court allowed

Defendant’s Motion for Stay of Execution of Sentence

Pending Appeal.

Notice of Entry of Appeal confirming the filing

of the record on appeal and the entry of the case on

the Appeal’s Court docket, dated May 7, 2020, was

postmarked May 11, 2020, and received by counsel the

following day. Defendant’s Appeal Brief was submitted

June 8, 2020, and the Commonwealth’s Reply Brief was

submitted September 10, 2020. Oral argument on the

appeal was conducted on February 3, 2021. The Appeals

Court released it’s rescript opinion denying the

appeal on February 19, 2021.

The Defendant/Appellant’s Petition for Rehearing

was submitted on March 5, 2021, along with a request

to extend the defendant’s stay of execution of

sentence. The petition and request for a stay were

both summarily denied without a hearing on March 9,

2021. The within Application for Further Appellate

Review was submitted on this day, March 11, 2021.

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STATEMENT OF FACTS

The defendant was pulled over by Trooper

McSweeney (“McSweeney”) for marked lanes violation.

(Tr. 8-9). As he approached the passenger side the

widow lowered and a large cloud of smoke came from the

passenger compartment. (Tr. 10). He recognized the

odor of the smoke to be freshly burnt marijuana.

After the smoke cleared he identified Ms. Santos

Medina as the driver and sole occupant. (Tr. 11).

Pursuant to McSweeney’s request, the Ms. Santos-

Medina produced identification entitled “Republica

Dominicana Licencia de Conducir”, which contained her

photograph. The Appeals Court’s Memorandum and Order

pursuant to Rule 23.0 (hereinafter referred to as

“Memorandum”, a true copy of which is attached hereto)

refers to this document as an “identification card”,

which is wrong. A true copy of this item was admitted

at the hearing and is contained in Appendix for the

Appellant, p. 28. The trial court referred to it as

“an ID from the Dominican Republic” and found that

McSweeney “did not assume that it was a license”, but

that he “may have referred to the Dominican Document

as a license.” Appendix for the Defendant/Appellant

p. 17.

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In fact, McSweeney did refer to the card as a

“Dominican license” as proved by the transcript of his

call to dispatch which was admitted as “Exhibit 1” at

the hearing. Appendix of Defendant/Appellant, p. 29.

McSweeney also testified that he “could assume that

(the Spanish word licencia) means license,” (Tr. 28,

line 7), and that he made no attempts to contact a

Spanish speaking officer or language translation

service which is readily available to officers to

interpret the Dominican License or determine its

validity. (Tr. 38-39.) The Memorandum wrongfully

finds that McSweeney “did not know if the card was a

driver’s license.” Memorandum, p. 2. Ms. Santos-

Medina also produced a U.S. Passport with her

photograph.

McSweeney then ran a check through the registry

of motor vehicles and confirmed that the defendant did

not have a Massachusetts license. At this point

McSweeney ordered the defendant out of the car and

administered Miranda warnings. The Decision

wrongfully concludes that “although the defendant

claims that McSweeney issued the exit order for the

sole purpose of arresting the defendant for operating

without a license and did not actually suspect that

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she was operating under the influence . . . the record

is unclear as to what McSweeney believed and the

motion judged made no findings on that issue.”

Memorandum, p. 4, footnote 2.

True the motion judge made no findings on that

issue because it would undermine her conclusions, but

the Memorandum is completely wrong that the record is

unclear on that issue. The defendant/appellant made

it perfectly clear by referring the Appeals Court

justices to the motion transcript, (Tr. 50), where

McSweeney confirms that he “pulled [Ms. Santos-Medina]

out of the car to arrest her for operating without a

license.” (Tr. 50).

The record is also clear that McSweeney believed

at the time that Ms. Santos-Medina having “no valid

license in Massachusetts” . . . “would qualify her as

operating without a license in Massachusetts.” (Tr.

39-40). The Commonwealth conceded during the motion

hearing, and at all time thereafter, that this

understanding of the law was incorrect, that Ms.

Santos-Medina was lawfully operating the motor vehicle

at the time with her Dominican license and therefore

McSweeney’s arrested for this offense was unlawful.

(Tr. 6-7).

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STATEMENT OF PIONTS AS TO WHICH FURTHER APPELLATE REVIEW IS SOUGHT

IN THE INTEREST OF JUSTICE AND THE PUBLIC

Ms. Santos-Medina respectfully request she be

granted leave to obtain further appellate review on

three of the issues she raised in her appeal.

(1) Ms. Santos-Medina submits that that the arresting

officer’s observations of the defendant showing no

signs of impairment dissipated any reasonable

suspicion that she was operating while impaired. Ms.

Santos-Medina believes this to be her most meritorious

argument, which the panel failed to address in any way

shape or form in it its Memorandum and chose to ignore

all facts in the case which support it.

(2) Even if the arresting officer had an objectively

reasonable suspicion to remove her from the vehicle as

the court ruled, he failed to investigate any

suspicion that the defendant may have been impaired as

required by law to justify her continued detention.

(3) The trial court’s ruling that the arresting

officer’s arrest of the defendant for operating

without a license was a reasonable mistake was clear

error, which the Appeals Court also choose not to

address.

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In this case, two of three main arguments noted

above were fully raised, briefed and argued by the

defendant/appellant to both the trial court motion

judge and to the Appeals Court. They each had

independent rational supporting them and were not

novel, but simple and well established points of law.

In addition, they each had substantial facts

supporting those points of law which were

uncontroverted, testified to by the Commonwealth’s

witnesses and part of the record. Despite the

foregoing, those two points of law were not addressed

by the trial court motion judge or the Appeals Court

panel in this case in any way. The were simply

ignored and disregarded - with out any explanation.

It is in the interest of justice that facts and

arguments submitted on behalf on defendants in

criminal cases be addressed by the courts and not

simply ignored or dismissed without explanation.

Public interest also requires courts to address points

of law raised in the courts and on appeal so as to

address everyone in a fair and equal manner. Further

appellate review is therefore essential to correct

these injustices in this case.

10

In addition to the points noted above, the

Memorandum also contains misrepresentations regarding

the trial courts findings of fact, and completely

ignores uncontroverted facts contained in the record

and hearing transcript which support the

defendant/appellant’s arguments noted above.

The public interest and the interest of justice

also require that facts in the record not be

manipulated to suit the interest of the fact finder in

deciding the case one way or another. Facts and

argument in support thereof must be addressed fairly

based on how they were presented so as to ensure

everyone is treated in a fair and equal manner by the

courts. Accordingly, further appellate review is

essential in this case to correct the foregoing

injustices.

STATEMENT AS TO WHY FURTHER APPELLATE REVIEW IS APPROPRIATE ON EACH POINT

The first issue requiring further appellate

review is that the arresting officer’s observations of

the defendant showing no signs of impairment

dissipated any reasonable suspicion that she was

operating while impaired. Had McSweeney pulled Ms.

Santos-Medina out of the vehicle after observing only

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the three facts selected by the Commonwealth and the

Courts which they considered in a vacuum: the marked

lanes, the marijuana smoke and the defendant as sole

occupant, the defendant/appellant concedes there may

have been reasonable suspicion to do so. However,

those were NOT the only facts observed by McSweeney

prior to the exit order.

As noted above, McSweeney observed over a dozen

other facts, actions and reactions by Ms. Santos-

Medina which he testified indicated that was not

impaired. These facts, as well as all argument

briefed and submitted by the defendant/appellant on

this issue, were completely ignored not only by the

trial court motion judge, but by the Appeals Court as

well.

The law on this issue is simple and well

established. Where reasonable suspicion exists, but

is then subsequently dispelled, the inquiry must end

and the operator be allowed to proceed on her way.

Commonwealth v. Colbert, 91 Mass.App.Ct. 1131 (2017)

(holding erratic driving warranted stop of vehicle,

but once stopped “any suspicion of impairment was

dispelled” the exit order not warranted); Commonweath

v. Hernandez, 91 Mass.App.Ct. 1131 (2017) (holding

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request to search vehicle unreasonable because

officer’s suspicion of operation of motor vehicle with

suspended license had been dispelled prior to request;

officer abandoned reasonable suspicion when he refused

to talk with purported owner).

The fact that any possible suspicion of impaired

operation was dispelled by McSweeney’s additional

observations of the defendant was the centerpiece of

the defendant/appellant’s brief and argument on

appeal, and the Appeals Court ignored it completely.

In addition, McSweeney NEVER testified that ever

suspected the defendant may have been operating under

the influence of drugs at any time during the stop and

exit order. The Court’s conclusion that the evidence

supported a reasonable suspicion can not be justified

where the officer personally involved in the motor

vehicle stop actually testified differently.

The Appeals Court attempts to evade these obvious

facts and logical inferences by concluding that

“McSweeney’s subjective belief is immaterial because

reasonable suspicion is measured from the vantage

point of and objectively reasonable officer.”

Memorandum p. 4, citations omitted. Assuming arguendo

that is be true, the vantage point of any reasonable

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officer would still necessarily include ALL FACTS

observed that officer during the course of the stop

and exit order, and not only three facts selected by

the Commonwealth and the Courts and considered in a

vacuum: the marked lanes, the marijuana smoke and the

defendant as sole occupant.

The reasonableness of a stop depends on what

police, in fact, do to complete the purpose of the

stop, Commonwealth v. Cordero, 477 Mass. 237, 241-245

(2017), and is not limited only to facts which the

court chooses to consider. This must include

everything McSweeney testified he observed. Weighing

all this evidence, an objectively reasonable officer

would conclude that any possible suspicion of impaired

operation was dispelled by the additional

observations.

An objectively reasonable officer who made the

initial three observations relied on by the court to

justify the exit order, BUT who also observed

everything else that McSweeney observed would NOT

believe a defendant was impaired and would not order

her out of the vehicle to investigate the issue

further. These were direct observations by the

officer of the defendant’s speech, actions and

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reactions in this case, which would lead any

objectively reasonable officer to conclude that this

particular defendant was not impaired in any way, and

dispel any possible suspicion of impairment he/she may

have had previously.

The second issue that requires further appellate

review, even if the first one fails in the Courts’

eyes, is that the arresting officer failed to

investigate any suspicion that the defendant may have

been impaired. He made no inquiries about the

defendant’s possible ingestion of marijuana, never

found any marijuana, never smelled marijuana on the

defendants’ breath and observed that her eyes were

neither glassy or bloodshot. Most significantly,

however, the officer never asked Ms. Santos-Medina to

perform field sobriety tests. The logical inference

to be drawn from this is that McSweeney did not in

fact have any suspicion that she was impaired.

The law is simple and clear on this issue as

well. If an officer has a reasonable suspicion that

criminal activity is a foot, the officer may only

detain that person long enough to confirm or dispel

that suspicion, using only the force and time

necessary to do so. Colbert, 91 Mass.App.Ct. at 3

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(holding erratic driving warranted stop of vehicle,

but once stopped “any suspicion of impairment was

dispelled” and exit order not warranted); Hernandez,

91 Mass.App.Ct. at 2-3 (holding request to search

vehicle unreasonable because officer’s suspicion of

operation of motor vehicle with suspended license had

been dispelled prior to request; officer abandoned

reasonable suspicion when he refused to talk with

purported owner).

In further support of this well established

principle see Commonwealth v. Cordero, 477 Mass. 237,

241-245 (2017) (routine traffic stop may not last

longer than necessary to effectuate the purpose of the

stop; stop must end when purpose of stop is

accomplished; authority to seize individual ends when

tasks tied to the stop are accomplished;

reasonableness of the duration of the stop depends on

what police, in fact, do to complete the purpose of

the stop)(emphasis added). See also Commonwealth v.

Forsythe, 22 Mass.L.Rptr. 286, 2-3 (2007) (police may

conduct threshold inquiry using only force necessary

to confirm or dispel suspicion); Commonwealth v.

Torres, 40 Mass.App.Ct. 6, 9-12 (1996) (trooper had

right to detain passenger for safety reasons, but one

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dispelled, no reasonable suspicion to detain further

existed and motorist should have been allowed to

proceed on their way); Commonwealth v. Pagan, 440

Mass. 62, 68-69 (2003) (purpose behind Terry stop is

to enable officer to confirm or dispel reasonable

suspicion that stopped suspect may be armed and

dangerous).

Here, after McSweeney ordered the defendant out

of the vehicle – in order to arrest her for operating

without a license only – he took no additional steps

to inquire, confirm or dispel any suspicion that she

may have been operating under the influence of drugs.

The logical explanation for this is that Trooper

McSweeney did not suspect that the defendant was

operating under the influence of drugs at all. All of

his interaction with the operator during the motor

vehicle stop and prior to the exit order showed that

she was not impaired in any way. Once out of the

vehicle, Trooper Mcsweeney never asked or did anything

to investigate the defendant’s possible ingestion of

marijuana while driving. He never asked if she smoked

any marijuana or even if she had any marijuana, never

looked for any marijuana, and certainly never gave her

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any field sobriety tests in pursuit of evidence

showing that she was impaired.

As reasonable suspicion of operating under the

influence of drugs is the sole basis on which the

trial court justified McSweeney’s removal of the

defendant from the vehicle, it was incumbent on him to

confirm or dispel that suspicion (which did not exist

and was fabricated by the trial court) promptly. If

any suspicion of criminal activity did not rise to the

level of probable cause to arrest on that suspicion,

it was the officer’s duty to allow her to go on her

way. Instead, McSweeney unlawfully extended and

delayed the stop by directing Ms. Santos to the rear

of the vehicle, reading her Miranda warnings, and then

asking for permission to search her vehicle. This is

completely inconsistent with investigating any

possible suspicion of impairment, and the ruling

otherwise was clear error by the Appeals Court.

Finally, the trial court erred in ruling that the

arresting officer’s arrest of the defendant for

operating without a license was a reasonable mistake

was clear error, an argument which the Appeals Court

again choose not to address. The law on operating a

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motor vehicle without a license clearly states as

follows:

“Subject to the provisions of section three, a nonresident who holds a license under the laws of the state or country in which he resides may operate any motor vehicle of a type which he is licensed to operate under said license, duly registered in this commonwealth or in any state or country; provided, that he has the license on his person or in the vehicle . . .”

G.L. c. 90, § 10: Operation of a Motor Vehicle Without

License; Members of Armed Forces; Nonresidents;

Suspension or Revocation of License. Addendum, p. 34.

The Commonwealth conceded that the law

prohibiting operation of a motor vehicle without a

license actually permits the defendant to operate a

motor vehicle in the Commonwealth of Massachusetts in

this case. (Tr. 6-7). The Commonwealth also conceded

that the arrest of the defendant on this basis was

made in error and therefore unlawful and that the

driver’s license presented to the officer allowed her

to operate a motor vehicle in this state. Id. They

even cited the case on point, Commonwealth v. Chown,

459 Mass. 756 (2011). Id.

The trial court tried to justify this mistake by

citing Commonwealth v. Mercado, 422 Mass. 367, 369

(1996). That case is not on point. That was a pat

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frisk case in which an officer’s pat frisk was based

on the mistaken belief he had stopped the suspect of

criminal activity. That Court found that the

officer’s suspicion that the person may be armed and

dangerous was reasonable, and therefore justified the

pat frisk. That case DID NOT involve an error of law

committed by the officer.

The Commonwealth’s only argument when opposing

the defendant’s Application for Interlocutory Appeal

on this ground was based on the fact that McSweeney

“subjectively, mistakenly believed that the defendant

was operating a vehicle while unlicensed and charged

her with that crime.” 3 They argue the officer’s

actions must be viewed objectively, citing

Commonwealth v. Acevedo, 73 Mass. App. Ct 453, 456

(2009). Ignorance of the law is no excuse, and an

objective look at any officer’s actions should start

with the presumption that they are properly trained

and know what the law is.

An officer’s lack of knowledge about a law that

he is trained to enforce is not an objectively

3 See Commonwealth’s Opposition to the Defendant’s “Application for Leave to Appeal Denial of Motion to Suppress Evidence”, dated April 16, 2019, a copy of which can be supplied by counsel upon request.

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reasonable mistake and can not be justified by an

imaginary scenario created by the trial court and

Commonwealth involving an “objectively reasonable”

suspicion of operating under the influence of drugs

when there was no evidence submitted at the hearing to

support it. Here, the officer detected absolutely NO

signs of impairment from the defendant during his

entire interaction with her, and did NOT remove her

from the vehicle to confirm or dispel any suspicion of

impairment. Arguing that he “objectively” could have

is a complete farce.

Looking objectively at the facts, the officer

here simply and clearly did not know the law and made

an error in removing her from the vehicle to arrest

her for that offense. That is why we have judges, to

correct errors of law committed by officers. That is

also why we have appellate courts, to correct

injustices that the trial court refuses to correct.

CONCLUSION

Because the Appeals Court failed to address one

of the defendant/appellant’s central arguments on

appeal in its Memorandum, which was fully brief and

argued, and because both the trial court and the

Appeals Court failed to address specific facts in the

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record which support that argument, an erred in ruling

other issues, it is in the interest of justice and the

public interest that the defendant/appellant should be

afforded leave to obtain further appellate review.

Respectfully submitted,

Melissa V. Santos-Medina By her Attorney, /s/ Bruce Linson Bruce Linson BBO # 637413 240 Commercial Street Suite 5A Boston, MA 02109 (617) 371-0900 DATED: March, 2021.

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CERTIFICATE OF SERVICE I, Bruce Linson, counsel for the above-named

defendant, hereby certify that I served a copy of the

foregoing documents on all parties of record in this

matter. Said service was made electronically through

eFileMA.com on the same day it was filed with the

Appeals Court in March, 2021, to:

Appellate Division Office of the District Attorney 45 Shawmut Rd. Canton, MA 02021

/s/ Bruce Linson Bruce Linson

CERTIFICATE OF COMPLIANCE (Mass. R. A. P. 20(a), 27.1 and Mass. R. A. P. 16(k))

I, Bruce Linson, counsel for the

defendant/appellant, hereby certify that this this

petition complies with the rules of court that pertain

to the filing of motions for reconsideration by using

the monofaced font of Courier New 12 point, with

appropriate margins and not exceeding 50 pages of text

and 10 pages of argument, with authority, as to why

appellate review is appropriate on the issues raised.

/s/ Bruce Linson Bruce Linson DATED: March, 2021.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

20-P-538

COMMONWEALTH

vs.

MELISSA VICTORIA SANTOS-MEDINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a jury-waived trial of

trafficking in heroin over eighteen grams and possession of

fentanyl with intent to distribute. On appeal the defendant

challenges the denial of her motion to suppress evidence

recovered during a stop and search of her car. We affirm.

Background. We summarize the motion judge's factual

findings, supplemented with uncontroverted testimony that she

credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431

(2015).

Around 5:10 P.M. on July 12, 2017, Massachusetts State

Trooper William McSweeney saw a car with heavily tinted windows

traveling on Interstate Highway 93 near Randolph. McSweeney

followed the car and watched as it crossed over the white line

2

into the breakdown lane at least two times. He turned on his

cruiser lights, and the car pulled over without incident.

As McSweeney approached the car on the passenger side, the

window lowered, and "a big cloud of smoke came out from the side

passenger compartment." Based on his training and experience,

McSweeney recognized the odor as that of recently burnt

marijuana. McSweeney waited for around thirty seconds for the

smoke to clear so that he could see inside the car. He then

observed a sole occupant, later identified as the defendant, in

the driver's seat.

McSweeney asked the defendant for her driver's license and

registration, but the defendant replied that she did not have a

license. Eventually, she produced an identification card from

the Dominican Republic and a United States passport. McSweeney,

who did not speak Spanish, did not know if the identification

card was a driver's license. When McSweeney asked the defendant

for a Massachusetts license, she stated that she did not have

one and explained that she lived in the Dominican Republic and

was in the United States visiting her sister. McSweeney ran a

check through the registry of motor vehicles and confirmed that

the defendant did not have a Massachusetts license.

At this point McSweeney ordered the defendant out of the

car and administered Miranda warnings. Once the defendant

stated that she understood her rights, McSweeney asked if there

3

was anything illegal in the car that he should know about. The

defendant replied, "[N]ot that I know about, you can look."

McSweeney then searched the car and recovered from inside some

luggage two "corner twists" containing what he believed to be

heroin, a scale, and some glassine bags. When McSweeney asked

the defendant if she knew anything about the heroin, she said,

"Can I be honest with you? My friend's boyfriend was driving

the car, and he got arrested for drugs. They told me to be

careful driving, because they know I don't have a license."

The defendant was placed under arrest and transported to

the State Police barracks. During booking the defendant

indicated that she had drugs on her person and removed a bag

containing drugs from her underwear. An inventory search of the

defendant's car yielded another bag of drugs, an iPhone, and

around $400 in cash.

Discussion. On review of a decision on a motion to

suppress, "we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of [the

judge's] ultimate findings and conclusions of law.'"

Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting

Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). The

defendant argues on appeal that the judge should have allowed

her motion to suppress because the exit order issued by

4

McSweeney was not supported by reasonable suspicion that the

defendant was engaged in criminal activity.1 We disagree.

Police may permissibly issue an exit order during a traffic

stop in three situations, including when they "have reasonable

suspicion of criminal activity." Commonwealth v. Torres-Pagan,

484 Mass. 34, 38 (2020). Here, we conclude that the exit order

was justified by reasonable suspicion that the defendant was

operating her vehicle while under the influence of marijuana.2

See Commonwealth v. Davis, 481 Mass. 210, 216 (2019), quoting

Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) ("A driver

operates a motor vehicle while under the influence when the

consumption of an intoxicating substance such as alcohol or

marijuana diminishes his or her 'ability to operate a motor

vehicle safely'"). Prior to the stop, McSweeney saw the

defendant's car drift in and out of the breakdown lane at least

twice. He then observed a large amount of smoke from recently

burnt marijuana in the passenger compartment of the car. The

1 The defendant does not renew her argument, made to the judge,

that her consent to search the car was involuntary. 2 Although the defendant claims that McSweeney issued the exit

order for the sole purpose of arresting the defendant for

operating without a license and did not actually suspect that

she was operating under the influence, McSweeney's subjective

belief is immaterial because reasonable suspicion is measured

from the vantage point of an objectively reasonable officer.

See Commonwealth v. Eckert, 431 Mass. 591, 599 (2000);

Commonwealth v. Smigliano, 427 Mass. 490, 493 (1998). In any

event, the record is unclear as to what McSweeney believed, and

the motion judge made no findings on that point.

5

smoke was so thick that McSweeney could not see who was inside

the car for thirty seconds as the smoke cleared. Based on his

observations, McSweeney could have inferred that the defendant

-- the car's sole occupant -- was actively smoking marijuana

while driving on a major highway. These specific and

articulable facts gave rise to a reasonable suspicion that the

defendant was operating under the influence, justifying the exit

order. See Commonwealth v. Perachio, 61 Mass. App. Ct. 591,

593-594 (2004) (reasonable suspicion that defendant was

operating under influence where officer had observed him one

hour earlier in police station smelling of alcohol and showing

signs of intoxication). Cf. Davis, supra at 216-217 (probable

cause to believe that defendant was operating under influence

based on police observations of erratic driving, odor of burnt

and unburnt marijuana, red and glassy eyes, slow coordination,

and difficulty following instructions).

The defendant argues in the alternative that, even if

McSweeney reasonably suspected that she was operating under the

influence, he took no steps to confirm or dispel his suspicion

and therefore unlawfully prolonged the stop. But given his

observations of the marijuana smoke in the car, McSweeney did

not impermissibly expand the scope of the stop by asking the

defendant whether there was anything illegal in the car that he

should be aware of. See Commonwealth v. Buckley, 478 Mass. 861,

6

874-875 (2018); Commonwealth v. Cruz, 459 Mass. 459, 466 (2011).

And in response to his question, the defendant "affirmatively

offered the search." Buckley, supra at 875-876. As the

defendant makes no contention that her consent was involuntary,

we conclude that the motion to suppress was correctly denied.3

Judgments affirmed.

By the Court (Neyman, Shin &

Singh, JJ.4),

Clerk

Entered: February 19, 2021.

3 Given our ruling, we need not address whether the exit order

was justified by reasonable suspicion that the defendant was

operating without a license. 4 The panelists are listed in order of seniority.