# Commonwealth v. Gonsalves > Massachusetts Supreme Judicial Court · June 14, 1999 · 429 Mass. 658 URL: https://www.frixlaw.com/law-library/cases/6451787 ## Case - **Full name:** Commonwealth v. John D. Gonsalves - **Court:** Massachusetts Supreme Judicial Court - **Decided:** June 14, 1999 - **Citations:** 429 Mass. 658; 711 N.E.2d 108; 1999 Mass. LEXIS 381 - **Precedential status:** Published - **Opinion:** Concurrence by Ireland - **Judges:** Fried, Greaney, Ireland - **Cited by:** 146 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6451787 ## How later opinions describe it (automated extraction) - holding that art. 14 forbids police officer from ordering driver or passenger out of motor vehicle incident to routine traffic stop unless officer reasonably believes his safety or safety of others is in danger - holding that Article 14 of the Massachusetts Constitution gives drivers the right to be free from unjustified automobile searches even though such rights are not guaranteed by the Fourth Amendment - noting that individuals do not expect police officers conducting traffic stops to engage in "stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an … - characterizing Torres as state constitutional decision and relying on it in rejecting Pennsylvania v. Mimms, supra, 434 U.S. 111, and precluding police officers from requiring motorists to exit their vehicles without “reasonable belief’ of danger to officer or others - stating that an officer's order to exit is "an intrusion into a driver or a passenger's privacy [that] is not minimal." ## Opinion text Ireland, J. (concurring). I join in the opinion of the court and fully agree with its conclusion that, in the context of automobile exit orders, art. 14 of the Declaration of Rights of our State Constitution provides greater protection to Massachusetts citizens than the United States Constitution. As we were once reminded, “The right question ... is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand.” Massachusetts v. Upton, 466 U.S. 727, 738 (1984) (Stevens, J., concurring), quoting Linde, E Pluribus — Constitutional Theory and State Courts, 18 Ga. L. Rev. 165 , 179 (1984). I write separately, however, to stress the dangers posed by unfettered police power to order individuals out of automobiles without any justification. The grant of such power is certainly, as the majority notes, “a clear invitation to discriminatory enforcement of the rule.” Ante at 664. This is precisely the type of power “that art. 14 was adopted to guard against,” Commonwealth v. Blood, 400 Mass. 61, 71 (1987), because, in the words of James Otis, it “ ‘places the liberty of every man in the hands of every petty officer.’ ” Commonwealth v. Cundriff, 382 Mass. 137, 144 (1980), cert. denied, 451 U.S. 973 (1981), quoting 2 Legal Papers of John Adams (L. Wroth & H. Zobel eds. 1965). *670 The widespread public concerns about police profiling, commonly referred to as “DWB — driving while black,” has been the subject of much discussion and debate both across the country and within the Commonwealth. See Black Drivers Describe Harassment by Police, The Boston Globe, Apr. 13, 1999, at Al. Statistics show that such racial profiling occurs throughout the nation. “In Florida, police documented 1,100 videotaped stops along Interstate 95 in the late 1980’s. While blacks and Hispanics made up just 5 percent of the drivers, they made up eighty percent of those stopped and searched.” Traffic Stops Discounted in Sentencing, The Washington Post, Dec. 17, 1998, at A8. One study found that seventy-three per cent of cars stopped and searched on Interstate 95 in Maryland were driven by black people, while only fourteen per cent of people who use the road are black. Seat Belt Push Raises Race Issue; Blacks Weigh Tolls of Safety vs. Bias, The Washington Post, Apr. 3, 1998, at A1. In addition, statistics presented to the United States House of Representatives indicate that “blacks, who make up about 14 percent of the population, account for 72 percent of drivers pulled over for routine traffic stops.” House OKs Study of Car Searches, The Boston Globe, Mar. 25, 1998, at A12. Indeed, the New Jersey Attorney General’s office has recently admitted that such racial profiling in traffic stops is “real, not imagined.” Bradley Puts Race at Center Of Campaign, The Star-Ledger (Newark, N.J.), Apr. 21, 1999, at 8. “Of the stops examined by the [New Jersey] Attorney General’s Office, roughly 60 percent involved white drivers, 27 percent blacks, 7 percent Hispanics, and 4 percent Asians. Few of those stops[,] less than 1 percent[,] resulted in searches. But when they did, 77 percent of the searches involved blacks or Hispanics. Only 21 percent of the searches involved whites.” Belated Acknowledgment an Essential First Step To Ending Racial Profiling, The Record (Northern N.J.), Apr. 22, 1999, at L8. Other courts have also recognized racial profiling and “DWB” as a real cause for concern. See United States v. Leviner, 31 F. Supp. 2d 23, 33 (D. Mass. 1998); State v. Valentine, 132 Wash. 2d 1 , 28 n.1 (1997) (Sanders, J., dissenting). As the court’s opinion indicates, ante at 663-664, the rules in Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), which permit automobile exit orders during any traffic stop “may also pose unique hardships on minorities” and could be a “clear invitation to discrimina *671 tory enforcement.” Prohibiting the police from ordering people out of automobiles without any justification is a much needed step in the right direction to cure such abuses. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6451787. Public record. Not legal advice.