Commonwealth v. Douglas

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12-P-1992 Appeals Court
COMMONWEALTH vs. JASON DOUGLAS (and five companion cases1).
No. 12-P-1992.
Suffolk. January 13, 2014. - September 30, 2014.
Present: Cypher, Rubin, & Hines, JJ.2
Firearms. Constitutional Law, Search and seizure. Search and
Seizure, Motor vehicle, Threshold police inquiry,
Protective frisk. Evidence, Firearm. Threshold Police
Inquiry. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court
Department on September 28, 2011.
Pretrial motions to suppress evidence were heard by Janet
L. Sanders, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.
1
Two of the companion cases are against Douglas, and three
are against Wayne Steed.
2
Justice Hines participated in the deliberation on this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
2
Elisabeth Martino, Assistant District Attorney (Joseph
Janezic, Assistant District Attorney, with her) for the
Commonwealth.
Michael Tumposky for Jason Douglas.
Daniel R. Katz for Wayne Steed.
CYPHER, J. This is an appeal by the Commonwealth after a
single justice of the Supreme Judicial Court allowed the
Commonwealth's petition under Mass.R.Crim.P. 15, as appearing in
422 Mass. 1501 (1996). In ruling on the defendants' motions to
suppress, a judge in the Superior Court held that the seizure by
police officers of a firearm found under a passenger's seat
during a "patfrisk" of the interior of a motor vehicle was
impermissible because, although the stop of the vehicle was
justified, the police had exceeded the permissible scope of the
search when they looked under the passenger's seat before the
occupants returned to the vehicle. Specifically, the judge
reasoned that "[a]ny suspicion which might have been prompted by
any movement (or lack thereof) by the car's occupants was
dispelled by the removal and pat frisk of each individual's
person."3 We reverse the order allowing the motions to suppress.
3
The Commonwealth argues, with merit, that the defendants'
motions to suppress did not meet the requirements of
Mass.R.Crim.P. 13, as appearing in 442 Mass. 1516 (2004). The
judge noted that the affidavits were deficient, but in light of
the readiness of defense counsel to remedy any defect and the
Commonwealth's willingness to proceed, the judge determined that
the issue of the inadequacy of the filings was moot. We agree
that the affidavits failed to meet the requirements of rule 13
3
1. Standard of review. "[W]e accept the motion judge's
subsidiary findings of fact absent clear error." Commonwealth
v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from
Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). "We review de
novo the judge's application of constitutional principles."
Commonwealth v. Martin, 467 Mass. 291, 301 (2014). We must
assess the reasonableness of a police officer's actions based
upon the "circumstances confronting the officer in the field,
not those facing the judge in the tranquility of the courtroom."
Commonwealth v. Dedominicis, 42 Mass. App. Ct. 76, 79 (1997)
(citations omitted).
2. Facts. The following facts are taken from the judge's
findings, supplemented by the uncontested and uncontroverted
testimony of the only witness at the hearing, Boston police
Officer Liam Hawkins, who was implicitly credited by the judge.
See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C.,
450 Mass. 818 (2008). On the evening of April 7, 2011, a party
was held at the Felt Night Club (Felt) in downtown Boston to
celebrate the success of a video posted to the video sharing Web
site YouTube and produced by a group whose members lived on
Annunciation Road in Boston. Members of this group were engaged
and caution counsel to adhere to the procedural requirements of
the rule. See Commonwealth v. Robie, 51 Mass. App. Ct. 494, 499
(2001); Commonwealth v. Johnston, 60 Mass. App. Ct. 13, 19-20
(2003).
4
in a long-standing and sometimes violent rivalry with a group
centered in the Orchard Park housing development, and YouTube
videos produced by the two groups had at times been a source of
some of the violence. The Boston police department's youth
violence strike force conducted surveillance at the event, to be
present in case members of a rival group showed up, to see which
other groups' members might have attended to get a sense of the
current status of shifting alliances among groups in the city of
Boston, and in case "anything sticks out." The police on the
night in question also followed and stopped some departing
attendees.
Boston police Officers Liam Hawkins and his partner, Mathew
Wosny, were stationed in the vicinity of Felt that night as part
of the surveillance operation in a "take down" vehicle, one that
was designated to be available to assist should the officers
conducting surveillance require it. At about 3:12 A.M., they
received a radio dispatch from Sergeant Detective Joseph
Sullivan, who was conducting surveillance at a restaurant in the
Chinatown section of Boston, where some of the party attendees
had gone, reporting that the defendant Jason Douglas had left
the restaurant accompanied by two men. The three men had been
followed by the police to the restaurant from the party at Felt.
Sergeant Sullivan informed the other officers that Douglas
appeared agitated and was punching his own hand and expressing a
5
desire to leave the area. Sergeant Sullivan also reported that
one of the two men with Douglas -- this turns out to have been
defendant Wayne Steed -- was wearing a blue hooded sweatshirt
and had one hand held tightly to his body in the front pocket of
the sweatshirt. The men entered a Toyota Camry automobile
driven by a woman who had pulled up at the curb. The driver had
failed to use her turn signal as she turned out of the parking
lot. After the men got in, the vehicle departed. At
approximately the same time, a fight broke out in the parking
lot of the restaurant.
Officer Hawkins, who was stationed close by, caught up with
the vehicle in his unmarked cruiser and noticed that the driver
again failed to signal when turning. He pulled over the vehicle
based on this civil infraction. Officers Hawkins and Wosny
approached the vehicle and saw four people inside. The driver
was a woman later identified as Rheanna Reese. The defendant
Douglas was seated in the front passenger seat, while the
defendant Steed was seated in the back with an individual
identified as Shakeem Johnson. Johnson was seated behind the
driver, while Steed was behind the front passenger.
Officer Hawkins was familiar with both Johnson and Douglas.
He testified that he had previously encountered Douglas upwards
of fifty times both in the course of his ordinary duties in his
assigned district and through his work on the youth violence
6
strike force. He knew that Johnson had a criminal record that
included both crimes of violence and drug offenses. He also
knew that Douglas had a previous criminal record, including
specifically at least one firearms conviction. He testified
that both Douglas and Johnson had been under specific
surveillance when they went from Felt to the restaurant. While
Officer Hawkins was "loosely familiar" with Steed, he did not
know him well enough to recognize him by name.
As Officer Wosny approached the vehicle, and before he
reached the driver's window, he observed that Johnson had one
arm stretched across the front of his torso near his waist.
Officer Hawkins observed that "Johnson was kind of pivoted to
the right and leaning in towards the middle of the vehicle."
Officer Wosny ordered Johnson out of the vehicle and conducted a
patfrisk. Johnson was heavily intoxicated, to the point where
he was "unsteady on his feet." The officer found nothing during
the patfrisk, and the officers thought that the movements in the
vehicle may have been caused by Johnson trying to remove his
seatbelt to exit the vehicle or to make it appear that his
seatbelt had been fastened.
Officer Hawkins observed that Steed had his hands resting
on the outside of the pocket of his hooded sweatshirt, rather
than inside them, that he appeared to be clutching something in
the pocket, that he was staring straight ahead, not looking
7
around, and that he was avoiding eye contact. Concerned that,
based on his training and experience, this behavior might
indicate that Steed possessed a weapon, Officer Hawkins ordered
him out of the vehicle. Steed continued to avoid eye contact
with the officers, questioned why the officers wanted him to get
out, and had to be asked three times before he got out of the
vehicle. On Steed's exit, the officer could see an open bottle
of an alcoholic beverage on the floorboard sticking out from
under the front passenger seat. A patfrisk of Steed revealed
nothing.
As Officer Hawkins performed the patfrisk of Steed, Douglas
opened the front passenger door and got out of the vehicle
without being asked to do so. Officer Hawkins testified based
on his previous encounters with Douglas that "[n]ormally he's
very casual, he's calm, we talk normally," but that on the night
of the stop Douglas seemed "[d]ifferent." Douglas is large and
muscular, and in the circumstances, Officer Hawkins wanted to
make sure Douglas was contained. Officer Hawkins explained that
in his experience when individuals at traffic stops have exited
vehicles unbidden they have, in some instances, been armed.
Because both officers were already occupied, Officer
Hawkins ordered Douglas to get back in the vehicle, addressing
him by his first name, and Douglas complied. However, once
Douglas was back in the vehicle, Officer Hawkins saw him shift
8
the vehicle from park into drive and say something to the
driver, Reese. Officer Hawkins was worried that Douglas might
try to flee, and was also concerned for his own safety, because
he was positioned between the vehicle and a jersey barrier by
the side of the road. He ordered Douglas to shift the vehicle
back into park and told him not to move. Douglas complied.
Officer Wosny immediately removed Reese from the vehicle to
prevent her from driving away, while Officer Hawkins asked
Douglas to exit and performed a patfrisk of him. The patfrisk
of Douglas revealed nothing.
Following the patfrisk of Douglas, all four occupants had
been removed from the vehicle and were either sitting or leaning
on the jersey barrier by the road. Officer Hawkins approached
the front passenger door of the vehicle, which was still open.
He shined a flashlight under the front passenger seat where
Douglas had been seated, crouched down to look under the seat,
and observed a revolver.4 All four occupants of the vehicle were
then handcuffed and detained. Defendants Douglas and Steed were
both charged with possession of the firearm.
3. Discussion. "Where the police have observed a traffic
violation, they are warranted in stopping a vehicle."
4
Although the judge stated that the officer had leaned in
the back door of the car, the testimony at the hearing was that
Hawkins leaned in the front door.
9
Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). The
subjective motivation of the police does not limit their power
to make an authorized motor vehicle stop. Commonwealth v.
Santana, 420 Mass. 205, 207 (1995). The stop in this case was
permissible.
The exit order and patfrisk of the occupants were also
permissible. During a motor vehicle stop "an exit order is
justified where the police have 'a reasonable belief that the
officer's safety, or the safety of others, is in danger.' . . .
'Reasonable belief' is shorthand for a reasonable, articulable
suspicion." Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 840
(2010), quoting from Commonwealth v. Gonsalves, 429 Mass. 658,
663 (1999), S.C., 432 Mass. 613 (2000). "To support an order to
a passenger to alight from a vehicle stopped for a traffic
violation . . . the officer need not point to specific facts
that the occupants are 'armed and dangerous.' Rather, the
officer need point only to some fact or facts in the totality of
the circumstances that would create in a police officer a
heightened awareness of danger that would warrant an objectively
reasonable officer in securing the scene in a more effective
manner by ordering the passenger to alight from the car."
Commonwealth v. Stampley, 437 Mass. 323, 326 (2002), quoting
from Commonwealth v. Gonsalves, supra at 665.
10
A patfrisk of a lawfully stopped individual is justified by
reasonable suspicion that the individual is armed and dangerous.
See Terry v. Ohio, 392 U.S. 1, 27 (1968). "The officer need not
be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger." Ibid. "The purpose behind the protective measures
allowed by Terry is to enable an officer to confirm or dispel
reasonable suspicions that the stopped suspect may be armed with
a weapon . . . ." Commonwealth v. Pagan, 440 Mass. 62, 68
(2003).
Here, there was information that the occupants of the
vehicle at least associated with group members; they had been at
the Annunciation Road group's party earlier in the evening to
celebrate a YouTube video; such videos had provoked gang
violence in the past; two of these individuals who associated
with group members, Johnson and Douglas, were known by the
police to have committed violent crimes in the past; Douglas had
committed a firearms offense; Douglas was known to the police,
who had encountered him over fifty times; Officer Hawkins was
familiar with Douglas from his work on the youth violence strike
force, a group of Boston police officers engaged in proactive
patrol to reduce violence among youthful offenders and young
adults and to curb firearm violence in Boston; Officer Hawkins
11
was aware that Douglas had instances of violence and at least
one firearms conviction in his criminal history; Officer Hawkins
knew Douglas well enough to address him by first name; Officer
Hawkins had seen Johnson "all the time in the [An]nunciation
Road, Mission Hill area" and Johnson had instances of violence
and drug offenses in his criminal record; and before the
officers arrived at the vehicle driver's window where they could
have sought the driver's license and the vehicle's registration,
Johnson was observed pivoting and leaning toward the center of
the vehicle and holding one arm across his body as if he might
be trying to hide something.
In combination with the other evidence described above, the
pivoted position in which the police found Johnson further
supported a reasonable suspicion that he was trying to hide or
access a weapon. Officer Hawkins testified that Steed, who had
been seen coming from the Felt party, had been seen outside the
restaurant after 3:00 A.M. with one hand tight to his body
inside the pocket of his sweatshirt while entering the vehicle.
Officer Hawkins observed Steed sitting in the vehicle in a
manner that suggested that he might have a weapon in the pocket
of his sweatshirt. Steed also behaved oddly -- staring straight
ahead in a way that, Officer Hawkins said, "alarmed" him -- and
initially resisted the officers' requests that he get out of the
vehicle. Furthermore, Douglas's conduct that at the time of the
12
stop was unlike his usual "very casual, . . . calm" self, and he
got out of the vehicle unbidden, which objectively heightened
the reasonable suspicion that the occupants of the vehicle were
armed and dangerous.5 After being ordered back into the vehicle
and returning to it, Douglas put the vehicle in gear as if to
drive away and said something to the driver. He did so while
his fellow passengers were outside the vehicle and a police
officer was standing between the vehicle and the jersey barrier.
These facts and circumstances justified the protective
search of the interior of the vehicle. "[I]n appropriate
circumstances a Terry type search may extend into the interior
of an automobile." Commonwealth v. Almeida, 373 Mass. 266, 270
(1977). "[T]he search of the passenger compartment of an
automobile, limited to those areas in which a weapon may be
placed or hidden, is permissible if the police officer possesses
a reasonable belief based on 'specific and articulable facts
which, taken together with the rational inferences from those
facts, reasonably warrant' the officer in believing that the
5
Douglas's conduct is thus distinguishable from that of the
passenger in Commonwealth v. Torres, 424 Mass. 153, 159 (1997),
where the court found only an exit order, but no further
inquiry, was supported by a passenger exiting a stopped vehicle
unbidden and after a delay when a police officer tapped on his
window. There the court said, "It is not unnatural for either
the driver or the passenger in an automobile (or both) to get
out of the vehicle to meet a police officer who has signalled
the vehicle over to the side of the road." Ibid.13
suspect is dangerous and the suspect may gain immediate control
of weapons." Michigan v. Long, 463 U.S. 1032, 1049 (1983),
quoting from Terry v. Ohio, 392 U.S. at 21.
A Terry-type "frisk" of the interior of an automobile may
be justified under art. 14 of the Massachusetts Declaration of
Rights by the concern that a driver or passenger returning to
the vehicle may gain access to a weapon that may be used against
the police, even though the driver and any passengers are
permitted to reenter the vehicle and go on their way. See
Commonwealth v. Almeida, 373 Mass. at 272 (allowing "frisk" of
car where defendant "was not under arrest at the time of the
'pat-down' search of his person, and there was no assurance that
he would not be returning promptly to his seat behind the wheel
of the automobile"); Commonwealth v. Lantigua, 38 Mass. App. Ct.
526, 528 (1995) (before allowing defendant to reenter car to
obtain registration, officers could properly effect Terry-type
search of areas of car that would be readily accessible to
defendant on reentering); Commonwealth v. Cruz–Rivera, 76 Mass.
App. Ct. 14, 18 (2009), quoting from Commonwealth v. Stack, 49
Mass. App. Ct. 227, 234 (2000) (patfrisk may legitimately extend
into interior of automobile even where, as here, patfrisk of
defendant did not reveal weapons and police were prepared to
release him, "but police are 'confined to what is minimally
necessary to learn whether the suspect is armed and to disarm
14
him once the weapon is discovered'"); Commonwealth v. Graham, 78
Mass. App. Ct. 127, 129 (2010) (justification for patfrisk
entitled officer to also conduct protective sweep of vehicle
confined in scope to intrusion reasonably designed to discover
weapon, where concern extended to threats that might arise from
retrieval of weapon in vehicle by occupant who was not placed
under arrest); Commonwealth v. Myers, 82 Mass. App. Ct. 172,
177-178 (2012) (justification for patfrisk of driver entitled
police to conduct protective sweep of vehicle even though driver
sat in back seat of cruiser after patfrisk and could no longer
have reached inside vehicle, because he could have returned to
vehicle and recovered hidden weapon at end of encounter).
The judge concluded that because the patfrisks of each
passenger revealed nothing, reasonable suspicion that the
occupants of the vehicle could be armed had been dispelled. We
disagree. The reasonable suspicion that the occupants of the
vehicle are dangerous and may possess a weapon (although not on
their person) did not in these circumstances dissipate with the
failure to locate immediately the weapons reasonably believed to
justify the initial frisk. "[I]f nothing developed during the
stop that created probable cause, the police would shortly have
been required to let [the group] go." Commonwealth v. Santiago,
53 Mass. App. Ct. 567, 571 (2002). As expressed by the United
States Supreme Court, "[i]f a suspect is 'dangerous,' he is no
15
less dangerous simply because he is not arrested." Michigan v.
Long, 463 U.S. at 1050.
In these circumstances, the protective frisk of the
interior of the vehicle was justified by the reasonable
suspicion that permitted the officers to issue the exit order
and pat frisk the occupants. Although circumstances may arise
where a patfrisk of the vehicle's occupants would dispel the
apprehension of danger and render a subsequent protective frisk
of the vehicle's interior impermissible, this is not such a
circumstance. In the usual case, as here, the reasonable
suspicion that permitted the officers to issue an exit order and
pat frisk the occupants continues to exist and warrants a
protective frisk of the vehicle's interior when a weapon is not
immediately discovered in a patfrisk of the person. Indeed, if
police officers are required to conclude that the reasonable
suspicion that existed before the patfrisk of a person is
dispelled by a patfrisk that reveals no weapon and are not
permitted a protective frisk of the interior of the vehicle,
then, as best expressed by Justice Harlan, "the answer might be
a bullet." Terry v. Ohio, 392 U.S. at 33 (Harlan, J.,
concurring).
The order allowing the defendants' motions to suppress is
reversed, and a new order shall enter denying the motions.
So ordered.
RUBIN, J., (concurring in the judgment, with whom Hines,
J., joins). Although I agree that the order allowing the
motions to suppress must be reversed, and with the majority's
method of analysis, I write separately to state explicitly that,
in the context of a lawful automobile stop, before police
officers may, under art. 14 of the Massachusetts Declaration of
Rights, undertake a Terry-type search, or "patfrisk," of the
interior of a motor vehicle, see Terry v. Ohio, 392 U.S. 1, 27
(1968), they must have not only reasonable suspicion that an
occupant is armed and dangerous, but also reasonable suspicion
"based on specific, articulable facts that there might be [a]
weapon[] in the vehicle." Commonwealth v. Johnson, 82 Mass.
App. Ct. 336, 342 (2012). And, as I explain, because I would
not hold as the majority does that the motion judge erred in
determining that during the time Johnson and Steed were outside
the vehicle, the reasonable suspicion they were armed and
dangerous dissipated, I necessarily reach the conclusion that
the order must be reversed through a somewhat different route
than the majority.
It is "settled that in appropriate circumstances a Terry type
search may extend into the interior of an automobile."
Commonwealth v. Almeida, 373 Mass. 266, 270 (1977). The
authority for such a further intrusion into an individual's
privacy must be evaluated based on all the facts and
2
circumstances. It does not necessarily arise whenever there is
reasonable suspicion warranting a patfrisk of someone in a car.
In order to be lawful, a search or seizure must be tailored to
its justification. See, e.g., Commonwealth v. Silva, 366 Mass.
402, 407-408 (1974), quoting from Terry v. Ohio, 392 U.S. at 19(A "search must be 'strictly tied to and justified by' the
circumstances which rendered its initiation permissible. . . .
[A permissible] search is thus confined to what is minimally
necessary to learn whether the suspect is armed and to disarm
him once the weapon is discovered"). Thus, as the leading
treatise on the law of the Commonwealth with respect to
suppression states, "[t]he scope of a frisk is circumscribed by
the rationale for the frisk." Grasso & McEvoy, Suppression
Matters Under Massachusetts Law § 5-4[a], at 5-12 (2013/2014
ed.). "[E]ven a patfrisk that is 'valid in its inception' may
be 'excessive in its scope.'" Commonwealth v. Cruz-Rivera, 76
Mass. App. Ct. 14, 18 (2009), quoting from Commonwealth v.
Silva, supra at 407. Therefore, as this court has recently
explained, if in all the circumstances there is "no reasonable
concern based on specific, articulable facts that there might be
weapons in [a] vehicle," a search of its interior is not
permitted. Commonwealth v. Johnson, 82 Mass. App. Ct. at 342.
Consistent with this, even when our appellate courts have
concluded that an initial patfrisk of an occupant of a car was
3
lawful, they have analyzed separately the question whether a
further protective search of the passenger compartment of the
car is within the permissible scope of that search, asking
whether such a search was justified by reasonable suspicion that
the suspect might gain control of a weapon from within the car
and use it against the officers. See, e.g., Commonwealth v.
Silva, 366 Mass. at 407-408; Commonwealth v. Cruz-Rivera, 76
Mass. App Ct. at 18. See also Commonwealth v. Silva, supra at
408 (further search of car is permitted only where it will serve
"a protective end").
Because the facts that justify a patfrisk of the occupant
of a car may not justify a further search of it, there may be
circumstances, as the majority explains, where a lawful patfrisk
that reveals nothing dispels what reasonable suspicion there
was, so that a further search of the car will be impermissible.
Imagine, for example, that a police officer stops a car for
speeding with no reason to think the driver is dangerous. The
officer goes to the driver's window and sees under the driver's
jacket what he thinks is a holster. Assuming that provides a
sufficient basis for reasonable suspicion that the driver is
armed and dangerous, the officer might permissibly order the
driver out of the car and frisk him in order to allow the
officer to "quickly confirm or dispel [his] suspicion." United
States v. Place, 462 U.S. 696, 702 (1983). See Commonwealth v.
4
Pagan, 440 Mass. 62, 68 (2003) ("The purpose behind the
protective measures allowed by Terry is to enable an officer to
confirm or dispel reasonable suspicions that the stopped suspect
may be armed with a weapon"). If the patfrisk reveals the
driver is wearing not a holster, but a back brace, the officer's
suspicion will be dispelled. There would no longer be any basis
for suspicion of the driver, and a further search of the car
would be impermissible. Cf., e.g., United States v. Austin, 269
F. Supp. 2d 629, 634 (E.D. Pa. 2003) (where officer's suspicion
justifying patfrisk was based solely on his belief driver
reached for weapon, search of car unlawful because once officer
"realized that [the defendant] had reached for a cell phone, not
a weapon, there was no reason to believe that he was dealing
with an armed or dangerous individual").
Of course, in many cases, the same facts that give rise to
reasonable suspicion the occupant of a car is armed and
dangerous will justify a Terry-type search of the interior of
the car.1 There will be reasonable suspicion not merely that the
1
While often described as a "patfrisk" of the interior of
an automobile, see, e.g., Commonwealth v. Cruz-Rivera, 76 Mass.
App. Ct. at 18, what is permitted in these circumstances is
actually "a protective search for weapons only." Commonwealth
v. Almeida, 373 Mass. at 271 n.2. As the Supreme Judicial Court
has explained, given the justification for the search, "the
search must be confined to the area from which the suspect might
gain possession of a weapon," id. at 272, and must be limited
"to what is minimally necessary to learn whether the suspect is
5
occupant is carrying a weapon on his person, but that, even if
he is not carrying a weapon on his person at the time of the
patfrisk, he may have one in the car. In such circumstances,
absent some other development, a patfrisk of the individual that
reveals nothing will not dispel the officer's reasonable
suspicion. And, as the majority explains, in these
circumstances, a protective search of the car may be permissible
even if the individual is to be allowed to go on his way. See,
e.g., Commonwealth v. Almeida, 373 Mass. at 272 (allowing
"frisk" of car where defendant "was not under arrest at the time
of the 'pat-down' search of his person, and there was no
assurance that he would not be returning promptly to his seat
behind the wheel of the automobile").
The majority concludes that there was reasonable suspicion
that Johnson was armed and dangerous -- that he either had a
weapon on his person, or had one in the car -- at the point at
which Johnson pivoted toward the center of the back seat of the
car. The majority concludes that in this case, the suspicion
was not dispelled by the patfrisk of Johnson that revealed no
weapon. Likewise, the majority concludes that Steed's own
conduct, including "sitting in the vehicle in a manner that
suggested that he might have a weapon in the pocket of his
armed and to disarm him once [any] weapon is discovered."
Commonwealth v. Silva, 366 Mass. at 408.
6
sweatshirt," ante at , something observed after Johnson was
removed from the car, created at that point reasonable suspicion
that he was armed and dangerous and that he had a weapon either
on his person or in the car. This suspicion, too, the majority
concludes, was not dispelled by the patfrisk that found nothing.
Finally, the majority says that Douglas's conduct only
"heightened the reasonable suspicion that the occupants of the
vehicle were armed and dangerous," ante at , implying that he
might have been thought to have a weapon on his person or in the
car based only on the suspicion that attached to the other two.
The suspicion of Douglas, the majority concludes, also was not
dispelled by the patfrisk of Douglas that found nothing. The
majority thus holds that, with or without the circumstances that
later arose, there was suspicion of each occupant at the time of
his exit order sufficient to justify the search of the car, and
that, with respect to each, the patfrisk did not serve to dispel
that suspicion. "[T]he protective frisk of the interior of the
vehicle was justified by the reasonable suspicion that permitted
the officers to issue the exit order and pat frisk the
occupants." Ante at .2
2
The majority does assert at one point that all the "facts
and circumstances justified the protective search of the
interior of the vehicle," ante at , but if, as the majority
concludes, the suspicion of each passenger was not dispelled by
the patfrisk, it would seem necessarily to follow that the
7
I agree that at the time of the search the officers in this
case had reasonable suspicion based on articulable facts that
the car may have contained a weapon, and that the search of the
car's interior therefore was justified. But I do not base my
conclusion on the initial suspicion aroused by either Johnson or
Steed. The experienced motion judge concluded that at the time
of the stop, the police had insufficient facts to support an
exit order or a patfrisk of any of the occupants of the car.
She concluded that Johnson's movements toward the center of the
back seat warranted the order that he exit and his patfrisk.
But she found as a fact that after finding nothing on Johnson's
person, the police "conclud[ed] that what Johnson was in fact
doing inside the car was removing his seatbelt" –- as one
officer testified, they determined the actions that had made
them suspicious had been "innocent." The judge thus held that
in light of this, Johnson's actions gave the police no basis to
search the car.
Given the judge's finding of fact, it is difficult to
conclude that her legal determination was in error. I need not
initial basis for suspecting him sufficed to allow a further
search of the vehicle. At the end of the day, my analysis is
applicable whichever is the basis for the majority's conclusion
since, in either event, we would not rely on the initial
suspicion aroused by either Johnson or Steed in reaching our
conclusion that there was reasonable suspicion the vehicle
contained a weapon.
8
decide the question, however, because even assuming she was
correct to this point, I think the suppression motion still
should have been denied.
The judge also concluded that Steed's behavior,
particularly, when the officers approached the vehicle, his
having his hands outside the front pocket of his sweatshirt,
apparently, according to Officer Liam's testimony "as if they
were clutching something," provided the officers with reasonable
suspicion only that, as he sat in the car, he was holding a
weapon in the front pocket of his sweatshirt.3 The motion judge
concluded that this justified the order that he get out of the
vehicle and a patfrisk of his person, but when the patfrisk
revealed that he did not in fact have a weapon on his person,
what suspicion there had been was dispelled. She held that his
actions, too, thus provided no basis for the police to search
the car. The majority concludes this, too, was error. That
also is a difficult position to maintain, but we again need only
3
Officer Hawkins testified that a Sergeant Sullivan, who
did not testify, reported to Officer Hawkins that as Steed, who
was not known to the officers, entered the vehicle after leaving
the Chinese restaurant, he had his hand in the front pocket of
his sweatshirt, "was maintaining his right hand in there,
holding it tight to his body." The motion judge stated that
"[b]ecause Sullivan did not testify, precisely what he saw and
what he suspected based on these observations was not made clear
to this Court." In any event, neither the Commonwealth nor the
majority asserts that the police had reasonable suspicion that
Steed was armed and dangerous prior to seeing him in the car
apparently clutching something in his sweatshirt pocket.
9
assume, without deciding, that the motion judge's conclusion was
correct.
For the reasons described by the majority, the exit orders
directed to, and the patfrisks of, Johnson and Steed were
permissible. While Johnson and Steed were out of the vehicle,
Douglas came out of the car unbidden. There is evidence that
earlier on the evening in question Douglas was "agitated," and
that at the time of the stop he was acting unlike his usual
"very casual, . . . calm" self. The officer ordered him back
into the car, and he complied. But after being ordered back
into the car and returning to it, Douglas put the vehicle in
gear as if to drive away and said something to the driver. He
did so while his fellow passengers were outside the car and a
police officer was standing next to it, between it and the
jersey barrier.
When, at 3:00 A.M., a passenger in a stopped vehicle who
has been in attendance at a gang party and has a violent
criminal record including a firearm offense leaves a vehicle
unbidden to confront an officer occupied with a lawful patfrisk,
it is reasonable for the officer to fear for his safety. And,
although the driver kept her foot on the brake, by subsequently
shifting the car into gear, Douglas actually manifested a
serious threat to officer safety. His attempt to flee -- done
in the knowledge he was well-known to the officers, and so
10
likely would later be found, and that his friends were outside
the vehicle and would be left behind -- made it reasonable to
suspect that there was something in the car or on his person
Douglas did not wish the police to see, most likely a firearm,
since he had been convicted previously of a firearms offense,
and was recently socializing with gang members.
With reasonable suspicion that Douglas had a weapon either
on his person or in the car, an exit order and a patfrisk
extending into the interior of the car were justified. A
patfrisk of Douglas's person that revealed no weapon could not -
- and therefore did not -- dispel the officer's reasonable
suspicion that Douglas was armed and dangerous. A protective
search of the interior of the car, limited to the area from
which Douglas might have gained possession of a weapon upon his
return to the car, was justified notwithstanding the negative
result of the patfrisk of his person. The gun was found under
his seat, in that area.
For these reasons, while I agree with both the majority's
method of analysis and its result, I concur only in the judgment
of reversal.