COMMONWEALTH v. CABERA, FEBRUARY 25, 2010, APPEALS COURT
Search and seizure, Threshold Police Inquiry, Protective frisk
Boston Police arrested the defendant after a pat frisk revealed he was unlawfully carrying a loaded firearm. The defendant moved to suppress the firearm. After an evidentiary hearing the motion was allowed. The Appeals Court reversed.
The facts of the case were that two Boston detectives ran the license of a car with Virginia license plates traveling in the South End. The car came back as a rental, a known drug tool of the drug trade. They saw the car make a U-turn and a second car pulled into traffic behind it. No signal or acknowledgment between the occupants of the two cars was observed. A license check of the second car revealed it to be registered in Southbridge. The detectives followed the two cars for several blocks and down a dead end public alley. One person from each car met and went inside a building for less than a minute while the three remaining male occupants stood near the cars with the engines running. Suspecting a drug transaction was afoot, the detectives approached the males and inquired to whom the car belonged. The males shook their heads indicating they did not know. During this interaction one of the males took out his cell phone, placed it down by his side, and attempted to dial a number. The detective, concerned that he was attempting to alert someone their the presence, asked him to stop and put the phone away.
The two who had entered the building exited while the detectives were speaking with the three men.. The defendant was one of the two that exited the building. When the two men saw the police they tried to go back inside but the door locked behind them. Both men began looking around nervously, scanning the scene as if they wanted to flee. The detectives, fearful for their safety, decided a pat frisk was in order. The detectives told the five men to place their hands on the top of one of the cars and called for backup to assist in the pat frisk.
The Appeals Court held that the police did have a reasonable suspicion of criminal activity sufficient to stop and reasonably apprehension of danger to justify a frisk. The Court reasoned that in this case the stop of the defendant took place when the five men were ordered to place their hands on the car. By that time the detectives had a reasonable suspicion that a drug deal was occurring and that threshold detention and further inquiry were in order. The detectives had a reasonable apprehension of danger to justify the frisk based on the totality of the situation which included the fact that they were outnumbered five to two, at night in a dead end alley. They knew nothing of the defendant or the other persons, or whether any other persons might remain in the building. In such a rapidly developing circumstance, it was neither imprudent nor constitutionally unreasonable for the police to conclude that sufficient danger existed to merit a pat frisk and that backup was required to do so safely. Nor did the arrival of backup diminish justification for the frisk.
