Commonwealth v. Robert Flemming, April 23, 2010
76 Mass. App. Ct. 632
Firearms. Practice, Criminal, Motion to suppress. Search and Seizure, Threshold police inquiry, Protective frisk. Constitutional Law, Search and seizure.
Incident to a Terry stop, and after observing a bulge at the defendant’s waistband, the police lifted the defendant’s shirt to ascertain the source of the bulge without first conducting a patfrisk. The BMC trial judge suppressed the evidence seized as a result of that search. The Commonwealth appealed. The appeals court held that “though there may be circumstances in which a patfrisk is unnecessary as an initial investigatory step, the present case does not warrant departure from the general rule favoring a patfrisk as a predicate to further investigation in a Terry stop.” Accordingly, the appeals court affirmed the suppression order.
Two Boston police officers responded to a dispatch advising shots fired in the area of a local residence. The officers found nothing related to the dispatch, but recognized the address as that of the defendant’s residence, because they had responded to a dispatch at that address two months earlier. Later that evening, officers passed the defendant and stopped him to ask about the incident. One officer noticed a bulge at waist height, beneath the defendant’s T-shirt. The defendant told the officers that he wanted to leave to get food, but one officer told him, “Before you go, I’m going to have to lift your T-shirt.” The officer told the defendant to put his hands in the air and then lifted the left side of the defendant’s T-shirt, revealing a loaded revolver tucked into the waistband.
In ‘stop and frisk’ cases, the court’s inquiry involves (1) whether the initiation of the investigation by the police was permissible in the circumstances; (2) whether the scope of the search was justified by the circumstances. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Here, the issue is “whether the intrusiveness of the government’s conduct is proportional to the degree of suspicion that prompted it.” Commonwealth v. Torres, 433 Mass. at 672.
The court assumed, without deciding, that the police had reasonable suspicion of the defendant’s involvement in criminal activity sufficient to justify the stop, and focused its inquiry on the permissible scope of the search. A determination of the permissible scope of a search is fact-specific and confined to what is minimally necessary to learn whether the suspect is armed and to disarm him once the weapon is discovered.
Courts have upheld searches of defendant’s clothing without requiring a preliminary pat-down, when certain grounds justify such a means of search (ex. when police have particularized information that suggested presence of a weapon in the location searched, or when the circumstances of an encounter suggest that requiring a predicate exterior pat-down would have made the situation more dangerous). An exterior pat-down ordinarily is required though, as a less intrusive alternative, before further investigation of concealed areas is permitted. This does not mean that an officer engaged in a Terry stop and frisk must evaluate the least available alternative before acting.
In the present case, the question is whether the officer acted unreasonably in failing to recognize or pursue an available alternative. Considering the defendant’s cooperation, there was no reason why the officer could not conduct a pat-down of the exterior of the defendant’s clothing. The appeals court concluded that the circumstances of the encounter furnished no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior patfrisk. Accordingly, the order allowing the motion to suppress was affirmed.
76 Mass. App. Ct. 632
Incident to a Terry stop, and after observing a bulge at the defendant’s waistband, the police lifted the defendant’s shirt to ascertain the source of the bulge without first conducting a patfrisk. The BMC trial judge suppressed the evidence seized as a result of that search. The Commonwealth appealed. The appeals court held that “though there may be circumstances in which a patfrisk is unnecessary as an initial investigatory step, the present case does not warrant departure from the general rule favoring a patfrisk as a predicate to further investigation in a Terry stop.” Accordingly, the appeals court affirmed the suppression order.
Two Boston police officers responded to a dispatch advising shots fired in the area of a local residence. The officers found nothing related to the dispatch, but recognized the address as that of the defendant’s residence, because they had responded to a dispatch at that address two months earlier. Later that evening, officers passed the defendant and stopped him to ask about the incident. One officer noticed a bulge at waist height, beneath the defendant’s T-shirt. The defendant told the officers that he wanted to leave to get food, but one officer told him, “Before you go, I’m going to have to lift your T-shirt.” The officer told the defendant to put his hands in the air and then lifted the left side of the defendant’s T-shirt, revealing a loaded revolver tucked into the waistband.
In ‘stop and frisk’ cases, the court’s inquiry involves (1) whether the initiation of the investigation by the police was permissible in the circumstances; (2) whether the scope of the search was justified by the circumstances. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Here, the issue is “whether the intrusiveness of the government’s conduct is proportional to the degree of suspicion that prompted it.” Commonwealth v. Torres, 433 Mass. at 672.
The court assumed, without deciding, that the police had reasonable suspicion of the defendant’s involvement in criminal activity sufficient to justify the stop, and focused its inquiry on the permissible scope of the search. A determination of the permissible scope of a search is fact-specific and confined to what is minimally necessary to learn whether the suspect is armed and to disarm him once the weapon is discovered.
Courts have upheld searches of defendant’s clothing without requiring a preliminary pat-down, when certain grounds justify such a means of search (ex. when police have particularized information that suggested presence of a weapon in the location searched, or when the circumstances of an encounter suggest that requiring a predicate exterior pat-down would have made the situation more dangerous). An exterior pat-down ordinarily is required though, as a less intrusive alternative, before further investigation of concealed areas is permitted. This does not mean that an officer engaged in a Terry stop and frisk must evaluate the least available alternative before acting.
In the present case, the question is whether the officer acted unreasonably in failing to recognize or pursue an available alternative. Considering the defendant’s cooperation, there was no reason why the officer could not conduct a pat-down of the exterior of the defendant’s clothing. The appeals court concluded that the circumstances of the encounter furnished no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior patfrisk. Accordingly, the order allowing the motion to suppress was affirmed.
