This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
The order allowing the motion to suppress is reversed and a new order is to enter denying the motion.
Rubin, Milkey & Agnes, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant is charged with several drug offenses and other crimes as the result of a patfrisk following the stop of a motor vehicle in which he was the front seat passenger. For the reasons that follow, we reverse the order allowing the defendant's motion to suppress and direct that a new order shall enter denying the motion.
The District Court judge credited the testimony of Chelsea police Officers Richard Rossetti and Anthony Ortiz, the only two witnesses who testified at the motion hearing. Based on the judge's express findings and the uncontroverted evidence, the facts are that the vehicle in which the defendant was a front seat passenger was stopped at 11:00 p.m. because it " ran" a stop sign. Officer Rossetti observed the four occupants moving inside the vehicle and " reaching." A second marked police cruiser containing Officers Ortiz and Leon arrived in about one minute.
The driver was cooperative and did not appear to be impaired. The occupants had to be told twice to stop moving. One of the backup officers saw the driver reach down in such a way that his hands were not visible. A rear seat passenger also reached down to hide what was discovered to be a beer bottle. This passenger was ordered to exit the vehicle and was pat frisked. When he opened his wallet to provide identification, a folded dollar bill fell out, which the passenger admitted contained cocaine. After this passenger was arrested, the defendant, the front seat passenger, was ordered to step out of the vehicle. A patfrisk of his outer clothing led to the discovery of a bundle of fifteen individually wrapped packets of crack cocaine.
The only issue on appeal is whether there was justification for the patfrisk of the defendant.
We take into consideration a number of factors, no one of which is sufficient: (i) it was a nighttime stop of a vehicle, in a poorly lit area, in circumstances in which there initially was a single police officer confronted by a vehicle containing four individuals, (ii) all four occupants were moving and " reaching," and the driver, in particular, was observed reaching down under the seat out of the sight of the police, and (iii) cocaine was seized from one of the passengers prior to the patfrisk of the defendant. A police officer faces a particular danger when the occupants of an otherwise lawfully stopped motor vehicle engage in movements that are concealed from the officer's view. See Commonwealth v. Lantigua, 38 Mass.App.Ct. 526, 528, 649 N.E.2d 1129 & n.1 (1995); Commonwealth v. Heughan, 40 Mass.App.Ct. 102, 104-105, 661 N.E.2d 939 (1996); Commonwealth v. Ellsworth, 41 Mass.App.Ct. 554, 556, 671 N.E.2d 1001 (1996). See also Commonwealth v. Doulette, 32 Mass.App.Ct. 506, 509-510, 591 N.E.2d 213 (1992), S. C., 414 Mass. 653, 609 N.E.2d 473 (1993) (suspicious movement of one occupant inside vehicle is factor in determining that other occupants may be armed and dangerous).
Justification for an exit order is not necessarily justification for a patfrisk. See Commonwealth v. Stampley, 437 Mass. 323, 326, 771 N.E.2d 784 (2002); Commonwealth v. Elysee, 77 Mass.App.Ct. 833, 840-841, 934 N.E.2d 837 (2010). In order to conduct a patfrisk of a person ordered out of the vehicle during a traffic stop, the police must reasonably suspect that the person is armed and dangerous. See Arizona v. Johnson, 555 U.S. 323, 326-327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); Commonwealth v. Martin, 457 Mass. 14, 20, 927 N.E.2d 432 (2010).
We conclude that there were sufficient specific and objective facts and circumstances to create in the minds of the police officers a reasonable belief that the defendant may be armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977). What is required is a reasonable belief, on the basis of objective facts and circumstances, that the officer's safety or the safety of others is at risk. See Commonwealth v. Silva, 366 Mass. 402, 406, 318 N.E.2d 895 (1974). Although by no means was the evidence conclusive, a police officer is not ...