MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 ), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
The defendant was indicted for unlawful possession of a firearm (third offense), unlawful possession of ammunition, and carrying a loaded firearm. A Superior Court judge concluded that the patfrisk of the defendant before his arrest was not justified and allowed the defendant's motion to suppress. Thereafter, the Commonwealth received permission from a single justice of the Supreme Judicial Court to pursue this interlocutory appeal. See G. L. c. 278, § 28E; Mass. R. Crim. P. 15(a)(2), as amended, 476 Mass. 1501 (2017). We reverse.
When reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008), citing Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004). "We take the facts from the judge's findings following a hearing on the motion to suppress, adding those that are not in dispute, and eliminating those that, from our reading of the transcript, are clearly erroneous." Commonwealth v. Castillo, 89 Mass.App.Ct. 779, 781 (2016), quoting Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 558-559 (1994). "A finding is clearly erroneous when `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Castillo, supra, quoting Green v. Blue Cross & Blue Shield of Mass., Inc., 47 Mass.App.Ct. 443, 446 (1999). "Our review of the application of constitutional principles to those facts, however, is plenary" (citations omitted). Commonwealth v. Cawthron, 90 Mass.App.Ct. 828, 833 (2017), S.C., 479 Mass. 612 (2018).
One justification for an exit order during a traffic stop is the "police are warranted in the belief that the safety of the officers or others is threatened." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). "We assess whether there were facts and circumstances in the course of [the] particular traffic stop that, viewed objectively, would give rise to a heightened awareness of danger on the part of the [officer]" (quotations and citations omitted). Commonwealth v. Rosado, 84 Mass.App.Ct. 208, 212 (2013). "The test for a patfrisk is more stringent than for an exit order." Commonwealth v. Monell, 99 Mass.App.Ct. 487, 490 (2021). A police officer may pat frisk a suspect following an exit order only when the officer has a reasonable suspicion that the suspect is armed and dangerous. See Torres-Pagan, supra at 38-39. In assessing whether an officer has reasonable suspicion to justify a patfrisk, "we ask whether a reasonably prudent [person] in the [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger" (quotations and citations omitted). Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744 (2021). "An innocent explanation for an individual's actions `does not remove [those actions] from consideration in the reasonable suspicion analysis.'" Id., quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007).
As the motion judge found, while the police were on patrol in a high crime area of the city of Brockton, they saw a red pickup truck driving on the wrong side of the road and making a left turn without the prior use of a turn signal. The police activated their vehicle's lights and siren, and the red pickup truck stopped in a residential parking lot. The officers approached on each side of the truck, which held three individuals. The defendant was a rear seat passenger on the driver's side of the truck.
As soon as the officer approached the truck, the defendant behaved in an evasive and furtive manner. He immediately turned his torso to the right (away from the officer who approached on the driver's side) and reached with his right arm towards his right side or leg. Concerned for his safety, the officer ordered the defendant to place his hands on the headrest. Although the driver complied with a request to put his hands on the steering wheel, the defendant ignored the officer and again reached to his right side. At this point, the officer radioed for backup. When backup arrived, the officer ordered the defendant out of the truck, conducted the patfrisk, and recovered a firearm from his person.1
The motion judge concluded that the stop of the truck and the exit order were justified. However, he further concluded that the officer who conducted the patfrisk acted merely on a hunch, and his twenty-one years of experience,2 and not on specific and articulable facts that would support a reasonable suspicion that the defendant was armed. We disagree.
When reviewing in hindsight the circumstances attending a lawful traffic stop, "we think it crucial to remember that, as shown by many tragic climaxes to threshold police inquiries, `the answer might be a bullet.'" Commonwealth v. Silva, 366 Mass. 402, 407 (1974), quoting Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring). See Commonwealth v. Haskell, 438 Mass. 790, 794 (2003) ("The Constitution does not require officers to gamble with their personal safety" [quotation and citation omitted]). Here, when viewed objectively, the very experienced officer did not act hastily upon a mere hunch. See Sweeting-Bailey, 488 Mass. at 746 ("Police also may rely on their training and experience as a basis for reasonable suspicion"). Rather, in a high crime area,3 the defendant's behavior and movements, i.e., twice reaching down to his right side, in defiance of the officer's order, supported a reasonable suspicion that he was attempting to retrieve or conceal a weapon on or near his person. "Numerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop," justifying a patfrisk. Commonwealth v. Stampley, 437 Mass. 323, 327 (2002). See Commonwealth v. Goewey, 452 Mass. 399, 407 (2008) (defendant's nervousness and furtive movements of reaching down as if to hide or retrieve something permitted as reasonable suspicion that defendant was armed); DePeiza, 449 Mass. at 374 & n.4 (defendant's reaching gesture contributed to officers' reasonable fear that defendant was armed). Contrast Torres-Pagan, 484 Mass. at 41 (defendant's actions did not indicate that he was armed and dangerous where he made no furtive movements, already had gotten out of his car and could not use it as weapon, his body was fully visible to officers, he was fully compliant with all commands issued by officers, and he was outnumbered).
In the end, the patfrisk of the defendant was properly supported by reasonable and articulable facts that provided a reasonable suspicion that he was armed. The motion to suppress should have been denied.
Order allowing motion to suppress reversed.