Commonwealth v. Torres-Pagan

• Decision Date: 29 January 2020
• Docket Number: SJC-12697
• Citation: 138 N.E.3d 1012,484 Mass. 34
• Parties: COMMONWEALTH v. Manuel TORRES-PAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 34

138 N.E.3d 1012

COMMONWEALTH

v.Manuel TORRES-PAGAN.

SJC-12697

Supreme Judicial Court of Massachusetts, Hampden..

Argued September 6, 2019.

Decided January 29, 2020.

Benjamin Shorey, Assistant District Attorney, for the Commonwealth.

Claire Alexis Ward for the defendant.

The following submitted briefs for amici curiae:

David Rassoul Rangaviz & Rebecca Kiley for Committee for Public Counsel Services.

Christopher DeMayo, Cambridge, for Sharon Brockington.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

The defendant, Manuel Torres-Pagan, was charged with multiple crimes after a warrantless search of his motor vehicle. The defendant filed a motion to suppress, contending that the evidence was discovered after the police conducted an unlawful patfrisk. A judge in the Springfield Division of the District Court Department granted the defendant's motion, and the Commonwealth filed an interlocutory appeal. The Appeals Court reversed the order of the motion judge in an unpublished memorandum and order pursuant to its rule 1:28. Commonwealth v. Torres-Pagan, 93 Mass. App. Ct. 1123, 110 N.E.3d 1219 (2018). We granted the defendant's application for further appellate review, and we conclude that the patfrisk was improper, as was the search of the defendant's motor vehicle, which was based on the results of the improper patfrisk. We therefore affirm the order of the motion judge allowing the defendant's motion to suppress.¹

Background. We present the facts as found by the motion judge, supplemented by uncontroverted facts from the record that have been "explicitly or implicitly credited" by the motion judge, reserving certain details for discussion (citation omitted). Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015).

While on patrol one early evening in the spring of 2017, two officers observed a motor vehicle with a cracked windshield and an inspection sticker that had expired. The officers followed the vehicle for a short period of time, then activated the blue lights on their cruiser. After driving a short distance, the vehicle, which was being driven by the defendant, pulled into a residential driveway.

The officers got out of their cruiser and approached the vehicle. As they did so, the defendant got out of his vehicle and stood between the open door and the front seat, facing the officers. He then turned to look inside the vehicle on more than one occasion.² One of the officers ordered the defendant to stay where he was; the defendant complied.

The officers placed the defendant in handcuffs and conducted a pat frisk of his person. When a knife was found in the defendant's pants pocket, the defendant was asked if he had other weapons in his vehicle. The defendant indicated that he did, and the officers subsequently seized a firearm from the floor in front of the driver's seat.

Discussion. As an initial matter, we note that, because the defendant was driving a vehicle that had a cracked windshield and an inspection sticker that had expired, the stop was lawful. Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E.2d 717 (1995), quoting Commonwealth v. Bacon, 381 Mass. 642, 644, 411 N.E.2d 772 (1980) ("Where the police have observed a traffic violation, they are warranted in stopping a vehicle"). As the defendant does not contest the legality of the stop, and because he appears to have gotten out of the vehicle on his own initiative rather than in response to an order from the officer, the sole question is whether the ensuing patfrisk was permissible.

The Commonwealth contends that, given the circumstances of this case, chiefly the fact that the defendant alighted from his vehicle without being instructed to do so, the patfrisk of the defendant was justified. We disagree.

1. Standard. Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights protect against unreasonable searches and seizures. A frisk, or "patfrisk," is a "carefully limited search of the outer clothing of [a] person[ ] ... to discover weapons" for safety purposes. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is a "serious intrusion on the sanctity of the person [that] is not to be undertaken lightly." Commonwealth v. Almeida, 373 Mass. 266, 270-271, 366 N.E.2d 756 (1977), S.C., 381 Mass. 420, 409 N.E.2d 776 (1980), citing Terry, supra at 17, 88 S.Ct. 1868.

During a stop for which there is constitutional justification, see Commonwealth v. Narcisse, 457 Mass. 1, 6-7, 927 N.E.2d 439 (2010), a patfrisk is permissible only where an officer has reasonable suspicion that the suspect is armed and dangerous.³

Arizona v. Johnson, 555 U.S. 323, 326-327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Terry, 392 U.S. at 27, 88 S.Ct. 1868. The protection provided by the Massachusetts Declaration of Rights is coextensive with that of the United States Constitution in this regard. See Commonwealth v. Wilson, 441 Mass. 390, 396 n.6, 805 N.E.2d 968 (2004), citing Commonwealth v. Fraser, 410 Mass. 541, 543 n.3, 573 N.E.2d 979 (1991).

Our articulation of the patfrisk standard has not always been clear. On occasion we have not been as precise with our language as we could have been, specifically when discussing the patfrisk standard as it relates to the standard for exit orders. For example, we stated in Commonwealth v. Washington, 449 Mass. 476, 482, 869 N.E.2d 605 (2007), that "under our State Constitution, neither an exit order nor a patfrisk can be justified unless a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger" (quotations and citation omitted). More recently, in Commonwealth v. Amado, 474 Mass. 147, 152, 48 N.E.3d 414 (2016), we observed that "[w]here an officer has issued an exit order based on safety concerns, the officer may conduct a reasonable search for weapons in the absence of probable cause to arrest." Both are technically correct statements of the law: it is true that a patfrisk is not justified unless an officer has safety concerns and that a patfrisk may be conducted in the absence of probable cause. However, in neither of the above cases did we specify that, to justify a patfrisk, an officer needs more than safety concerns; he or she also must have a reasonable suspicion that the suspect is armed and dangerous. Although an officer's concern for his or her safety and the safety of others animates both standards, the officer's safety concern in an exit order context may be resolved once the suspect leaves her vehicle.⁴ See id. at 151-152, 48 N.E.3d 414 ; Commonwealth v. Gomes, 453 Mass. 506, 512, 903 N.E.2d 567 (2009). Without a more particularized fear that the suspect is presently armed and dangerous, the officer cannot take the more intrusive step of pat frisking the suspect. Terry, 392 U.S. at 24-25, 88 S.Ct. 1868.

Although for the most part we have articulated the patfrisk standard correctly, see, e.g., Commonwealth v. Villagran, 477 Mass. 711, 717, 81 N.E.3d 310 (2017), and Narcisse, 457 Mass. at 7, 927 N.E.2d 439, in isolated instances we have conflated the standard required to perform a patfrisk with the standard required for issuing an exit order. For example, we have stated, inaccurately, that the standard for a patfrisk is the same as that which is required to justify an exit order. See Commonwealth v. Torres, 433 Mass. 669, 676, 745 N.E.2d 945 (2001). In addition, we mistakenly have described a patfrisk as being "constitutionally justified when an officer reasonably fears for his own safety or the safety of the public ... or when the police officer reasonably believes that the individual is armed and dangerous" [emphasis added] ). Commonwealth v. Johnson, 454 Mass. 159, 162, 908 N.E.2d 729 (2009), quoting Commonwealth v. Isaiah I., 450 Mass. 818, 824, 882 N.E.2d 328 (2008).⁵

We acknowledge that these differing articulations of the patfrisk standard may have caused confusion. However, we never have strayed intentionally from the armed and dangerous standard as articulated in Terry.⁶ Accordingly, we clarify today that an exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity; or (3) police are conducting a search of the vehicle on other grounds. See Amado, 474 Mass. at 151-152, 48 N.E.3d 414. Thus, in the absence of reasonable suspicion of a crime or justification to search the vehicle on other grounds, an exit order is justified during a traffic stop if officers have a reasonable suspicion of a threat to safety. A lawful patfrisk, however, requires more; that is, police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous. See Martin, 457 Mass. at 19, 927 N.E.2d 432.

Having different standards for exit orders and patfrisks makes logical sense. To be sure, issuing an order to a motorist to get out of his or her vehicle during a traffic stop is an imposition that cannot be considered minimal. See Commonwealth v. Cruz, 459 Mass. 459, 469 n.16, 945 N.E.2d 899 (2011) ; Commonwealth v. Gonsalves, 429 Mass. 658, 663, 711 N.E.2d 108 (1999). However, an exit order is considerably less intrusive than a patfrisk, which is a "severe ... intrusion upon cherished personal security [that] must surely be an annoying, frightening, and perhaps humiliating experience." Terry, 392 U.S. at 24-25, 88 S.Ct. 1868. The only legitimate reason for an officer to subject a suspect to a patfrisk is to determine whether he or she has concealed weapons on his or her person. See Commonwealth v. Silva, 366 Mass. 402, 407-408, 318 N.E.2d 895 (1974), quoting Terry, supra at 29, 88 S.Ct. 1868. We therefore do not allow such an intrusion absent reasonable suspicion that the suspect is dangerous and has a weapon. Without a basis for such...