Opinion
No. 12–P–1006.
2014-01-17
COMMONWEALTH v. Herbert LEVY.
Defense counsel returned to this subject soon thereafter soliciting additional clarification as follows: While we agree with the Commonwealth that Officer Borowski was not required to accept the possibility of an innocent explanation for the defendant's conduct, there is a critical distinction between reaching toward the waistband area and reaching into the waistband. This distinction has been recognized as a dispositive factor in our cases. In Commonwealth v. Fisher, supra at 783, our conclusion that the patfrisk was permissible was based, in part, on the fact that the defendant reached into his waistband area because such a gesture, as opposed to simply reaching toward the waistband area, was particularly suggestive of reaching for a gun. The Supreme Judicial Court's decision in Commonwealth v. Wilson, 441 Mass. 390, 394, 805 N.E.2d 968 (2004) is also instructive. In that case, the court determined that a patfrisk was based on a reasonable belief that the defendant was armed and dangerous where officers responded to a dispatch reporting a stabbing or beating with a weapon at a location where numerous arrests and weapons violations had occurred and the defendant, upon making eye contact with the officer, immediately turned, walked away and simultaneously moved his hand into his “waist area.” As the court explained, the officer in that case testified that the defendant “stuffed his hands into his pants,” “placed something in his pants,” “[his hand] went into his pants area,” and “I could see [his hand] go into his pants area ...” Id. at 395, 805 N.E.2d 968. See Commonwealth v. Johnson, 413 Mass. 598, 600, 602 N.E.2d 555 (1992) (patfrisk permissible when defendant was observed concealing something in his pants); and Commonwealth v. Charles, 81 Mass.App.Ct. 901, 902, 959 N.E.2d 994 (2012) (patfrisk permissible where officer had credible information regarding the presence of a firearm and the defendant appeared to be guarding something in his pants).