Opinion
20-P-523
05-10-2021
COMMONWEALTH v. Thomas D. STONER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a District Court judge granting a motion to suppress evidence discovered during a patfrisk of the defendant, Thomas D. Stoner. Concluding that the police lacked specific articulable facts to support a reasonable suspicion that the defendant was armed and dangerous, we affirm.
1. Standard of review. "In reviewing the grant ‘of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error and accord substantial deference to the judge's ultimate findings.’ " Commonwealth v. Saywahn, 91 Mass. App. Ct. 706, 708 (2017), quoting Commonwealth v. Carr, 458 Mass. 295, 298 (2010). "The ultimate legal conclusions to be drawn from the findings, however, are matters for review by this court." Saywahn, supra.
2. The patfrisk. "[T]o 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." Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020). "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." Commonwealth v. Karen K., 99 Mass. App. Ct. 216, 221 (2021), quoting Torres-Pagan, supra at 37-38. A reasonable suspicion that a suspect is armed and dangerous must be based on "specific articulable facts." Torres-Pagan, supra at 38-39.
The patfrisk was performed during the execution of a search warrant. The search warrant described a person other than the defendant as the target of the investigation and authorized the search of that target. There was no evidence that the defendant was a suspect, or even known to police, before the search. The search warrant did not authorize the police to search "any persons present."
In Commonwealth v. Washington, 449 Mass. 476 (2007), responding to an argument made by the Commonwealth that, "because the defendants were suspected of involvement with narcotics, the danger to the officers should be presumed," the Supreme Judicial Court held, "while drug involvement certainly may be a relevant factor in assessment of threats to police safety, we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes." Id. at 482-483. See Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 348 (2010) ("We acknowledge that the case law often observes that the mere fact that drugs are involved does not support the view that guns or other weapons are present"). Accordingly, although we appreciate that "the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence," we do not agree with the Commonwealth's contention that "the fact that a person is inside the locus of a warranted search for evidence of drug dealing provides a sufficient and reasonable basis to believe that, prior to the police entry, said person possessed or had immediate access to a gun or other dangerous weapon," permitting the patfrisk of any occupant within. Michigan v. Summers, 452 U.S. 692, 702 (1981) (assessing justification for detention of occupant of premises being searched for contraband pursuant to valid warrant).
The Commonwealth argues that several other factors provided reasonable suspicion that the defendant was armed, including the surveillance camera positioned on the outside of the home, the fact that the police knocked four or five times on the door of the residence with no response, the defendant's positioning on the couch as "partially sitting, partially laying ... [and] moving" as the officers entered the residence, the "wad of cash" tucked between the couch the defendant was sitting on and the wall, and the workstation in the kitchen that was apparently for the packaging and distribution of narcotics. Although these factors support the proposition that a drug dealing operation was afoot and justified caution by the officers, none of these factors suggest that there were weapons inside, much less that the defendant himself was armed. See Torres-Pagan, 484 Mass. at 39 ("He was not secreting anything, nor was he attempting to reach for anything"); Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009) (police lacked particular facts from which reasonable inference could be drawn that defendant was armed and dangerous -- despite fact that incident occurred in early hours of morning in high crime area where shootings have occurred -- where no evidence defendant made gestures that would cause officers to believe he was armed, no evidence defendant attempted to flee, officers were not outnumbered). Contrast Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 167 (2013) (reasonable suspicion defendant armed where, in response to police knocking on door, police heard defendant "walking from the front to the rear of the apartment and back to the front door, in conjunction with knowledge of a history of defiant behavior and his possession of firearms," and where defendant cracked door open two inches).
At oral argument, the prosecutor properly conceded that, although the defendant was "moving" on the couch, he was not making any furtive movements. See Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007) ("Although nervous or furtive movements do not supply reasonable suspicion [that the suspect may be carrying a firearm] when considered in isolation, they are properly considered together with other details to find reasonable suspicion").
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Even assuming that the authority of Cabrera, 76 Mass. App. Ct. at 349, with its focus on danger to the officers, survives the Supreme Judicial Court's decision in Torres-Pagan, it is distinguishable. There, one of the suspects made a surreptitious phone call, and the defendant and another person exited a nearby building and entered the alley in which the officers were then outnumbered five to two. Cabrera, supra at 344. The defendant's compatriot made eye contact with the officer and unsuccessfully tried to reenter the building. Id. Then the defendant and his compatriot "began looking around nervously, scanning the scene," looking "as if they wanted to flee." Id.
Here, by contrast, the officers testified that the defendant was very compliant with orders, did not resist when he was put in handcuffs, and was never threatening. See Commonwealth v. Souza, 42 Mass. App. Ct. 186, 191-192 (1997) (patfrisk of defendant, who walked into home during execution of "any person present" warrant unreasonable where he was "cooperative and polite while on the premises, not presenting a risk of harm to the officers in any way," and "acted like a gentleman at all times"). See also Washington, 449 Mass. at 482 (declining to uphold patfrisk of defendant where motion judge "found specifically that the defendants did nothing to cause the troopers concern for their safety," despite drug involvement). The evidence did not establish the level of concern for safety demonstrated in Cabrera.
Order allowing motion to suppress affirmed.