Search and seizure – Frisk – Backpack

Where a motion to suppress evidence obtained from a search of the defendant’s backpack was allowed, that decision should be affirmed because the police were not justified in unzipping the backpack without first attempting a pat-frisk of it.

“The Commonwealth appeals from a District Court judge’s order allowing the defendant’s motion to suppress evidence obtained from a search of the defendant’s backpack. Under the test set forth in Commonwealth v. Pagan, 440 Mass. 62, 68-73 (2003), we are compelled to affirm. …

On July 12, 2023, at 11:57 A.M., two Salem police detectives and a Salem police lieutenant (collectively ‘the officers’) received a dispatch ‘that a caller had notified dispatch’ that the defendant was traveling from Lawrence to the Lafayette Hotel (hotel) in Salem with a gun and drugs. …

“The defendant denied the officers’ request to search his backpack. The backpack was described as a ‘mesh style, soft sided, gym style backpack.’ As the video reveals, an item described as an ‘Xbox’ video game console was partly observable from a partially open compartment of the backpack. One of the officers again asked the defendant to place his hands on the counter, and at some point, one of the detectives grabbed and held the defendant’s hand and arm to the counter while the lieutenant grabbed and held the defendant’s other arm. The lieutenant then removed the backpack from the defendant’s back and handed it to one of the detectives, who placed the backpack on the ground. The officers conducted a patfrisk of the defendant’s person for weapons but did not find anything. Immediately thereafter, the detective who had been handed the backpack unzipped a compartment on the backpack, looked inside, and ‘rezipped that pouch.’ The detective then unzipped another pouch of the backpack, looked inside, and saw a firearm. The officers handcuffed the defendant and transported him to the police station, where they conducted a full search of the backpack. During that search, they discovered drugs inside the backpack and seized the firearm that had previously been discovered inside.

“… The judge ruled that, although the Commonwealth had reasonable suspicion to conduct a patfrisk of the defendant and the backpack, there was inadequate evidence to justify the unzipping and search of the backpack. …

“In the present case, the Commonwealth insists that the police did what was minimally necessary to confirm or dispel their suspicion. This argument fails where the Commonwealth did not present evidence supporting this contention. There was no testimony from any witness or other evidence to the effect that a patfrisk would have been inadequate to confirm the existence of a firearm within the backpack. The Commonwealth contends that it is readily apparent from the video that the Xbox was ‘protruding’ from the backpack and thus any patfrisk would have been futile. We disagree. It is not evident from the video, standing alone, that a patfrisk of the backpack would have been futile. Although it is possible that the Xbox occupied enough of the backpack such that a patfrisk would not have been adequate here, the video alone does not support that conclusion. In such circumstances, it was incumbent on the Commonwealth to introduce additional evidence to demonstrate that a patfrisk would have been inadequate. This, it did not do.

“This was also not a case where other ‘specific circumstances’ existed that justified the opening of the backpack without first attempting a patfrisk of it. …

“The Commonwealth also argues that conducting a patfrisk and manipulating the exterior of the backpack could have made the situation more dangerous because those actions could have resulted in the accidental discharge of the firearm. Here again, the Commonwealth did not introduce any evidence at the motion hearing to support this contention. … There was no evidence suggesting that a gun might accidentally discharge during a patfrisk or that the officers had that safety concern at the time. Therefore, the argument is unavailing on the record before us.”

Commonwealth v. Greaves (Lawyers Weekly No. 11-055-26) (11 pages) (Neyman, J.) A pretrial motion to suppress evidence was heard by Leo S. Fama II, J., and a motion for reconsideration was considered by him. Kathryn L. Janssen for the commonwealth; Edward Crane for the defendant (Docket No. 25-P-29) (July 28, 2026).

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