Search and seizure – Auto – Seat

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Where a judge suppressed evidence found by a police officer under a seat in a motor vehicle, the suppression order must be reversed because the search was permissible under Terry v. Ohio, 392 U.S. 1 (1968).

Justified search

“… In ruling on the defendants’ motions to suppress, a judge in the Superior Court held that the seizure by police officers of a firearm found under a passenger’s seat during a ‘patfrisk’ of the interior of a motor vehicle was impermissible because, although the stop of the vehicle was justified, the police had exceeded the permissible scope of the search when they looked under the passenger’s seat before the occupants returned to the vehicle. Specifically, the judge reasoned that ‘[a]ny suspicion which might have been prompted by any movement (or lack thereof) by the car’s occupants was dispelled by the removal and pat frisk of each individual’s person.’ …

“… On the evening of April 7, 2011, a party was held at the Felt Night Club (Felt) in downtown Boston to celebrate the success of a video posted to the video sharing Web site YouTube and produced by a group whose members lived on Annunciation Road in Boston. Members of this group were engaged in a long-standing and sometimes violent rivalry with a group centered in the Orchard Park housing development, and YouTube videos produced by the two groups had at times been a source of some of the violence. …

“Here, there was information that the occupants of the vehicle at least associated with group members; they had been at the Annunciation Road group’s party earlier in the evening to celebrate a YouTube video; such videos had provoked gang violence in the past; two of these individuals who associated with group members, [Shakeem] Johnson and [Jason] Douglas, were known by the police to have committed violent crimes in the past; Douglas had committed a firearms offense; Douglas was known to the police, who had encountered him over fifty times; Officer [Liam] Hawkins was familiar with Douglas from his work on the youth violence strike force, a group of Boston police officers engaged in proactive patrol to reduce violence among youthful offenders and young adults and to curb firearm violence in Boston; Officer Hawkins was aware that Douglas had instances of violence and at least one firearms conviction in his criminal history; Officer Hawkins knew Douglas well enough to address him by first name; Officer Hawkins had seen Johnson ‘all the time in the [An]nunciation Road, Mission Hill area’ and Johnson had instances of violence and drug offenses in his criminal record; and before the officers arrived at the vehicle driver’s window where they could have sought the driver’s license and the vehicle’s registration, Johnson was observed pivoting and leaning toward the center of the vehicle and holding one arm across his body as if he might be trying to hide something.

“In combination with the other evidence described above, the pivoted position in which the police found Johnson further supported a reasonable suspicion that he was trying to hide or access a weapon. Officer Hawkins testified that [Wayne] Steed, who had been seen coming from the Felt party, had been seen outside the restaurant after 3:00 A.M. with one hand tight to his body inside the pocket of his sweatshirt while entering the vehicle. Officer Hawkins observed Steed sitting in the vehicle in a manner that suggested that he might have a weapon in the pocket of his sweatshirt. Steed also behaved oddly — staring straight ahead in a way that, Officer Hawkins said, ‘alarmed’ him — and initially resisted the officers’ requests that he get out of the vehicle. Furthermore, Douglas’s conduct that at the time of the stop was unlike his usual ‘very casual, … calm’ self, and he got out of the vehicle unbidden, which objectively heightened the reasonable suspicion that the occupants of the vehicle were armed and dangerous. After being ordered back into the vehicle and returning to it, Douglas put the vehicle in gear as if to drive away and said something to the driver. He did so while his fellow passengers were outside the vehicle and a police officer was standing between the vehicle and the jersey barrier.

“These facts and circumstances justified the protective search of the interior of the vehicle. …

“A Terry-type ‘frisk’ of the interior of an automobile may be justified under art. 14 of the Massachusetts Declaration of Rights by the concern that a driver or passenger returning to the vehicle may gain access to a weapon that may be used against the police, even though the driver and any passengers are permitted to reenter the vehicle and go on their way. …

“The judge concluded that because the patfrisks of each passenger revealed nothing, reasonable suspicion that the occupants of the vehicle could be armed had been dispelled. We disagree. The reasonable suspicion that the occupants of the vehicle are dangerous and may possess a weapon (although not on their person) did not in these circumstances dissipate with the failure to locate immediately the weapons reasonably believed to justify the initial frisk. …

“In these circumstances, the protective frisk of the interior of the vehicle was justified by the reasonable suspicion that permitted the officers to issue the exit order and pat frisk the occupants. Although circumstances may arise where a patfrisk of the vehicle’s occupants would dispel the apprehension of danger and render a subsequent protective frisk of the vehicle’s interior impermissible, this is not such a circumstance. In the usual case, as here, the reasonable suspicion that permitted the officers to issue an exit order and pat frisk the occupants continues to exist and warrants a protective frisk of the vehicle’s interior when a weapon is not immediately discovered in a patfrisk of the person. Indeed, if police officers are required to conclude that the reasonable suspicion that existed before the patfrisk of a person is dispelled by a patfrisk that reveals no weapon and are not permitted a protective frisk of the interior of the vehicle, then, as best expressed by Justice Harlan, ‘the answer might be a bullet.’ …”

Concurring opinion

Rubin, J., with whom Hines, J., joins. “Although I agree that the order allowing the motions to suppress must be reversed, and with the majority’s method of analysis, I write separately to state explicitly that, in the context of a lawful automobile stop, before police officers may, under art. 14 of the Massachusetts Declaration of Rights, undertake a Terry-type search, or ‘patfrisk,’ of the interior of a motor vehicle, … they must have not only reasonable suspicion that an occupant is armed and dangerous, but also reasonable suspicion ‘based on specific, articulable facts that there might be [a] weapon[] in the vehicle.’ … And, as I explain, because I would not hold as the majority does that the motion judge erred in determining that during the time Johnson and Steed were outside the vehicle, the reasonable suspicion they were armed and dangerous dissipated, I necessarily reach the conclusion that the order must be reversed through a somewhat different route than the majority. …

“When, at 3:00 A.M., a passenger in a stopped vehicle who has been in attendance at a gang party and has a violent criminal record including a firearm offense leaves a vehicle unbidden to confront an officer occupied with a lawful patfrisk, it is reasonable for the officer to fear for his safety. And, although the driver kept her foot on the brake, by subsequently shifting the car into gear, Douglas actually manifested a serious threat to officer safety. His attempt to flee — done in the knowledge he was well-known to the officers, and so likely would later be found, and that his friends were outside the vehicle and would be left behind — made it reasonable to suspect that there was something in the car or on his person Douglas did not wish the police to see, most likely a firearm, since he had been convicted previously of a firearms offense, and was recently socializing with gang members.

“With reasonable suspicion that Douglas had a weapon either on his person or in the car, an exit order and a patfrisk extending into the interior of the car were justified. A patfrisk of Douglas’s person that revealed no weapon could not — and therefore did not — dispel the officer’s reasonable suspicion that Douglas was armed and dangerous. A protective search of the interior of the car, limited to the area from which Douglas might have gained possession of a weapon upon his return to the car, was justified notwithstanding the negative result of the patfrisk of his person. The gun was found under his seat, in that area.

“For these reasons, while I agree with both the majority’s method of analysis and its result, I concur only in the judgment of reversal.”

Commonwealth v. Douglas (and five companion cases) (Lawyers Weekly No. 11-124-14) (25 pages) (Cypher, J.) (Rubin, J., with whom Hines, J., joins, concurring in the judgment) (Appeals Court) Motions to suppress heard by Sanders, J., in Superior Court. Elisabeth Martino (Joseph Janezic with her) for the commonwealth; Michael Tumposky, of Hedges & Tumposky, for Jason Douglas; Daniel R. Katz for Wayne Steed (Docket No. 12-P-1992) (Sept. 30, 2014).