COMMONWEALTH v. BAXTER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Dario A. Baxter, entered a conditional guilty plea, see Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1499 (2019), to two counts of a criminal complaint charging him with carrying a firearm without a license, and the firearm being loaded, in violation of G. L. c. 269, § 10 (a) and (n). On appeal, he asserts that the motion judge erred in denying his motion to suppress the firearm. We affirm.

1. Propriety of patfrisk. Boston Police Officer Christopher Stevens recovered the firearm, concealed in the defendant's pants, when Stevens ordered the defendant out of a car and pat frisked him during a motor vehicle stop. The defendant does not challenge the propriety of the stop or the exit order, but contends that the patfrisk was not justified and that his detention exceeded the scope of the traffic stop.

“[A]n 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.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020). “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.” Id. at 38-39.

The defendant contends that his conduct, “pulling up on his waistband twice,” during a routine traffic stop, did not provide Stevens with reasonable suspicion that he was armed and dangerous. The circumstances of the stop were not as benign as the defendant suggests. We state the facts as the judge found them -- and only those facts, the judge having specifically written that she “credits solely the facts as stated” in her decision. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015).

The judge found that Stevens and his partner, Officer McDonough, observed a vehicle with “excessively tinted windows” crossing an intersection after midnight on a “dark and rainy” night. They stopped the vehicle after it made a turn without signaling. It appeared to have two occupants, both in the front seat. The front seat passenger ducked, his head disappearing from sight, for “approximately, one second.” “This movement and motion gave Officer Stevens a heightened awareness of danger. Stevens was concerned for ‘officer safety and ․ thought there could be a weapon under the front seat.’ ”

As Stevens approached the passenger side and McDonough approached the driver's side, Stevens noticed a third person, the defendant, in the back seat behind the passenger. Both front windows were down when the officers approached, but not the back windows. The driver immediately admitted that he did not have a license. The officers had already learned that the car was a rental, and they intended to tow it. McDonough removed the driver from the vehicle and initiated his arrest.

“Simultaneously,” Stevens asked the front passenger to lower the back passenger window. The passenger looked forward and did not respond. Stevens used his flashlight to look into the back seat. Stevens saw the defendant “adjust his pants twice -- at the waist near the belly button/belt buckle area. He appeared to pull the pant waist out and up.” Stevens, “concerned that the defendant could have been ‘hiding’ or securing a firearm or ‘making one accessible,’ ” first ordered the front passenger out and frisked him, finding nothing of concern. This exit order was made within two or three minutes of the initial stop. Stevens then ordered the defendant out of the back seat to be frisked. He recovered a firearm from the defendant's “crotch/front pant area.”

In weighing the factors that justify a patfrisk, “we take into account the totality of the circumstances -- the whole picture. Thus, a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief” (quotations and citation omitted). Commonwealth v. Fraser, 410 Mass. 541, 545 (1991). The officer must articulate facts that would create “a heightened awareness of danger” in the mind of “an objectively reasonable officer.” Commonwealth v. Stampley, 437 Mass. 323, 326 (2002), quoting Commonwealth v. Gonsalves, 429 Mass. 658, 665 (1999). “[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.” Torres-Pagan, 484 Mass. at 37.

The judge concluded that the patfrisk was permissible. Accepting the judge's unchallenged findings of fact, and conducting an independent review of her ultimate findings and conclusions of law, see Commonwealth v. Daniel, 464 Mass. 746, 748-749 (2013), we agree. The officers had stopped a rented car with excessively tinted windows being driven by an unlicensed driver. While McDonough arrested the driver, Stevens had to deal with the two passengers, whose combined behavior -- the front passenger ducking down, then not responding when asked to lower the back window; the defendant reaching for his waist -- caused Stevens to believe that a weapon was present and within the men's reach. These were the type of “furtive” movements that justify an officer's reasonable belief that a suspect may be armed and dangerous. See Torres-Pagan, 484 Mass. at 39-40. See also Commonwealth v. Goewey, 452 Mass. 399, 407 (2008); Stampley, 437 Mass. at 327 (“Numerous cases have recognized that such gestures, suggestive of the occupant's retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop”). Unlike in Daniel, 464 Mass. at 749, here the judge credited the officer's testimony “that he had a heightened awareness of danger during the stop.” The facts that Stevens articulated, and that the judge credited, warranted a reasonable belief that the defendant was concealing a weapon.

2. Length of detention. We also agree with the judge that the officers did not unlawfully detain the defendant after the purpose of the stop had been effectuated. See Commonwealth v. Cordero, 477 Mass. 237, 241-243 (2017). See also Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996). While “[a]uthority for the seizure ․ ends when tasks tied to the traffic infraction are -- or reasonably should have been -- completed,” Rodriguez v. United States, 575 U.S. 348, 354 (2015), the tasks necessary to be completed were still ongoing when Stevens ordered the defendant out of the car and conducted the patfrisk. See Stampley, 437 Mass. at 329.

This stop did not end with the production of a valid driver's license; it required the arrest of the driver and the towing of the vehicle. The arrest was taking place and Stevens was diligently dealing with the passengers, whose conduct created a reasonable concern that they were armed and dangerous, all within minutes of the stop. The officers “needed to continue a legitimate stop, and to complete a variety of steps remaining in that stop, in the immediate presence of a possibly armed occupant of the vehicle.” Stampley, 437 Mass. at 329. Under these circumstances, Stevens was not required to release the defendant and let him walk away without first determining whether the defendant was concealing a weapon.

Judgments affirmed.