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Appeals Court of Massachusetts.



Decided: December 23, 2022

By the Court (Milkey, Ditkoff & Englander, JJ.7)


Pursuant to a conditional plea agreement, the defendant pleaded guilty to unlawful possession of a loaded firearm. The plea was conditioned on his right to appeal the denial of his motion to suppress the firearm at issue, as well as his right to appeal the denial of his motion for reconsideration. In this appeal, the defendant exercises those reserved rights. We affirm.

Background.1 On September 28, 2018, the Boston police executed a search warrant for the residence of Tony Burt, the defendant's brother-in-law. The warrant authorized the police to search the residence, and Burt's person, for illegal drugs and firearms.2 Burt was present during the search, and he cooperated with the police. The police posted at least one officer outside the front door of the residence.3

During the search, the police located narcotics and a firearm inside a safe. They arrested Burt and removed him from the premises. The search continued and, about one half-hour after it began, the defendant unexpectedly opened the locked front door and walked into the residence. At that time, Detective Timothy P. Stanton, a thirty-year veteran of the Boston Police Department, was standing about twenty feet away from the front door. Stanton was surprised by the defendant opening the locked door, because he believed that the door was still being guarded, and he was not aware that anyone else lived at the premises.

Taken aback by the defendant's sudden presence, Stanton announced to the officers present elsewhere in the residence, “We have visitors.” He proceeded to cross the room and grab the defendant's wrists. At one point while Stanton was bringing his wrists “together toward [the defendant's] waist,” he “felt something hard in [the defendant's] waist area.”4 Stanton pat frisked the defendant and found the unlicensed firearm that the defendant was charged with possessing. During his conversation with the police at the residence, the defendant acknowledged that he lived there and that Burt was his brother-in-law.

Discussion. The United States Supreme Court long ago recognized the need for police executing a search warrant to be able to seize “occupants” of the premises during the search. See Michigan v. Summers, 452 U.S. 692, 705 (1981) (“for Fourth Amendment purposes ․ a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted”). Allowing police this leeway serves many purposes, including the protection of the officers who are conducting the search. Id. at 702-703. As the Supreme Judicial Court has recognized, “[i]t is important to recognize the need of law enforcement officers to 'exercise unquestioned command' of a search site and detain persons on the premises in the interest of the safety of all involved, and to prevent the destruction of evidence.” Commonwealth v. Charros, 443 Mass. 752, 763 (2005), quoting Summers, supra at 702-703. This authority “arises from necessity, that is, from the need to control the inherent volatility produced by the search environment ․ [and] [i]t requires no special showing.” Charros, supra. “Inherent in Summers' authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention.” Muehler v. Mena, 544 U.S. 93, 98-99 (2005).

In arguing that Summers and its progeny do not apply, the defendant focuses on whether the defendant here was an “occupant” of the premises or some sort of mere visitor. Although it turns out that the defendant in fact was an occupant,5 he argues that Stanton did not know this at the time of the initial seizure, and that the state of Stanton's knowledge of this issue is determinative of whether Summers applies. The defendant does not cite to any case authority for the proposition that Summers does not apply to actual occupants unless police knew their status as such at the time they initially were seized. We need not reach that issue, however, because, in any event, the police here had an objectively reasonable basis to conclude that someone who just had let himself into a residence through a locked door may well in fact live there. Commonwealth v. Mattier (No. 2), 474 Mass. 261, 270-271 (2016) (“facts known to police demonstrated that he was an occupant of the apartment to be searched”). To be sure, we recognize that Stanton may not have had time to deliberate about whether the defendant was an occupant before seizing him, but this hurts rather than helps the defendant: Stanton had to act immediately to address the potential threat that the defendant's surprise entrance posed.6

Of course, the fact that Stanton was justified in his initial seizure of the defendant does not, by itself, mean that the subsequent patfrisk also was justified. See Commonwealth v. Ramirez, 92 Mass. App. Ct. 742, 748 (2018) (“[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous, which includes suspecting that the person is illegally armed” [quotation and citations omitted]). However, given the context here -- the defendant's entering the residence through a locked door during an authorized search of the residence for illegal narcotics and firearms -- we agree that, at least once Stanton felt a hard object in the defendant's waist area, there was a reasonable suspicion that the defendant was armed and dangerous. See Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744 (2021) (“In assessing whether an officer has reasonable suspicion to justify a patfrisk, we ask whether a reasonably prudent [person] in the [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger” [quotations and citations omitted]).

Because we conclude that the motion to suppress and the motion for reconsideration were properly denied, we affirm the judgment.

So ordered.


1.   We draw the facts from the motion judge's findings, none of which the defendant's brief challenges as clearly erroneous. We have also reviewed the video recording that shows the defendant entering the premises and being searched, and his initial interactions with the police.

2.   The judge referenced “a lengthy drug investigation into [Burt], ․ who was selling crack cocaine from the Premises.” However, the testimony from the Commonwealth's sole witness did not support this, and the search warrant and accompanying affidavit were not entered in evidence. It appears that in referencing a lengthy drug investigation into the sale of “crack” cocaine at the residence, the judge was relying on her own knowledge of the contents of the search warrant affidavit, which had come before her in a separate hearing in the case against Burt. Without deciding whether it was proper for her to rely on that knowledge, we note that we have not relied on the judge's finding regarding the sale of crack cocaine from the residence (notwithstanding that the defendant has not challenged any of the findings as clearly erroneous).

3.   In his testimony at the motion to suppress hearing, the Commonwealth's only witness explained that these measures were taken in order to prevent third parties from entering the premises.

4.   Passing over the fact that the defendant's brief does not challenge any of the judge's findings as clearly erroneous, we discern no error in the judge's finding that Stanton felt a hard object while lowering the defendant's hands to his waist.

5.   Although the judge did not specifically find that the defendant was an occupant of the residence, she did credit that he acknowledged that he lived there. His status as an occupant is not in doubt.

6.   The case on which the defendant relies, Commonwealth v. Souza, 42 Mass. App. Ct. 186, 188-192 (1997), is readily distinguishable. In that case, the search warrant had broadly authorized the police to search “any person present” at the premises. See id. at 187. After the defendant entered the premises during the search, the police detained, pat frisked, and searched him pursuant to the breadth of the warrant. Id. Nothing in Souza indicates that the Commonwealth was seeking to justify the search and seizure based on Summers (which is not cited in the opinion), or establishes that the defendant was in fact an occupant. We did note there -- after concluding that the “any person present” authorization provided by the search warrant was too broad -- that “[i]f concerned for their safety or to ensure the proper execution of the search warrant, the officers could have secured the premises and prohibited persons from entering to insure the proper execution of the search warrant. It would appear that the police were present in sufficient numbers to have secured the premises and prohibited entry during execution of the search warrant had the officers chosen to do so.” Id. at 192, citing Commonwealth v. Snow, 363 Mass. 778, 789 (1973). In the case before us, the police in fact took steps to prevent third parties from entering the premises during the search. For instance, even after the officers guarding the front door left the premises (for reasons not resolved), that door remained locked. We do not interpret Souza as precluding the application of Summers merely because of the possibility that the police might have been able to do more to prevent occupants from entering the premises.

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