The Massachusetts Appeals Court ruled today that Boston officers had sufficient reason to order a man out of his car and conduct a search that found a loaded gun in a case under his seat, the Massachusetts Appeals Court ruled today.
A Superior Court judge had ruled the gun and bullets could not be used as evidence because the officers didn't have enough evidence that Ernest Monell of Lakeville was up to no good, but the appeals court said they had legitimate concerns about their safety, because of a murder nearby just two hours earlier and because the apparent holster one spotted near Monell's foot justified a more intensive search.
According to the court's summary of the case, two officers stopped Monell after watching him allegedly ignore a stop sign and peel off Millet Street in Dorchester late on May 28, 2019 - about two hours after a man was shot to death on that street. At the time, police had not arrested a suspect.
Monell was calm as officers approached, one on either side of the car, but when the officer on the passenger side spotted what appeared to be a gun holster on the floor near Monell's foot, the other officer, talking to Monell, ordered him out of the car.
The defendant "'froze' while acting as if he was trying to conceal his right hand." Officer Layden then physically removed the defendant from the car and pat frisked his person. The defendant was not armed and possessed no contraband. After the officers placed the defendant in handcuffs, they saw that the holster in the car was empty. Officer Layden then searched the driver's seat area and under the seat discovered a case that felt as if it contained a firearm. He opened the case and discovered a handgun.
The court said the officers were justified in ordering Monell out of the car out of allowed concerns for their safety because he "was stopped late at night by officers on patrol in an area where they knew there had been a fatal shooting approximately two hours earlier" and because one of them saw what looked like a holster near his foot, so
The court then continued the officers were also justified in frisking him and doing more to search the car than just looking inside with a flashlight.
The test for a pat frisk is more stringent than for an exit order. A police officer may pat frisk a suspect following an exit order only when he has a reasonable suspicion that the suspect is armed and dangerous. Torres-Pagan, 484 Mass. at 38-39. Here, the defendant "'froze' while acting as if he was trying to conceal his right hand" when he was ordered out of the car. This specific and articulable fact, considered together with the presence of the holster, the time of night, and the earlier fatal shooting, was sufficient to establish a reasonable suspicion that the defendant was armed and dangerous. See Commonwealth v. DePeiza, 449 Mass. 367, 374 n.4 (2007) (defendant's reaching gesture contributed to officers' reasonable fear for their safety).
The same reasoning applied to what the court said was a "limited" search of Monell's car.
Once the defendant was removed from the car and no weapon was discovered during the pat frisk of his person, the officers were justified in their concern that a weapon might remain in the car. See Commonwealth v. Gouse, 461 Mass. 787, 792-793 (2012). The Supreme Judicial Court has consistently held that in these circumstances the police are permitted to perform a limited, protective search of the car interior. ... Once the defendant was removed from the car and no weapon was discovered during the pat frisk of his person, the officers were justified in their concern that a weapon might remain in the car. See Commonwealth v. Gouse, 461 Mass. 787, 792-793 (2012). ... Here, Officer Layden's search of the car was limited to a search for a weapon in the area of the driver's seat. He immediately found a case under the seat through which he felt the weight and shape of a firearm. His seizure of the firearm was justified. See Commonwealth v. Wilson, 441 Mass. 390, 396-397 (2004) (officer may seize object during Terry-type frisk if contraband nature of object can readily be identified by its mass and contour).