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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Pagan, 440
Present:
Indictment found and returned in the Superior Court Department on
A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and
the case was heard by Richard J. Chin, J.
After review by the
J. Thomas Kerner for the defendant.
Robert C. Thompson, Assistant District Attorney, for the Commonwealth.
SOSMAN, J.
The defendant appeals from his conviction of
trafficking in cocaine, contending that his motion to suppress evidence was
erroneously denied. After a remand to the motion judge for further findings,
the
1. Background. a. Facts. After an evidentiary hearing, the motion judge made
the following findings of fact.[1] At approximately
Officer Randolph ordered the defendant to stand up, whereupon Officer Randolph
removed the backpack and handed it to Officer Coady. The backpack was made of
soft material, with one main compartment zippered shut. The backpack and its
contents weighed approximately six pounds. It was evident that the pack
contained heavy objects. The motion judge found that "anyone could tell
just by holding the backpack that there was something heavy and hard
inside." After handing the pack to Officer Coady, Officer Randolph
proceeded to frisk the defendant, and felt no potential weapons on his person.
He asked the defendant for some identification, to which the defendant responded
that he did not have any, but the defendant volunteered that he was a police
officer in
Officer Randolph instructed Officer Coady to open the backpack and find the
defendant's identification. Officer Coady opened the zipper to the main
compartment and saw a brick-shaped object (approximately eight inches long,
four inches wide, and two inches deep) wrapped in duct tape. Based on his
military training, Officer Coady's very first impression was that the object
might be a bomb. He took it out, and then saw another identically sized and
wrapped object underneath. The second brick was removed as well. Based on their
training and experience with narcotics, the officers then suspected that the
bricks were kilograms of cocaine.[2] Officer
Back at the police station, the defendant gave a statement in which he admitted
that two unidentified Colombians had asked him to pick up a package in
b. Procedural history. The defendant moved to suppress evidence of the cocaine
found in his backpack on the ground that the officers had illegally searched
the backpack and slit open the cocaine packaging. He also moved to suppress his
later statement on the ground that it was a product of the unlawful search. The
motion was denied. The judge ruled that the opening of the backpack would be
justified as a limited search for weapons. Given the nature of the reported
crime (breaking and entering), the frequency of weapons-related crimes in that
area of Brockton, the size and weight of the backpack (which "could easily
contain a weapon or a burglary tool that could be used as a weapon"), and
the fact that a second burglar was believed to be at large in the vicinity, the
judge concluded that the officers would have a legitimate need to open the
backpack and ascertain whether there were any weapons inside. While the
Commonwealth had relied primarily on the theory that the defendant had given
the officers consent to search the pack for identification, the judge's ruling
did not adopt that theory. He credited the officers' belief that the defendant
had so consented, but assumed (without deciding) that the evidence was not
sufficient to support a finding of valid consent. Rather, he denied the motion
on the ground that the objective circumstances justified opening the pack as
part of a Terry weapons search, and that the discovery of what appeared to be
contraband inside the pack gave the officers grounds to inspect under the
wrapping of that contraband.[4]
On appeal, the defendant acknowledged that the police had the requisite
reasonable suspicion for a Terry stop, and that the circumstances entitled them
to remove the backpack from him and frisk his person for weapons. He contended,
however, that the police had no grounds to open or search the backpack itself.
Before addressing the weapons search theory relied on by the motion judge, the
2. Discussion. Before this court, the defendant properly concedes the legality
of the stop itself, the removal of his backpack, and the frisk of his person,
but contends that there was no justification for the officers to open the pack.
First, he argues that there was a sufficient police presence to keep the
backpack itself under police control, preventing him from accessing a weapon (if
any) inside it, and thus no need to search the pack. Second, he argues that, if
there were any legitimate concern about his accessing a weapon in the backpack,
the police were required to pat frisk the backpack before opening it, and that
they could not proceed to open the backpack unless that patfrisk confirmed the
presence of a weapon or weapon-like object inside.
With regard to the first argument, some courts and commentators have endorsed
the proposition that a Terry weapons search does not extend to containers if
the circumstances permit the police to control the container and keep it away
from the suspect. See
The facts of the present case do not make police control of the situation as
crystal clear as the defendant suggests. Although the defendant was outnumbered
by the officers (see note 3, supra), a second suspect was still at large, and
likely still in the vicinity. While one might be confident that several
officers could prevent a single suspect from gaining access to a backpack, the
potential that the suspect's cohort (reasonably suspected to be armed) could
appear at any moment made the situation far from secure. As the motion judge
found, the officers, who had been at the scene for only about three minutes,
"were in the process of establishing control, but the threat had not been
neutralized" (emphasis in original).
We need not resolve whether the presence of several officers sufficed to eliminate
the risk of the defendant's retrieving his backpack, or whether the
justification for a Terry weapons search of the backpack would therefore
disappear, because elsewhere the defendant argues that the police should have
returned the backpack to him so that he could locate and produce his
identification (rather than searching for his identification themselves). He
also concedes that the police would have been entitled to assure themselves
that no weapons were in the backpack before they did so. In other words, on the
defendant's own theory, the proper course of action would have been to check
the pack for weapons so that it could safely be returned to the defendant for
his production of some identification. We agree. No matter how many officers
are present, the police cannot safely allow a detained suspect to reach inside
a container that they reasonably fear may contain a weapon.
That brings us to the defendant's second argument, and requires us to decide
whether the officer's check of the backpack for weapons could proceed directly
to the opening of the pack without first performing any patfrisk of the
exterior. On the facts of this case, we conclude that a preliminary patfrisk
was not a prerequisite to the officer's opening the backpack.
The purpose behind the protective measures allowed by Terry is to enable an
officer to confirm or dispel reasonable suspicions that the stopped suspect may
be armed with a weapon, thus allowing the officer "to pursue his
investigation without fear of violence." Adams v. Williams, 407
The same is true of containers, which come in an infinite variety of sizes,
shapes, and materials, and we therefore decline to impose a rule that would
automatically require a preliminary patfrisk of any and all containers prior to
searching them for weapons during a Terry stop. There are times when a patfrisk
of a container will provide no useful information as to its contents, and will
therefore do nothing either to confirm or to dispel an officer's suspicion that
there is a weapon inside. An obvious example would be a container with a hard
exterior -- it would be pointless to pat frisk a cardboard box, or a hard-sided
suitcase. See
However, the mere fact that a particular container is made of soft or pliable
material does not necessarily mean that a patfrisk will provide useful or
reliable information as to the presence or absence of weapons inside. For
example, a patfrisk of a full duffel bag can discern a weapon if that weapon is
located near the bag's outer surface, but even the most thorough palpation of
such a bag could not detect a weapon or hard object packed deeper in the
middle. If an officer has reasonable suspicion that such a container may
contain a weapon, performing a patfrisk has no potential to avert the more
intrusive search of the interior of the container: if a patfrisk reveals a hard
object near the surface, the bag will have to be opened to retrieve it, or, if
the patfrisk uncovers no hard object, the bag will still have to be opened to
determine whether a weapon is hidden deeper inside. In other words, while a
patfrisk may provide added justification for opening the bag, it will not
suffice to avoid opening such a bag. See, e.g., Worthey v. State, 805 S.W.2d
435, 438 (Tex. Crim. App. 1991) (where patfrisk of purse inconclusive, officer
acted reasonably in opening purse to check for weapons). In such cases, the
level of search that is minimally necessary inevitably involves opening the
container. Requiring officers to pat frisk such a container prior to opening it
imposes a useless requirement that does nothing to protect the suspect's
privacy.[6]
The container in question in this case, although constructed of pliable
material, was full of heavy, hard objects. Simply from looking at it and
lifting it (which the officers had done), it was evident that a patfrisk could
not possibly suffice to dispel the suspicion that burglarious implements (which
could be used as weapons) or other potential weapons were inside.[7]
Rather, a patfrisk of the pack would not reveal anything beyond what the
officers already knew, namely, that the pack contained hard, heavy objects that
could be used as weapons and that the pack would have to be opened to determine
what those objects were. See Berry v. State, 704 N.E.2d 462, 465-466 (Ind.
1998) (search justified where heavy backpack "clunked as if something
metal were in it" when placed on patrol car); United States v. Lewis, 486
A.2d 729, 738 n.2 (D.C. 1985) (Nebeker, J., dissenting) (noting that frisk of
knapsack "which contained a number of hard, large articles, such as gym
shoes and a radio, would not have sufficed as a security measure"). See
also
It may be that for many, and perhaps most, containers made of soft material, a
patfrisk will provide additional information either supporting or eliminating
an officer's reasonable suspicion that a weapon may be hidden within. In such
cases, a patfrisk of the container should ordinarily be performed prior to
opening the container. With such containers, the patfrisk will either reveal a
hard object and justify a further search, or the patfrisk will establish that
no hard object is inside, thus dispensing with the need for any further search
of the container. However, as here, particular features of the container, readily
observable by the police, may make it apparent that nothing short of opening
the container will suffice to address the officer's reasonable suspicions. In
such cases, we will not require the officers to perform the meaningless ritual
of a preliminary patfrisk of the container. Thus, if the container is such that
a patfrisk might suffice to establish that there is no potential weapon within,
the container may not be opened as part of a search for weapons unless a
patfrisk has first been performed. If, however, a patfrisk would not suffice to
dispel suspicion and avert the need for a search, no patfrisk need be
performed. In each case, the method and scope of an officer's search for
reasonably suspected weapons must be confined to what is minimally necessary to
discover the presence or confirm the absence of a weapon, and the specific
circumstances will dictate what measures, including but not limited to a
preliminary patfrisk, will satisfy that standard. Here, the officers did no
more than what was minimally necessary to assure themselves that the defendant
did not have access to a suspected weapon in his backpack, and the motion to
suppress was properly denied.
Judgment affirmed.
FOOTNOTES:
[1] On remand from the
[2] Later analysis confirmed that each brick was
slightly over 998 grams, just shy of one kilogram.
[3] By the time Officer Coady opened the backpack, a
detective had arrived at the scene. Based on evidence presented at trial (but
not at the motion to suppress), the defendant contends that there was yet a
fourth officer who arrived prior to the search of the backpack. Whether the
defendant was outnumbered four-to-one as opposed to three-to-one is of no
consequence to our analysis.
[4] The judge correctly noted that the legality of
the search was to be analyzed based on the objective circumstances confronting
the officers, not on their subjective belief that the defendant had consented
to the search.
[5] Initially, the police wanted an identification to
confirm the defendant's address, as all suspicion of him would dissipate if he
could show that he lived at that address. Then, when the defendant claimed to
be a police officer, the police also wanted confirmation that he was an
officer, a fact that would, if true, also operate to dispel suspicion.
[6] There may also be times when officers are
specifically alerted to the presence of a potential weapon in the container
without performing a patfrisk. If the officers already have specific
information concerning the presence of such an object in the container, it
would be redundant to require a patfrisk of the container. See People v.
Ritter, 54
[7] The defendant complains that the judge's findings
in this regard are erroneously premised on the results of an imaginary patfrisk
of the backpack. At one point in his findings, the judge does envision what the
results of a frisk would have been: "If one of the officers had done a
pat-down of the backpack before opening it, he would have felt two hard, heavy
objects that were the size, shape, density and approximate weight of building
bricks. This would have increased rather than decreased the basis for opening
the bag to protect against anything that could be used as a weapon."
However, the judge also made the finding, supported by the record, that
"[d]ue to the weight, size and density of the cocaine bricks, anyone could
tell just by holding the backpack that there was something heavy and hard
inside." That latter finding is not premised on an imaginary frisk of the
backpack, but on what the officers would have known from merely looking at and
lifting it.
[8] Having discovered what appeared to be two
kilograms of cocaine in the backpack, the officers did not need to obtain a
warrant before checking underneath the duct tape wrapping to confirm that the
bricks were indeed comprised of cocaine. From the outward appearance of the
bricks alone, the officers had probable cause to arrest the defendant, and
requiring them to obtain a search warrant before making a small cut and looking
under the wrapping "would afford insignificant protection to a defendant
and would unnecessarily burden the criminal justice system." Commonwealth
v.