The Appeals court ruled in COMMONWEALTH vs. ROBERT FLEMMING 76 Mass.App.Ct. 632 (2010) on April 23, 2010 that a stop and frisk was inappropriate where an Officer without first patting the exterior of the clothing, lifted a shirt.
In reviewing the facts the court stated “Incident to a Terry stop, and after observing a bulge at the defendant’s waistband, the police lifted the defendant’s shirt to ascertain the source of the bulge without first conducting a patfrisk. A judge of the Boston Municipal Court suppressed the evidence seized as a result of that search, and the Commonwealth appealed. We conclude that, though there may be circumstances in which a patfrisk is unnecessary as an initial investigatory step, the present case does not warrant departure from the general rule favoring a patfrisk as a predicate to further investigation in a Terry stop. See, e.g., Commonwealth v. Torres, 433 Mass. 669, 675 n.6 (2001). We accordingly affirm the suppression order.
Courts that have upheld searches of areas within or beneath a defendant’s clothing without requiring a preliminary pat-down of the exterior generally have justified such a course on one of several grounds. In some cases, the police had particularized information that suggested presence of a weapon in the location searched. See, e.g, United States v. Hill, supra (suspect in bank robbery lifted shirt to display to teller gun tucked in waistband of pants; defendant apprehended within a short time after robbery, within 500 feet of bank). See also People v. Taggart, 20 N.Y. 2d. 335, 342-343 (1967), appeal dismissed, 392 U.S. 667 (1968) (police had tip that suspect had gun in left jacket pocket; reasonable for officer to reach into that pocket without first patting exterior). In others, courts have dispensed with the requirement of an exterior pat-down when the circumstances of the encounter suggested that requiring such a predicate step would have made the situation more dangerous, such as where a defendant’s actions suggest that he may be reaching for a weapon. See, e.g., People v. Superior Court, 15 Cal. App. 3d 806, 809-810 (1975) (when responding to report of shots fired, permissible to reach directly into defendant’s pocket after seeing defendant do so upon approach of police). Cf. Commonwealth v. Jones, 6 Mass. App. Ct. 942, 942 (1978). Similarly, the Supreme Judicial Court has held that it is unnecessary to conduct a patfrisk of the exterior of a container believed to contain one or more weapons, in circumstances where such a patfrisk would not yield further useful information bearing on whether objects inside the container are in fact weapons. See Commonwealth v. Pagan, 440 Mass. 62, 72 (2003). See generally 4 LaFave, Search and Seizure § 9.6(b) (4th ed. 2004); Clancy, Protective Searches, Pat-downs, or Frisks?: The Scope of the Permissible Intrusion to Ascertain if a Detained Person is Armed, 82 Marq. L. Rev. 491 (1998-1999).
We have observed that an exterior pat-down nonetheless ordinarily is required, as a less intrusive alternative, before further investigation of concealed areas is permitted. See Commonwealth v. Torres, 433 Mass. at 675 n.6, citing Commonwealth v. Silva, 366 Mass. at 408. That does not mean, however, that an officer engaged in a Terry stop and frisk must evaluate the least available alternative before acting. We are mindful that a report of an armed man warrants serious police attention, see Commonwealth v. Fraser, 410 Mass. 541, 544 n.4 (1991), and that hindsight consideration of the reasonableness of actions of police officers in the field must extend deference to the danger such encounters pose, since “the answer might be a bullet.”Commonwealth v. Silva, supra at 407, quoting from Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring). In assessing the reasonableness of the method Officer Williams used in the present case to determine whether the bulge he observed was a weapon or some other object, then, ” ‘[t]he question is not simply whether some other alternative [to lifting the defendant’s shirt] was available . . . but whether he acted unreasonably in failing to recognize or to pursue it.’ To determine whether the search was reasonable, we therefore must consider whether obvious, commonly employed, and effective alternatives were available under the circumstances.” United States v. Casado, 303 F.3d at 448, quoting from United States v. Sharpe, 470 U.S. 675, 687 (1985).
In the present case, there was no reason why Officer Williams could not conduct a pat-down of the exterior of the defendant’s clothing in the location of the suspicious bulge, to determine whether the object felt like a weapon. The defendant was cooperative, had made no threatening movements toward the police (who had no particularized information placing a gun or other weapon in the defendant’s waistband), and had his hands in the air. We accordingly conclude that the circumstances of the encounter between Officer Williams and the defendant furnished no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior patfrisk.
Order allowing motion to suppress affirmed.”
Basically, the item in question, could have been something soft and incapable of being a weapon.
Attorney Ronald A. Sellon