Commonwealth v. Moscat

Brown, J.

(concurring). I do not think “the search was incident to a lawful arrest.” The troubling issue to be decided here, as I see it, is whether a manifestation of an intention to conduct an illegal search, if it causes contraband to be discovered, is the functional equivalent of an actual, physical, illegal search.

In the circumstances presented here, the motion judge properly could have concluded that the stop of the defendant was a permissible threshold inquiry because Officer Riley had a reasonable suspicion that the defendant was committing the misdemeanor offense of carrying alcohol on his person.

Reasonable suspicion to conduct a threshold inquiry, however, does not automatically entitle the investigating officer to conduct a protective pat frisk of the suspect. The officer must, in addition, have reason to believe that the suspect may be armed and dangerous. Commonwealth v. Mercado, 422 Mass. 367, 371-372 (1996). The motion judge listed as factors justifying Officer Riley’s conducting a protective pat frisk of the defendant: (1) that Officer Riley was alone; (2) that it was ten o’clock at night; (3) that Riley’s encounter with the defendant took place in the Dorchester section of Boston. These three factors are plainly insufficient to justify the protective search of the defendant. Even combining the factors of the place, the hour, and the absence of other officers with the defendant’s wobbly bicycle riding and efforts at concealing something, I do not think these circumstances are sufficient to justify the pat frisk as a permis *627 sible protective search. 1 Here the defendant’s attempt to hide something under his shirt permitted Officer Riley to form a reasonable suspicion that the defendant was a minor in possession of alcohol, something that would have posed no danger to the officer. “[T]he . . . [police] have pointed to no particular facts from which they reasonably could infer that the defendant was armed and dangerous.” Commonwealth v. Gutierrez, 26 Mass. App. Ct. 42, 47 (1988) (emphasis in original). But if Officer Riley had a reasonable suspicion that the defendant was concealing harmless contraband, he could not also have had a reasonable suspicion, based on the very same evidence, that the defendant was concealing a weapon. 2

The trial judge made a specific finding, based in part on her own questioning of Officer Riley, that the officer had only reached out to the defendant with the intention of pat frisking him, but had not actually touched him, when the defendant moved his left arm, allowing the handgun he had been concealing to fall into plain view. I accept the judge’s finding of fact on this point.

To me, that Riley had not touched the defendant when the gun fell has legal significance. Suppression is required if the gun was discovered as the result of an illegal search. See Commonwealth v. Loughlin, 385 Mass. 60, 63 (1982) (“Because the evidence in issue was traceable to the illegal pat-frisk of Loughlin .. . it must in these circumstances be suppressed as the ‘fruit of the poisonous tree’ ”). But the defendant is not entitled to suppression of the gun because it accidentally fell from his person or was dropped by him in anticipation of an illegal search. See and compare State v. Smith, 134 N.J. 599, 621 (1994) (“the premature announcement of an intent to perform a pat-down does not debilitate the officer so that he will not later be able to perform a pat-down should sufficient facts come to light”).

The motion judge warrantably could deny the defendant’s *628 motion to suppress because a valid threshold inquiry was followed by the discovery of the gun before the investigating officer had begun what would have been an invalid protective pat frisk.

This court need not accept the motion judge’s conclusion that on the facts presented the officer had a reasonable fear for his safety. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, 384 , cert. denied, 515 U.S. 1146 (1995).

I do not pause to discuss the Commonwealth’s contention that the bottle Officer Riley thought the defendant was carrying could have been used as a weapon. The idea that Officer Riley feared that the defendant was suddenly going to club him with the object the defendant was taking such pains to conceal strains credulity.