# Commonwealth v. Tompert

> Massachusetts Appeals Court · September 27, 1989 · 27 Mass. App. Ct. 804

URL: https://www.frixlaw.com/law-library/cases/9739521

## Case

- **Full name:** Commonwealth vs. Steven C. Tompert
- **Court:** Massachusetts Appeals Court
- **Decided:** September 27, 1989
- **Citations:** 27 Mass. App. Ct. 804; 544 N.E.2d 226; 1989 Mass. App. LEXIS 550
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Perretta, Smith, Warner
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9739521

## Opinion text

Smith, J.
(dissenting). In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that a frisk for weapons was legitimate as long as the “officer is justified in believing that the individual *810 whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.” Id. at 24 . 1 The officer’s belief would be justified only if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger .... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27 . “In the case of the self-protected search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968). Also see Terry v. Ohio, supra at 21 (“officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion”).
Here, the majority concludes that the trooper was justified in opening the door because he reasonably believed that his safety was in jeopardy. Because I believe that the record before us does not support that conclusion, I respectfully dissent.
The “specific and articulable facts” upon which the trooper based his belief that his safety was in jeopardy consisted entirely of his observations of the movements of the occupants (and the fact that the interior light went off) as he approached the truck. 2 On that point the trooper testified that he “observed both subjects turn, look towards me as I was approaching the vehicle. The interior light went off and both subjects began to move about frantically, making furtive movements and moving — *811 moving all about.” He stated that the defendant “continually . . . turned back a number of times to check my progress, and I observed him turn toward the right, and I observed movement on the upper part of his body.” On this record I conclude that the officer did not articulate specific facts from which a rational inference could be drawn that the occupants of the truck were armed and dangerous and that the trooper’s safety was jeopardized. 3
In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court extended Terry v. Ohio, supra, to include automobile “frisks.”
The trooper’s answers on that point are unequivocal.
“Q. Did you have any other reason to open that, open the passenger side door, other than your observation of the movements of the two passengers?
A. Yeah, at that point I was protecting myself.
Q. But the only reason that you felt the need to protect yourself was that you observed movement of the two passengers?
A. Yes; the way they reacted to my presence.”
Commonwealth v. Sumerlin, 393 Mass. 127, 129-130 (1984), relied on by the majority, is not to the contrary. In Sumerlin , the police were investigating an illegally parked automobile in a high crime area where shootings had occurred. In this case, the trooper was not investigating a crime — he was checking on the well-being of the occupants of a truck properly parked in a rest area. There is nothing in the record that shows that the trooper' was aware of any criminal activity whatsoever associated with that particular rest area.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9739521. Public record. Not legal advice.