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Massachusetts Supreme Judicial Court: Criminal Record Alone Does Not Justify Patfrisk, Gun Discovered in Waistband Suppressed

by Jacob Barrett

The Supreme Judicial Court of Massachusetts upheld a Superior Court’s order granting a motion to suppress a firearm that was discovered during an unlawful patfrisk because the motorist’s criminal record together with his behavior during the traffic stop did not create a reasonable suspicion that he was armed and dangerous.

Three Massachusetts state troopers conducted a lawful traffic stop of Earl Garner for making “abrupt turns.” He recognized one of the troopers, Paul Dunderdale, because the trooper had pulled Garner over four previous times over the past few years.

According to Dunderdale, he was aware that Garner had twice been convicted of unlawfully possessing a firearm. During the stop, Garner attempted to call someone on his cell phone. Dunderdale claimed Garner’s leg was shaking as he was doing so. Garner answered Dunderdale’s questions, stating he got lost on his way to buy marijuana from a friend.

Dunderdale then asked Garner if he “messed” with firearms anymore. Garner denied doing so and said, “Take a look if you want.” Garner voluntarily exited his vehicle, and as he did so, a second trooper instructed him to move to the rear of the vehicle and patfrisked him, which revealed a gun in his waistband.

Garner was charged with two firearms offenses. Garner filed a motion to suppress, arguing that the gun was discovered during an illegal pat frisk. The Superior Court granted the motion, but the Appeals Court reversed. Garner appealed.

The Court noted that both the Fourth Amendment to the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights protect individuals from unreasonable searches and seizures by the government. A patfrisk — a “carefully limited search of the outer clothing of a person to discover weapons for safety purposes” — is subject to constitutional safeguards. See Commonwealth v. Torres-Pagan, 138 N.E.3d 1012 (Mass. 2020) (quoting Terry v. Ohio, 392 U.S. 1 (1968)). A patfrisk must be supported by “reasonable suspicion,” based on specific articulable facts, “that the suspect is [both] armed and dangerous.” Arizona v. Johnson, 555 U.S. 323 (2009). The government bears the burden of establishing that the patfrisk of a defendant is constitutional. Commonwealth v. DePeiza, 868 N.E.2d 90 (Mass. 2007). 

In the present case, the Commonwealth argued that Garner’s criminal record coupled with his behavior during the traffic stop created reasonable suspicion that he was armed and dangerous. The Court rejected the Commonwealth’s argument.

The Court stated that knowledge of an individual’s criminal record can be a factor in the reasonable suspicion determination. See Commonwealth v. Gomes, 903 N.E.2d 567 (Mass. 2009). However, an individual’s criminal record alone does not justify a patfrisk. See Commonwealth v. Cordero, 74 N.E.3d 1282 (Mass. 2017). 

The Court observed that Dunderdale had arrested Garner previously for possession of a firearm without incident, and Dunderdale testified that he believed he and Garner had a “really good rapport.” Under these facts, the Court stated that Garner’s “somewhat stale criminal record carries little weight.” Furthermore, the Court determined that there was nothing in the record to justify the patfrisk based on his behavior. The Court credited the Superior Court’s findings that Garner “was not confrontational or belligerent … made no furtive gestures [or] threats … [and was] known to the police, [had] a really good rapport with the police and [had] never engaged in or threatened violence against the police.” As a result, the Court agreed with the Superior Court that Garner’s behavior did not create reasonable suspicion that he was armed and dangerous. Thus, the Court ruled that the patfrisk was unlawful and that the gun must be suppressed.

Accordingly, the Court affirmed the judgment of the Superior Court. See: Commonwealth v. Garner, 188 N.E.3d 965 (Mass. 2022). 

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