NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1090
COMMONWEALTH
vs.
DAMIAN L. DIGGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the defendant's motion to suppress fentanyl found
during a patfrisk was denied, as were his two motions for
reconsideration, the defendant conditionally pleaded guilty in
Superior Court to possession of a class A substance with intent
to distribute. G. L. c. 94C, § 32 (a). See Mass. R. Crim.
P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). The
defendant now appeals, arguing among other things that the
patfrisk was unlawful because police lacked reasonable suspicion
that he was not merely armed, but also dangerous. We agree. We
therefore vacate the order denying the motion to suppress and
remand for further proceedings on the Commonwealth's inevitable
discovery argument.
Background. We recount the essential facts as found by the
motion judge after an evidentiary hearing, supplemented by uncontroverted evidence that the judge implicitly credited. See
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). In
January 2020, police executed a search warrant on a residence in
Brockton, looking for evidence of drug distribution. The
defendant was inside the residence but was not the target of the
investigation.1 As the first officer entered through the front
door, he saw the defendant emerge from a doorway with a black
item in his hand. The officer ordered the defendant to get on
the ground; the defendant complied and was handcuffed. After
observing that the doorway led to a bathroom, where another
individual was located, the officer realized that the item in
the defendant's hand was an electric hair clipper. The officer
pat frisked the defendant and found twenty-four bags of
narcotics on his person. In the ensuing search of the premises,
police discovered a satchel containing the defendant's driver's
license, as well as cut baggies and a scale, indicative of
narcotics distribution. The defendant was arrested and later
indicted.
In denying the defendant's motion to suppress, the judge
concluded that the patfrisk was justified because the officer
could reasonably have believed that the object in the
1 The search warrant, which is not in the record, apparently included a provision authorizing a search of "any person present," but the Commonwealth conceded that the warrant affidavit did not establish probable cause for such a provision.
2 defendant's hand was a weapon, and the fact that it turned out
to be a hair clipper did not eliminate the officer's reasonable
concern for his own safety. The judge therefore did not address
the Commonwealth's alternative argument that, even if the
patfrisk was unjustified, the narcotics inevitably would have
been discovered once police found the satchel containing the
defendant's driver's license and drug distribution
paraphernalia, because at that point they would have arrested
and searched him.
On the defendant's first motion to reconsider, the judge
further concluded that the patfrisk was supported by reasonable
suspicion. Specifically, even after the object in the
defendant's hand was found to be a hair clipper -- apparently
being used to give a haircut -- the officer could still have
entertained a reasonable suspicion "that the defendant could
[have] be[en] in possession or control of additional tools in
performing the haircut that could [have] pose[d] a risk to the
officer's safety or the safety of others, such as a pair of
scissors or a straight razor." The judge therefore denied the
motion to reconsider as well as a renewed motion to reconsider.
The conditional guilty plea and this appeal followed.
Discussion. In reviewing a ruling on a motion to suppress,
"we adopt the motion judge's factual findings absent clear
error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008),
3 and "conduct an independent review of his ultimate findings and
conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). "During a stop for which there is constitutional
justification, see Commonwealth v. Narcisse, 457 Mass. 1, 6-7
(2010), a patfrisk is permissible only where an officer has
reasonable suspicion that the suspect is armed and dangerous."
Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020).
We assume without deciding that a temporary detention of
the defendant during the execution of the search warrant was
constitutionally justified. See Commonwealth v. Charros, 443
Mass. 752, 763, cert. denied, 546 U.S. 870 (2005).2 We further
assume without deciding that the officer could reasonably have
suspected, based on the defendant's possession of the hair
clipper, that he had other haircutting tools on his person, such
as scissors or a straight razor, that could have been used as
weapons -- i.e., that he was armed. Nevertheless, we are
constrained to disagree with the judge's implicit conclusion
that the officer also could reasonably have suspected the
defendant to be dangerous.3
2 Moreover, if there were "a reasonable belief that an individual has a weapon and appears inclined to use it," then it would be "reasonable to believe that he is about to commit a crime" (quotation and citation omitted). Narcisse, 457 Mass. at 9. 3 The judge's written decision stated the armed-and-dangerous
requirement but did not go on to expressly conclude that the officer here could reasonably have suspected the defendant to be
4 There must be reasonable suspicion that the defendant is
"both armed and dangerous." Commonwealth v. Knowles, 451 Mass.
91, 99 (2008). The burden is on the Commonwealth to demonstrate
such reasonable suspicion, see Narcisse, 457 Mass. at 5, and the
"suspicion must be based on specific, articulable facts and
reasonable inferences drawn therefrom" (citation omitted),
Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 746 (2021),
cert. denied, 143 S. Ct. 135 (2022). Whether such reasonable
suspicion exists "is a question of law." Commonwealth v. Ford,
100 Mass. App. Ct. 712, 718 (2022).
Here, the judge did not point to any specific, articulable
facts or reasonable inferences therefrom suggesting that the
defendant was dangerous. Nor does the Commonwealth do so on
appeal. The defendant was not a target of the drug
investigation,4 and the officer testified that the defendant
"wasn't on [the officer's] radar" when the officer entered the
residence. The defendant immediately complied with the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1090
COMMONWEALTH
vs.
DAMIAN L. DIGGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the defendant's motion to suppress fentanyl found
during a patfrisk was denied, as were his two motions for
reconsideration, the defendant conditionally pleaded guilty in
Superior Court to possession of a class A substance with intent
to distribute. G. L. c. 94C, § 32 (a). See Mass. R. Crim.
P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). The
defendant now appeals, arguing among other things that the
patfrisk was unlawful because police lacked reasonable suspicion
that he was not merely armed, but also dangerous. We agree. We
therefore vacate the order denying the motion to suppress and
remand for further proceedings on the Commonwealth's inevitable
discovery argument.
Background. We recount the essential facts as found by the
motion judge after an evidentiary hearing, supplemented by uncontroverted evidence that the judge implicitly credited. See
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). In
January 2020, police executed a search warrant on a residence in
Brockton, looking for evidence of drug distribution. The
defendant was inside the residence but was not the target of the
investigation.1 As the first officer entered through the front
door, he saw the defendant emerge from a doorway with a black
item in his hand. The officer ordered the defendant to get on
the ground; the defendant complied and was handcuffed. After
observing that the doorway led to a bathroom, where another
individual was located, the officer realized that the item in
the defendant's hand was an electric hair clipper. The officer
pat frisked the defendant and found twenty-four bags of
narcotics on his person. In the ensuing search of the premises,
police discovered a satchel containing the defendant's driver's
license, as well as cut baggies and a scale, indicative of
narcotics distribution. The defendant was arrested and later
indicted.
In denying the defendant's motion to suppress, the judge
concluded that the patfrisk was justified because the officer
could reasonably have believed that the object in the
1 The search warrant, which is not in the record, apparently included a provision authorizing a search of "any person present," but the Commonwealth conceded that the warrant affidavit did not establish probable cause for such a provision.
2 defendant's hand was a weapon, and the fact that it turned out
to be a hair clipper did not eliminate the officer's reasonable
concern for his own safety. The judge therefore did not address
the Commonwealth's alternative argument that, even if the
patfrisk was unjustified, the narcotics inevitably would have
been discovered once police found the satchel containing the
defendant's driver's license and drug distribution
paraphernalia, because at that point they would have arrested
and searched him.
On the defendant's first motion to reconsider, the judge
further concluded that the patfrisk was supported by reasonable
suspicion. Specifically, even after the object in the
defendant's hand was found to be a hair clipper -- apparently
being used to give a haircut -- the officer could still have
entertained a reasonable suspicion "that the defendant could
[have] be[en] in possession or control of additional tools in
performing the haircut that could [have] pose[d] a risk to the
officer's safety or the safety of others, such as a pair of
scissors or a straight razor." The judge therefore denied the
motion to reconsider as well as a renewed motion to reconsider.
The conditional guilty plea and this appeal followed.
Discussion. In reviewing a ruling on a motion to suppress,
"we adopt the motion judge's factual findings absent clear
error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008),
3 and "conduct an independent review of his ultimate findings and
conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). "During a stop for which there is constitutional
justification, see Commonwealth v. Narcisse, 457 Mass. 1, 6-7
(2010), a patfrisk is permissible only where an officer has
reasonable suspicion that the suspect is armed and dangerous."
Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020).
We assume without deciding that a temporary detention of
the defendant during the execution of the search warrant was
constitutionally justified. See Commonwealth v. Charros, 443
Mass. 752, 763, cert. denied, 546 U.S. 870 (2005).2 We further
assume without deciding that the officer could reasonably have
suspected, based on the defendant's possession of the hair
clipper, that he had other haircutting tools on his person, such
as scissors or a straight razor, that could have been used as
weapons -- i.e., that he was armed. Nevertheless, we are
constrained to disagree with the judge's implicit conclusion
that the officer also could reasonably have suspected the
defendant to be dangerous.3
2 Moreover, if there were "a reasonable belief that an individual has a weapon and appears inclined to use it," then it would be "reasonable to believe that he is about to commit a crime" (quotation and citation omitted). Narcisse, 457 Mass. at 9. 3 The judge's written decision stated the armed-and-dangerous
requirement but did not go on to expressly conclude that the officer here could reasonably have suspected the defendant to be
4 There must be reasonable suspicion that the defendant is
"both armed and dangerous." Commonwealth v. Knowles, 451 Mass.
91, 99 (2008). The burden is on the Commonwealth to demonstrate
such reasonable suspicion, see Narcisse, 457 Mass. at 5, and the
"suspicion must be based on specific, articulable facts and
reasonable inferences drawn therefrom" (citation omitted),
Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 746 (2021),
cert. denied, 143 S. Ct. 135 (2022). Whether such reasonable
suspicion exists "is a question of law." Commonwealth v. Ford,
100 Mass. App. Ct. 712, 718 (2022).
Here, the judge did not point to any specific, articulable
facts or reasonable inferences therefrom suggesting that the
defendant was dangerous. Nor does the Commonwealth do so on
appeal. The defendant was not a target of the drug
investigation,4 and the officer testified that the defendant
"wasn't on [the officer's] radar" when the officer entered the
residence. The defendant immediately complied with the
officer's command to get on the floor, and there was no evidence
that the defendant was uncooperative or made any threatening or
dangerous. Nevertheless, the conclusion is implicit in the denial of the motion to suppress. 4 In the patfrisk context, "[a] reasonable apprehension of danger
may arise from the type of crime being investigated," but the court has rejected any blanket rule that a drug crime is necessarily "a crime of violence, or one involving the possession or use of a dangerous weapon." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 348 (2010).
5 suspicious gestures or statements. Rather, the officer
testified that the defendant "was cooperative to [the officer's]
commands," and the officer further agreed that the defendant
"did not threaten [him], raise the object to strike [him], or
anything like that," and "didn't make any sudden movements."
The officer stated that he believed he had the authority to
search anyone on the premises under the warrant's "any person
present" provision, but the Commonwealth has conceded there was
no probable cause to support that provision. See note 1, supra.
It was not until a few minutes after the patfrisk that the
officer recognized the defendant as someone he had previously
arrested for unlawful possession of a firearm.
We decline to address on this record the Commonwealth's
asserted alternative ground for affirmance, the inevitable
discovery doctrine. The judge made no factual findings
regarding whether that doctrine applies, and we will not do so
on appeal. On remand, the judge shall resolve that issue, for
the purpose of which the judge may in his discretion take
further evidence.
Conclusion. We vacate the order denying the motion to
6 suppress and remand for further proceedings consistent with this
memorandum and order.
So ordered.
By the Court (Meade, Massing & Sacks, JJ.5),
Assistant Clerk
Entered: February 8, 2024.
5 The panelists are listed in order of seniority.