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
23-P-764
COMMONWEALTH
vs.
FRED BASKIN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the Superior Court, the defendant
appeals from convictions arising from an armed robbery carried
out with a knife.2 The defendant argues that evidence introduced
at trial was obtained pursuant to an unlawful search and that
1As is our custom, we use the version of the defendant's name as it appears in the indictments.
2The defendant was convicted of nine separate counts: two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c) (i); assault by means of a dangerous weapon, G. L. c. 265, § 15B (b); two counts of assault and battery, G. L. c. 265, § 13A (a); strangulation or suffocation, G. L. c. 265, § 15D (b); breaking and entering in the nighttime for a felony, G. L. c. 266, § 16; and armed robbery, G. L. c. 265, § 17. his pretrial motion to suppress was, therefore, erroneously
denied. We affirm.3
Background. "We set forth the facts found by the motion
judge, supplemented with uncontroverted testimony from the
suppression hearing that does not detract from the judge's
ultimate findings.'" Commonwealth v. Earl, 102 Mass. App. Ct.
664, 668-669 (2023), quoting Commonwealth v. Garner, 490 Mass.
90, 93-96 (2022). In January 2017, a warrant for the
defendant's arrest was issued, and State police troopers were
dispatched to take him into custody at his place of employment.
The troopers were not the investigating officers, but they knew
that the defendant was suspected of committing a violent assault
and armed robbery in a nearby hotel eight days earlier. They
knew that the defendant regularly carried a knife and that he
had used a knife in the robbery and had stolen the victim's cell
phone. Finally, the troopers knew that the defendant had a
criminal record of violence toward police officers.
When the troopers arrived at the defendant's workplace, a
manager confirmed that the defendant had been working and
escorted the troopers to the break room area. The defendant was
3 The defendant's direct appeal from his convictions and his appeal from the order denying his motion for a new trial were consolidated in this court. Because the defendant makes no separate argument in his brief concerning the denial of his motion for a new trial, the issue is waived. We therefore affirm the order denying the motion for a new trial.
2 standing near a vending machine and was wearing a small
backpack, with both straps over his shoulders and the pack
hanging behind him on his back. The troopers informed the
defendant that they had a warrant for his arrest and ordered him
to turn around and put his hands behind his back. The defendant
did not comply, and a struggle ensued, which resulted in the
troopers bringing him to the floor, placing him in handcuffs
with his arms behind him, and pat frisking him. They found no
weapons on his person or in his clothing. The troopers then
removed the backpack from the defendant's back, taking it out of
his reach, and performed a search of its contents. The backpack
contained a knife and two cell phones that were connected to the
armed robbery. The motion judge found that this was a valid
search incident to arrest for either weapons or evidence
relevant to the crime of arrest and denied the defendant's
motion to suppress.
Discussion. In reviewing a ruling on a motion to suppress,
"we accept the judge's subsidiary findings of fact absent clear
error but conduct an independent review of his ultimate findings
and conclusions of law." Commonwealth v. Silvelo, 486 Mass. 13,
15 (2020), quoting Commonwealth v. Perkins, 465 Mass. 600, 601
(2013). We "leave to the judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing." Commonwealth v.
3 Yusuf, 488 Mass. 379, 385 (2021), quoting Commonwealth v.
Balicki, 436 Mass. 1, 4 n.4 (2002).
The defendant was arrested pursuant to a warrant, and he
contests the validity of the warrantless search of his backpack.
"Warrantless searches are presumptively unreasonable, under both
the Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights, subject only to
'a few specifically established and well-delineated
exceptions.'" Commonwealth v. Gouse, 461 Mass. 787, 792 (2012),
quoting Commonwealth v. Bostock, 450 Mass. 616, 623-624 (2008).
"Among the exceptions to the warrant requirement is a search
incident to a lawful arrest" (citation omitted). Commonwealth
v. Perkins, 465 Mass. 600, 605 (2013). Preventing the
destruction of evidence related to the crime of arrest and
removing weapons where reasonably necessary for officer safety
are valid purposes for conducting a search incident to arrest.
See G. L. c. 276, § 1; Commonwealth v. Santiago, 410 Mass. 737,
743 (1991).
In Massachusetts, there exists a "bright line rule" that
police may, incident to a lawful arrest, "search a bag carried
by a person . . . where there is also probable cause to believe
that the bag contains evidence of the crime for which the arrest
was made." Commonwealth v. Phifer, 463 Mass. 790, 795 (2012),
quoting Commonwealth v. Madera, 402 Mass. 156, 161 (1988).
4 Probable cause is "not a high bar," and police need "only a fair
probability that evidence of such a crime would be found in
particular locations" (citations omitted). Commonwealth v.
Dunn, 494 Mass. 42, 48 (2024). Here, the troopers had probable
cause to believe evidence relevant to the armed robbery, i.e., a
knife, would be inside the defendant's backpack.4 They knew that
a knife was used in the commission of the armed robbery and that
the defendant regularly carried a knife. In fact, just prior to
executing the arrest, they had been warned he would likely be
carrying a knife. They pat frisked him and, discovering no
knife, searched his backpack. The search of the backpack
incident to the arrest was supported by probable cause and was
lawful. See Phifer, supra at 795-796; Commonwealth v. Williams,
104 Mass. App. Ct. 498, 504-506 (2024).
The search was also justified as reasonably necessary for
officer safety. The defendant relies on Arizona v. Gant, 556
U.S. 332, 343 (2009), a case involving an automobile search, for
the proposition that the search incident to arrest exception
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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
23-P-764
COMMONWEALTH
vs.
FRED BASKIN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the Superior Court, the defendant
appeals from convictions arising from an armed robbery carried
out with a knife.2 The defendant argues that evidence introduced
at trial was obtained pursuant to an unlawful search and that
1As is our custom, we use the version of the defendant's name as it appears in the indictments.
2The defendant was convicted of nine separate counts: two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c) (i); assault by means of a dangerous weapon, G. L. c. 265, § 15B (b); two counts of assault and battery, G. L. c. 265, § 13A (a); strangulation or suffocation, G. L. c. 265, § 15D (b); breaking and entering in the nighttime for a felony, G. L. c. 266, § 16; and armed robbery, G. L. c. 265, § 17. his pretrial motion to suppress was, therefore, erroneously
denied. We affirm.3
Background. "We set forth the facts found by the motion
judge, supplemented with uncontroverted testimony from the
suppression hearing that does not detract from the judge's
ultimate findings.'" Commonwealth v. Earl, 102 Mass. App. Ct.
664, 668-669 (2023), quoting Commonwealth v. Garner, 490 Mass.
90, 93-96 (2022). In January 2017, a warrant for the
defendant's arrest was issued, and State police troopers were
dispatched to take him into custody at his place of employment.
The troopers were not the investigating officers, but they knew
that the defendant was suspected of committing a violent assault
and armed robbery in a nearby hotel eight days earlier. They
knew that the defendant regularly carried a knife and that he
had used a knife in the robbery and had stolen the victim's cell
phone. Finally, the troopers knew that the defendant had a
criminal record of violence toward police officers.
When the troopers arrived at the defendant's workplace, a
manager confirmed that the defendant had been working and
escorted the troopers to the break room area. The defendant was
3 The defendant's direct appeal from his convictions and his appeal from the order denying his motion for a new trial were consolidated in this court. Because the defendant makes no separate argument in his brief concerning the denial of his motion for a new trial, the issue is waived. We therefore affirm the order denying the motion for a new trial.
2 standing near a vending machine and was wearing a small
backpack, with both straps over his shoulders and the pack
hanging behind him on his back. The troopers informed the
defendant that they had a warrant for his arrest and ordered him
to turn around and put his hands behind his back. The defendant
did not comply, and a struggle ensued, which resulted in the
troopers bringing him to the floor, placing him in handcuffs
with his arms behind him, and pat frisking him. They found no
weapons on his person or in his clothing. The troopers then
removed the backpack from the defendant's back, taking it out of
his reach, and performed a search of its contents. The backpack
contained a knife and two cell phones that were connected to the
armed robbery. The motion judge found that this was a valid
search incident to arrest for either weapons or evidence
relevant to the crime of arrest and denied the defendant's
motion to suppress.
Discussion. In reviewing a ruling on a motion to suppress,
"we accept the judge's subsidiary findings of fact absent clear
error but conduct an independent review of his ultimate findings
and conclusions of law." Commonwealth v. Silvelo, 486 Mass. 13,
15 (2020), quoting Commonwealth v. Perkins, 465 Mass. 600, 601
(2013). We "leave to the judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing." Commonwealth v.
3 Yusuf, 488 Mass. 379, 385 (2021), quoting Commonwealth v.
Balicki, 436 Mass. 1, 4 n.4 (2002).
The defendant was arrested pursuant to a warrant, and he
contests the validity of the warrantless search of his backpack.
"Warrantless searches are presumptively unreasonable, under both
the Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights, subject only to
'a few specifically established and well-delineated
exceptions.'" Commonwealth v. Gouse, 461 Mass. 787, 792 (2012),
quoting Commonwealth v. Bostock, 450 Mass. 616, 623-624 (2008).
"Among the exceptions to the warrant requirement is a search
incident to a lawful arrest" (citation omitted). Commonwealth
v. Perkins, 465 Mass. 600, 605 (2013). Preventing the
destruction of evidence related to the crime of arrest and
removing weapons where reasonably necessary for officer safety
are valid purposes for conducting a search incident to arrest.
See G. L. c. 276, § 1; Commonwealth v. Santiago, 410 Mass. 737,
743 (1991).
In Massachusetts, there exists a "bright line rule" that
police may, incident to a lawful arrest, "search a bag carried
by a person . . . where there is also probable cause to believe
that the bag contains evidence of the crime for which the arrest
was made." Commonwealth v. Phifer, 463 Mass. 790, 795 (2012),
quoting Commonwealth v. Madera, 402 Mass. 156, 161 (1988).
4 Probable cause is "not a high bar," and police need "only a fair
probability that evidence of such a crime would be found in
particular locations" (citations omitted). Commonwealth v.
Dunn, 494 Mass. 42, 48 (2024). Here, the troopers had probable
cause to believe evidence relevant to the armed robbery, i.e., a
knife, would be inside the defendant's backpack.4 They knew that
a knife was used in the commission of the armed robbery and that
the defendant regularly carried a knife. In fact, just prior to
executing the arrest, they had been warned he would likely be
carrying a knife. They pat frisked him and, discovering no
knife, searched his backpack. The search of the backpack
incident to the arrest was supported by probable cause and was
lawful. See Phifer, supra at 795-796; Commonwealth v. Williams,
104 Mass. App. Ct. 498, 504-506 (2024).
The search was also justified as reasonably necessary for
officer safety. The defendant relies on Arizona v. Gant, 556
U.S. 332, 343 (2009), a case involving an automobile search, for
the proposition that the search incident to arrest exception
does not apply when a suspect is handcuffed. Since Gant was
decided, however, Massachusetts courts have decided cases
outside of the automobile context that support the validity of
4 The defendant's possession of a knife would be admissible in a trial for armed robbery carried out by knife to show he "had the means to commit the offense." Commonwealth v. James, 424 Mass. 770, 780 (1997).
5 the type of search at issue in this case under the Fourth
Amendment to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights. In Commonwealth v.
Figueroa, 468 Mass. 204, 215 (2014), the Supreme Judicial Court
held that the "geographic scope" of a lawful search incident to
arrest is the area within a defendant's immediate control at the
moment of arrest and not the "grab area" at the time of the
search when the defendant was restrained or handcuffed. The
court upheld the search of a backpack incident to arrest even
though the arrestee was handcuffed at the time of the search.
See id. at 216. The court reasoned that it would undermine
officer safety to require police "to seize all evidence within
the arrestee's immediate control before securing the arrestee."
Id. at 215.
Furthermore, this court recently decided a case involving
the search of a backpack of a handcuffed defendant in which we
applied Figueroa and distinguished Gant. See Commonwealth v.
Soto, 104 Mass. App. Ct. 806 (2024).5 In that case, we upheld
the seizure and search of a backpack where officers first
handcuffed the defendant and then searched a backpack that was
in the defendant's immediate control at the time of his arrest
because they had reason to believe it contained weapons. Id. at
5 The Supreme Judicial Court denied further appellate review. See 495 Mass. 1107 (2025).
6 808. We held that Figueroa and not Gant was controlling
because, among other reasons, the safety concerns presented --
where officers responded to an ongoing crime and reasonably
believed that the backpack might contain a weapon -- were much
greater than those in Gant, in which officers searched an
individual's car after he was arrested for driving with a
suspended license. Soto, supra at 813. In this case, the
troopers similarly had a reasonable belief that the backpack in
question contained a weapon. We are bound by Figueroa and Soto,
notwithstanding any apparent tension between those cases and the
holding in Gant. See Commonwealth v. Vasquez, 456 Mass. 350,
357 (2010) (holding that unabrogated Supreme Judicial Court
holdings must be applied by Massachusetts courts).
For the foregoing reasons, the search of the backpack was a
7 lawful search incident to arrest, and the defendant's motion to
suppress was properly denied.6
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Blake, C.J., Shin & Walsh, JJ.7),
Clerk
Entered: June 11, 2025.
6 The defendant identifies the sufficiency of the evidence in his statement of the issues presented on appeal. Counsel for the defendant filed a Moffett notice and indicated that the defendant would be providing a brief. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). He did not brief this aspect of his appeal, however, so we do not address it. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).
7 The panelists are listed in order of seniority.