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Appeals court hears dispute over passenger pat-frisk after traffic stop in Commonwealth v. Tavares
Summary
The Appeals Court heard argument on whether officers had the individualized reasonable suspicion required to pat-frisk a passenger after a traffic stop where the driver was reported to have brandished a firearm.
The panel considered whether the police had particularized reasonable suspicion to pat-frisk a passenger during a traffic stop after officers detained and frisked the driver who was reported to have brandished a firearm.
Attorney Cass Luskin argued the stop and exit order were lawful, but that the pat-frisk of his client (the passenger) required a separate showing of individualized suspicion to believe the passenger was armed and dangerous under Torres Pagan and related precedent. Luskin pointed to the video record and argued the record does not show a clear pointing or statement that the passenger had the weapon; he contended the police account of furtive movements and a bag manipulation were overstated and that the judge's factual findings on those points were clearly erroneous.
The bench and Commonwealth counsel debated whether (1) removing and frisking the driver and finding no weapon in plain view increases the probability that the gun is on a passenger or in a bag, and (2) whether a passenger's movement of a bag can supply reasonable suspicion to frisk. Justices referenced the Bailey/Sweeting line of cases on passengers and distraction and pressed counsel on the sequence captured by dash-cam video. Both sides agreed the totality of circumstances controls; the dispute turned on how much weight to place on the bag conduct, a red-yellow (bright yellow) bag shown in the video, and the timing of an alleged identification by the driver.
Counsel for the Commonwealth argued the driver was known to the police not to have a license to carry and that the caller reported a firearm; combined with belligerent, noncompliant behavior from the passenger and furtive motions toward a bag, this sufficed to supply reasonable suspicion. Counsel also urged that a quick plain-view check inside the vehicle, the passenger's effort to push the bag toward the console, and officers'subsequent observation that the bag contained a firearm allowed the steps they took.
The case was submitted for decision; the court did not rule from the bench.
