Stop and Frisk law in Massachusetts
- Steven Topazio wrote this March 12, 2020 at 5:30 pm
The law on patfrisks has been clarified in the case of Commonwealth v. Torres-Pagan, 484 Mass. 34, (2019). A stop and frisk occurs when a police officer temporarily detains a pedestrian and pats down their outer clothing when there are specific and articulable facts leading a reasonable police officer to believe that the person is engaged in criminal activity and is armed and dangerous.
Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights protects against unreasonable searches and seizures. According to Terry v. Ohio, 392 U.S. 1, 30 (1968), a frisk, or “patfrisk,” is a “carefully limited search of the outer clothing of [a] person . . . to discover weapons” for safety purposes. It is a “serious intrusion on the sanctity of the person [that] is not to be undertaken lightly.” Commonwealth v. Almeida, 373 Mass. 266, 270-271 (1977).
The standard for a patfrisk in Massachusetts has not always been clear specifically when the court discussed the patfrisk standard as it related to the standard for exit orders. For example, in Commonwealth v. Washington, 499 Mass. 476, 482 (2007), the court stated that “under our State Constitution, neither an exit order nor a patfrisk can be justified unless a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger”. More recently, in Commonwealth v. Amado, 474 Mass. 147, 152 (2016), the court observed that “[w]here an officer has issued an exit order based on safety concerns, the officer may conduct a reasonable search for weapons in the absence of probable cause to arrest.” Both of these positions are technically correct statements of the law. A patfrisk is not justified unless an officer has safety concerns and that a patfrisk may be conducted in the absence of probable cause. However, in neither of the above cases did the court specify that, to justify a patfrisk, an officer needs more than safety concerns; he also must have a reasonable suspicion that the suspect is armed and dangerous. Although an officer’s concern for his safety and the safety of others animates both standards, the officer’s safety concern in an exit order context may be resolved once the suspect leaves his vehicle. Without a more particularized fear that the suspect is presently armed and dangerous, the officer cannot take the more intrusive step of pat frisking the suspect.
For the most part, the court has articulated the patfrisk standard correctly. Commonwealth v. Villagran, 477 Mass. 711, 717 (2017); and 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). In isolated instances the court merged the standard required to perform a patfrisk with the standard required for issuing an exit order. For example, the court inaccurately stated that the standard for a patfrisk is the same as that which is required to justify an exit order. Commonwealth v. Torres, 433 Mass. 669, 676 (2001). Additionally, the court has mistakenly described a patfrisk as being “constitutionally justified when an officer reasonably fears for his own safety or the safety of the public . . . or when the police officer reasonably believes that the individual is armed and dangerous”. Commonwealth v. Johnson, 454 Mass. 159, 162 (2009).
The Torres-Pagan case clarifies the law on patfrisks which makes it distinct to the law on exit orders. An exit order is justified during a traffic stop where (1) police are warranted in the belief that the safety of the officers or others is threatened; (2) police have reasonable suspicion of criminal activity, or (3) police are conducting a search of the vehicle on other grounds. Thus, in the absence of reasonable suspicion of a crime or justification to search the vehicle on other grounds, an exit order is justified during a traffic stop if officers have a reasonable suspicion of a threat to safety. A lawful patfrisk, however, requires more than reasonable suspicion of a threat to safety. Police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous, not just a threat to safety.
Having different standards for exit orders and patfrisks makes logical sense. Issuing an order to a motorist to get out of his vehicle during a traffic stop is an imposition that cannot be considered minimal. However, an exit order is considerably less intrusive than a patfrisk, which is a “severe . . . intrusion upon cherished personal security [that] must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. The only legitimate reason for an officer to subject a suspect to a patfrisk is to determine whether he or she has concealed weapons on his or her person.
Torres-Pagan stands for the proposition that the court will not allow such an intrusion as a patfrisk absent reasonable suspicion that the suspect is dangerous and has a weapon. Without a basis for such suspicion, there is no justification for the patfrisk.