Commonwealth v. Darosa

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16-P-1666 Appeals Court

COMMONWEALTH vs. AUGUSTO DAROSA.

No. 16-P-1666.

Plymouth. April 12, 2018. - January 8, 2019.

Present: Green, C.J., Trainor, Rubin, Shin, & McDonough, JJ.1

Controlled Substances. Marijuana. Constitutional Law, Search
and seizure. Search and Seizure, Motor vehicle, Search
incident to lawful arrest, Probable cause, Reasonable
suspicion.

Complaint received and sworn to in the Brockton Division of
the District Court Department on September 14, 2012.

A pretrial motion to suppress evidence was heard by James
M. Sullivan, J., and a motion for reconsideration was also heard
by him; and the case was tried before Antoinette E. McLean
Leoney, J.

Eric W. Ruben for the defendant.

1 This case was initially heard by a panel comprised of
Justices Trainor, Shin, and McDonough. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Green and Justice Rubin. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993). Justice Trainor
participated in the deliberation on this case prior to his
retirement.
2

Johanna S. Black, Assistant District Attorney, for the
Commonwealth.

SHIN, J. The defendant appeals from his conviction of

possession with intent to distribute marijuana.2 The police

recovered the marijuana during a traffic stop, which led to a

search of the defendant's vehicle because he did not have a

valid driver's license. With probable cause to arrest for the

license violation, two detectives searched the front compartment

of the vehicle while the defendant, already pat frisked, sat at

the rear of the vehicle, guarded by a third detective. The

motion judge found the search lawful and denied the defendant's

motion to suppress on the rationale that, because the detectives

had not yet decided whether to arrest the defendant, they were

entitled to conduct a "protective sweep prior to allowing [him]

to return to his vehicle." But the evidence did not show, and

the Commonwealth did not argue, that the detectives had a

reasonable belief that the defendant was armed and dangerous,

and the detectives did not decide to arrest him until they

2 The defendant was also charged with possession with intent
to distribute a class B substance, carrying a firearm without a
license, receiving a firearm with a defaced serial number,
possessing a firearm without a firearm identification card, and
operating a motor vehicle with a suspended license. For reasons
not reflected in the record, all these charges were dismissed
before trial at the Commonwealth's request.
3

discovered contraband during a more thorough search conducted

after the arrival of a K-9 unit.3

No recognized exception to the warrant requirement applies

in these circumstances. To hold otherwise would confer a police

entitlement to search based on probable cause to arrest for any

offense, including minor traffic offenses, in contravention of

G. L. c. 276, § 1,4 and the United States Supreme Court decision

in Arizona v. Gant, 556 U.S. 332 (2009). Because the items

seized from the defendant's vehicle were fruits of the unlawful

search, the motion to suppress should have been allowed. We

therefore vacate the judgment and set aside the verdict.5

Factual background. We summarize the facts as found by the

judge and as derived from the detectives' testimony at the

suppression hearing, which the judge implicitly credited in

3 The defendant does not independently challenge the
legality of the later search or the patfrisk of his person.

4 "A search conducted incident to an arrest may be made only
for the purposes of seizing fruits, instrumentalities,
contraband and other evidence of the crime for which the arrest
has been made . . . and removing any weapons that the arrestee
might use to resist arrest or effect his escape." G. L. c. 276,
§ 1.

5 "It appears doubtful that the Commonwealth has enough
evidence to reprosecute the defendant[], but we will leave the
final decision on that matter to the district attorney . . . ."
Commonwealth v. Torres, 424 Mass. 153, 164 (1997). Thus, even
though the other issues the defendant raises could occur on
retrial, in the exercise of our discretion we decline to address
them.
4

full. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007).

Brockton police Detective Brian Donahue was on patrol on Main

Street in Brockton around 10:15 P.M. He was in an unmarked

vehicle and accompanied by Detective William Carpenter and

Detective Sergeant Frank Vardaro. Main Street is a heavily

traveled one-way road with two lanes and parking on both sides.

The surrounding area is a commercial district, "densely

populated" with retail businesses, bars, and nightclubs. It is

also an area "with a high instance of criminal activity"

including "narcotic activity."

As the detectives traveled on Main Street, a minivan in

front of them pulled alongside a Mercedes sport utility vehicle

parked on the side of the road. The detectives observed an arm

come out of the minivan and hand a plastic grocery bag to

someone in the Mercedes. The vehicles were stopped in an area

that was heavily trafficked and illuminated by lights from a

nearby court house and businesses. No person in either vehicle

made an attempt to conceal the transfer of the bag, and none of

the detectives testified that it was consistent with a drug

sale. In fact, two detectives affirmatively testified that the

transfer did not resonate as suspicious based on their training

and experience.6

6 Notably, the Commonwealth does not rely on the transfer in
defending the subsequent search of the defendant's vehicle.
5

Because the minivan was blocking traffic, Donahue sounded

his horn. When the minivan began moving again, the detectives

followed it and observed the driver abruptly change lanes

without signaling. Donahue then activated the emergency lights

on his vehicle and effectuated a traffic stop without incident.

The defendant was the driver and only occupant of the

minivan. Upon Donahue's request the defendant could produce a

registration but not a license. He told Donahue that he did not

have his license with him, but continued to search the headboard

and middle console area of the driver's compartment. When

Donahue asked what he was looking for, the defendant replied,

"[my] license," prompting Donahue to ask, "[W]hy are you looking

for it if you already told me you don't have it with you?" The

defendant then stopped looking around and complied with

Donahue's request to write down his name and date of birth.

Leaving the defendant in the minivan, Donahue returned to his

vehicle and conducted a computer query, which revealed that the

defendant's license was revoked and that he had a criminal

record for narcotics violations.7

Nothing until this point caused Donahue or the other

detectives to perceive the defendant as armed and dangerous. To

7 Although the judge found that the defendant's record
"included" narcotics violations, there was no evidence that the
defendant had been charged with or convicted of any other type
of violation.
6

the contrary, Donahue agreed that the defendant did not "do

anything other than cooperate" during the course of the stop.

Likewise, Carpenter agreed that he saw "nothing . . . in [the

defendant's] manner, mood, gestures, or anything else" to

suggest that he was going to pose a "problem." Four officers

testified in total, and none indicated that the defendant

appeared to be armed and dangerous. Indeed, Donahue

acknowledged that he had no evidence that "there would be a

weapon in the [minivan]."8

Nonetheless, because the defendant did not have a valid

license, Donahue ordered him out of the minivan, pat frisked

him, and told him to sit on the curb at the rear of the minivan.

The defendant remained there, guarded closely by Carpenter,

while Donahue and Vardaro searched the front driver and

passenger compartments. During the search Donahue smelled fresh

8 When asked then why he searched the minivan, Donahue
replied, "I have that right." Cf. Gant, 556 U.S. at 337
(officer testified he conducted search "[b]ecause the law says
we can do it"). The dissent concludes that Donahue's statement
is not comparable to the officer's statement in Gant because
Donahue testified that he conducted the search for "[his] safety
and the safety of the other officers present." Post at .
But that testimony was not tied to any particular circumstance
concerning this defendant; at no point did Donahue testify that
this defendant appeared armed and dangerous or explain what
circumstances caused him to form such a belief. Considering
Donahue's testimony as a whole, it is abundantly clear that,
similar to the officer in Gant, Donahue believed he had a right
to conduct what he deemed a "search incident to arrest" based
solely on the existence of probable cause to arrest the
defendant for the license violation.
7

marijuana and saw and smelled fabric softener sheets, which he

knew from experience are often used to mask the odor of drugs.

Vardaro also discovered a large package of money under the front

passenger seat.

Based on these discoveries, Donahue requested that a K-9

unit respond to the scene. The canine, trained to detect drugs,

alerted to a bag in the rear compartment of the minivan. Inside

the bag was a large amount of marijuana.9 At this point Donahue

placed the defendant under arrest "for the license being

revoked."

Judge's decision. The judge issued a three-page memorandum

of decision denying the defendant's motion to suppress.10 The

decision begins with a statement of the facts, which is drawn

directly from the detectives' testimony. The judge then made

the following "[f]indings and [r]ulings" regarding the events

that occurred prior to the arrival of the K-9 unit:

"The initial stop of the defendant's motor vehicle was
proper and valid. The defendant's vehicle was double

9 Although not material to our decision, the judge erred in
finding that the bag also contained weapons. A weapon was
discovered in the minivan, but not until after it had been towed
to the police station. There, officers searched the minivan
again and found a loaded revolver and Percocet pills secreted in
the dashboard.

10The Commonwealth did not file a written opposition to the
defendant's motion to suppress. Furthermore, although the judge
requested at the end of the hearing that both parties
incorporate their closing arguments into supplemental written
memoranda, the Commonwealth failed to do so.
8

parked in an active travel lane. It was observed making a
transfer to a second vehicle in an area that is known for
narcotic activity. Commonwealth v. Thompson, 427 Mass.
729, 735 (1998). Donahue further observed the operator
change lanes without signaling and cutting off other
motorists in the process. Commonwealth v. Santana, 420
Mass. 205, 207 (1995).

"The scope of the stop is often fluid. The degree of
suspicion the police reasonably harbor must be proportional
to the level of intrusiveness. Commonwealth v. Sinforoso,
434 Mass. 320 (2001). The defendant's inability to produce
a driver's [license] was problematic. The fact that the
defendant's right to operate had in fact been revoked
caused the situation to rise to the level of ongoing
criminal activity. Donahue also became aware of the
defendant's criminal history involving narcotics.

"As the defendant was subject to arrest it was proper to
detain him away from the vehicle. Thus it was proper to
ask the defendant to exit the vehicle and pat frisk him for
the safety of the officers present. Commonwealth v.
Bostock, 450 Mass. 616, 619-621 (2008). The defendant was
informed that his right to operate had been revoked. At
that time the officers could have released the defendant
and summonsed him to court to answer to the charge at a
later date. Accordingly, the defendant could have
regain[ed] access to the vehicle. The search of the front
[driver] and passenger compartment was an appropriate step
for the police as a protective sweep prior to allowing the
defendant to return to his vehicle. Commonwealth v.
Santiago, 53 Mass. App. Ct. 567, 571 (2002). See also
Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528
(1995)."

The defendant moved for reconsideration, and the judge held

a nonevidentiary hearing. After the hearing, the judge denied

the motion based in part on "recent decisional case law" --

namely, Commonwealth v. Wright, 85 Mass. App. Ct. 380 (2014), in

which the issue was not the validity of a search, but whether an

officer's expansion of the scope of a routine traffic stop, by
9

calling a K-9 unit, was supported by reasonable suspicion of

further criminal activity. Id. at 383-384.

Discussion.11 Warrantless searches are per se unreasonable

under 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." Gant, 556 U.S. at 338, quoting Katz v. United

States, 389 U.S. 347, 357 (1967). See Commonwealth v. Craan,

469 Mass. 24, 28 (2014). It is the Commonwealth's burden to

show the applicability of one of those exceptions. See

Commonwealth v. Perkins, 465 Mass. 600, 603 (2013). Here, the

Commonwealth seeks to defend the search on two alternative

grounds: (1) by arguing it was a search incident to an arrest;

and (2) by asking us to create a new exception for circumstances

where, although the officers had probable cause to arrest, they

did not do so right away and thus could, theoretically, have

allowed the defendant to return to his vehicle.12 In addition,

11We review the judge's subsidiary findings of fact for
clear error but "review independently the application of
constitutional principles to the facts found." Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004).

12We agree with the Commonwealth's concession at oral
argument that it was not inevitable that the minivan would have
been impounded and the items in it discovered during an
inventory search. At the time of the seizure, the officers had
not yet decided to arrest the defendant, nor was it virtually
"certain as a practical matter" that the minivan would have been
10

the dissent concludes that the search was a Terry-type13 search

for weapons. None of these justifications withstands scrutiny.

1. Search incident to arrest. The Commonwealth's primary

argument is that the search was permissible as incident to the

defendant's arrest for operating a motor vehicle without a

license. This argument faces the threshold problem that, at the

time of the search, the defendant was not arrested. While it is

true that a search can qualify as incident to arrest even where

it precedes a formal arrest, the search and the arrest still

must be "substantially contemporaneous." Commonwealth v.

Washington, 449 Mass. 476, 481 (2007), quoting New York v.

Belton, 453 U.S. 454, 465 (1981) (Brennan, J., dissenting). See

Stoner v. California, 376 U.S. 483, 486 (1964). The

contemporaneity requirement is consistent with "[t]he purpose,

long established, of a search incident to an arrest," which "is

to prevent an individual from destroying or concealing evidence

of the crime for which the police have probable cause to arrest,

or to prevent an individual from acquiring a weapon to resist

arrest or to facilitate an escape." Commonwealth v. Santiago,

410 Mass. 737, 743 (1991). See Chimel v. California, 395 U.S.

752, 762-763 (1969). "To permit a search incident to arrest

impounded even had he been arrested. Commonwealth v. O'Connor,
406 Mass. 112, 117 (1989).

13 Terry v. Ohio, 392 U.S. 1 (1968).
11

where the suspect is not arrested until much later, or is never

arrested, would sever this exception completely from its

justifications." Washington, 449 Mass. at 482.

Here, the defendant was not arrested until after the K-9

unit arrived, conducted a more thorough search, and discovered

the marijuana in the rear of the minivan. The Commonwealth

presented no evidence establishing within a reasonable degree of

certainty how much time elapsed between the initial search and

the arrival of the K-9 unit,14 or how much additional time

elapsed until the discovery of the marijuana.15 Thus, even

accepting the Commonwealth's assertion that the search incident

to arrest doctrine allowed the officers to delay their decision

to arrest until after seeing the results of the search,16 the

14The only evidence on this point was Donahue's testimony
that the K-9 unit arrived "within a few minutes."

15When asked how long the K-9 unit was at the scene, the K-
9 handling officer testified that he "really [did not] know,"
but that the process "usually [does not] last [as] long" as ten
or fifteen minutes. Later, he testified that the canine was in
the minivan for "[f]ive minutes maybe" but reiterated that he
"really [did not] know."

16The assertion is dubious given that the underpinning for
the search incident to arrest exception, as applied here, is to
search for and remove weapons that the arrestee might use "to
resist arrest or effect his escape." Chimel, 395 U.S. at 763.
In arguing otherwise, the Commonwealth relies on the statement
in Washington that "it is illogical to require [the police] to
inflict th[e] greater deprivation of liberty [that results from
an arrest] 'to justify the lesser intrusion of a search.'"
Washington, 449 Mass. at 486, quoting Commonwealth v. Skea, 18
Mass. App. Ct. 685, 694 (1984). But in Washington the police
12

Commonwealth did not meet its burden of showing that the search

and the arrest were substantially contemporaneous.

Moreover, even assuming contemporaneity, the search was not

a lawful search incident to arrest under either Gant or G. L.

c. 276, § 1, the latter of which "is more restrictive than the

Fourth Amendment." Commonwealth v. Mauricio, 477 Mass. 588, 594

n.2 (2017), quoting Commonwealth v. Blevines, 438 Mass. 604, 607

(2003). Gant holds that the police can search a vehicle

incident to an occupant's arrest in only two circumstances:

"when the arrestee is unsecured and within reaching distance of

the passenger compartment at the time of the search" such that

he might gain access to a weapon, or "when it is 'reasonable to

believe evidence relevant to the crime of arrest might be found

in the vehicle'" (citation omitted). Gant, 556 U.S. at 343.

The Commonwealth concedes that the officers could not have

expected to find evidence of the crime of arrest, i.e.,

operating without a license, inside the defendant's minivan.

See id. at 344; Perkins, 465 Mass. at 605. Thus, to justify the

had a basis, apart from incident to arrest, to conduct the
warrantless search: there was probable cause to arrest, and the
loss of evidence was imminent, creating exigent circumstances.
See Washington, supra at 483-487. It was in this context that
the court explained that the officers did not have to formally
arrest the defendants before searching them. Washington does
not stand for the illogical proposition that an officer's
decision not to arrest is itself a reason justifying a
warrantless search.
13

search as incident to arrest, the Commonwealth had to show that

the defendant was within reaching distance of the passenger

compartment of the minivan.

The Commonwealth did not meet this burden either. The

judge did not find that the defendant was in reaching distance,

and the evidence would not support such a finding. As noted

supra, the defendant was seated on the curb toward the rear

bumper of the minivan, guarded by Carpenter, while Donahue and

Vardaro conducted the search. The defendant was already pat

frisked and secured by Carpenter, who stayed "in close

proximity" to him during the search. The detectives could not

reasonably have believed in these circumstances that the

defendant was within reaching distance of a weapon inside the

minivan. This is supported by Donahue's testimony, which he

reiterated several times, that he searched the minivan not

because he thought the defendant could reach for a weapon, but

because the detectives might have allowed him to get back in the

minivan and leave the scene.

The Commonwealth points out that, unlike in Gant, the

defendant was not handcuffed or restrained inside a police

vehicle. This is a factual distinction with no legal

difference. Gant itself acknowledges that "officers have many

means of ensuring the safe arrest of vehicle occupants," such

that "it will be the rare case in which an officer is unable to
14

fully effectuate an arrest so that a real possibility of access

to the arrestee's vehicle remains." Gant, 556 U.S. at 343 n.4.

Here, the defendant was outnumbered three to one and was being

guarded closely by one of the detectives. Although the

defendant was not handcuffed, he was still secured in a

practical sense and not reasonably within reaching distance of

any weapons that might have been in the minivan.17 See

Commonwealth v. Cavanaugh, 366 Mass. 277, 280 (1974) (although

defendant not handcuffed, it was "at least doubtful that the car

was within [his] reach . . . once the [two] officers had him on

the sidewalk"). See also United States v. McCraney, 674 F.3d

614, 619-620 (6th Cir. 2012) (although two defendants "were not

handcuffed or secured in the back of a patrol car," officers

could not reasonably believe they were within reaching distance

where "[t]hey were standing . . . behind the [vehicle] as

instructed, two or three feet from the rear bumper, with three

17Contrary to the view taken by the dissent, post at ,
we are not engaging in fact finding to reach a conclusion
contrary to that of the judge. The judge did not conclude that
the search was justified as incident to arrest, and so made no
finding whether the defendant was within reaching distance of
the minivan. What we reject is the Commonwealth's argument on
appeal that, as a matter of law, the defendant was unsecured
because he was not handcuffed or restrained inside a police
vehicle. In any event, given the dissent's agreement that this
was not a valid search incident to arrest, the quarrel with our
conclusion that the defendant was secured is of no significance.
For purposes of the Terry analysis, as discussed infra, we
accept the judge's premise that the officers might have
eventually allowed the defendant to return to the minivan.
15

officers standing around them, while the other two officers on

the scene conducted the search").

2. "Search incident to probable cause to arrest." While

the Commonwealth strives on appeal to justify the search as one

incident to arrest, the judge, as noted, based his ruling on the

opposite supposition -- that the defendant might not have been

arrested and thus "could have regain[ed] access to the vehicle."

The Commonwealth relies on the judge's rationale in the

alternative, arguing that the search was justified -- "even were

[it] not to fit within the search incident to arrest exception"

and even absent "Terry prerequisites" -- because "if [the

officers] were to allow the defendant to contact an acquaintance

to drive his minivan, the defendant would most likely have

returned to his minivan either while they waited or once his

acquaintance arrived."

The Commonwealth's position is untenable and would

eviscerate the limitations imposed by Gant, which sought to rein

in the previously "unbridled discretion" of officers "to rummage

at will among a person's private effects" based on the person's

commission of an arrestable traffic offense. Gant, 556 U.S. at

345. See Commonwealth v. George, 35 Mass. App. Ct. 551, 555

(1993) ("Given the plenary power that the police have to arrest

for traffic offenses, [G. L.] c. 276, § 1, requires us to be on

guard for pretext searches not based on a genuine and reasonable
16

concern about a concealed weapon or destruction of evidence").

The United States Supreme Court acknowledged that its earlier

decision in Belton, 453 U.S. 454, had been widely understood by

lower courts as authorizing a vehicle search "incident to every

arrest of a recent occupant" even where "the vehicle's passenger

compartment will not be within the arrestee's reach at the time

of the search." Gant, 556 U.S. at 343. The Court stated, in no

uncertain terms, that to construe Belton so broadly "would serve

no purpose except to provide a police entitlement, and it is

anathema to the Fourth Amendment to permit a warrantless search

on that basis." Id. at 347.

Upholding the search here on the assumption that the

officers might not have arrested the defendant and might have

let him return to his vehicle would permit an end run around

Gant. It would be tantamount to conferring an automatic police

entitlement to search a vehicle whenever there is probable cause

to arrest a recent occupant. But if there is no police

entitlement to search incident to formal arrest, there certainly

can be no entitlement to search incident to probable cause to

arrest. See Washington, 449 Mass. at 482 (there is no "search

incident to probable cause to arrest" exception to warrant

requirement).

Suggesting otherwise, the Commonwealth claims that officer

safety concerns justified the search because the minivan was
17

stopped in a high crime area at night. But as Gant holds, other

exceptions to the warrant requirement "ensure that officers may

search a vehicle when genuine safety or evidentiary concerns

encountered during the arrest of a vehicle's recent occupant

justify a search." Gant, 556 U.S. at 347. One such exception,

established by Michigan v. Long, 463 U.S. 1032, 1049 (1983),

authorizes a Terry-type search of the passenger compartment of a

vehicle when the officer has reasonable suspicion that a recent

occupant is "dangerous" and might access the vehicle to "gain

immediate control of weapons." Lantigua and Santiago, cited in

the judge's decision, both concern this exception.18 Neither

stands for the proposition that an officer is entitled to search

a vehicle any time a recent occupant is (or might be) allowed to

return to it. See Gant, 556 U.S. at 352 (Scalia, J.,

concurring) ("Where no arrest is made," propriety of protective

search of vehicle is governed by Long). Accord McCraney, 674

F.3d at 620.

18See Santiago, 53 Mass. App. Ct. at 571 (reasonable under
Terry for officer to check vehicle for weapons "when the driver
and vehicle matched descriptions arising from recent attacks in
the area by an individual armed with a dangerous weapon");
Lantigua, 38 Mass. App. Ct. at 528 (officer properly conducted
"Terry-type search" based on "particular danger to an officer
when the person he is investigating is seated in a car with his
movements concealed"). See also Commonwealth v. Silva, 61 Mass.
App. Ct. 28, 35 n.8 (2004) (Lantigua "involv[ed] a Terry-type
search of a car").
18

3. Search based on reasonable suspicion that defendant was

armed and dangerous. This brings us to the ground cited by the

dissent -- that the search was a valid Terry-type search for

weapons. For this exception to apply, the Commonwealth had to

show that the officers "possess[ed] a reasonable belief based on

'specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warrant[ed]'

the officer[s] in believing that the [defendant was] dangerous

and [could] gain immediate control of weapons." Long, 463 U.S.

at 1049, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). See

Commonwealth v. Sumerlin, 393 Mass. 127, 129 (1984);

Commonwealth v. Silva, 366 Mass. 402, 406, 408 (1974). In the

vehicle context, the Commonwealth must specifically show that

there was reasonable suspicion that the vehicle contained a

weapon. See Commonwealth v. Douglas, 472 Mass. 439, 445-446

(2015).

As noted above, the Commonwealth did not argue Terry before

the judge.19 Perhaps as a result, the judge made no findings on

whether a reasonable officer would have been warranted in

believing that the defendant was dangerous and could have

weapons in his minivan. Although we can in some situations

19The Commonwealth's brief cites Terry once -- to argue
that the validity of the search "is not dependent on Terry
prerequisites." The words "armed" and "dangerous" do not appear
at all in the brief.
19

affirm on grounds other than those relied on by the judge, we

cannot do so where, as here, the findings and the record do not

support the alternative ruling. See Mauricio, 477 Mass. at 595.

To reach the result that it does, the dissent must find its own

facts, which is not an appropriate appellate function. See

Commonwealth v. Mayfield, 398 Mass. 615, 625 (1986) (appellate

court may not "find facts or . . . draw uncompelled inferences

from the evidence").

Specifically, two of the factors relied on by the dissent

have no support in the judge's findings or the record. First,

the dissent concludes that the defendant's handing of the

grocery bag to the person in the Mercedes was an "apparent

street-level drug deal." Post at . But none of the officers

so testified, and the judge made no such finding. The transfer

was conducted out in the open, in a heavily trafficked and well-

lit area,20 and none of the officers testified that he believed

it to be consistent with a drug sale based on his training and

experience. In fact, Carpenter affirmatively agreed that, "as a

trained detective," the transfer did not appear to him as

"anything other than maybe . . . a little odd"; likewise,

Vardaro agreed that, although the transfer "perked [his]

interest," it "didn't really resonate as anything suspicious

20Donahue agreed that there was nothing "secret or hidden"
about the way that the defendant handed over the bag.
20

happening at that point." Thus, our conclusions regarding the

transfer are based on the officers' uncontested testimony, which

the judge implicitly credited, and are not the result of our own

fact finding, as the dissent claims. And in light of that

testimony, this is not a case where the judge could have

inferred that the features of the transfer fit the pattern of a

typical street-level drug sale. Cf. Commonwealth v. Kennedy,

426 Mass. 703, 706 (1998) (judge could "supplement with her own

inferences the officer's testimony concerning his inferential

process in identifying the observed . . . interaction as a drug

sale"). We surely cannot draw such an inference ourselves on

appeal.

In concluding otherwise, the dissent puts much emphasis on

Carpenter's testimony that he found the transfer to be "odd" and

on Vardaro's testimony that the transfer "perked [his]

interest."21 Post at . But an officer's belief that a person

has done something odd or interesting does not equate to a

belief that that person has engaged in a drug transaction.

Indeed, Carpenter and Vardaro confirmed that to be the case.

And while it is true, as the dissent notes, that drug sales can

"occur in a seemingly open and nonsuspicious manner," post

at , there was no testimony to that effect introduced at the

21 The judge did not mention this testimony in his decision.
21

hearing. Contrary to the dissent's view, we cannot rely on

notions of "common sense" to overcome not just the complete

absence of testimony about the officers' inferential processes,

but also affirmative testimony from the officers that, based on

their experience and training, the observed transaction did not

resonate as a drug sale. See Kennedy, 426 Mass. at 706

("Commonwealth should have elicited from the officer more detail

on what a typical street-level drug sale looks like from

beginning to end").

Second, the dissent concludes that the defendant made a

furtive movement when asked to produce his license. Post

at . But the judge did not find that the movement was

furtive. Rather, he simply stated, in the "[f]acts" section of

his decision, that "[t]he defendant continued to search the

driver's compartment" after telling Donahue that he did not have

his license with him, and the judge did not factor the movement

into his "[f]indings and [r]ulings." Ascribing a sinister

motive to the movement amounts therefore to appellate fact

finding, made all the more improper by the dissent's disregard

of the testimony of all three detectives present at the scene

that the defendant did not do anything to suggest that he was

dangerous. Donahue observed the defendant's rummaging firsthand

and did not react with concern for his safety; he merely asked

the defendant what he was doing, asked him to write down his
22

biographical information, and left him in the minivan while

Donahue conducted a computer query. Given Donahue's testimony,

the rummaging cannot reasonably be viewed as a furtive gesture

suggesting that the defendant was reaching for or hiding a

weapon. See Commonwealth v. Daniel, 464 Mass. 746, 752-753

(2013) ("officer's actions in allowing the occupants to move the

vehicle without first removing the knife from the dashboard

suggest[ed] that the defendants' movements and actions, viewed

by a trained officer on the scene, did not create a heightened

awareness of danger" [quotations omitted]).22 At a minimum, it

is not an inference that is compelled from the evidence. See

Mayfield, 398 Mass. at 625. See also Commonwealth v. Santos, 65

Mass. App. Ct. 122, 125 (2005) ("defendant's movement --

'sit[ting] up erect from a reclined position . . . and lean[ing]

forward' -- add[ed] little to the analysis" where "motion judge

did not find the gesture to be furtive, nor did he rely on it in

denying the motion to suppress").

The remaining factors cited by the dissent do not establish

reasonable suspicion that the defendant was armed and dangerous.

The defendant's criminal history did not include any firearms

22See also Commonwealth v. Hooker, 52 Mass. App. Ct. 683,
687 (2001) ("That the defendant moved his upper shoulders and
appeared to place something on the seat is . . . [not] a ground
for reasonable apprehension"); Commonwealth v. Holley, 52 Mass.
App. Ct. 659, 665 (2001) ("lean[ing] over to the passenger side
visor . . . cannot be considered as a threatening gesture").
23

offenses or other violent offenses. See Commonwealth v. Gomes,

453 Mass. 506, 512 (2009) (defendant's criminal history, which

did not include "any weapons-related offenses," insufficient to

create reasonable apprehension of danger). Even assuming

(despite the lack of findings and testimony) that the earlier

transfer of the bag, coupled with the defendant's narcotics

convictions, could have led the officers to believe he was

selling drugs, drug involvement is not sufficient to presume

that a defendant is "armed and dangerous for constitutional

purposes." Washington, 449 Mass. at 483. See Commonwealth v.

Dagraca-Teixeira, 471 Mass. 1002, 1004 n.3 (2015); Gomes, 453

Mass. at 511-513; Commonwealth v. Jimenez, 438 Mass. 213, 220

(2002). Nor would the defendant's traffic offenses give rise to

reasonable suspicion. See George, 35 Mass. App. Ct. at 555.

See also McCraney, 674 F.3d at 621. And although the vehicle

was stopped in a high crime area at night, this factor, which

must always be viewed "with some caution," Commonwealth v.

Holley, 52 Mass. App. Ct. 659, 663 (2001), has less significance

here because the officers outnumbered the defendant. See Gomes,

453 Mass. at 513.

This case is materially indistinguishable from Gomes.

There, an officer observed the defendant -- a known "impact

player" in the local drug market, id. at 508 -- conduct what the

officer believed, based on his training and experience, to be a
24

drug transaction. See id. at 511-512. The transaction occurred

around 4 A.M. in an area with a high incidence of crime,

including shootings. See id. at 513. Nonetheless, the court

concluded that the officer lacked reasonable suspicion to

conduct a Terry-type patfrisk because he was not alone or

outnumbered, and the defendant had no criminal history of

weapons-related offenses, made no gestures suggesting that he

was carrying a weapon, and did not attempt to flee. See Gomes,

453 Mass. at 512-513.

The dissent relies heavily on Lantigua, 38 Mass. App. Ct.

526, but reads that case too broadly. In Santos, 65 Mass. App.

Ct. at 127-128, we confined Lantigua to its facts -- the driver

there had already gotten out of his vehicle and told the officer

that his registration was in the glove compartment. Lantigua,

supra at 527. On those particular facts, "We held [in Lantigua]

that the officer, in the interest of his own safety, could

properly retrieve the registration from the place where the

defendant said it would be . . . ." Santos, supra at 127. But

as we stated in Santos, and reiterate here, "Nothing in our

Lantigua decision should be read to sanction . . . general

rummaging through the interior spaces of a stopped car . . . ."

Id. at 128.

Judgment vacated.

Verdict set aside.
McDONOUGH, J. (dissenting, with whom Trainor, J., joins).

"Under art. 14 of the Massachusetts Declaration of Rights, the

touchstone of our analysis of police conduct that results in a

search or seizure is whether that conduct was reasonable. . . .

The reasonableness of the particular conduct at issue here

involves an evaluation of whether the police exceeded the

permissible scope of the stop, which is an issue of

proportion. . . . Judicial second-guessing of that exercise of

judgment, especially in a rapidly developing situation, is

inappropriate." Commonwealth v. Watts, 74 Mass. App. Ct. 514,

517, 519-520 (2009). Because I believe the majority departs

from these principles, I respectfully dissent. I am satisfied

that the motion judge's conclusion that the limited protective

sweep for weapons of the front seat area of the minivan

unlawfully operated by the defendant was properly ordered as a

"heightened precaution[] for the officers' own safety."

Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995)

("The same concerns that allow an officer investigating a

traffic violation to order the driver out of the car for the

officer's safety . . . also allow a limited search of the

passenger compartment for weapons before the passenger reenters

the car . . .").1

1 I agree with the majority that, as the judge implicitly
concluded, this limited protective sweep for weapons cannot be
2

Discussion. The judge found that three experienced

Brockton detectives had justification for this limited vehicle

protective sweep for weapons where (a) probable cause existed to

arrest the defendant for engaging in ongoing criminal activity -

- driving with a revoked license; (b) in a high crime area known

for narcotics activity, the detectives witnessed the defendant

engage in what can reasonably be inferred as an apparent street-

level drug deal, and learned that the defendant had a

"significant" criminal history that included narcotics

convictions and open cases; (c) the defendant moved and answered

furtively when asked to produce a driver's license;2 (d) the

defendant, once removed from the minivan but uncuffed and

unsecured, could have regained access to the minivan; and (e) to

justified as a search incident to an arrest. The defendant was
not arrested until after police conducted a full search of the
minivan prompted in part by the results of the sweep.
Commonwealth v. Washington, 449 Mass. 476, 481 (2007), quoting
New York v. Belton, 453 U.S. 454, 465 (1981) (Brennan, J.,
dissenting) (proper search incident to arrest may precede
arrest, but arrest must be "substantially contemporaneous").

2 These three circumstances constitute plus factors
supporting reasonable suspicion of ongoing criminal conduct.
See generally Commonwealth v. DePeiza, 66 Mass. App. Ct. 398,
405 (2006), S.C., 449 Mass. 367 (2007). While the judge did not
use the phrase "plus factors" in his memorandum of decision, he
did use it at the hearing on the defendant's motion for
reconsideration, emphasizing "that . . . if there had been no
plus factors, then it would have been a routine motor vehicle
stop, and the defendant should have been allowed to go on his
way. Obviously I found there were some of those plus factors
present."
3

ensure their safety, before allowing the defendant to reenter

the minivan, detectives conducted the protective sweep for

weapons limited to the front seat area. I submit that these

critical circumstances, explained more fully infra, were

established by the judge's findings, supplemented with facts he

implicitly credited3 that are consistent with his decision, and

justify the detectives' limited protective sweep.

a. Defendant's ongoing criminal conduct. The majority

agrees that the detectives were warranted in stopping the

defendant for a traffic violation. See generally Commonwealth

v. Buckley, 478 Mass. 861, 865-866 (2018). After learning that

the defendant's license had been revoked -- an arrestable

offense -- there existed probable cause that the defendant was

engaged in criminal activity, which justified the exit order and

the patfrisk of the defendant for officer safety. Contrast

Commonwealth v. Amado, 474 Mass. 147, 152 (2016).

b. Defendant's narcotics convictions, open cases, and

apparent street-level drug deal. The majority concludes that

neither the judge nor the detectives viewed the defendant's bag

handoff to an occupant of the Mercedes sport utility vehicle

(SUV), through their open windows, at 10 P.M. in a high crime

area known for illegal narcotics activity, as an apparent

3 I agree with the majority that "the judge implicitly
credited in full" the detectives' testimony. Ante at .
4

street-level drug deal. Ante at . The majority further

concludes that "this is not a case where the judge could have

inferred that the features of the transfer fit the pattern of a

typical street-level drug sale." Ante at . I submit that

the majority's conclusions concerning the bag handoff are at

odds with the judge's explicit and implicit findings, and with

the detectives' testimony. First, the judge twice discussed the

defendant's bag handoff in his findings. Under the "[f]acts"

heading in his memorandum of decision, the judge wrote:

"This is a densely populated commercial district which
hosts retail businesses as well as bars and
nightclubs. . . . It is also an area with a high
instance of criminal activity. . . . As [Detective
Donahue, 'an experienced investigator with a background
in violent crime and narcotics cases' and Detective
Carpenter and Detective Sergeant Vardaro] were traveling
northbound [the defendant's minivan], directly in front
of them, pulled alongside of a black Mercedes SUV, which
was parked on the side of the roadway, and stopped. The
officers observed an arm come out of the [minivan] and
hand a large paper bag to an occupant of the Mercedes."

The judge returned to the defendant's bag handoff further

on, under his "[f]indings and [r]ulings" heading.

"[The defendant's vehicle] was observed making a transfer
to a second vehicle in an area known for narcotic
activity."

Moreover, the judge found that just after the stop the

detectives learned of the defendant's "significant criminal

history that included narcotics violations," which according to

Carpenter's testimony, included "open" narcotics cases. Thus, I
5

submit that the majority's conclusion that the bag handoff was

not, nor could be, viewed by the judge and the detectives as a

likely drug deal fails to pay sufficient deference to the

judge's findings.

It is a "well-settled proposition that the judge's findings

of fact are 'binding in the absence of clear error . . . and

[we] view with particular respect the conclusions of law which

are based on them.'" Commonwealth v. Bottari, 395 Mass. 777,

780 (1985), quoting Commonwealth v. Correia, 381 Mass. 65, 76

(1980). Nevertheless, the majority supports its view that

neither Carpenter nor Vardaro suspected that the bag handoff was

a drug deal because both "testified that the transfer did not

resonate as suspicious based on their training and experience."

However, the judge made no such finding,4 and each detective's

testimony, read as a whole, reveals that the bag handoff was a

focus of the questioning, and in my view confirms that they

considered the bag handoff as suggestive of criminal activity.

But because the judge credited the testimony, we know that

Vardaro resisted defense counsel's insistence that the

defendant's bag handoff "didn't mean anything" to him, instead

4 As is discussed more fully infra, a reviewing court may
not engage in "independent fact finding" based on the record in
order to reach a conclusion of law that is contrary to that of a
motion judge. Commonwealth v. Jones-Pannell, 472 Mass. 429, 438
(2015).
6

stressing in his responses, "I saw it," and saying twice that

the bag handoff "would have perked my interest." Defense

counsel pressed Vardaro to concede that aside from the traffic

violation, "There's not any indication of any other kind of

activity going on in this minivan, is there? You don't know

anything else except a minivan in front of you stopped for a

couple seconds and pulled to the right? . . . That's all you

know at this point; right?" But Vardaro held his ground,

responding, "No. That's not all we know. [We] know that he

stopped. He handed something to somebody on the side of the

road, he impeded traffic, and then he took off and changed lanes

without signaling until we stopped him. That is what we know at

this point."

Again, because the judge credited his testimony, we know

that Carpenter, when asked generally what he saw when the

defendant's minivan stopped directly behind the Mercedes,

singled out the defendant's bag handoff: "We observed the

operator of the minivan extend his arm from the driver's door

window towards the black Mercedes and pass an item to a

passenger in the black Mercedes." On cross-examination,

Carpenter rejected defense counsel's premise that the bag

handoff was an "innocent gesture" when he was asked, "[T]here

was nothing that you noticed about -- or drew your attention for

police enforcement reasons of the car in front of you when the
7

shopping bag -- when the plastic bag was . . . passed from one

car to the other; correct? It . . . just looked like an

innocent gesture, didn't it?" Carpenter, like Vardaro, held his

ground, answering, "We -- we found it to be odd. . . . [It

drew] attention that a vehicle is stopped in the middle of the

roadway . . . blocking traffic to pass something from one

vehicle to another."5

While neither the detectives nor the judge used the

talismanic words "apparent street-level drug deal" when

characterizing the defendant's bag handoff, I submit that in

matters of common sense the obvious is often left unspoken.6

Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 466 (1986)

(whether inference is warranted or impermissibly remote is

determined not by hard and fast rules of law, but by experience

and common sense). "Absent explicit findings, we analyze[] the

record to see if the findings implicit in the judge's ruling are

supported" (citation omitted). Commonwealth v. Grandison, 433

5 So compelling was the inference that the defendant's bag
handoff was an apparent drug deal that, on appeal, the defendant
argues that it was improper propensity evidence "suggesting that
[the defendant] was a drug dealer" and that the erroneous
admission created a substantial risk of a miscarriage of
justice.

6 See People vs. Osuna-Avila, Cal. Ct. App., 3rd Dist., No.
C064685 (Dec. 29, 2010) ("[A] trial court can rely on an
officer's experience and accept the obvious unspoken premise
that the [tinted] window looked too dark").
8

Mass. 135, 137 (2001). "We may affirm the denial of a motion to

suppress on any ground supported by the record." Commonwealth

v. Washington, 449 Mass. 476, 483 (2007), citing Commonwealth v.

Va Meng Joe, 425 Mass. 99, 102 (1997).7

I address one final point made by the majority concerning

the defendant's bag handoff. In concluding that the judge could

not properly infer that the transfer "fit the pattern of a

typical street-level drug sale," ante at , the majority

relies on the seemingly innocuous scene and circumstances of the

handoff, stressing that "[t]he vehicles were stopped in an area

that was heavily trafficked and illuminated by lights from a

nearby court house and businesses," and that "[n]o person in

either vehicle made an attempt to conceal the transfer of the

bag." Ante at . But the judge's findings do not include any

reference to these factors. Here the majority necessarily makes

an "independent [finding of fact] in order to reach a conclusion

of law that is contrary to that of [the] motion judge" who

upheld the protective sweep as lawful. Commonwealth v. Jones-

Pannell, 472 Mass. 429, 438 (2015). This, respectfully, it may

not do. Id. Moreover, to the contrary, it is well known that

7 Indeed, if the facts found by the judge support an
alternative legal theory, a reviewing court is free to rely on
an alternative legal theory. See Commonwealth v. Cast, 407
Mass. 891, 897 (1990), citing Commonwealth v. Signorine, 404
Mass. 400, 403 n.1 (1989).
9

street-level drug sales typically occur in a seemingly open and

nonsuspicious manner so as not to attract attention, and to

create the impression of normalcy.8 "'Seemingly innocent

activities taken together can give rise to reasonable suspicion

[of drug activity] justifying a threshold inquiry.'

Commonwealth v. Watson, 430 Mass. 725, 729 (2000)."

Commonwealth v. Gomes, 453 Mass. 506, 511 (2009).9

As he did twice in his findings, the judge was entitled to

consider the defendant's apparent street-level drug deal as one

factor in upholding the limited search of the minivan a "an

appropriate step for the police as a protective sweep prior to

8 Indeed, I point out -- for context only -- that the
Commonwealth's expert at trial, State police Trooper Erik
Telford, testified that dealers typically arrange for drug
exchanges in "some public area, parking lots, any street corner,
any street, inside bathrooms, fast food stores, restaurants,
[and] bars . . . [t]o make it seem as innocuous or benign as
just a meet –- as a meet between two people, and unless you're
street savvy . . . [you do not know that] it's actually a street
level drug transaction . . . . It's just a safe way to insulate
the dealer and the customer to make it look like normal legal
activity . . . ." See Commonwealth v. Singer, 29 Mass. App. Ct.
708, 709 n.1 (1991) (because appeal involves rulings by motion
judge prior to trial, "we do not rely on facts developed at
trial" but we may "recount some of the evidence at trial . . .
merely to give context to the legal issues before us").

9 That the item here exchanged, a plastic grocery bag, was
by itself innocuous does not undercut the suspicious nature of
the handoff. See, e.g., Commonwealth v. Santiago, 470 Mass.
574, 579 (2015) ("Although [the officer] did not see any item
actually exchanged, the defendant's extended arm . . .
[supported the officer's] belief that a drug transaction between
the two men had just taken place").
10

allowing the defendant to return to his vehicle." I suggest

that the majority's reliance on Washington is misplaced. There

the court held that "[w]hile drug involvement certainly may be a

relevant factor in assessment of threats to police safety, we

are reluctant to adopt a blanket rule that all persons suspected

of drug activity are to be presumed armed and dangerous for

constitutional purposes." Washington, 449 Mass. at 482-483.

Here, rather than applying a "blanket rule," id. at 483, the

judge, at most, considered the defendant's criminal narcotics

history as just one relevant factor. Moreover, unlike here, in

Washington, "the [motion] judge found specifically that the

defendants did nothing to cause the troopers concern for their

safety." Id. at 482. In contrast, the judge here found

otherwise and necessarily credited Donahue's unequivocal

testimony that he ordered the limited protective sweep of the

front seat area for "[m]y safety and the safety of the other

officers present" when the judge found that Donahue and Vardaro

"conducted a search for weapons around the driver's and

passenger[']s seat[s] in the front of the vehicle." With that

finding, the judge necessarily ruled out any possibility that

the detectives conducted the search as a pretext for a search

for evidence. Far from undercutting the judge's rulings,

Washington stands for the proposition that these experienced

detectives "certainly" could consider the defendant's criminal
11

history of drug involvement, coupled with his bag handoff in an

area known for narcotics activity, as one "relevant factor" in

their "assessment of threats to police safety." Id. at 483.

c. Defendant's furtive answers and movements. The

majority concludes that the defendant's "rummaging [for his

license seconds after telling Donahue he did not have it with

him] cannot reasonably be viewed as a furtive gesture suggesting

that the defendant was reaching for or hiding a weapon" because

"Donahue observed the defendant's rummaging firsthand and did

not react with concern for his safety." Ante at .

Respectfully, I submit this conclusion cannot be reconciled with

the judge's findings. The judge made no finding -- explicit or

implicit -- that Donahue was unconcerned about the defendant's

contradictory answers and his unexplained searching movements.

And neither did Donahue so testify. By detailing in his

findings the defendant's contradictory answers and his searching

movements prompted by Donahue's questioning, "[i]t may be

inferred from the judge's findings," Commonwealth v. Blevines,

54 Mass. App. Ct. 89, 92 n.6 (2002), S.C., 438 Mass. 604 (2003),

that the judge viewed Donahue's inquiries as purposeful and

prompted by law enforcement objectives. Specifically, the judge

found that after the defendant told Donahue that he did not have

his license with him, Donahue saw the defendant continue "to

search the driver's compartment," prompting Donahue to ask the
12

defendant "what he was looking for." When the defendant

answered, "[m]y [license]," the judge found that Donahue

"reminded him that he had stated he didn't have his [license]

with him," at which point the judge found that "[t]he defendant

stopped looking around." These findings make clear that the

judge found that Donahue's reminder immediately caused the

defendant to stop his rummaging. Thus, in my view, the judge

implicitly rejected the majority's benign characterization of

the defendant's searching movements and his contradictory

response when asked why he continued searching the minivan

interior.10 The judge properly included in his calculus the

defendant's implicit evasiveness, as well as his readily

apparent pretext for continuing to search the front seat

compartment in the immediate aftermath of the stop.11

d. The defendant was not secured. Once outside the

minivan, the defendant was escorted, without handcuffs, to the

rear of the minivan to be with Carpenter. Here, the majority

concludes that "[a]lthough [the defendant] was not handcuffed,

10A suspicious verbal response qualifies as furtive
behavior. See, e.g., United States v. Curcio, 694 F.2d 14, 28
(2d Cir. 1982) ("furtive, hangdog, or otherwise suspicious . . .
method of answering").

11"Although nervous or furtive movements do not supply
reasonable suspicion when considered in isolation, they are
properly considered together with other details to find
reasonable suspicion." Commonwealth v. DePeiza, 449 Mass. 367,
372 (2007).
13

he was still secured in a practical sense." Ante at . I

respectfully submit that here the majority is again engaging in

"independent fact finding" which undercuts the judge's ultimate

conclusion that the sweep was lawful. Jones-Pannell, 472 Mass.

at 438. The majority's position that the defendant was "secured

in the practical sense" is inconsistent with the testimony of

the three detectives. When defense counsel's question to

Donahue suggested that the defendant was "outside the car

secured," Donahue responded, "He wasn't secured." When Vardaro

was asked, "Was it possible . . . [that the defendant] would

have had access to the vehicle again," Vardaro answered, "Yes."

And although Carpenter testified that he stayed "in close

proximity" to the defendant during "the search of the [front

seat area]," when asked if he stood with the defendant "the

whole time," Carpenter did not agree, answering, "The majority

of the time, I believe."

The judge credited Donahue's concern that the defendant

might "regain" access to the minivan because Donahue had not yet

decided either to arrest him or "just do a [c]ourt complaint on

him for the license [revocation]." Concerned about the prospect

that the defendant might reenter his minivan as a passenger

(with a driver he might contact), the judge found that the

detectives' check of the front seat area for weapons was "an

appropriate step for the police as a protective sweep prior to
14

allowing the defendant to return to his vehicle." Donahue's

concern was, as he put it, "anything within the lunge and

reaching area of the —- of the vehicle, of the driver if someone

came to drive the vehicle away or if [the defendant] got into

the passenger seat of the vehicle." Donahue said that his

interest in doing so was for "[m]y safety and the safety of the

other officers present."12 Pressed on the point during cross-

examination, Donahue explained that his concern was "[i]n case

[the defendant] did get back into the vehicle if he was allowed

to leave the scene," adding, "I have that right, sir." Thus,

12A police officer does not have to testify specifically
that he was in fear for his own safety. "[T]he officers'
concern for their own safety is a fact that can be inferred from
all the circumstances: it does not necessarily depend on direct
testimony." Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301,
306 n.5 (1986).

The majority, ante at note 8, compares Donahue's statement
-- "I have that right, sir" -- to the officer's testimony in
Arizona v. Gant, 556 U.S. 332, 336 (2009), where the defendant
claimed, and the United States Supreme Court accepted, that he
"posed no threat to the officers after he was handcuffed in the
patrol car and because he was arrested for a traffic offense for
which no evidence could be found in his vehicle." When the
officer in Gant was asked why he searched the car, he replied,
"Because the law says we can do it." Id. at 337. But the facts
in Gant are distinguishable because here, the defendant was
uncuffed and not arrested. Moreover, Donahue's answer was
immediately preceded by: "I didn't have evidence [of a weapon]
but I have the right to check for my safety." And unlike Gant,
Donahue's stated reasons for the protective sweep were "[m]y
safety and the safety of the other officers present," which the
judge implicitly credited in finding that Donahue and Vardaro
"conducted a search for weapons around the driver's and
passenger[']s seats in the front of the vehicle."
15

the record amply supports the judge's finding that the

protective sweep was limited in purpose and area to a check for

weapons the defendant could access upon reentering the minivan.

e. Lantigua controls. I agree with the judge that in the

circumstances, the "Terry-type"13 protective sweep of the

defendant's minivan limited to the driver and the front

passenger areas was lawful under the principles of Lantigua, 38

Mass. App. Ct. at 528-529:14

"Inability to produce a license or a registration
reasonably gives rise to a suspicion of other offenses,
such as automobile theft, and justifies heightened
precautions for the officers' own safety.

"Faced with this situation, the officer's entry into the
car was justified . . . . First, prior to allowing the
defendant to reenter the car to obtain the registration,

13The majority claims that a Terry-type search was not
raised by the Commonwealth. Ante at . I disagree. In its
brief, the Commonwealth cites Terry and Lantigua, the latter of
which is an extension of the Terry-type frisk to a protective
search of the interior of a vehicle limited to situations where
concern remains "that a driver or passenger returning to the
vehicle may gain access to a weapon that may be used against the
police." Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 411
(2014), S.C., 472 Mass. 439 (2015). And, of course, in
upholding the protective sweep, the judge explicitly relied on
Lantigua.

14See Commonwealth v. Manha, 479 Mass. 44, 49 (2018).
"Allowing the defendant to return to the [vehicle] without a
search for weapons, where a weapon could be within reach of the
defendant, poses an obvious concern for officer safety."
Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 744 (2018).
See id., quoting Commonwealth v. Edwards, 476 Mass. 341, 348-349
(2017) ("Although the defendant was not in the vehicle at the
time the gun was observed, . . . there was no assurance that he
would not be returning promptly to his seat behind the wheel of
the automobile").
16

the officers could properly effect a Terry-type search of
the areas of the car which would be readily accessible to
the defendant on reentering. The purpose of the search
would be protective only, analogous to a pat frisk of the
defendant's person for weapons. The reasonableness of a
scan for weapons turns, we think, not so much on the
finding that the defendant bent down and to the right
before leaving the car, . . . but on the particular danger
to an officer when the person he is investigating is
seated in a car with his movements concealed from the
officer's view. The same concerns that allow an officer
investigating a traffic violation to order the driver out
of the car for the officer's safety . . . also allow a
limited search of the passenger compartment for weapons
before the passenger reenters the car to obtain the
registration. Courts cannot be oblivious to the recent
escalation in the numbers of incidents reported wherein
police officers have been killed or wounded while
performing routine traffic functions. '[W]e think it
crucial to remember that, as shown by many staged climaxes
to threshold police inquiries, 'the answer might be a
bullet."' Commonwealth v. Silva, [366 Mass. 402, 407
(1974)], quoting . . . [Terry, 392 U.S. at 33] (Harlan,
J., concurring). In such encounters officers must be
allowed to take reasonable precautions for their own
safety."

The majority insists that the judge's reliance on Lantigua

is misplaced because Lantigua was limited "to its facts" in

Commonwealth v. Santos, 65 Mass. App. Ct. 122, 127-128 (2005).

Ante at . Because I do not see those or similar words in

Santos, nor in any subsequent case discussing either case,15 I

respectfully disagree. While both cases involved vehicle

searches following traffic stops, Santos found Lantigua

distinguishable on other material facts. Santos, supra at 128.

15Our holding in Lantigua was recently cited approvingly by
the Supreme Judicial Court in Commonwealth v. Sheridan, 470
Mass. 752, 761 (2015).
17

Reduced to the essence of the facts, in Lantigua, 38 Mass. App.

Ct. at 528-529, we upheld a lawful limited protective sweep for

weapons, while in Santos, supra at 127, we disapproved of an

unlawful unlimited investigatory sweep for evidence.16

Eschewing Lantigua, the majority submits that this case is

controlled by Gomes, 453 Mass. at 512, ante at , a case not

involving a motor vehicle stop. There, the court held that the

police "lacked particular facts from which a reasonable

inference could be drawn that the defendant was armed and

presented a danger to the officers or others" that would justify

a patfrisk for weapons (yielding "crack" cocaine on his person).

Id. The court so held, even though officers witnessed the

defendant engaging in drug activity around 4 A.M. in an area

with a high incidence of crime, and was a known "impact player"

in the local drug market, with a criminal history involving drug

sales, but which did not include "any weapons-related offenses."

Id. at 507-508, 512. Here, the majority concludes: "This case

As in the case before us (but unlike Santos where the
16

defendant was handcuffed in a cruiser), the defendant in
Lantigua was neither handcuffed nor secured when the officer
entered the vehicle. Lantigua, 38 Mass. App. Ct. at 527. We
held in Lantigua that the officer, "as a safety precaution,"
id., "could properly retrieve the registration from the place
where the defendant said it would be, rather than have the
defendant reenter the protective and partially concealing
interior of the car, for the ostensible purpose of retrieving it
himself." Santos, 65 Mass. App. Ct. at 127 (discussing holding
in Lantigua). Thus, as applied to this case, Lantigua remains
good law, Santos notwithstanding.
18

is materially indistinguishable from Gomes." Ante at . But

plainly it is distinguishable, most materially because while

both the defendant and Gomes were engaged in criminal conduct,

the defendant before us was engaged in criminal conduct while

operating a motor vehicle -- a critical difference compelling a

different result. "The failure of the defendant to produce a

license [in this case because it was revoked] is . . .

significant. We have recognized that, in appropriate

circumstances, the '[i]nability to produce a license or a

registration reasonably gives rise to a suspicion of other

offenses, such as automobile theft, and justifies heightened

precautions for the officers' own safety.'" Santos, 65 Mass.

App. Ct. at 126, quoting Lantigua, 38 Mass. App. Ct. at 528.

f. Sweep was cursory check for weapons of front seat area.

Our courts have long held that "a Terry type of search may

extend into the interior of an automobile so long as it is

limited in scope to a protective end." Silva, 366 Mass. at 408.

Such a search must be "confined to what is minimally necessary

to learn whether the suspect is armed and to disarm him once the

weapon is discovered. . . . Thus the search must be confined to

the area from which the suspect might gain possession of a

weapon." Commonwealth v. Almeida, 373 Mass. 266, 272 (1977)

(allowing sweep of car where defendant "was not under arrest at

the time of the 'pat-down' search of his person, and there was
19

no assurance that he would not be returning promptly to his seat

behind the wheel of the automobile").

The majority fears that upholding this limited, cursory

protective sweep for weapons would "eviscerate the limitations

imposed by Gant, which sought to rein in the previously

'unbridled discretion' of officers 'to rummage at will among a

person's private effects' based on the person's commission of an

arrestable traffic offense. Gant, 556 U.S. at 345." Ante

at . Respectfully, I suggest that the majority's fears are

unfounded. Nothing of the sort condemned in Gant happened here.

In conducting their "cursory search for weapons inside the front

compartment" of the minivan, Donahue and Vardaro did not rummage

at will through anything. They did not open a glove box or the

center console, nor rummage through seat pockets or anything

else, in an effort to search "among a person's private effects."

Id. They made but a quick check under the front seats "looking

for weapons" -- nothing more. The judge characterized the

limited sweep as "consistent with the doctrine of

proportionality" and as a "measured response to evolving

circumstances," and found that the "the intrusions only

escalated [commensurate] with the rising level of definable

suspicion."

Conclusion. "It is important to distinguish this case from

the cases . . . where the driver of a vehicle stopped for a
20

traffic violation produces a valid driver's license and

registration." Watts, 74 Mass. App. Ct. at 517 n.2. Because I

am satisfied that this limited protective sweep for weapons of

the minivan's front seat area was properly grounded in

reasonable suspicion and that it was necessary to protect the

officers' safety, I would affirm the order denying the motion to

suppress.