Commonwealth v. Fred Baskin.

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.

8