Commonwealth v. Robert Bruton.

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

24-P-133

COMMONWEALTH

vs.

ROBERT BRUTON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a District Court judge (motion judge) denied the

defendant's motion to suppress a firearm, the defendant, Robert

Bruton, conditionally pleaded guilty to carrying a firearm

without a license, G. L. c. 269, § 10 (a), and carrying a loaded

firearm without a license, G. L. c. 269, § 10 (n). The

defendant now appeals from the order denying the motion to

suppress, arguing that the police lacked reasonable suspicion to

search the coat he was sitting on in the back seat of a car.

Accepting the motion judge's findings -- including that the

police saw the defendant reaching behind himself and tucking his

hands under his thighs -- we conclude there were sufficient
specific, articulable facts to establish reasonable suspicion,

and thus we affirm.

Background. We summarize the facts found by the motion

judge, supplemented by uncontroverted testimony that the judge

implicitly or explicitly credited. See Commonwealth v. Jones-

Pannell, 472 Mass. 429, 436-437 (2015).

At about 11:30 A.M. on April 3, 2022, Fall River police

Officer Eric Bettencourt was on patrol with his partner, Officer

Joseph Boyajian, when they saw a gray Honda Civic with a New

York license plate fail to stop at a stop sign. The officers

stopped the Honda. Officer Bettencourt approached the driver's

side of the Honda.

Three men were inside the Honda; the defendant sat in the

back seat on the driver's side. Officer Bettencourt recognized

the driver: a few days previously, at a pizza parlor about a

block away from the stop, police had seized a firearm from a

companion of the driver. Officer Bettencourt also recognized

the front seat passenger from the neighborhood, but did not know

his name. Unlike the other two occupants of the Honda, the

defendant was unknown to the officers.

Officer Bettencourt asked the driver for his license and

registration. The driver provided his license, but said he did

not know where the Honda's registration was. At about this

time, Officer Michael Sullivan arrived and went to the

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passenger's side of the Honda, and Officer Boyajian stood at its

rear. Immediately after producing his license, the driver

placed his hand over his waistband. Officer Bettencourt, based

on his experience that firearms and other weapons are commonly

carried in a person's waistband area, ordered the driver out of

the Honda. Asked if he had any weapons, the driver said no.

From his vantage point on the passenger's side, Officer

Sullivan noticed that the front seat passenger was "frozen

there, looking straight ahead." As soon as the driver got out

of the Honda, the defendant began "moving around and tucking his

hands under his legs." The defendant "leaned forward slightly,"

"took his left hand behind him," "started to dig" behind

himself, and "had his right hand . . . tucking downward toward[]

. . . his right hip area."1

Meanwhile, Officer Bettencourt pat frisked the driver,

found a knife in the front pocket of his hoodie, and placed it

on the roof of the cruiser. Officer Bettencourt started to

escort the driver away from the Honda.

1 Officer Sullivan also testified that he saw "a black
object." Though the motion judge credited Officer Sullivan's
testimony generally, he did not specifically find whether he
credited that observation, and there was no evidence that
Officer Sullivan communicated it to Officer Bettencourt. That
testimony is unnecessary to our analysis.

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Just then, Officer Sullivan said, "He's moving." Officer

Bettencourt saw that the defendant "had both of his hands

stuffed . . . underneath him, underneath his legs." At that

point, Officer Bettencourt became "scared . . . because [he]

didn't know if there were any other weapons in the vehicle."

Officer Bettencourt immediately ordered the defendant out of the

Honda, pat frisked him, and found nothing. On the back seat

where the defendant had been sitting was a black winter coat.

The coat had been "[d]irectly underneath" the defendant's legs,

where he had been stuffing his hands. Officer Bettencourt

picked up the coat, noticed that it was unusually heavy, and

reached into its pocket and found a silver firearm with a sock

over its handle.

The defendant moved to suppress the firearm, arguing that

the police did not have grounds either to order the defendant

out of the vehicle or to search the defendant or the coat.

After a hearing at which Officer Bettencourt and Officer

Sullivan testified, the motion judge denied the motion in a

memorandum of decision, crediting both officers' testimony and

concluding that their actions were justified. The defendant

filed a motion to reconsider, which the motion judge denied.

The defendant entered a conditional guilty plea to carrying

a firearm without a license, G. L. c. 269, § 10 (a), and

carrying a loaded firearm without a license, G. L. c. 269,

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§ 10 (n), while reserving his right to appeal from the denial of

his motion to suppress.2 See Mass. R. Crim. P. 12 (b) (6), as

appearing in 482 Mass. 1501 (2019). This appeal followed.

Discussion. The defendant argues that the firearm should

have been suppressed because the officers lacked reasonable

suspicion to pat frisk the coat.3

"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" (quotation and citation omitted).

Commonwealth v. Silvelo, 486 Mass. 13, 15 (2020). "In the

context of a lawful motor vehicle stop, [a] patfrisk is

permissible only where an officer has reasonable suspicion that

the stopped individual may be armed and dangerous" (quotation

and citation omitted). Commonwealth v. Crowder, 495 Mass. 552,

566 (2025), petition for cert. filed, U.S. Supreme Ct., No. 24-

7498 (June 21, 2025). "To determine whether an officer indeed

had the requisite reasonable suspicion to engage in a patfrisk,

we ask whether a reasonably prudent [person] in the [officer's]

2 The Commonwealth entered a nolle prosequi on one count
charging the defendant with possession of a large capacity
firearm, G. L. c. 269, § 10 (m).

3 On appeal, the defendant does not challenge the stop, the
exit order, or the patfrisk of his person.

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position would be warranted in the belief that the safety of the

police or that of other persons was in danger" (quotation and

citation omitted). Id. That reasonable suspicion "must be

based on specific, articulable facts and inferences reasonably

drawn therefrom." Id.

In arguing that Officer Bettencourt did not have reasonable

suspicion to pat frisk the coat, the defendant analyzes

separately what the police knew about the driver and their

observations of the defendant's conduct. "The defendant parses

the facts to suggest that, viewed independently," each of those

categories of facts was not enough for reasonable suspicion.

Commonwealth v. Galarza, 93 Mass. App. Ct. 740, 743 (2018).

"However, these facts must be viewed in the totality of the

circumstances." Id. Though "no one factor standing alone would

have provided justification for . . . the patfrisk," "a

combination of factors that are each innocent of themselves may,

when taken together, amount to the requisite reasonable

[suspicion]" (quotation and citation omitted). Commonwealth v.

Johnson-Rivera, 104 Mass. App. Ct. 533, 539 (2024).

As to the driver, Officer Bettencourt knew that he had

recently been in the presence of a companion from whom police

seized a firearm; during the stop, he placed a hand on his

waistband, where weapons are often secreted; and, when asked if

he had a weapon, said no, failing to disclose the presence of

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the knife in the pocket near his hand. We are unpersuaded by

the defendant's argument that Officer Bettencourt's discovery of

the knife on the driver "added nothing" to reasonable suspicion

because there was no evidence that the knife was illegal to

possess.4 To be sure, the facts known to police about the

driver, including the discovery of the knife, would not by

themselves have sufficed to justify the patfrisk of the coat on

which the defendant was sitting. "[T]he basis for the frisk

must be particular to the individual" (citation omitted).

Commonwealth v. Brown, 75 Mass. App. Ct. 528, 536 (2009). But

we do not read the motion judge's decision as hinging on the

discovery of the driver's knife.

Instead, the significance of the police discovery of the

driver's knife was that it gave the officers justification to

extend the stop.5 The defendant has not argued, in the trial

court or before us, that the police unreasonably prolonged the

motor vehicle stop "in the hope that, sooner or later, the stop

might yield up some evidence of an arrestable crime."

4 We do not reach the question whether the driver's knife
was illegal to possess. Cf. Commonwealth v. Canjura, 494 Mass.
508, 516 (2024) (holding unconstitutional G. L. c. 269,
§ 10 (b), which banned possession of switchblades).

5 The record is unclear as to the duration of the stop, but
Officer Sullivan testified that the stop "wasn't very long" and
the events were "relatively continuous."

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Commonwealth v. Soriano-Lara, 99 Mass. App. Ct. 525, 530 (2021),

quoting Commonwealth v. Gonsalves, 429 Mass. 658, 663 (1999).

The driver's conduct and the police discovery of the knife were

specific facts giving the officers reason to suspect that

"further criminal conduct is afoot" beyond a traffic violation

(citation omitted). Commonwealth v. Tavares, 482 Mass. 694, 703

(2019). Thus, the officers had reason to continue the

investigatory stop rather than allow the driver to return to the

Honda and drive away.

As for the defendant's own conduct, he argues that the

officers' observations of his movements did not justify the

search of the coat. Shortly after the defendant heard Officer

Bettencourt ask if the driver had a weapon and then saw him pat

frisk the driver, police noticed the defendant tucking his hands

under his thighs.6 The motion judge found that "[t]he

[d]efendant's movements . . . caused Officer Bettencourt to be

fearful that other weapons were present in the vehicle." We

defer to that factual finding. See Commonwealth v. Garner, 490

6 At oral argument, the defendant argued that Officer
Bettencourt's testimony on cross-examination was "confusing and
vague" because he said, "I saw [the defendant's] hands where I
couldn't see his hands." We defer to the judge's credibility
determination that the officers saw the defendant "tucking his
hands under his legs." See Commonwealth v. Druce, 453 Mass.
686, 699 (2009) (accepting motion judge's resolution of
conflicting testimony).

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Mass. 90, 94 (2022) ("Because the [motion] judge observes the

witnesses as they testify, appellate courts rely upon his . . .

determination of the credibility of each witness, as well as the

amount of weight to give the testimony").

We conclude that in these circumstances, the police had a

reasonable suspicion that the defendant was concealing a weapon.

See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002)

(movements "suggestive of occupant's retrieving or concealing an

object," such as a firearm, "raise legitimate safety concerns to

an officer conducting a traffic stop"). See also Commonwealth

v. Goewey, 452 Mass. 399, 406 (2008) (defendant "reaching into

the area around him" in car where his hands could not be seen

was one fact justifying patfrisk); Commonwealth v. DePeiza, 449

Mass. 367, 374-375 (2007) (defendant "reaching" into pants

pocket raised officers' suspicions that he was carrying illegal

firearm). Contrast Commonwealth v. Torres-Pagan, 484 Mass. 34,

40-41 (2020) (no reasonable suspicion where defendant turned to

look into front seat but made no furtive movements and kept

hands in view).

After Officer Bettencourt pat frisked the defendant's

person but did not find anything, he permissibly picked up the

black coat, noticed that it was heavy, and checked its pocket.

"Police may conduct a protective sweep of the interior of a

motor vehicle for a weapon so long as the search is limited to

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areas from where the defendant could access a weapon." Galarza,

93 Mass. App. Ct. at 744. Given that the defendant had just

been stuffing his hands into the area where the coat was,

Officer Bettencourt was justified in searching the coat for

weapons. See Commonwealth v. Monell, 99 Mass. App. Ct. 487,

490-492 (2021) (after defendant was removed from car and no

weapon was discovered on his person, police "were justified in

their concern that a weapon might remain in the car").

At oral argument, the Commonwealth acknowledged that this

case is "close." We conclude that, based on the motion judge's

findings of fact, none of which were clearly erroneous, in the

totality of the circumstances, Officer Bettencourt "could

reasonably suspect that the defendant was armed and dangerous."

Johnson-Rivera, 104 Mass. App. Ct. at 539-540.

Order denying motion to
suppress affirmed.

By the Court (Vuono, Grant &
Walsh, JJ.7),

Clerk

Entered: July 31, 2025.

7 The panelists are listed in order of seniority.

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