Commonwealth v. Damian L. Diggs.

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

22-P-1090

COMMONWEALTH

vs.

DAMIAN L. DIGGS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the defendant's motion to suppress fentanyl found

during a patfrisk was denied, as were his two motions for

reconsideration, the defendant conditionally pleaded guilty in

Superior Court to possession of a class A substance with intent

to distribute. G. L. c. 94C, § 32 (a). See Mass. R. Crim.

P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). The

defendant now appeals, arguing among other things that the

patfrisk was unlawful because police lacked reasonable suspicion

that he was not merely armed, but also dangerous. We agree. We

therefore vacate the order denying the motion to suppress and

remand for further proceedings on the Commonwealth's inevitable

discovery argument.

Background. We recount the essential facts as found by the

motion judge after an evidentiary hearing, supplemented by
uncontroverted evidence that the judge implicitly credited. See

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). In

January 2020, police executed a search warrant on a residence in

Brockton, looking for evidence of drug distribution. The

defendant was inside the residence but was not the target of the

investigation.1 As the first officer entered through the front

door, he saw the defendant emerge from a doorway with a black

item in his hand. The officer ordered the defendant to get on

the ground; the defendant complied and was handcuffed. After

observing that the doorway led to a bathroom, where another

individual was located, the officer realized that the item in

the defendant's hand was an electric hair clipper. The officer

pat frisked the defendant and found twenty-four bags of

narcotics on his person. In the ensuing search of the premises,

police discovered a satchel containing the defendant's driver's

license, as well as cut baggies and a scale, indicative of

narcotics distribution. The defendant was arrested and later

indicted.

In denying the defendant's motion to suppress, the judge

concluded that the patfrisk was justified because the officer

could reasonably have believed that the object in the

1 The search warrant, which is not in the record, apparently
included a provision authorizing a search of "any person
present," but the Commonwealth conceded that the warrant
affidavit did not establish probable cause for such a provision.

2
defendant's hand was a weapon, and the fact that it turned out

to be a hair clipper did not eliminate the officer's reasonable

concern for his own safety. The judge therefore did not address

the Commonwealth's alternative argument that, even if the

patfrisk was unjustified, the narcotics inevitably would have

been discovered once police found the satchel containing the

defendant's driver's license and drug distribution

paraphernalia, because at that point they would have arrested

and searched him.

On the defendant's first motion to reconsider, the judge

further concluded that the patfrisk was supported by reasonable

suspicion. Specifically, even after the object in the

defendant's hand was found to be a hair clipper -- apparently

being used to give a haircut -- the officer could still have

entertained a reasonable suspicion "that the defendant could

[have] be[en] in possession or control of additional tools in

performing the haircut that could [have] pose[d] a risk to the

officer's safety or the safety of others, such as a pair of

scissors or a straight razor." The judge therefore denied the

motion to reconsider as well as a renewed motion to reconsider.

The conditional guilty plea and this appeal followed.

Discussion. In reviewing a ruling on a motion to suppress,

"we adopt the motion judge's factual findings absent clear

error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008),

3
and "conduct an independent review of his ultimate findings and

conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002). "During a stop for which there is constitutional

justification, see Commonwealth v. Narcisse, 457 Mass. 1, 6-7

(2010), a patfrisk is permissible only where an officer has

reasonable suspicion that the suspect is armed and dangerous."

Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020).

We assume without deciding that a temporary detention of

the defendant during the execution of the search warrant was

constitutionally justified. See Commonwealth v. Charros, 443

Mass. 752, 763, cert. denied, 546 U.S. 870 (2005).2 We further

assume without deciding that the officer could reasonably have

suspected, based on the defendant's possession of the hair

clipper, that he had other haircutting tools on his person, such

as scissors or a straight razor, that could have been used as

weapons -- i.e., that he was armed. Nevertheless, we are

constrained to disagree with the judge's implicit conclusion

that the officer also could reasonably have suspected the

defendant to be dangerous.3

2 Moreover, if there were "a reasonable belief that an individual
has a weapon and appears inclined to use it," then it would be
"reasonable to believe that he is about to commit a crime"
(quotation and citation omitted). Narcisse, 457 Mass. at 9.
3 The judge's written decision stated the armed-and-dangerous

requirement but did not go on to expressly conclude that the
officer here could reasonably have suspected the defendant to be

4
There must be reasonable suspicion that the defendant is

"both armed and dangerous." Commonwealth v. Knowles, 451 Mass.

91, 99 (2008). The burden is on the Commonwealth to demonstrate

such reasonable suspicion, see Narcisse, 457 Mass. at 5, and the

"suspicion must be based on specific, articulable facts and

reasonable inferences drawn therefrom" (citation omitted),

Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 746 (2021),

cert. denied, 143 S. Ct. 135 (2022). Whether such reasonable

suspicion exists "is a question of law." Commonwealth v. Ford,

100 Mass. App. Ct. 712, 718 (2022).

Here, the judge did not point to any specific, articulable

facts or reasonable inferences therefrom suggesting that the

defendant was dangerous. Nor does the Commonwealth do so on

appeal. The defendant was not a target of the drug

investigation,4 and the officer testified that the defendant

"wasn't on [the officer's] radar" when the officer entered the

residence. The defendant immediately complied with the

officer's command to get on the floor, and there was no evidence

that the defendant was uncooperative or made any threatening or

dangerous. Nevertheless, the conclusion is implicit in the
denial of the motion to suppress.
4 In the patfrisk context, "[a] reasonable apprehension of danger

may arise from the type of crime being investigated," but the
court has rejected any blanket rule that a drug crime is
necessarily "a crime of violence, or one involving the
possession or use of a dangerous weapon." Commonwealth v.
Cabrera, 76 Mass. App. Ct. 341, 348 (2010).

5
suspicious gestures or statements. Rather, the officer

testified that the defendant "was cooperative to [the officer's]

commands," and the officer further agreed that the defendant

"did not threaten [him], raise the object to strike [him], or

anything like that," and "didn't make any sudden movements."

The officer stated that he believed he had the authority to

search anyone on the premises under the warrant's "any person

present" provision, but the Commonwealth has conceded there was

no probable cause to support that provision. See note 1, supra.

It was not until a few minutes after the patfrisk that the

officer recognized the defendant as someone he had previously

arrested for unlawful possession of a firearm.

We decline to address on this record the Commonwealth's

asserted alternative ground for affirmance, the inevitable

discovery doctrine. The judge made no factual findings

regarding whether that doctrine applies, and we will not do so

on appeal. On remand, the judge shall resolve that issue, for

the purpose of which the judge may in his discretion take

further evidence.

Conclusion. We vacate the order denying the motion to

6
suppress and remand for further proceedings consistent with this

memorandum and order.

So ordered.

By the Court (Meade,
Massing & Sacks, JJ.5),

Assistant Clerk

Entered: February 8, 2024.

5 The panelists are listed in order of seniority.

7