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13-P-965 Appeals Court

COMMONWEALTH vs. ROBERT RUTLEDGE (and sixteen companion 

cases1).

No. 13-P-965. July 25, 2014.

Firearms. Constitutional Law, Stop and frisk, Search and 

seizure, Probable cause. Search and Seizure, Protective 

frisk, Container, Exigent circumstances, Probable cause. 

Probable Cause. Practice, Criminal, Motion to suppress.

The defendants were charged with, inter alia, numerous 

firearms offenses. A judge in the Superior Court allowed the 

defendants' motions to suppress a firearm seized after a 

warrantless search of a backpack following an investigatory stop 

of a motor vehicle. The Commonwealth appeals, contending that a 

preliminary patfrisk of the backpack was not necessary as a 

prerequisite to the search. We affirm.

1. Background. After an evidentiary hearing on the 

motions, the judge found the following facts. On July 13, 2011, 

a 911 operator in Brockton received a call from Roseangela 

Andrade. She explained to the operator that, while on the 

telephone with her boyfriend, she overheard an argument erupt 

between her current boyfriend and her former boyfriend, Jaemill 

Horton. Andrade further reported that, during the argument, 

Horton allegedly pulled a gun on her boyfriend, threatening to 

kill him if Andrade refused to drop her pending charges against 

Horton. Andrade advised the operator that Horton drove a black 

Acura automobile, with registration number "749-GH7." Initial 

1 Seven against Robert Rutledge and nine against Jaemill 

Horton.

 
2

dispatch to the scene of the alleged altercation returned 

nothing.

After following up with Andrade, officers determined that 

the vehicle was an Infiniti, with registration number "759-GH7," 

and that Horton had an active matter pending in the Taunton

Division of the District Court Department. At that time, the 

police initiated a general broadcast advising the officers to 

look for a black Infiniti, explaining that a gun had been pulled

and threats made in connection with a pending court case.

Officer Michael Minnock heard the general dispatch, but did 

not respond to the area. A little over an hour later, Minnock

spotted the suspect vehicle and observed its occupants making 

furtive movements. Minnock activated his emergency lights and 

siren and stopped the vehicle. At that time, Horton, who was 

driving, exited the vehicle. In response, Officer Minnock 

exited his cruiser, drew his firearm, and ordered Horton to get 

back into the vehicle. Horton, however, did not comply. The 

front seat passenger, Rutledge, also exited the vehicle and was

ordered to reenter. Instead, both Horton and Rutledge fled the 

scene. A third passenger, Christopher Dozier, remained in the 

vehicle. Minnock broadcast the description of the fleeing men; 

he ordered Dozier out of the vehicle, handcuffed him, and placed 

him in the back of the police cruiser. Although officers later

apprehended Horton, Rutledge remained at large.

Officers Minnock and Rodenbush performed a search of the 

vehicle, looking for a firearm in and around the seats and 

consoles; none was located. They discovered a backpack on the 

right rear seat. They opened the backpack and found a firearm 

and other items identifying Rutledge as its owner.

Both Rutledge and Horton moved to suppress the firearm 

seized from the warrantless search of the backpack. The judge 

allowed the motion, ruling that the officers first needed to 

perform a preliminary patfrisk of the backpack before executing 

a search. The Commonwealth appeals the judge's order.

2. Discussion. In reviewing a ruling on a motion to 

suppress we accept, absent clear error, the motion judge's 

subsidiary findings of fact. We independently review the 

judge's ultimate findings and conclusions of law. See 

Commonwealth v. Scott, 440 Mass. 642, 646 (2004). There was no 

error.
3

This case is controlled in material respects by reasoning

set forth in Commonwealth v. Pagan, 440 Mass. 62, 68-70 (2003). 

"The purpose behind the protective measures allowed by Terry is 

to enable an officer to confirm or dispel reasonable suspicions 

that the stopped suspect may be armed with a weapon." Id. at 

68. These measures are limited to what is "minimally necessary 

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

weapon is discovered." Id. at 69. While ordinarily a patfrisk

of a container will be sufficient to make this determination, 

there are times when a patfrisk is inadequate. In all cases, 

though, "[w]here a patfrisk can establish whether a possible 

weapon is present or not, courts have required a preliminary 

patfrisk of the container in question." Ibid.

The Commonwealth raises numerous reasons why the officers 

did not need to perform a preliminary patfrisk of the backpack, 

none of which is availing. The contention that a patfrisk would 

only reveal to the officers that the backpack contained a hard 

object goes to the essence of the pat-frisk principle. If the 

preliminary patfrisk revealed such information, the officers 

would have done the minimum necessary to establish whether a 

weapon was inside the backpack. Had a patfrisk not revealed the 

presence of a hard object, no additional search of the backpack 

would be warranted.

Next, the Commonwealth argues that a patfrisk of the 

backpack was pointless because it would only reveal that the bag 

contained indiscernible heavy objects. We recognize that

"particular features of the container, readily observable by the 

police, may make it apparent that nothing short of opening the 

container will suffice to address the officer's reasonable 

suspicions." Pagan, supra at 72. In such cases, the minimum 

search necessary would invariably involve opening the container. 

See id. at 69. In this case, however, there was no such 

descriptive testimony. The officers did not testify to the 

weight of the backpack, or that the backpack contained hard 

objects, or anything else that would have proved a preliminary 

patfrisk useless. Contrast id. at 63 (officers testified that

backpack contained "heavy objects" and weighed approximately six 

pounds); Commonwealth v. Anderson, 461 Mass. 616, 618 (2012) 

(officer testified that he picked up a heavy backpack and felt 

what he believed to be a gun barrel).

The Commonwealth's argument that an exigent circumstance 

existed is too speculative. Contrast Commonwealth v. Robinson, 

83 Mass. App. Ct. 419, 430 (2013) (in the "rapidly deteriorating 

situation" the officer faced, bypassing a preliminary patfrisk
4

of the defendant's fanny pack was warranted). Here, the 

attendant circumstances did not deprive the officers of the 

opportunity to perform the preliminary patfrisk of the backpack. 

Compare Commonwealth v. Flemming, 76 Mass. App. Ct. 632, 638 

(2010) (where the defendant was cooperative and did not make any 

threatening moves, there was no reason not to perform a 

patfrisk); Commonwealth v. Whitehead, 85 Mass. App. Ct. 134, 

135-136 (2014) (officer pat frisked a backpack before searching 

it after observing ammunition and a hunting knife in the

defendant's vehicle, and after the defendant said, "Wait, there 

is a loaded gun in the bag").

Lastly, the Commonwealth argues, for the first time on 

appeal, that the search of the backpack was justified because 

the officers had probable cause to arrest Horton. We do not 

reach the merits of this argument, as it was not raised below. 

See Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 131 (2011)

(Wolohojian, J., concurring), citing Commonwealth v. 

Bettencourt, 447 Mass. 631, 633-634 (2006) (arguments not raised

below by the Commonwealth in connection with a motion to 

suppress are not considered on appeal as a basis for reversal).

Order allowing motions to

suppress affirmed.

Michael Sheehan, Assistant District Attorney, for the

Commonwealth.

Sarah E. Dolven for Robert Rutledge.

Kirsten A. Zwicker Young for Jaemill Horton.