These three factors are plainly insufficient to justify the protective search of the defendant. 26 Mass. App. The trial judge made a specific finding, based in part on her own questioning of Officer Riley, that the officer had only reached out to the defendant with the intention of pat frisking him, but had not actually touched him, when the defendant moved his left arm, allowing the handgun he had been concealing to fall into plain view. I accept the judge's finding of fact on this point. To me, that Riley had not touched the defendant when the gun fell has legal significance.
Suppression is required if the gun was discovered as the result of an illegal search.
But the defendant is not entitled to suppression of the gun because it accidentally fell from his person or was dropped by him in anticipation of an illegal search. The motion judge warrantably could deny the defendant's motion to suppress because a valid threshold inquiry was followed by the discovery of the gun before the investigating officer had begun what would have been an invalid protective pat frisk. The fact that the officer may have subjectively intended only to make an investigative stop is immaterial as long as probable cause to arrest existed. Because there was probable cause to arrest, it is unnecessary to consider, as the concurring justice does, whether the officer's reasonable suspicion that the defendant was carrying contraband justified his attempt to frisk him, which caused the weapon to fall into plain view. This court need not accept the motion judge's conclusion that on the facts presented the officer had a reasonable fear for his safety.