Pat Frisks by Police

The highest court in Massachusetts decided a new case on stop and frisk this year. The case focuses on how suspicious police officers must be before they may lawfully pat a person down during a traffic stop.Like all cases decided by the Supreme Judicial Court, the decision in Commonwealth v. Garner will have an impact on the law and your legal rights.

What happened in the Garner case?
In this case, three State Troopers were on patrol one night in Taunton. While they were on duty, they noticed a car make two abrupt turns. They then conducted a traffic stop.

One of the people inside the car was the defendant in this case, a man named Earl Garner. As the Troopers approached, Mr. Garner and one of the Troopers, Paul Dunderdale, recognized each other. Trooper Dunderdale had conducted traffic stops of Mr. Garner on four other occasions over the past several years. Because of the first stop in 2011, Mr. Garner was arrested for unlawful possession of a firearm. Trooper Dunderdale was also aware at that time that Mr. Garner had been convicted twice of the same crime.

Trooper Dunderdale asked Mr. Garner several questions. While he was asking questions, the Trooper noticed that one of Mr. Garner’s legs were shaking and that he was trying to call someone with a cell phone while they were talking.

One of the questions Trooper Dunderdale asked was if Mr. Garner had “messed around” with firearms anymore. Mr. Garner said no and invited the Trooper to “take a look.” Mr. Garner agreed to step out of the car and Trooper Dunderdale told him to do so. After he got out, one of the other Troopers instructed him to move behind the car. As this happened, Mr. Garner called out for someone in a nearby home. At that point, the other Trooper pat frisked Mr. Garner and found a gun in his waistband.

What are pat frisks and when are they allowed?

The Court begins its discussion of the law by stating what a pat frisk is and when police are legally allowed to do one. Under Massachusetts law, a pat frisk is a search of the outer clothing of a person to discover weapons. Because touching another person interferes with their privacy, a pat frisk must not be too intrusive.

Police are allowed to pat frisk a person when they have reasonable suspicion that a suspect is armed and dangerous. It is the government’s burden in court to show that police had this type of reasonable suspicion before the pat frisk happened. If the government does not meet its burden, the pat frisk was illegal and any evidence discovered from it cannot be used as evidence against the person in court.

In Mr. Garner’s case, if the Troopers did not have reasonable suspicion that he was armed and dangerous, the pat frisk would have been unlawful. This means that the gun found in his waistband could not be used against him during his trial.

Importantly, reasonable suspicion must be based on specific facts and fair assumptions that can be made from them. For example, if a police officer were to say that he “just felt” that a person was armed and dangerous, that would not a be a specific fact. Gut feelings do not meet the standard. On the other hand, if the same police officer clarified that he saw the person was slowly reaching into their waistband (a place where guns are often kept) this would most likely be a specific fact. It would also be fair to assume that when a person slowly reaches into their waistband they might be reaching for a gun.

Why did the Commonwealth believe there was reasonable suspicion?

The government argued in court that there was reasonable suspicion for two reasons:

  • Garner’s criminal record
  • Garner’s behavior during the stop

The Court addressed both in its decision on the case.

How does having a criminal record impact reasonable suspicion?

If police know that a suspect has a criminal record that includes offenses involving weapons, that may add to reasonable suspicion.

However, in this case the Court concluded that what Trooper Dunderdale knew about Mr. Garner’s criminal history did not add much to police believing that he was armed and dangerous. These were the reasons given:

  • When Trooper Dunderdale arrested Mr. Garner the first time in 2011, Mr. Garner did not resist
  • Trooper Dunderdale testified that he believed he and Mr. Garner had a “really good” relationship
  • Garner’s record was old—his last conviction was in 2011. For perspective, Commonwealth v. Garner was decided in mid-2022.

For all these reasons, the Court had to turn to Mr. Garner’s behavior to determine if the Troopers had reasonable suspicion for the pat frisk.

How does a person’s behavior during a traffic stop impact reasonable suspicion?

The Court said that a person’s behavior during a traffic stop is the most important factor in determining if police had reasonable suspicion for a pat frisk.The Commonwealth argued that Mr. Garner’s behavior gave police reasonable suspicion. They said that Mr. Garner’s behavior was unusual and suspicious and showed that he was preparing to flee the scene.

The Court disagreed with the government and concluded that Mr. Garner’s behavior did not satisfy the reasonable suspicion standard. It referred to these facts that from the testimony of the Troopers:

  • Garner was nervous but not “excessively” nervous
  • Garner was not “confrontational or belligerent”
  • Garner did not threaten the Troopers
  • Garner did not make any sneaky gestures or reach for anything
  • Garner’s movement was restricted by the distance between his car and the curb of the street he was pulled over on
  • Garner had a good relationship with the police and had no history of being violent or threatening violence against them

The Court unanimously agreed that all these factors combined showed that it was not reasonable for the Troopers to think Mr. Garner was armed and dangerous. Because of this, there was no reasonable suspicion. The traffic stop was unlawful and the evidence of the gun that was discovered after the pat frisk could not be used against Mr. Garner.

Who decides what facts are “the facts?”

A good portion of the Garner case talks about the more technical subject of what facts courts can use to evaluate if there was reasonable suspicion. Often in criminal cases there are disagreements over the facts of the case—that is, what really happened.

Defense attorneys challenge evidence that was illegally obtained by police through a court document called a motion to suppress. When a motion to suppress is filed, a hearing is scheduled where the court will take testimony from the police officers involved in the encounter with the accused. At the end of the motion to suppress hearing, the judge will make what are called findings of fact. These are the facts of the case as determined by the judge at that hearing. If the motion is appealed, the appeals court must use the facts the judge determined to be true unless they were obviously wrong.

In summary, the Court in Garner reminded that the judge is the fact finder when pat frisks are challenged. The government cannot use outside facts to make their argument.

Why is the Garner case important?

The Garner case is important because it helps us understand what reasonable suspicion means for pat frisks. Reasonable suspicion is a legal term that appears often in Massachusetts cases. It is also quite abstract. Cases like Garner help us understand the factors that contribute to reasonable suspicion. In Garner, these included the suspect’s criminal record and their behavior during the traffic stop.

The case also reminds us that whether a pat frisk is lawful depends a lot on the specific facts of a case. An effective criminal defense attorney will thoroughly investigate the facts of their client’s case and use decisions like Garner to make legal arguments that are convincing and effective.



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