MA: Two men walking together are stopped because of RS as to one; frisk of second was reasonable for officer safety

The officer here stopped Perez and Ramirez when he reasonably suspected Perez of carrying a firearm. The situation was tense, and, on the totality, the court finds the frisk of Ramirez, too, was reasonable for officer and public safety. Commonwealth v. Ramirez, 2018 Mass. App. LEXIS 16 (Feb. 9, 2018):

We are persuaded that, in the present case, the officer’s detention of the defendant was both reasonable and necessary for officer and public safety. See Riley v. California, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014) (acknowledging “the tense atmosphere of a custodial arrest”). Under such circumstances, it is not unreasonable for a police officer to “not let people move around in ways that could jeopardize his safety.” Brendlin v. California, 551 U.S. 249, 258, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).

Furthermore, we have authorized the stop of individuals in the absence of particularized reasonable suspicion in the interest of public safety in situations less volatile than the one Fogarty confronted here. For example, police may stop motorists without reasonable suspicion or probable cause during the execution of systematic and approved roadblocks. See Commonwealth v. Murphy, 454 Mass. 318, 322-323, 910 N.E.2d 281 (2009) (traffic stops at road blocks are constitutional seizures lacking reasonable suspicion or warrant, but are reasonable given the magnitude of problem of drunk driving). And, while we have not ruled directly on the constitutionality of continued detention of passengers during a valid motor vehicle stop, see Commonwealth v. Perkins, 465 Mass. 600, 603 n.3, 989 N.E.2d 854 (2013), we acknowledge that every motor vehicle stop inevitably results in an initial stop of its passengers, see Commonwealth v. Quintos Q., 457 Mass. 107, 110, 928 N.E.2d 320 (2010) (every traffic stop necessarily involves momentary seizure of car’s operator and its passengers).

Accordingly, weighing the immediate concern for officer and public safety created by the execution of a warrant on a person believed to have used a firearm in the commission of a violent felony, we view the intrusion on the defendant’s liberty for the time that it took for police to control the scene and execute the warrant as both minimal and reasonable. See Moses, 408 Mass. at 141-142.

We also reach this conclusion with the support of emerging case law from other jurisdictions. For example, the Supreme Court of Connecticut recently held that “the state’s interest in officer safety is sufficiently compelling that, when officers have a reasonable concern for their safety while lawfully detaining a suspect, it is permissible for the officers to briefly detain the suspect’s companion as a precautionary measure.” State v. Kelly, 313 Conn. 1, 11, 95 A.3d 1081 (2014). Last year, the Supreme Court of Washington State concluded that “when executing an arrest, officers may seize nonarrested companions to control the scene of the arrest if they can articulate an objective rationale predicated specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.” State v. Flores, 186 Wash. 2d 506, 522, 379 P.3d 104 (2016). Connecticut and Washington are merely the latest examples in a trend of State courts granting police the authority to temporarily detain individuals near an arrestee when making an arrest. Several Federal circuit courts also follow suit.

Therefore, having concluded the stop of the defendant permissible, we turn now to the separate question of the justification for the subsequent patfrisk. See Commonwealth v. Brown, 68 Mass. App. Ct. 261, 266, 861 N.E.2d 504 (2007) (authority to detain does not also give rise to justification of search).