MA: Report of gun in car justified exit order; furtive movements made it more so

Officers had reasonable suspicion that there was a gun in the car before it was stopped, and that justified an “exit order” from the car. As the officer approached, there were furtive gestures to make him worry that more might happen. Commonwealth v. Charles, 81 Mass. App. Ct. 901, 959 N.E.2d 994 (2012)*:

The arresting officer’s exit order and subsequent patfrisk of the defendant were permissible because the officer had an objectively reasonable belief that his safety, and the safety of other officers, was in danger. See Commonwealth v. Gonsalves, 429 Mass. 658, 662-663, 665 (1999); Commonwealth v. Torres, 433 Mass. 669, 673-674 (2001); Commonwealth v. Stampley, 437 Mass. 323, 326 (2002); Commonwealth v. Bostock, 450 Mass. 616, 619-621 (2008). When the officer, whose testimony the motion judge credited, approached the car in which the defendant was a passenger, the officer had credible information that there might be a firearm in the car. As the weapon had not been recovered and the possibility of its presence had not been eliminated, the officer had a reasonable fear that it might be within the defendant’s reach.

Before the officer actually reached the defendant’s side of the vehicle, he saw that the defendant’s passenger door was open between six and twelve inches and, as a result, feared that the defendant would either flee or attack. Bostock, 450 Mass. at 622-623. Moreover, as the officer approached, the defendant made furtive gestures towards his waistband and continued those gestures when he was outside the vehicle. In addition, the defendant did not heed the officer’s order to keep his hands out of his waistband. Indeed, when the defendant exited the automobile, he grabbed toward his pants and appeared to be guarding something in them. The defendant’s nervous and excited manner during the encounter, his furtive gestures, and the officer’s credible information about the firearm gave him reasonable suspicion that the defendant was armed and dangerous. Viewed objectively, therefore, the facts and circumstances gave rise to “a heightened awareness of danger,” which justified the officer’s exit order and ensuing patfrisk. Stampley, 437 Mass. at 326, quoting from Gonsalves, 429 Mass. at 665.