MA: Furtive movements justified frisking defendant and car for safety reasons

Defendant was stopped in a high crime area of Boston, and he reached for the glove compartment and opened and closed it quickly without reaching inside. Then he reached under the seat. These movements justified getting him out of the car and patting him down. When that turned up empty, the officers were still justified in frisking the car, and a hidden compartment with a gun was validly found. Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 983 N.E.2d 731 (2013):

… The defendant argues that because Officer Serra saw that he was reaching for a tissue, his gestures were merely “odd yet benign.” We conclude that, under the circumstances, as the motion judge found, the officers acted permissibly. Since neither officer knew what was under the defendant’s leg, where he apparently placed the tissue, there was an adequate reason to order the defendant to exit the vehicle. See Commonwealth v. Stampley, 437 Mass. 323, 327, 771 N.E.2d 784 (2002).

The officers were justified in conducting “a Terry-type search of the vehicle’s interior.” Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129, 935 N.E.2d 370 (2010). Here, the search of the automobile was within the scope of a permissible protective search because the proximity of the radio panel to the defendant upon his release would allow him easy access to it. See ibid. (locked glove compartment). See also Commonwealth v. Pena, 69 Mass. App. Ct. 713, 714, 871 N.E.2d 531 (2007) (under rear seat). That the defendant was “detained” outside the car at the time of the search is of no import in this case, as he would have been allowed to reenter the motor vehicle once nothing illegal was found on his person. See Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 571, 760 N.E.2d 800 (2002) (Terry stops frequently terminate with suspect’s release).

As in Pena and Graham, the defendant here was being detained for traffic violations and it was therefore likely that he would soon return to his car. … Given his specialized training in detecting “hides” in natural voids contained in motor vehicles, the officer was not required to put that training aside and allow the defendant to return to the motor vehicle, where a gun would potentially be readily accessible. The officers’ concerns for their own safety, as well as that of the public, were reasonably related to the scope of the search.