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13-P-965                                              Appeals Court

    COMMONWEALTH   vs.   ROBERT RUTLEDGE (and sixteen companion
                               cases 1).



               No. 13-P-965.         July 25, 2014.


Firearms. Constitutional Law, Stop and frisk, Search and
     seizure, Probable cause. Search and Seizure, Protective
     frisk, Container, Exigent circumstances, Probable cause.
     Probable Cause. Practice, Criminal, Motion to suppress.


     The defendants were charged with, inter alia, numerous
firearms offenses. A judge in the Superior Court allowed the
defendants' motions to suppress a firearm seized after a
warrantless search of a backpack following an investigatory stop
of a motor vehicle. The Commonwealth appeals, contending that a
preliminary patfrisk of the backpack was not necessary as a
prerequisite to the search. We affirm.

     1. Background. After an evidentiary hearing on the
motions, the judge found the following facts. On July 13, 2011,
a 911 operator in Brockton received a call from Roseangela
Andrade. She explained to the operator that, while on the
telephone with her boyfriend, she overheard an argument erupt
between her current boyfriend and her former boyfriend, Jaemill
Horton. Andrade further reported that, during the argument,
Horton allegedly pulled a gun on her boyfriend, threatening to
kill him if Andrade refused to drop her pending charges against
Horton. Andrade advised the operator that Horton drove a black
Acura automobile, with registration number "749-GH7." Initial


     1
       Seven against Robert Rutledge and nine against Jaemill
Horton.
                                                                   2


dispatch to the scene of the alleged altercation returned
nothing.

     After following up with Andrade, officers determined that
the vehicle was an Infiniti, with registration number "759-GH7,"
and that Horton had an active matter pending in the Taunton
Division of the District Court Department. At that time, the
police initiated a general broadcast advising the officers to
look for a black Infiniti, explaining that a gun had been pulled
and threats made in connection with a pending court case.

     Officer Michael Minnock heard the general dispatch, but did
not respond to the area. A little over an hour later, Minnock
spotted the suspect vehicle and observed its occupants making
furtive movements. Minnock activated his emergency lights and
siren and stopped the vehicle. At that time, Horton, who was
driving, exited the vehicle. In response, Officer Minnock
exited his cruiser, drew his firearm, and ordered Horton to get
back into the vehicle. Horton, however, did not comply. The
front seat passenger, Rutledge, also exited the vehicle and was
ordered to reenter. Instead, both Horton and Rutledge fled the
scene. A third passenger, Christopher Dozier, remained in the
vehicle. Minnock broadcast the description of the fleeing men;
he ordered Dozier out of the vehicle, handcuffed him, and placed
him in the back of the police cruiser. Although officers later
apprehended Horton, Rutledge remained at large.

     Officers Minnock and Rodenbush performed a search of the
vehicle, looking for a firearm in and around the seats and
consoles; none was located. They discovered a backpack on the
right rear seat. They opened the backpack and found a firearm
and other items identifying Rutledge as its owner.

     Both Rutledge and Horton moved to suppress the firearm
seized from the warrantless search of the backpack. The judge
allowed the motion, ruling that the officers first needed to
perform a preliminary patfrisk of the backpack before executing
a search. The Commonwealth appeals the judge's order.

     2. Discussion. In reviewing a ruling on a motion to
suppress we accept, absent clear error, the motion judge's
subsidiary findings of fact. We independently review the
judge's ultimate findings and conclusions of law. See
Commonwealth v. Scott, 440 Mass. 642, 646 (2004). There was no
error.
                                                                   3


     This case is controlled in material respects by reasoning
set forth in Commonwealth v. Pagan, 440 Mass. 62, 68-70 (2003).
"The purpose behind the protective measures allowed by Terry is
to enable an officer to confirm or dispel reasonable suspicions
that the stopped suspect may be armed with a weapon." Id. at
68. These measures are limited to what is "minimally necessary
to learn whether the suspect is armed and to disarm him once the
weapon is discovered." Id. at 69. While ordinarily a patfrisk
of a container will be sufficient to make this determination,
there are times when a patfrisk is inadequate. In all cases,
though, "[w]here a patfrisk can establish whether a possible
weapon is present or not, courts have required a preliminary
patfrisk of the container in question." Ibid.

     The Commonwealth raises numerous reasons why the officers
did not need to perform a preliminary patfrisk of the backpack,
none of which is availing. The contention that a patfrisk would
only reveal to the officers that the backpack contained a hard
object goes to the essence of the pat-frisk principle. If the
preliminary patfrisk revealed such information, the officers
would have done the minimum necessary to establish whether a
weapon was inside the backpack. Had a patfrisk not revealed the
presence of a hard object, no additional search of the backpack
would be warranted.

     Next, the Commonwealth argues that a patfrisk of the
backpack was pointless because it would only reveal that the bag
contained indiscernible heavy objects. We recognize that
"particular features of the container, readily observable by the
police, may make it apparent that nothing short of opening the
container will suffice to address the officer's reasonable
suspicions." Pagan, supra at 72. In such cases, the minimum
search necessary would invariably involve opening the container.
See id. at 69. In this case, however, there was no such
descriptive testimony. The officers did not testify to the
weight of the backpack, or that the backpack contained hard
objects, or anything else that would have proved a preliminary
patfrisk useless. Contrast id. at 63 (officers testified that
backpack contained "heavy objects" and weighed approximately six
pounds); Commonwealth v. Anderson, 461 Mass. 616, 618 (2012)
(officer testified that he picked up a heavy backpack and felt
what he believed to be a gun barrel).

     The Commonwealth's argument that an exigent circumstance
existed is too speculative. Contrast Commonwealth v. Robinson,
83 Mass. App. Ct. 419, 430 (2013) (in the "rapidly deteriorating
situation" the officer faced, bypassing a preliminary patfrisk
                                                                   4


of the defendant's fanny pack was warranted). Here, the
attendant circumstances did not deprive the officers of the
opportunity to perform the preliminary patfrisk of the backpack.
Compare Commonwealth v. Flemming, 76 Mass. App. Ct. 632, 638
(2010) (where the defendant was cooperative and did not make any
threatening moves, there was no reason not to perform a
patfrisk); Commonwealth v. Whitehead, 85 Mass. App. Ct. 134,
135-136 (2014) (officer pat frisked a backpack before searching
it after observing ammunition and a hunting knife in the
defendant's vehicle, and after the defendant said, "Wait, there
is a loaded gun in the bag").

     Lastly, the Commonwealth argues, for the first time on
appeal, that the search of the backpack was justified because
the officers had probable cause to arrest Horton. We do not
reach the merits of this argument, as it was not raised below.
See Commonwealth v. Griffin, 79 Mass. App. Ct. 124, 131 (2011)
(Wolohojian, J., concurring), citing Commonwealth v.
Bettencourt, 447 Mass. 631, 633-634 (2006) (arguments not raised
below by the Commonwealth in connection with a motion to
suppress are not considered on appeal as a basis for reversal).

                                   Order allowing motions to
                                     suppress affirmed.


     Michael Sheehan, Assistant District Attorney, for the
Commonwealth.
     Sarah E. Dolven for Robert Rutledge.
     Kirsten A. Zwicker Young for Jaemill Horton.
