MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of possessing a loaded firearm without a license, possessing a firearm without a license, and possessing ammunition without a firearm identification card. On appeal the defendant challenges the denial of his motion to suppress and the judgments. We affirm.
Background. We summarize the motion judges unchallenged factual findings, supplemented with uncontroverted testimony that he implicitly credited. See Commonwealth v. Almonor, 482 Mass. 35, 37 (2019).
Around 6:20 p.m. on February 12, 2018, Lowell police detectives Nick Laganas, Patrick MacDonald, and Ryan Coyle were in an unmarked police vehicle when a car cut in front of them. The detectives ran the license plate number, learned that the car did not have a valid inspection, and tried to conduct a motor vehicle stop. After initially losing sight of the car in traffic, the detectives saw it a short time later in a parking lot. They then watched as a man, later identified as the defendant, ran across the street and entered the rear passenger seat of the car. Once the car drove back into traffic, the detectives conducted a stop.
There were three occupants in the car -- the driver, the front passenger, and the defendant. As Detective Laganas approached on the drivers side, the driver opened the door unprompted, stating that the window was broken. Detective Laganas instructed the driver to close the door.
When Detective Laganas looked into the backseat with his flashlight, he saw the defendant “sticking his hands in the rear pocket of the passenger seat and then back to his midsection and then back and forth as if to ․ either hide or retrieve ․ an item.” Detective MacDonald, who approached on the passenger side, also observed “a lot of hand movement [by the defendant] in the midsection area.” Detective Laganas immediately ordered the occupants to show their hands out of concern for officer safety. All complied.
Because none of the occupants were wearing seatbelts, the detectives asked them for identification. Upon running the information, the detectives learned that no one in the car had an active drivers license and that the driver had an active arrest warrant. The detectives issued an exit order to all of the occupants and arrested the driver.
As soon as the defendant got out of the car, Detective Laganas pat frisked him. Detective Laganas focused the patfrisk on the defendants midsection because that was where he had seen the defendants hands move. In the defendants right shorts pocket, Detective Laganas felt a solid object with a metal barrel, trigger guard, and handle, determined that it was a firearm, and retrieved it. Dispatch confirmed that the defendant did not have an active license to carry. After arresting the defendant, Detective Laganas continued to search him and found Western Union checks, which appeared to be forged, and a debit card that was not in the defendants name.
Because no one was able to legally operate the car, police arranged for it to be towed pursuant to Lowell Police Department policy. During the inventory search, Detective Coyle discovered money orders in the pocket of the rear passenger seat.
Discussion. The defendant argues that the judge erred by denying his motion to suppress because the police were not justified in ordering him to show his hands, asking for his identification, or conducting a patfrisk of his person. The defendant also argues that the police conduct impermissibly elevated the stop into an arrest without probable cause.
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In considering these arguments, “we accept the judges subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Molina, 459 Mass. 819, 820 (2011), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).
The order to the defendant to show his hands was reasonable and justified by the circumstances. Detective Laganas issued the order immediately after he observed the defendant moving his hands as though he were hiding or retrieving an item, raising concerns for officer safety. The detectives were “entitled to take reasonable precautions for their protection.” Commonwealth v. Willis, 415 Mass. 814, 820 (1993). See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 59 (2013). Furthermore, it was proper for Detective Laganas to request identification once he saw that the defendant was not wearing a seatbelt. See Commonwealth v. Washington, 459 Mass. 32, 38 (2011); Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 808-809 (2012).
Detective Laganas also was justified in pat frisking the defendant. To conduct a patfrisk, “police must have a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020). Here, as Detective Laganas was approaching the car, he saw the driver open the door without being asked, which “heighten[ed] [Detective Laganass] alertness” and “raise[d] some flags to what could be happening in that car.” Detective Laganas then saw the defendant moving his hands back and forth from the back pocket of the passenger seat to his midsection; Detective MacDonald similarly saw “a lot of hand movement” at the defendants midsection. These movements gave Detective Laganas reasonable suspicion that the defendant was attempting to either hide or retrieve an item. “Numerous cases have recognized that such gestures, suggestive of the occupants retrieving or concealing an object, raise legitimate safety concerns to an officer conducting a traffic stop,” justifying a patfrisk. Commonwealth v. Stampley, 437 Mass. 323, 327 (2002). See Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 452 (2016) (“defendants unusual action of lifting himself off the seat by six inches in a manner consistent with concealing something” justified patfrisk). See also Torres-Pagan, supra at 39-40 (discussing with approval “furtive movement” cases but finding defendants movements there not reasonably characterized as furtive).
Contrary to the defendants contention, the detectives did not need “to know the exact nature of the object being concealed in order to have ․ objectively reasonable concern[s] for [their] safety.” Meneide, 89 Mass. App. Ct. at 452. Nor did their reasonable safety concerns dissipate upon the defendants compliance with Detective Laganass instructions because “[t]he encounter was still an ongoing one.” Stampley, 437 Mass. at 329. The detectives “were not required to gamble with their personal safety.” Commonwealth v. Robbins, 407 Mass. 147, 152 (1990). In addition, Detective Laganas focused the patfrisk on the area where he observed the defendants hand movements -- in other words, “to what was minimally necessary to learn whether the [defendant was] armed.” Commonwealth v. Johnson, 413 Mass. 598, 601-602 (1992), quoting Terry v. Ohio, 392 U.S. 1, 30 (1968).
Finally, the police conduct did not transform the stop into an arrest requiring probable cause. “The pertinent inquiry is whether the degree of intrusion [was] reasonable in the circumstances.” Commonwealth v. Moses, 408 Mass. 136, 141 (1990). “The degree of intrusiveness that is permitted is that which is ‘proportional to the degree of suspicion that prompted the intrusion.’ ” Id., quoting Commonwealth v. Borges, 395 Mass. 788, 794 (1985). As explained above, the detectives, fearing that the defendant had access to a weapon, took reasonable precautions for their safety. Those precautions were proportional and did not elevate the stop into an arrest. See Commonwealth v. Haskell, 438 Mass. 790, 794 (2003); Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556-557 (2015). Accordingly, the judge did not err in denying the motion to suppress.
Judgments affirmed.
FOOTNOTES
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. The defendant does not challenge the validity of the stop. In addition, he acknowledged both in his reply brief and at oral argument that the exit order was justified because the car needed to be towed.