Commonwealth v. Rivera, 599 N.E.2d 245 (Mass. App. Ct. 1992). · Go Syfert
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Commonwealth v. Rivera, 599 N.E.2d 245 (Mass. App. Ct. 1992). Cases Citing This Book View Copy Cite
“valuation of the propriety of a frisk search . . . involves the whole picture”
49 citation events (28 in the last 25 years) across 3 distinct courts.
Strongest positive: Commonwealth v. Fisher (massappct, 2002-02-25)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 34 distinct citers.
discussed Cited as authority (verbatim quote) Commonwealth v. Fisher
Mass. App. Ct. · 2002 · signal: see · quote attribution · 1 verbatim quote · confidence high
valuation of the propriety of a frisk search . . . involves the whole picture
discussed Cited as authority (rule) Commonwealth v. David Ellis
Mass. Super. Ct. · 2025 · confidence medium
See, e.g., Commonwealth v. Moses, 408 Mass. 136, 138, 140, 142 (1990) (passenger ducking under dashboard made officer reasonably suspect passenger was concealing weapon); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 401 (1998) (“justifiable concern for the safety of the officers” prompted by passenger’s bending over briefly out of sight and trying to put on coat during traffic stop); Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 555 (1996) (exit order would be justified by observation of passenger “bending forward as if to place an object under the seat in front of -13- him”);…
discussed Cited as authority (rule) Commonwealth v. Rosado
Mass. App. Ct. · 2013 · confidence medium
In contrast with this case, see the examples of “articulable facts” supporting safety concerns collected in Commonwealth v. Cardoso, supra at 902: “Commonwealth v. Johnson, 413 Mass. 598, 600-601 (1992) (driver put something inside his waistband after trying to evade police); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1103-1104 (1989) (front seat passenger reached into the well between the front seats); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (driver who failed to produce registration in high crime area, late at night, very careful not to open the console too wid…
discussed Cited as authority (rule) Commonwealth v. Martinez
Mass. Super. Ct. · 2007 · confidence medium
Commonwealth v. Santiago, 30 Mass.App.Ct. 207, 210-11 , furth. app. rev. den., 409 Mass. 1105 (1991) (weapons search was authorized when an erratically driven car stopped, both doors flew open and the suspects leaped from their car as police approached); Rivera, 33 Mass.App.Ct. at 315 (suspect bent forward as if putting something on the floor of the automobile); Commonwealth v. Fraser, 410 Mass. 541, 546 (1991) (suspect refused to remove his hands from his pockets).
discussed Cited as authority (rule) Commonwealth v. Rivera
Mass. App. Ct. · 2006 · confidence medium
Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992), similarly involved a motor vehicle stop, during which the officer noticed an aluminum baseball bat protruding from under the passenger seat.
discussed Cited as authority (rule) Commonwealth v. Nestor N. (2×) also: Cited "see"
Mass. App. Ct. · 2006 · confidence medium
In our review of the propriety of such a search, we apply an objective standard of reasonableness and look to the totality of the circumstances, see Commonwealth v. Patti, 31 Mass. App. Ct. 440, 443 (1991); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992), keeping in mind that “[wjhile one factor by itself may appear innocent. . . and, therefore, insufficient to support a frisk, taken in combination with other factors, there may be the requisite reasonable apprehension about safety or a crime having been committed.” Id. at 314-315 .
discussed Cited as authority (rule) Commonwealth v. Horton
Mass. App. Ct. · 2005 · confidence medium
See Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (holding that an exit order and patffisk were justified when a passenger in a stopped vehicle leaned forward in a motion consistent with reaching to the floor, which suggested retrieving or concealing something and raised legitimate safety concerns); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1104 (1989) (police were reasonable in the belief that their safety was in danger when the suspect in a car pulled over after a chase reached into the “well” between the driver’s seat and that of the passenger); Commonwealth v. Rivera…
cited Cited as authority (rule) Commonwealth v. Murphy
Mass. App. Ct. · 2005 · confidence medium
See Commonwealth v. Tomeo, 400 Mass. 23, 25 (1987); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992).
discussed Cited as authority (rule) Commonwealth v. Emuakpor
Mass. App. Ct. · 2003 · confidence medium
The facts bearing on whether police had reasonable suspicion for stopping the defendants’ car, as found by the motion judge and as supplemented by uncontested testimony at the suppression hearing, see Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992), are as follows: in the early evening hours of December 10, 2000, shoppers at the Emerald Square Mall (Mall) in North Attleborough were robbed at gunpoint.
discussed Cited as authority (rule) Commonwealth v. Stampley (2×)
Mass. · 2002 · confidence medium
See, e.g., Commonwealth v. Torres, supra at 674 (observation of passengers “bent over” and “messing with something” on floor of stopped vehicle suggested that “they might be concealing or retrieving a weapon”); Commonwealth v. Moses, 408 Mass. 136, 138, 140, 142 (1990) (passenger ducking under dashboard made officer reasonably suspect passenger was concealing weapon); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 401 (1998) (“justifiable concern for the safety of the officers” prompted by passenger’s bending over briefly out of sight and trying to put on coat during traffic…
discussed Cited as authority (rule) Commonwealth v. Holley
Mass. App. Ct. · 2001 · confidence medium
See Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1104 (1989) (police justified in reasonable belief that their safety was in danger when suspect reached into the “well” between the driver’s seat and that of the passenger); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 315 (1992) (fact that defendant bent forward, as if to place something on the floor, as trooper approached the car, could be considered as factor in the search); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104 (1996) (police could consider bending movement of rear-seat passenger, a motion that reasonably could …
discussed Cited as authority (rule) Commonwealth v. Ciaramitaro
Mass. App. Ct. · 2001 · confidence medium
The defendant’s furtive gestures, Commonwealth v. Va Meng Joe, 425 Mass. 99, 106 (1997), in conjunction with his other behavior, Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992), created the requisite reasonable apprehension that the officers might be in danger, justifying the pat frisk of the defendant’s person. 14 See Commonwealth v. Johnson, 413 Mass. 598, 600-601 (1992).
discussed Cited as authority (rule) Commonwealth v. Robie (2×) also: Cited "see"
Mass. App. Ct. · 2001 · confidence medium
Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992).
discussed Cited as authority (rule) Commonwealth v. Ruiz
Mass. App. Ct. · 2001 · confidence medium
The relevant facts as found by the motion judge, who was not the trial judge, and supplemented by uncontroverted testimony at the suppression hearing, see Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992), are as follows: Responding to a radio call of “a suspicious motor vehicle” at about 10:40 p.m. on April 12, 1997, Lowell police Officer Donald Crawford drove to the comer of Vamum Avenue and Bennington Street.
cited Cited as authority (rule) Commonwealth v. Hurd
Mass. App. Ct. · 2001 · confidence medium
Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992).
discussed Cited as authority (rule) Commonwealth v. Riche
Mass. App. Ct. · 2001 · confidence medium
For comparable situations, see Commonwealth v. Santana, 420 Mass. at 213 & n.8; Commonwealth v. Valentine, 18 Mass. App. Ct. 965, 966 (1984); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992); Commonwealth v. Robles, 48 Mass. App. Ct. at 493 .
discussed Cited as authority (rule) Commonwealth v. Gonsalves
Mass. · 1999 · confidence medium
See Commonwealth v. Johnson, 413 Mass. 598, 600, 601 (1992) (driver put something inside his waistband after trying to evade police); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (driver failed to produce registration in high crime area, late at night, and carefully opened console just high enough when retrieving wallet); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 399 (1998) (passenger bent out of officer’s sight and attempted to put on his coat as if to conceal something); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104-105 (1996) (as driver pulled over, back seat passeng…
discussed Cited as authority (rule) Commonwealth v. Cardoso
Mass. App. Ct. · 1998 · confidence medium
By contrast, cases in which a court has concluded that a police officer’s safety concerns justified a “stop and frisk” generally include more “articulable facts.” See Commonwealth v. Johnson, 413 Mass. 598, 600-601 (1992) (driver put something inside his waistband after trying to evade police); Commonwealth v. Vanderlinde, 27 Mass. App. Ct. 1103, 1103-1104 (1989) (front seat passenger reached into the well between the front seats); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (driver who failed to produce registration in high crime area, late at night, very careful not to o…
discussed Cited as authority (rule) Commonwealth v. Alvarez
Mass. App. Ct. · 1998 · confidence medium
Similarly, questioning of a passenger was justified in Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312-313 (1992), when a driver, who had identified himself but could not produce a license, said that his front seat passenger could confirm his identity and in State v. Mennegar, 114 Wash. 2d 304, 309-313 (1990), when a passenger agreed to drive after the driver had been arrested for drunk driving.
discussed Cited as authority (rule) Commonwealth v. Mantinez
Mass. App. Ct. · 1998 · confidence medium
The motion judge made written findings of fact which we recount, “sometimes supplemented by uncontested testimony at the suppression hearing, in some detail because nuance and atmospherics are important in deciding cases of this kind.” Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992).
cited Cited as authority (rule) Commonwealth v. Inoa
Mass. Super. Ct. · 1998 · confidence medium
Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 314-15 (1992); Commonwealth v. Silva, 366 Mass. 402, 405 (1974).
discussed Cited as authority (rule) Commonwealth v. Kennedy
Mass. App. Ct. · 1997 · confidence medium
Contrast Commonwealth v. Anderson, 366 Mass. 394, 400 (1974) (suspect walked briskly away from police, looking back over his shoulder several times at officer); Commonwealth v. Silva, 366 Mass. at 407 (suspect made gesture as if to conceal something in his automobile); Commonwealth v. Moses, 408 Mass. 136, 140 (1990) (suspect avoided eye contact with police and ducked beneath dashboard); Commonwealth v. Alvarado, 420 Mass. at 549 (suspect attempted to conceal objects); Commonwealth v. Modica, 24 Mass. App. Ct. 334, 338 (1987) (suspect glanced around several times as if to see whether anyone wa…
discussed Cited as authority (rule) Commonwealth v. Heughan
Mass. App. Ct. · 1996 · confidence medium
See Commonwealth v. Sumerlin, 393 Mass. 127, 131 (1984), cert. denied, 469 U.S. 1193 (1985); Commonwealth v. Santana, 420 Mass. 205, 207 (1995); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 526-528 (1995).
discussed Cited as authority (rule) Commonwealth v. Torres (2×)
Mass. App. Ct. · 1996 · confidence medium
Accord Commonwealth v. Figueroa, 18 Mass. App. Ct. 967, 967 (1984); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992) (officer has right to stop car he has observed speeding); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 527 (1995) (traffic violation justified threshold inquiry for license and registration).
discussed Cited as authority (rule) Commonwealth v. Joshua (2×)
Mass. Super. Ct. · 1995 · confidence medium
See, e.g., Johnson, 413 Mass. at 601 (suspect seen reaching for waist area of pants after high speed chase in which suspect almost struck unmarked vehicle); Fraser, 410 Mass. at 545 (suspect bent down behind truck, as if picking something up or putting something down, and then confronted officer with hands in his pockets); Moses, 408 Mass. at 144 (suspect appeared to conceal something below dashboard); Almeida, 373 Mass. at 271-72 (suspect sitting alone in car with engine running offered no explanation for parking in private space, opened cover of console only enough to get hand in and remove …
cited Cited as authority (rule) Commonwealth v. Garcia
Mass. App. Ct. · 1993 · confidence medium
Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992).
cited Cited "see" Commonwealth v. Feyenord
Mass. App. Ct. · 2004 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992); Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 534 (1998).
cited Cited "see" Commonwealth v. Pacheco
Mass. App. Ct. · 2001 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992); Commonwealth v. Alvarez, 44 Mass. App. Ct. at 534 .
cited Cited "see" Commonwealth v. Redd
Mass. App. Ct. · 2000 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992).
cited Cited "see" Commonwealth v. Sweezey
Mass. App. Ct. · 2000 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 312 (1992).
discussed Cited "see" Commonwealth v. Prevost
Mass. App. Ct. · 1998 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 315 (1992) (one factor justifying the search was the fact that the defendant “bent forward, as if to place something on the floor, as the trooper approached the car”); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104 (1996) (in deciding what next to do, the police could consider “the bending movement of the rear-seat passenger as the police pulled the Toyota over, a motion that reasonably could be taken as placing or retrieving an object beneath the driver’s seat”); Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996) (furt…
cited Cited "see" Commonwealth v. Bartlett
Mass. App. Ct. · 1996 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314 (1992); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 527-528 (1995).
cited Cited "see" Commonwealth v. Berment
Mass. App. Ct. · 1995 · signal: see · confidence high
See Commonwealth v. Rivera, 33 Mass. App. Ct. 311 , 314 n.2 (1992).
discussed Cited "see, e.g." Commonwealth v. Rivera
Mass. App. Ct. · 2010 · signal: compare · confidence medium
Compare Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 315 (1992); Commonwealth v. Heughan, 40 Mass. App. Ct. 102, 104-105 (1996). “[A]n officer [is required] to have reasonable suspicion of danger to himself or others before ordering a driver from a lawfully stopped vehicle.” Commonwealth v. Rivera, 67 Mass. App. Ct. 362, 365 (2006), and cases cited.
Commonwealth vs. Jose Antonio Rivera
91 -P-1299.
Massachusetts Appeals Court.
Sep 21, 1992.
599 N.E.2d 245
Kevin S. Nixon ([Jeanne L. Carol with him) for the defendant., Jennifer Petersen, Special Assistant District Attorney, for the Commonwealth.
Warner, Kass, Laurence.
Cited by 36 opinions  |  Published
Kass, J.

Very aptly, the defendant has identified the question to be decided as whether a State trooper’s claimed concern for his safety was objectively reasonable in light of the whole picture at the time he frisk-searched the defendant.[*312] See United States v. Cortez, 449 U.S. 411, 417 (1981); Commonwealth v. Fraser, 410 Mass. 541, 545 (1991). That pat frisk led to the discovery of some 804 packets of heroin (46.3 grams) and a buck knife. The defendant Rivera appeals from a denial of his motion to suppress the evidence seized in the warrantless search. After trial, a jury returned a verdict of guilty on the charged offense of trafficking in more than twenty-eight (but less than 100) grams of heroin. In ruling on the motion to suppress, the trial judge made findings of fact which are binding upon us unless clearly erroneous. Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990).

We state those facts, sometimes supplemented by uncontested testimony at the suppression hearing, in some detail because nuance and atmospherics are important in deciding cases of this kind.

On May 1, 1990, at 11:20 a.m., John F. Cahill, a State trooper, while patrolling Route 290 in Marlborough, observed a gray Chrysler automobile speeding in the middle eastbound lane. He also noticed that the rear license plate was not fully secured to the car. Trooper Cahill followed the car for about a mile to verify its speed, which he clocked at 70-72 m.p.h. When Trooper Cahill turned on his blue flashing lights to pull the car over to the side of the road, Rivera, a passenger, looked back at the police cruiser. As the driver pulled the car quickly over to the side of the road, the trooper observed Rivera bending forward, as if he were putting something on the floor.

Trooper Cahill approached the stopped car from the rear. There were two men in the back seat, each with his hands in his lap, and two in the front seat. The police officer asked the driver for his license and registration. The driver produced a registration which matched the license plate, but told the trooper that he did not have his operator’s license with him. Thereupon, Trooper Cahill asked the driver to step out of the car so that he could question him further. [1] As soon as they[*313] were out of earshot of the other occupants of the car, Trooper Cahill asked the driver his name and other identifying information. The name given by the driver (Pablo Vega) matched the name on the car registration. Vega told the trooper that the front seat passenger could identify him.

Trooper Cahill returned to the car to confirm the information provided to him by the driver. He stood beside the front door on the passenger’s side of the car to inquire further. The front seat passenger produced a Massachusetts welfare card in response to a request for identification. He also confirmed the driver’s name. While he was questioning the front seat passenger, Trooper Cahill observed that there was an aluminum baseball bat sticking out from under the seat between the passenger’s legs. He saw no other sporting equipment in the car. Remembering that two weeks earlier a police officer in Lawrence had been beaten to death with an aluminum baseball bat during a routine traffic stop, Trooper Cahill became concerned for his safety. He called for a backup cruiser. He also asked the front seat passenger to step out of the car and conducted a pat frisk of that passenger. The officer felt nothing suggesting a weapon on that passenger and asked him to sit on the guard rail.

Rivera, the defendant, who was sitting behind the front seat passenger, was now clutching a “boom box” (a large radio) in his lap; it had not been on his lap previously. Again, concerned for his safety, Trooper Cahill requested that Rivera step out of the car and attempted to conduct a pat frisk. Although instructed (in Spanish) by Trooper Cahill and by one of the occupants of the car to place both hands on the trunk of the car, Rivera kept taking one of his hands off the trunk and clutching his jacket. When the trooper managed to conduct the pat frisk, he felt what he thought was a weapon in Rivera’s jacket. Because he was unable to locate the item he felt in any pocket, the trooper removed the jacket and placed it on the bumper of his police cruiser.

By this time, Trooper Mark A. Caponette responded to the call for backup. He searched the jacket and found the buck knife and a large number of packets containing what he[*314] thought was heroin between the lining and the outer shell of the jacket. Meanwhile, Trooper Cahill pat frisked the fourth occupant of the car. After what appeared to be heroin was found in Rivera’s jacket, all four occupants of the car were placed under arrest.

Rivera does not take issue with the legality of the stop. Trooper Cahill had a right to stop the car after observing the driver speeding. See Commonwealth v. Sumerlin, 393 Mass. 127, 131 (1984), cert, denied, 469 U.S. 1193 (1985); Commonwealth v. Figueroa, 18 Mass. App. Ct. 967 (1984). Nor does Rivera dispute that the trooper had the authority to proceed with his investigation by approaching the passengers after the driver failed to produce a valid license. Contrast Commonwealth v. Ferrara, 376 Mass. 502 (1978); Commonwealth v. Loughlin, 385 Mass. 60 (1982).

What Rivera does contest is the legality of the frisk itself. A frisk is permissible when a police officer has reason to believe, based on specific and articulable facts, that the defendant is armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 27 (1968). Commonwealth v. Silva, 366 Mass. 402, 405-406 (1974). Commonwealth v. Cheek, 413 Mass. 492, 494-495 (1992). [2] Rivera argues that the presence of the baseball bat in the car was not enough to cause a reasonably prudent police officer to believe the defendant was armed and dangerous; he, therefore, contends that the frisk was unreasonable.

Evaluation of the propriety of a frisk search, as we said at the beginning of this opinion, involves the whole picture. While one factor by itself may appear innocent — e.g., the presence of a baseball bat — and, therefore, insufficient to support a frisk, taken in combination with other factors, there may be the requisite reasonable apprehension about[*315] safety or a crime having been committed. See Commonwealth v. Fraser, 410 Mass. at 545.

In addition to the baseball bat, there were several other factors which the motion judge could have taken into account in concluding that the trooper reasonably feared for his safety. That there were four men in the car while Trooper Cahill was acting alone reasonably raised his anxiety level. See Commonwealth v. Sumerlin, 393 Mass. at 131. There was no other sporting equipment visible in the car. [3] Trooper Cahill was conscious of the recent fatal bludgeoning of a police officer with an aluminum baseball bat while the officer had been making an apparently routine traffic stop. There had been more than one person in the car stopped by the slain police officer. Finally, the bat. was underneath the seat in front of Rivera who: (1) had looked around at the trooper as soon as he put his lights on; (2) had bent forward, as if to place something on the floor, as the trooper approached the car; (3) had access to the bat and posed a threat to the trooper; and, (4) had placed in his lap a boom box, in the battery compartment of which a small weapon could, have been concealed. All these factors, taken in combination, support the judge’s ultimate finding that the trooper’s fear was reasonable and, therefore, the pat frisk of Rivera outside the car was constitutionally permissible. Compare Commonwealth v. Cheek, 413 Mass. at 492.

As a result, the heroin found in Rivera’s jacket was not the fruit of an unlawful search and need not have been suppressed. See Wong Sun v. United States, 371 U.S. 471 (1963). Contrast Commonwealth v. Ferrara, 376 Mass. at 505; Commonwealth v. Loughlin, 385 Mass. at 63.

Judgment affirmed.

1

Contrast Commonwealth v. King, 389 Mass. 233 (1983), in which the initial stop was investigatory, and the driver’s papers were in order.

2

The defendant asks us to consider whether, assuming the frisk was lawful under the Fourth Amendment to the United States Constitution, the frisk violates “the stricter requirements of art. 14 of the Massachusetts Declaration of Rights.” However, our appellate courts have never held that the State Constitution affords the individual more (or less) protection with respect to Terry-type stops and frisks. Commonwealth v. Fraser, 410 Mass. at 543 n.3. We decline the defendant’s invitation to read art. 14 differently than the Fourth Amendment in the circumstances of this case.

3

When officers later opened the trunk of the car for an inventory search, they found baseball mitts, a softball, another baseball bat, volleyballs, and badminton racquets.