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Massachusetts Appeals Court Rules Police Conduct was Appropriate in Seizing Stun Gun from Swampscott Car

The Massachusetts Appeals Court today ruled that Swampscott police officers did not violate the constitution in searching a defendant’s car and seizing a stun gun found inside.  The name of the case is Commonwealth v. Demirtshyan.

The defendant was charged with illegally possessing an electroshock weapon (stun gun) following his stop by Swampscott police officers.  An officer stopped the defendant because his car did not have a valid inspection sticker.  When asked, the defendant gave his license and registration to the officer.  During the interaction, the officer noticed there were five or six small clumps of marijuana on the car’s console.  The defendant admitted that he had been smoking marijuana earlier in the day but it did not appear to the officer that the defendant was under the influence at the time of the stop.  The officer could have issued a civil violation to the defendant for possessing the marijuana but failed to do so.

The officer then told the defendant he wanted to search the car and the defendant refused.  The officer said he had probable cause to conduct a search and, in response, the defendant turned toward the back of the car and lunged toward a backpack behind the front passenger’s seat.  The officer grabbed the defendant’s shoulder and prevented him from gaining access to the backpack.  The officer asked the defendant to turn off and get out of the car and the defendant complied.  The officer retrieved the backpack and put it on the car’s hood.  The officer also searched the driver’s side door and found a stun gun inside a leather case.

The defendant moved to suppress the stun gun, arguing that the police officer did not have the right to order him to exit the car or to search the vehicle.  The motion judge agreed and precluded the prosecutor from introducing the stun gun at trial.  The Commonwealth appealed and the Appeals Court reversed.

The Appeals Court ruled that it is reasonable for a police officer to take protective measures when a driver suddenly lunges into another area of the car toward a bag that has not been inspected by the police.  Such protective measures include using reasonable force to prevent the driver from reaching the bag.  Once the officer has a valid concern for his or her safety, the officer is entitled to order the driver to get out of the car and to conduct a protective sweep to ensure there are no weapons within grabbing distance of the defendant.  Thus, according to the Appeals Court, the exit order and the search of the defendant’s car were appropriate in this case.

If the defendant had not lunged for the backpack, there would have been no basis for the officer to issue the exit order.  The officer’s statement, that he had probable cause to search the car, was wrong.  Possession of marijuana is a civil offense and does not justify an officer’s warrantless search of a motor vehicle.  However, the defendant’s attempt to grab his backpack constituted an intervening act that allowed the officer to order him to get out of the car.

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