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When is a Pat Frisk and Exit order justified in a Massachusetts Gun Possession charge without an FID card?

Gun crimes in Massachusetts often involve issues of whether there was a Constitutional basis for police action.  Here are some common legal issues:

  1.  Was there Reasonable suspicion to stop your car;
  2. if there was reasonable suspicion, was there a basis to order you from the car;
  3. if there was a basis for an exit order, was there a separate Constitutional basis for any pat frisk.


In many gun charges in Massachusetts, a gun may be seized during a pat frisk of the defendant.  A case out of the Springfield District Court, Commonwealth v. Manual Torres-Pagan illustrates this principal that challenging the Constitutional basis for police action can be a successful defense.

What happened in the Manual Torres Pagan Case?  

In the Torres Pagan case, the defendant was stopped because his inspection sticker was expired and he had a cracked windshield. When the officers got out of their police car, the defendant also got out of his car and stood between the open door and front seat, facing the officers.  The defendant turned to look inside the car more than once.  One officer ordered the defendant to stay where he was.  The defendant complied with that order.  The officer placed the defendant in handcuffs and performed a pat frisk.


The issue in the case was whether the pat frisk was justified under Article 14 of the Massachusetts Declaration of Rights.

What is the Standard for a Pat Frisk?

Generally, once a police officer makes a stop, the officer should let the motorist proceed and issue a ticket unless there is probable cause to make an arrest, or a basis for an exit order.  In the Torres Pagan case, he got out of the car voluntarily so the exit order was not an issue.

A pat frisk is a search that an officer does to determine if the person has any weapons on them.  The Massachusetts SJC has held that a patfrisk is permissible only where an officer has a reasonable suspicion that the suspect is armed and dangerous.  The SJC in Torres Pagan explained that the standard for an exit order and a pat frisk are two different standards.  An officer can make an exit order based on safety concerns.  But the exit order does not automatically mean that a pat frisk is justified, as the officer safety concern may be relieved once the defendant is out of the car.  To perform a pat frisk the officer needs a particularized fear that the subject to presently armed and dangerous.  The SJC made clear that the exit order and pat frisk standard are separate Constitutional inquiries because a pat frisk is more intrusive than an exit order.

The SJC emphasized that an exit order is justified if the following are shown:

  1.  the police are warranted in the belief that the safety of the officers or others is threatened;
  2. the police have reasonable suspicion of criminal activity; this is what justifies the exit order in an OUI case, the belief that the person is driving under the influence of alcohol.
  3. the police are conducting a search of the vehicle on other grounds.  This would suggest a warrant to search the car.

In this case, the SJC found that the motion judge was correct in finding there was not safety concern to justify the pat frisk.  At a motion to suppress hearing, the motion judge makes findings of fact that are often given deference by a reviewing court.  In this case, the motion judge did not credit the officer’s testimony that the defendant made a furtive movement.  The SJC indicated that the officer was likely surprised by the fact that the defendant got out of the car, but found that surprise does not lead to a suspicion that someone is armed and dangerous.  The SJC rejected the Commonwealth’s argument that the events happened quickly and may lessen the standard of reasonable suspicion.

High Crime Area

As is often the case, the Commonwealth argued that the nature of the area being a “high crime area” should be taken into account in determining if the officer’s had a reasonable fear that the defendant was armed and dangerous.

To read the SJC decision in Pagan Torres you can click here. 


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