Frisking Detained Juvenile for Gun May Be Constitutional Even When Juvenile is Detained as Reported Missing (Rather than on Suspicion of Crime)

From Friday's decision in Commonwealth v. Demos D., by Massachusetts Appeals Court Justice Joseph Ditkoff, joined by Justices Sookyoung Shin and Robert Brennan:

A police officer encountering a sixteen year old juvenile who had been reported missing by his legal guardian {the Department of Children and Families} decided to transport the missing juvenile to a police station and then contact his guardian to pick him up. Prior to doing so, he pat frisked the juvenile and discovered a handgun. The juvenile was charged in the Juvenile Court with unlawfully carrying a loaded firearm, unlawful possession of a large capacity weapon, unlawful possession of ammunition, and, as a youthful offender, unlawfully carrying a firearm.

After an evidentiary hearing, a judge suppressed all physical evidence arising from this encounter. We conclude that transporting the missing juvenile to a police station to be picked up by his legal guardian was a proper act of community caretaking, and that any argument regarding the child requiring assistance statute, was not raised or adequately developed at the suppression hearing. Further following the majority view that it is generally reasonable for a police officer transporting a person in a police cruiser pursuant to a valid act of community caretaking to pat frisk that person before transport, we reverse the suppression order….

At roll call at the Lawrence Police Department on the morning of December 9, 2022, officers were shown a photograph of the sixteen year old juvenile and informed that he had been reported as a missing juvenile by (DCF).

Later that morning, a Lawrence police officer observed an individual he had previously encountered and knew to be a gang member traveling as a passenger in a motor vehicle near the Essex Street public housing development. The officer immediately called a detective in the gang unit to determine if there were any open investigations into the individual. Although the detective stated there were none, he did inform the officer that he had recently seen the individual possessing a firearm in a social media post. {The motion judge reasonably found that this report about a firearm was of no consequence, as "[t]he officer did not have specific, temporally proximate information to suggest that [the individual] was in possession of a firearm. He did not know the date of the post, the platform it was posted on, how long it had been posted, or what was depicted in the post."} The officer chose not to stop the vehicle.

Around 1 p.m. that day, again near the Essex Street public housing development, the officer stopped the motor vehicle he previously had seen after witnessing it roll through a stop sign. The officer testified that the back seat passengers were "excessively moving," "ducking out of sight," and turning to look back at him. Upon approaching the vehicle, the officer "immediately recognized" a back seat passenger as the missing juvenile identified at that day's morning roll call. He also observed the known gang member in a different back seat, playing with an infant.

After discussing the situation with his partner, the officer decided to remove the juvenile from the motor vehicle. At the motion hearing, the officer explained that, in the case of a juvenile reported missing, he had been trained to "take him into custody and make sure that his well-being is good … take him back to the station, contact whoever reported him missing, and advise them that I located their missing juvenile."

Upon returning to the vehicle, the officer asked the juvenile to exit the vehicle. Intending to place the juvenile in his cruiser and transport him to a police station, the officer pat frisked the juvenile. The officer did not ask the juvenile any questions. The officer patted the juvenile's waistband area and felt an object that he immediately recognized by feel as the handle of a firearm. The officer seized the firearm and then placed the juvenile under arrest….

The appellate court concluded that the search was constitutionally permissible, and therefore the prosecution could go forward:

"Local police officers are charged with 'community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" "Under the community caretaking function, an officer may, without reasonable suspicion of criminal activity, approach and detain citizens for community caretaking purposes." "The community caretaking doctrine is applicable principally to a range of police activities involving motor vehicles, in which there are objective facts indicating that a person may be in need of medical assistance or some other circumstance exists apart from the investigation of criminal activity that supports police intervention to protect an individual or the public." When exercising a community caretaking function, "[a]n officer may take steps that are reasonable and consistent with the purpose of his inquiry, even if those steps include actions that might otherwise be constitutionally intrusive."

"The decision to make a well-being check must be reasonable in light of an objective basis for believing that the defendant's safety and well-being may be in jeopardy." "The Commonwealth has the burden of demonstrating, by objective evidence, that the officer's actions were 'divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" "So long as the officer's conduct at the outset and throughout the course of exercising a community caretaking function is justified by the doctrine, the law does not attach significance to the officer's subjective motives."

Here, the juvenile had been reported as a missing juvenile. Upon discovering the missing juvenile, the officer had the authority—and, indeed, would be expected—to return the juvenile to his proper guardian….

The question, then, is whether the officer's particular actions were "reasonable and consistent" with this purpose. We see nothing unreasonable about removing the missing juvenile from the motor vehicle, transporting him to a police station (but not to a lockup), and then contacting his proper guardian to pick him up. {Although the officer did contact DCF after bringing the juvenile to the police station, the juvenile was held without bail pursuant to G. L. c. 276, § 58A, based on the criminal charges and thus not returned to DCF's custody until April 2023.} Indeed, that seems far more reasonable than keeping the juvenile on a public street in a place that the motion judge found was a "high crime area" until some DCF employee could be located to drive there and pick him up.

The juvenile argues that the officer acted unreasonably because he first should have asked the juvenile whether he needed help, where he was living, whether he had run away, or whether he was related to any of the motor vehicle occupants. The officer could have done any of those things, but it was reasonable not to engage in this sort of conversation in the middle of a traffic stop in a high crime area in front of a known gang member.

Moreover, it was hardly up to the missing juvenile to decide whether he should be returned to the (presumably) court-ordered custody of DCF. A child in the custody of DCF does not have the right to return himself to the custody of relatives (much less nonrelatives) on his own initiative, without court involvement. Accordingly, the officer was not free to leave the juvenile with the motor vehicle occupants, no matter what the juvenile might have said.

The judge found that the officer's failure to engage in such questioning was "by his own admission" in violation of Lawrence police policies. The officer, however, testified that he complied with the policies and acted in conformity with his training. The relevant policy, for its part, required "the Investigating Officer or Detective [to] notify the parent or legal guardian of the juvenile's location so that the parent or guardian may retrieve the juvenile" and to question the juvenile as to the juvenile's "whereabouts and activities." Putting aside that the officer here was not the "Investigating Officer," which the policy describes as the person who interviews the reporting party and conducts an investigation, nothing in this policy suggests that the notification and questioning are supposed to happen immediately, much less in the middle of a traffic stop on a public street in a high crime area in front of a known gang member.

The more difficult question is whether the officer's patfrisk of the juvenile was reasonable…. The majority, but not unanimous view, is that it is generally reasonable for a police officer transporting a person for community caretaking purposes to pat frisk that person prior to transport. As the Rhode Island Supreme Court held, in a case involving the transport home of an intoxicated bicyclist, the officer "was justified in determining for himself that before ordering his fellow officer to drive the intoxicated defendant home in a police vehicle, he could be assured that the defendant had nothing on his person that might pose a danger to the life or well being of the driver officer." [The court then cited many other cases from other states. -EV] Or, as the Michigan courts have explained it, the alternatives of risking harm to the officer or transportee or abandoning the community caretaking task are not preferrable. And the risk to the officers' safety is not the only risk; the transportee may pose a risk of self-harm. But see State v. Shiffermiller (Neb. 2019) (patfrisk limited to reasonable suspicion that person is armed and dangerous even in "a second-tier encounter that is warranted by the community caretaking exception"); State v. Kelsey C.R. (Wisc. 2001) (requiring reasonable suspicion for patfrisk in community caretaking context but concluding that "a reasonable basis to place someone inside a police vehicle is a factor to be considered in the totality of the circumstances").

The majority view comports with the Supreme Judicial Court's teaching that actions taken during community caretaking are reasonable where they address "important safety reasons." … Accordingly, we join the majority of courts and conclude that it is generally reasonable for an officer transporting a person pursuant to a valid act of community caretaking to conduct a patfrisk prior to transport for the officer's and the transportee's safety.

We need not reach whether such a patfrisk is invariably reasonable, regardless of the characteristics of the missing person. Here, the juvenile was sixteen years old and in the company of a known gang member in a high crime area. Where the officer had a valid community caretaking purpose for transporting the juvenile to a police station for retrieval by a legal guardian, nothing about this encounter made the patfrisk unreasonable….

Jennifer D. Cohen represents the state.