Massachusetts Appeals Court Suppresses Gun and Drugs After Police Open Backpack Without First Frisking It
A police officer who reasonably believes that a person may be armed does not have to ignore the danger. Massachusetts law permits officers, in appropriate circumstances, to stop a person and conduct a limited protective frisk for weapons.
But that authority has limits.
In Commonwealth v. Greaves, the Massachusetts Appeals Court confronted a fairly narrow question: when police reasonably suspect that a gun may be inside a backpack, can they simply unzip the backpack and look inside, or must they first use a less intrusive method of determining whether it contains a weapon?
The answer depended not on whether the officers' concerns were understandable. The Appeals Court expressly acknowledged that they were. It depended instead on whether the Commonwealth proved that opening the backpack was reasonably necessary.
It did not.
The Appeals Court therefore affirmed an order suppressing the firearm and drugs recovered from the defendant's backpack.
The decision is important because it illustrates a recurring principle in Massachusetts search-and-seizure law. Reasonable suspicion that someone may be armed permits police to take reasonable steps to protect themselves. It does not automatically authorize whatever search officers believe would most quickly resolve the issue. A protective search must remain tied to its purpose, and the Commonwealth bears the burden of proving why the particular intrusion was justified.
The Police Receive a Report That Greaves Is Carrying a Gun and Drugs
The case began on July 12, 2023.
Shortly before noon, Salem police received information from a caller who reported that Justin Greaves was traveling from Lawrence to the Lafayette Hotel in Salem. According to the caller, Greaves had a gun and drugs, was wearing a white T-shirt, and was a violent person who had previously been stopped by police.
Although the caller asked to remain anonymous, the caller provided a first name and telephone number. Police checked the number and confirmed that the name and number corresponded with the information the caller had supplied.
Police then conducted some additional investigation.
Using the Waze navigation application, an officer determined that the drive from Lawrence to Salem would take approximately fifty-five minutes. During that period, police confirmed that Greaves did not have a license to carry a firearm, had prior felony drug convictions, and was expected to arrive at the hotel that day.
Officers positioned themselves near the hotel.
At approximately 12:55 p.m., Greaves arrived in an Uber. He was wearing a white T-shirt and carrying a backpack along with other belongings.
The officers followed him into the hotel.
The Encounter in the Hotel Lobby
Greaves was standing near the check-in area when a police lieutenant approached him and said that police had received a report that he had a gun.
The lieutenant directed Greaves to place his hands on the counter. Other officers positioned themselves near the hotel entrance.
The lobby was small and confined.
At one point, Greaves turned toward the lieutenant. That movement also positioned the backpack farther away from the lieutenant and closer to a wall. The lieutenant immediately took hold of Greaves's hands.
Police asked Greaves whether he had a gun.
He said he did not.
They then asked for permission to search his backpack.
Greaves refused.
That refusal was significant because it meant the Commonwealth could not rely on consent. If police were going to search the backpack, they needed some other constitutional justification for doing so.
The officers restrained Greaves's arms, removed the backpack from his back, and placed it on the ground. They frisked Greaves himself and found no weapon.
What happened next became the central issue in the case.
Rather than first frisking the outside of the backpack, a detective opened it.
The backpack was described as a soft-sided, mesh-style gym backpack. It had multiple compartments. An Xbox video game console was partially visible through one of them.
The detective unzipped one compartment and looked inside. He then rezipped it, opened another compartment, and saw a firearm.
The entire process took only several seconds.
Greaves was then handcuffed and taken to the police station. A later search of the backpack produced drugs as well as the firearm.
He was charged with drug and firearm offenses, including possession of a loaded firearm without a license.
The Motion Judge Suppresses the Evidence
Greaves moved to suppress the evidence recovered from the backpack.
The District Court judge agreed with the Commonwealth on an important preliminary point. Police had reasonable suspicion to stop Greaves and conduct a protective frisk.
That part of the case was not seriously disputed on appeal.
The problem was what police did with the backpack.
The judge concluded that although police could constitutionally conduct a protective frisk of the backpack, the Commonwealth had not established that they were entitled to skip that step and open the backpack instead.
The firearm was therefore suppressed.
Because the drugs were discovered during the subsequent search of the same backpack, they were suppressed as well.
The Commonwealth sought reconsideration and then obtained permission to pursue an interlocutory appeal.
The Appeals Court affirmed.
A Protective Frisk Is Not the Same Thing as a Search
The distinction at the center of Greaves is easy to overlook.
When police reasonably believe that a person is armed and dangerous, they may conduct a protective frisk. The purpose of that frisk is officer safety. It is not a general search for evidence.
That difference matters.
A frisk is ordinarily a limited external examination designed to determine whether a weapon is present. Opening a closed compartment and examining its contents is more intrusive.
Massachusetts courts therefore ask whether the steps taken by police were reasonably necessary to address the safety concern that justified the frisk in the first place.
The Appeals Court's decision rested heavily on the Supreme Judicial Court's decision in Commonwealth v. Pagan.
What the Supreme Judicial Court Said in Commonwealth v. Pagan
Pagan does not establish a rigid rule requiring police to frisk every container before opening it.
That would not make sense.
Containers come in different shapes, sizes, and materials. A patfrisk of one container may immediately reveal whether it holds a weapon. Frisking another may reveal virtually nothing.
A heavy backpack filled with hard objects, for example, may be impossible to evaluate effectively by touching its exterior. In those circumstances, opening it may be reasonable.
A small, soft container presents a different situation. If touching the exterior would readily establish whether a hard object or weapon is inside, police ordinarily cannot bypass the less intrusive technique without some reason for doing so.
The constitutional inquiry is therefore practical rather than mechanical.
What was minimally necessary to determine whether a weapon was present?
That was the question the Commonwealth had to answer in Greaves.
The Commonwealth Argued That the Xbox Made a Frisk Pointless
The Commonwealth argued that the backpack contained a large Xbox console that was partially visible.
Because of the size and shape of the console, it argued, frisking the outside of the backpack would not have provided useful information. The Xbox itself was a large, hard object that could interfere with an officer's ability to determine whether another hard object, including a firearm, was also inside.
The Appeals Court acknowledged that the argument had some force.
But there was a problem.
Nobody testified to it.
There was no testimony from an officer that the Xbox occupied so much of the backpack that a patfrisk would have been ineffective. There was no testimony that an officer handled the bag and determined that its contents made an external frisk useless. And there was no other evidence establishing that officers could not have determined whether a firearm was present without opening the backpack.
The Commonwealth relied largely on the hotel surveillance video.
The Appeals Court reviewed that video independently and concluded that it did not answer the question.
Perhaps the Xbox occupied enough of the backpack to make a frisk ineffective. But "perhaps" was not enough.
The Commonwealth had the burden of establishing the constitutional justification for the search.
It failed to meet it.
The Missing Evidence Would Not Have Been Difficult to Produce
One of the most significant parts of the opinion is the court's explanation of what the Commonwealth could have done differently.
Its burden, the court made clear, was not particularly demanding.
An officer could have testified that, based on observing or handling the backpack, the Xbox filled enough of its interior that a patfrisk would not reliably establish whether another potential weapon was inside.
If the motion judge credited that testimony, the result could have been different.
But that testimony was never offered.
That point is worth emphasizing because suppression litigation frequently turns on details of this kind.
An appellate court does not reconstruct a constitutional justification that the Commonwealth might have established. It reviews the record the Commonwealth actually made.
There is a substantial difference between an argument that sounds plausible and evidence proving the facts necessary to support that argument.
In Greaves, that difference determined the outcome.
There Was No Rapidly Developing Emergency That Required Police to Open the Bag
The Appeals Court also compared the case with Commonwealth v. Robinson.
In Robinson, police opened a fanny pack without first completing a patfrisk. But the circumstances there were considerably different.
The defendant was actively resisting while accusing police of racial misconduct. A large group of people was beginning to gather. Officers were dealing with other passengers as well as an arrested driver. The situation was deteriorating quickly.
Under those particular circumstances, police reasonably concluded that opening the fanny pack was necessary.
Nothing comparable happened in Greaves.
Indeed, the Appeals Court expressly noted that the officers acted professionally. The detention was brief. The search took only seconds.
Those facts, however, did not establish that opening the backpack was necessary.
The Constitution does not become less applicable because an unlawful search is conducted efficiently.
The relevant question remained whether police could reasonably have addressed the danger through a less intrusive protective frisk.
The Commonwealth did not prove that they could not.
The Accidental-Discharge Argument Also Failed
The Commonwealth offered another justification for opening the backpack.
It argued that physically manipulating the backpack during a frisk might itself have created a danger. If a loaded firearm was inside, pressing or manipulating the exterior of the bag might conceivably cause an accidental discharge.
Again, the argument was not impossible.
Again, the problem was the evidence.
There was no testimony that the officers were concerned about an accidental discharge when they conducted the search. Nor was there evidence establishing that frisking this particular backpack presented that danger.
The Commonwealth first raised the argument in its motion for reconsideration.
That was too late to repair the missing factual record.
Once a defendant sufficiently raises a constitutional search issue, the Commonwealth bears the burden of demonstrating that the police conduct fell within a recognized exception to the warrant requirement.
A theory developed after the hearing cannot substitute for evidence that was never presented.
Reasonable Suspicion Did Not Give Police Unlimited Authority Over the Backpack
The Commonwealth's strongest fact was that police had reason to believe Greaves might actually have a firearm.
The motion judge accepted that the officers had reasonable suspicion. The Appeals Court did not disturb that ruling.
But reasonable suspicion answers only the first question.
It may justify a stop.
It may also justify a protective frisk when police reasonably believe that the person is armed and dangerous.
It does not necessarily authorize police to open every container within the person's possession.
Each additional intrusion requires constitutional justification.
That is the larger lesson of Greaves.
Search-and-seizure analysis should not collapse a series of distinct police actions into a single conclusion that "the officers had reasonable suspicion."
A careful analysis asks separate questions.
Were police entitled to stop the person?
Were they entitled to frisk the person?
Were they entitled to seize or remove a container?
Were they entitled to frisk that container?
Were they entitled to open it?
And, once something was discovered, were they entitled to conduct a further evidentiary search?
Those are not always the same constitutional question.
The Commonwealth must justify the police conduct at each stage.
Suppression Hearings Are About Evidence, Not Possibilities
There is another practical lesson in Greaves for lawyers litigating motions to suppress.
The Commonwealth's position was not irrational.
The Appeals Court repeatedly acknowledged that the officers faced a legitimate safety concern. It recognized that the Commonwealth's argument about the Xbox had some persuasive force. It also noted that the officers acted professionally and completed the search quickly.
None of that changed the outcome.
The Commonwealth had to establish why opening the backpack, rather than frisking it, was warranted in the circumstances.
There was an evidentiary gap on that question.
The court would not fill it.
This is one reason suppression hearings must be approached with precision. Lawyers should identify not merely the broad exception to the warrant requirement on which the government relies, but every factual proposition necessary to make that exception applicable.
If the Commonwealth says a less intrusive procedure would have been ineffective, what evidence proves that?
If police claim an immediate safety concern, what did the officer actually observe?
If the government argues that circumstances prevented officers from using a less intrusive alternative, what specifically prevented them from doing so?
Constitutional reasonableness cannot simply be presumed from the fact that police had understandable concerns.
What Commonwealth v. Greaves Means for Massachusetts Search-and-Seizure Cases
Greaves does not hold that police must always patfrisk a backpack before opening it.
The Appeals Court was careful not to adopt such a rule.
Instead, the decision reinforces the more practical rule established in Pagan: police may take the measures reasonably necessary to determine whether a weapon is present, but the intrusion must remain proportionate to the circumstances.
Sometimes opening a container will be justified without a preliminary frisk.
Sometimes it will not.
The difference depends on evidence.
In Greaves, the Commonwealth could not show that a patfrisk would have been useless, dangerous, or impractical. Because it did not make that showing, opening the backpack exceeded the permissible scope of the protective search.
The gun was suppressed.
So were the drugs subsequently discovered inside the backpack.
That is an important result, but the more important lesson is how the court reached it. The Appeals Court did not minimize officer safety or impose an unrealistic rule on police. It simply required the Commonwealth to prove the facts necessary to justify a warrantless search.
That burden matters.
The protections of Article 14 and the Fourth Amendment often depend not on sweeping constitutional pronouncements, but on courts insisting that the government establish why a particular intrusion was lawful.
Greaves is a good example.
Frequently Asked Questions About Backpack Searches in Massachusetts
Can Massachusetts police frisk a backpack if they believe someone has a gun?
Yes, depending on the circumstances. If police lawfully stop someone and reasonably believe that the person may be armed and dangerous, they can take reasonable protective measures to determine whether a weapon is present. That may include a protective examination of a backpack or other container within the person's control.
Do police always have to frisk a backpack before opening it?
No. Massachusetts law does not impose an absolute "frisk first" rule. If the nature of the container or the circumstances make an exterior frisk ineffective or impractical, police may sometimes open the container. The Commonwealth, however, must establish facts showing why the more intrusive search was reasonably necessary.
Why was the gun suppressed in Commonwealth v. Greaves?
The Commonwealth failed to establish that frisking the exterior of the backpack would have been ineffective. Although an Xbox was partially visible inside the bag, no officer testified that the Xbox prevented an effective frisk, and the surveillance video did not establish that fact by itself. Because the Commonwealth did not justify skipping the less intrusive procedure, the search violated the defendant's constitutional rights.
Does finding an illegal gun make an earlier search lawful?
No. Courts evaluate a search based on what police knew and were constitutionally authorized to do before the evidence was discovered. The discovery of contraband cannot retroactively justify an unlawful search.
What should someone do if evidence was found during a backpack or bag search?
Whether a search was constitutional depends heavily on the facts. A Massachusetts criminal defense attorney can examine how the encounter began, what police knew before the search, whether the person consented, whether there was probable cause or reasonable suspicion, what type of container was searched, and whether officers exceeded the permissible scope of a protective frisk.
Challenging Unlawful Searches in Massachusetts Criminal Cases
Evidence obtained in violation of the Massachusetts Declaration of Rights or the Fourth Amendment may be subject to suppression.
That can include firearms, drugs, statements, electronic evidence, or other evidence discovered as a result of an unconstitutional search.
At Benzaken, Sheehan & Wood, LLP, we represent people charged with serious criminal offenses throughout Massachusetts, including cases involving firearms, drug offenses, and contested searches and seizures. Motions to suppress often turn on small factual distinctions, and those distinctions can determine whether critical evidence is admitted at trial.
If you have been charged with a crime following a search of your person, vehicle, home, backpack, or other property, speak with an experienced Massachusetts criminal defense attorney about whether the search complied with the Constitution.