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Massachusetts Appeals Court Suppresses Gun Found by Boston Cops in Man’s Pocket

The Massachusetts Appeals Court today ruled Boston police officers has acted unlawfully in stopping and searching a man on a public street near Franklin Field Park in Dorchester.  Accordingly, the gun found in the man’s pocket will be suppressed and his case will be dismissed.  The name of the case is Commonwealth v. Kearse.

On March 2, 2016, Boston cops assigned to the department’s drug control unit were conducting surveillance in the area of Wales and Talbot Streets.  It is a part of the city that is plagued with violent crime.  The defendant was standing with a man named Domenic Yancy, and neither man was known to the police.  The cops watched as a third man hopped over a fence, cut through a yard, and walked up to Yancy on the sidewalk.  Yancy and the unidentified man quickly shook hands while the defendant stood five feet away and looked around.  After only a couple of minutes, the unidentified man returned from where he came, once again jumping over the fence.  He had no contact at all with the defendant during his brief time on the scene.  The lead officer believed he had observed a drug deal and ordered his colleagues to detain the defendant and Yancy.  At least five cops stopped the men nearby and patfrisked them, finding no weapons or contraband.  Shortly thereafter, other officers arrived and Yancy admitted he possessed marijuana.  As Yancy was speaking to the police, the defendant was standing several feet away and was moving his body in a way that led officers to believe he was hiding a weapon.  Cops patfrisked the defendant again, and this time they found a loaded revolver in his sweatshirt.  He was indicted and charged with carrying a firearm (subsequent offense).

The defendant filed a motion to suppress the gun, arguing the cops had unlawfully searched him.  A Suffolk Superior Court judge agreed and threw out the evidence.  The Commonwealth appealed and the Appeals Court affirmed, ruling there was no constitutional basis that allowed for the defendant to be searched.  The police have the right to stop a person on the street if they have reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime.  In order to patfrisk the detainee, the police must have reasonable suspicion that he is armed and dangerous.  In this case, the Appeals Court concluded the initial patfrisk of the defendant was unlawful.  The Court said a brief handshake occurring in a high-crime neighborhood does not provide reasonable suspicion that a drug deal transpired – the cops had nothing more than a hunch, which was insufficient to allow for the defendant’s detention (particularly when the defendant was not a participant in the alleged transaction).  The Court was careful to point out that law-abiding citizens work and live in high-crime neighborhoods, and their presence in dangerous places does not eliminate their constitutional rights to be free from unreasonable stops and searches.  The Court further found that even if there was reasonable suspicion to believe the defendant had been involved in a drug transaction, there was not reasonable suspicion to believe he was armed and dangerous when he was patfrisked the first time.  The second patfrisk was tainted by the initial illegal stop.  For all of these reasons, the defendant’s motion to suppress was properly allowed by the superior court judge and the Commonwealth will be forced to dismiss the case.

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