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Sharply Divided Massachusetts Appeals Court Upholds Boston Police Seizure of Firearm

In a 3-2 decision, the Massachusetts Appeals Court today upheld a Boston police officer’s stop of a defendant and seizure of a gun in Roxbury.  The name of the case is Commonwealth v. Warren

The defendant was charged with carrying a firearm following his arrest in December of 2011.  A Boston police officer was investigating a breaking and entering at a Roxbury home.  He spoke to the residents – a teenager and his foster mother.  The teenager was in the bathroom when his foster mother said she heard voices in his bedroom.  When he returned to his bedroom, the teenager saw a black male wearing a red hoodie jumping out of his window.  When he looked outside, the teenager saw two other black males dressed in dark clothes with one of them wearing a black hoodie.  The suspects ran away and the victims could not say with certainty where they might have ended up.  The teenager told the police that he was missing his Apple MacBook and five baseball hats.

Between 23 and 30 minutes later, the officer was driving around the area when he saw two black males wearing all dark clothing (with one dressed in a hoodie) walking about one mile away from the victims’ home.  The officer did not see anyone else in the area.  The officer yelled out to the men to “wait a minute” but the men turned and quickly jogged away.  The officer radioed their description to other officers in the area and a second officer located them.  As the second officer approached them, one of the men fled and the other stood still.  The officer chased the man who ran and saw him clutching the right side of his pants, as if he was carrying a gun.  The officer finally caught up to the man, later identified as the defendant, and apprehended him after a brief struggle.  A .22 caliber firearm was found on the ground less than five yards from where the defendant was arrested.

The defendant filed a motion to suppress the gun, arguing that the police lacked probable cause or reasonable suspicion to stop him.  The trial court denied his motion and after he was convicted, he appealed.  The three-judge majority agreed that the stop of the defendant was constitutional and affirmed the denial of his motion to suppress (and his conviction).  While acknowledging that the description of the men who broke into the home was “somewhat general and lacking in detail,” the majority said it was good enough when the defendant and the other man were found nine or ten blocks away within 30 minutes of the crime.  Additionally, the fact that the defendant twice ran away from the police contributed to the officers’ reasonable suspicion that he had been involved in criminal behavior.

Two justices dissented, concluding that the police stop of the defendant constituted nothing more than a hunch.  They said the description of the men who broke into the victims’ home was too general to attribute to the defendant and that the men were not found in a close enough proximity to the home.  Furthermore, flight or evasive behavior, without more, is not sufficient to establish reasonable suspicion to stop a suspect.  One of the dissenting justices wrote that the type of police conduct in this case is corrosive of the relationship between police officers and members of the community.

This is a horrible decision and the majority’s reasoning would have permitted the police to stop any black men wearing dark clothing who happened to be within a mile of the crime scene half an hour after the crime was committed.  Hopefully the Supreme Judicial Court will review the case and reverse the Appeals Court.  Interestingly, the defendant was never charged with participating in the house break that started the police investigation.

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