Court: Cops who find themselves outnumbered by suspected drug dealers in a dark alley are allowed to frisk them
The Massachusetts Appeals Court ruled today that a gun found in the pants of a suspected drug dealer in a South End alley can be used against him at his trial.
A lower-court judge had ordered the gun dismissed as evidence, saying two Boston detectives had no probable cause to frisk Enrique Cabrera on Oct. 15, 2007. The appeals court, however, said a series of events gave the detectives reason to conclude Cabrera was involved in a drug deal and that officers who feel their safety is at risk can frisk suspects for weapons even in the absence of bulges that might indicate a weapon. The judges add, though, that such cases are showing the strain between conflicting sections of the federal and state constitutions:
We view the case as presenting another example of the increasingly fine, and sometimes indiscernible, line between conduct that is permissible under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights and conduct that is not.
In its ruling, the appeals court documents a series of events - all, individually, seemingly innocuous - that ended with the two detectives in an alley behind 365 Mass. Ave. with five men they suspected of engaging in a large drug deal just as they arrived:
Detectives Walsh and Feeney observed two motor vehicles from outside the Boston area meet at a known rendezvous for drug transactions [Back Bay station on Dartmouth Street]. One was a rental vehicle, a known tool of the drug trade. Without exchanging signals, the vehicles proceeded in concert to a location out of public view, a dead end alley. There, one individual from each vehicle met and went inside a building for less than a minute while the other occupants remained outside. From the officers' perspective, it was reasonable to suspect that the remaining occupants were acting as lookouts and that the defendant left his vehicle's engine idling to allow for a quick departure should the need arise. Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion.
The court continues:
[T]he suspected drug activity was not an isolated sale between two individuals at street level, but a transaction of sufficient magnitude to occupy five men, two vehicles and precautions designed to minimize police surveillance. The officers found themselves outnumbered five to two, at night, and in a dead-end alley. They knew nothing of the defendant or the other individuals, or whether any other participants might remain inside the building. In such a rapidly developing circumstance, it was neither imprudent nor constitutionally unreasonable for the police to view the whole as greater than the sum of its parts and conclude that sufficient danger existed to merit a patfrisk and that backup was required to do so safely. ... Nor did the arrival backup render a frisk unnecessary. ... It would be a perverse principle were police who possess the authority to frisk but are reasonably fearful of doing so to lose that authority when sufficient backup arrives to conduct the frisk safely.
