Court: Prosecutors can't tell jury about illegal gun found in guy's waistband because cops didn't find it the right way

The Massachusetts Appeals Court ruled yesterday Suffolk County prosecutors won't be able to use an allegedly illegal handgun seized from a Dorchester man in 2008 in their case against him, because the Boston police officers who found the gun should have frisked him first instead of making him raise his hands and then lifting up his T-shirt.

On the evening of July 18, 2008, the two officers - assigned to follow a BWSC crew along Draper Street to keep the workers from being "harassed" - noticed a guy whose house had been shot up earlier that day, and who'd been shot at a couple of months earlier. They decided to have a chat with him:

While Officer Small and the defendant were talking, Officer Williams approached the defendant's left side. From a distance of approximately four or five feet, Officer Williams noticed a bulge at waist height, beneath the defendant's T-shirt (which was hanging over his cargo shorts). The defendant told the officers that he wanted to leave to get his slice of pizza. Officer Williams told the defendant, "Before you go, I'm going to have to lift your T-shirt." Officer Williams told the defendant to put his hands in the air and then lifted the left side of the defendant's T-shirt, revealing a large, loaded revolver tucked into the defendant's waistband. The defendant was then placed under arrest.

The appeals court said officers had the right to stop him:

[T]he police had reasonable suspicion of the defendant's involvement in criminal activity sufficient to justify the stop, based on a belief that he had been involved in the reported incident of shots fired in a residential neighborhood, including a belief that he may have fired some of the shots.

But when it comes to searches of a person who is not obviously in the middle of committing a crime, officers have to use the least intrusive method for determining whether he is in possession of something illegal, based on the Supreme Court's decision in Terry v. Ohio, the court ruled:

In the present case, there was no reason why Officer Williams could not conduct a pat-down of the exterior of the defendant's clothing in the location of the suspicious bulge, to determine whether the object felt like a weapon. The defendant was cooperative, had made no threatening movements toward the police (who had no particularized information placing a gun or other weapon in the defendant's waistband), and had his hands in the air. We accordingly conclude that the circumstances of the encounter between Officer Williams and the defendant furnished no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior patfrisk.

Complete ruling.

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Comments

I always lovely how judges

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I always lovely how judges (living in affluent crime free neighborhoods) are always dictating how police and citizens (in crime beleaguered neighborhoods) are supposed to bend over backwards to their interpretation of the letter of the law (in perfect theoretical practice on paper) as it benefits the criminal class.

it may benefit the criminal class sometimes...

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...but it also benefits the *rest* of us, at the same time.

personally i am glad the cops can't just yank up my shirt when they feel like it.

the point here is that the cops could have found the same weapon had they conducted a reasonable stop and frisk, without resorting to lifting the dudes shirt. criminal still would have been caught, and yet civil liberties would have been protected.

It benefits all variety of criminals, to be sure.

And I am becoming increasingly ambivalent about the ability of technicalities like these to derail prosecutions. Sometimes it seems like the public interest would be better served by directly punishing police, prosecutors, and others guilty of these types of errors, rather than rewarding guilty criminals with freedom. Beyond your run-of-the-mill gangbangers and drug dealers getting off for procedural errors, you get stuff like the Plymouth marine seargent, convicted of killing an innocent Iraqi man and framing him as a terrorist, whose conviction was dismissed because his original lawyer had been taken off the case. Another case was the Blackwater guards who shot into a crowd, allegedly without any discretion or provocation. They killed like a dozen unarmed civilians. The case against them was dismissed by a judge for some technical bullshit, some mistake the prosecutors made. Why sacrifice justice because someone forgot to cross a t on some form, or even did something deliberately wrong? Why make everyone pay, by letting killers go free? Fine, suspend, disbar, etc, but don't just dismiss charges.

Innocent until proven guilty

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Because we have a right to privacy, a right not to be harassed by police (not applicable in AZ), a right to a completely fair trial before our freedom is taken from us, and a right to know that no mistakes were made to go from innocent to proven guilty. Police can't just root through our pockets looking for reasons to arrest us. They can't screw up the evidence against us in ways that might lead to our being found guilty even when we're innocent. It's the protection for the innocent from the potential for corruption in the system.

95 times out of 100, everything probably goes smoothly and the bad guys are found to be bad guys solely on the evidence obtained by the rules. It's just that the other 5 times we want to be aware that something went wrong and so there's more attention paid.

Mistakes lead to good people being harmed. We have a system that lets the guilty go free to assure ourselves that the innocent will never be found guilty. I prefer that over a system that plays loose with the rules and occasionally traps an innocent man just to be sure all of the guilty get their just deserves.

Military courts & FBI/State investigations hardly support you

Dan Farnkoff, you may have a point buried somewhere in that angst, but, you befuddle your comment with reference to crimes committed in Iraq judged by a military court and to competing FBI and State Department investigations, so it is hard to see what your point might be.

Why cast about in Mesopotamia when your gut tells you there must be ample 'technical bullshit' impeding swift and certain justice for 'your run-of-the-mill gangbangers and drug dealers' right here in Suffolk County?

Jonas Prang

Terry v Ohio was decided in 1968

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

How the police conduct the search is important according to the law. That the policemen forgot how to conduct a Terry Stop or whether they were never trained appropriately is the most immediate issue here.

FWIW, testilying in police reports or at trial is the process by which some unscrupulous policemen cover for illegal search and seizures, which is to say they cover their act of violating a person's fourth amendment rights, avoid accountability for doing so, and keep the evidence obtained under consideration in the case.

JakeWark, you around?

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Why wouldn't this weapon fall under Inevitable Discovery? In fact, the judge's decision seems to argue exactly *FOR* it by saying that a Terry search would have found the weapon just the same through an external pat (thus why even lift the shirt in the first place, officer?).

That would still make the weapon admissible...while still giving the DA something to go back to the guy's sergeant and ream him out about for not having just done a full Terry stop in the first place.

because it was not inevitable?

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As the court states extensively and thoroughly: they had legitimate reason to STOP him...but they had no legitimate reason to arrest him. He was cooperative, did nothing suspicious or threatening, and they had no evidence that he had been committing a crime.

So: had they not made him lift his shirt (which was not a lawful order), they would not have seen the gun, and he would have gone to enjoy his slice of pizza.

Inevitable would have been if they were planning to arrest him because they had a witness. Inevitable would have been if they'd been talking and he dropped a baggie of drugs on the ground and then they had him lift his shirt (since he was going to be arrested anyway.)

Funny, you don't look like Jake

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The arrest was subsequent to finding the gun. However, the reason for lifting the guy's shirt was suspicion that he had something bulky under his shirt...like how someone would holster a gun in their waistband. THAT was enough to give the officer probable cause for a Terry stop (as the judge states in its opinion). Since a Terry pat down would have easily discovered the gun, thus requiring that the officer lift the shirt to take the gun out, it's inevitable that had the officer acted correctly (notice bulge, Terry pat down, lift shirt) then he would have discovered the gun anyways. Every actor agrees that the cop saw the bulge and was going to act on it. It's just that he did the lift before the pat down. That makes the gun still inevitable. I would like to hear from Wark on the topic, if he reads this.

Inevitable discovery works a

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Inevitable discovery works a little differently. It requires that the item would inevitably be discovered pursuant to some other process. Say there's a search of a car pulled over for a lapsed registration. The hypothetical search turns up a kilo of cocaine but is found to be flawed or unconstitutional -- but the subsequent mandatory inventory of that car pursuant to its legal seizure would have turned it up anyway. There's no other process at issue in Flemming.

Our argument in this case is that lifting the portion of his shirt that covered the suspicious bulge was the least intrusive means of searching him and, as such, consistent with Terry. It was specifically limited to the specific area in which the bulge was seen, as opposed to a full up, down, and around pat frisk (which the district court judge specifically found that the officer had sufficient reasonable suspicion to perform). See, for example:

"We find that the lifting by the officer of Appellant's shirt was not, under the circumstances, overly intrusive. Terry, supra, confines a self-protective search for weapons to an intrusion reasonably designed to discover instruments of assault. It precludes general exploratory searches. In the instant case, the officer's investigation was wholly confined to the area of the bulge in question and was a direct and specific inquiry. As such it did not transcend the permissible bounds established by Terry .... Finally, Terry does not limit a weapons search to a so-called 'pat-down' search. Any limited intrusion designed to discover guns, knives, clubs, or other instruments of assault are [sic] permissible. The raising of the shirt in the instant case is well within the boundaries established by Terry." (US v. Hill, 1976, quoted in part in MAC decision)

or:

"As noted, we agree with the general principle that a patdown is not the only type of search authorized by Terry, and that there are circumstances in which a patdown is not required." (US v. Casado, 2002)

or:

"[T]he raising of a suspect's shirt by a law enforcement officer does not violate the boundaries established in Terry .... Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is 'less intrusive than the patdown frisk sanctioned in Terry.'" (US v. Reyes, 2003)

We’ll be seeking further appellate review by the SJC on this one.

Interesting

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So, then it's odd that this particular judge would go against quite a bit of legal precedence. Good luck on appeal. Thanks for the info.

Geeeeee, how about that, Kaz?

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Inevitable discovery works a little differently. It requires that the item would inevitably be discovered pursuant to some other process

Gee, doesn't that sound familiar? I wonder where I heard something like that before.

OH YEAH, me!

You seem defensive

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Where did I say you were wrong?

I mean "this time" as opposed to how you're usually wrong.

This decision WAS on appeal.

This decision was on appeal. The decision was first rendered in Boston Municipal Court. The DA appealed that decision and it was upheld by thus decision: so the gun is still out unless a higher appelate court decides differently.

Apparently there are conditions in which a Pat-Frisk is not required as a first step in a Terry Stop before conducting a more intrusive search but those conditions were not in effect in this Terry Stop.

if the gun is thrown out in the end

will the DA ask the Commissioner to train all policemen on Terry Stop rules and guidelines so that easily avoidable mistakes in search and seizures can be avoided and the police can do a better job serving and protecting?

Ask JakeWark!

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He could ask the DA to ask the Commissioner...

gimme a break anonymous.

This wasn't the worst mistake in the world anonymous. This guy had AN ILLEGAL GUN. Ever deal with someone that has a gun? If the cops just told him to put his hand on his head, and put their own hands on the guys body, the gun charge wouldn't have gotten thrown out. That's actually more intrusive than what they made him do.

IANAL but

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If the law is intended to protect people from being treated like criminals, which I support, then why was this an incorrect procedure? If a cop is standing there chatting with me and I'm cooperating, I'd think it would be more respectful and subtle for the cop to ask me to pull my shirt up and show my waistband rather than frisking me (which is something that totally screams "criminal" to anyone in the vicinity).

a) your comment seems to

a) your comment seems to suggest that the guy lifted his shirt up. That is incorrect, the guy stuck his hands up and the cops pulled his shirt up
b) taking off someone's clothes in public is an invasion of privacy, this has nothing to with "screaming criminal" to those around you.
c) for most people, seeing stopped by the police "screams criminal" regardless of frisking

IANAL, either, but...

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one of the problems is that the cop didn't ask the defendant to lift his shirt. he told him to raise his hands and he lifted his shirt for him. the courts upheld that the officers had reason to stop the guy. the problem is that Commonwealth v Silva (1974) is very clear that you need to use the least invasive form possible to try to detect a weapon. in most cases, that's a stop and frisk. they're not concerned so much with being respectful, but by invading a person's right to physical privacy. the courts are very serious about protecting what's under the clothes of average citizens. Silva also makes it clear that one you detect something on a frisk, you can go farther, as you have greater reason to believe the person is hiding something. but it needs to build in steps, which each bit of into giving you the right to look farther.

and kaz, again, IANAL, but i believe that for something to be inevitable discovery, you need to be in the midst of following the proper channels that would lead to it's discovery. just skipping the appropriate steps for a search entirely doesn't allow it. but i could be wrong on that one.

Oh, I didn't read carefully

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I can see both sides of it. Still, I think if I was standing there chatting with the cop and cooperating, I'd prefer that the cop get permission to pull up my shirt a little rather than do a pat down. A pat down just seems more intrusive to me, and that's really the issue at hand, right?

Especially

If he throws you some beads, right?
Blue Hill Avenue could be Mardi Gras every day.

You are right eeka.

And its actually safer for the cops to do it that way. But drug dealers often times will have bags of drugs stuffed in their pants, and a lot of drug dealers get arrested with drugs in their wasteband. So my thinking is that the judge didn't want cops to go around asking people to simply pull up their shirts for pat frisks. If the cops are that worried, they should have that person put their hands on their head, and pat them down themselves, rather than have the guy put his hands anywhere close to the gun.

I'm no legal expert, but can

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I'm no legal expert, but can someone explain how a frisk (especially around the groin and buttocks)is less intrusive to one's right to privacy than lifting up a shirt? I only hope this guy doesn't walk and end up killing someone - wouldn't want that judge to lose any sleep.

one less on the street

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I would prefer that the kid was charged and taken off the street, for everyone's sake, but regardless of their procedural error, cheers to the cops for taking an illegal gun off the street. And for protecting the BWSC guys, too...

It has nothing to do with privacy.

It has to do with officers safety.

Officers "frisk" for weapons, and can frisk anywhere they think a weapon might be, unless the whole reason for the frisk was because of a visual bulge. Then you can only frisk the bulge area. But theres thousands of cases thrown out, appealed etc on this stuff.