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Court: Man's nervousness not good enough reason for cops to detain him, force his mouth open

The Massachusetts Appeals Court ruled today that Suffolk County prosecutors can't use a bag of crack a man had in his mouth as evidence against him because Boston Police didn't have a good reason to stop him and force him to spit it out in the first place.

Johnny Evans is facing a charge of cocaine possession because of an incident on Humphreys Street in Uphams Corner around 11:30 p.m. on March 11, 2013. According to the court's ruling, plainclothes officers in an unmarked car on routine patrol began following him as he approached Humphreys Place:

When they saw the defendant, they did not recognize him or "know him from any prior interactions." Rather, to them, "[h]e was just a person walking on the street." The defendant spotted the unmarked vehicle trailing him, and he turned left onto Humphreys Place when he reached it. At that point, "Officer Dodd, who was driving, turned his [car] onto Humphreys Place and followed [the defendant] until he got up as far as [the defendant w]as walking." While still in their vehicle, the officers proceeded to ask the defendant where he was going. The defendant answered that he lived on Humphreys Place and was returning home (a statement that the police admitted they had no reason to question). The defendant "looked around" while being questioned, and "Officer Dodd thought that [he] appeared to be nervous." At one point, the defendant placed his hands in his pockets, and "Officer Dodd directed [him] to take his hands out of his pockets." The defendant "hesitated" and then complied.

Based on the way he answered, one of the officers thought he had something in his mouth. Evans denied he did, then opened his mouth to show:

"[A]s soon as [the defendant] opened his mouth," Officer Dodd used his flashlight to examine the inside of the defendant's mouth, and in this manner he was able to see a bag containing what appeared to be crack cocaine wedged between the defendant's tongue and cheek.

After the defendant refused to spit out the observed bag "and appeared to be trying to swallow it[,] Officer Dodd took hold of [the defendant's] jaw" and eventually induced the defendant to spit it out. The officers arrested the defendant and searched him incident to that arrest. Finding "nothing further" on the defendant, and apparently having no reason to question the defendant's postarrest statement that "I was just going home to get high," the officers released him to be summonsed at a later date.

But since the officers had no reason to suspect initially that Evans was up to no good, they should never have detained him like that, let alone shined a flashlight in his mouth and make him spit out the bag.

And that is a violation of Article 14 of the Massachusetts constitution - the more exacting analog to the federal Fourth Amendment - and so the search and resulting evidence is illegal, the court ruled.

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Comments

Knowing that cops can construe almost anything I do as suspicious, of course I would be nervous if they were following me. Who knows how aggressive and unprofessional they will be?

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If you had crack in your mouth.

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if you're a POC and an aggressive cop starts hassling you, you'll probably be nervous, regardless of whether you've ever so much as jaywalked in your life.

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I suppose him knowing he had a bag of crack hidden in his mouth also had nothing to do with his nervousness.

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So, by that logic, I can pretty much do whatever the hell I want - as long as I act nervous all the time, I'll get the evidence suppressed.

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i'm pretty sure that 'logic' originated in your head only.

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Is being used by sleazy lawyers left and right to get gun and drug charges tossed.

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"Probable cause" - which, as the court affirmed, the cops did not have in this case.

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So he's probably not going to threaten to put a hole in your head.

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If cops can't do this kind of policing then places like Upham's Corner are doomed.

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It really depends. Stop and Frisk was an extremely effective program in NYC (or at least the City says it was), but is it worth eroding Constitutionally protected rights to do?

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That sort of question suggests that Stop and Frisk is a legal option, when it squarely is not.

It's sort of like posing a question: Time travel would be awesome, but is it worth breaking the laws of physics to achieve it? Answer: you can't break the laws of physics.

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Apparently my comment went right over your head then.

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laws of physics, laws of physics,
Ye canna break the laws of physics,
Laws of physics, Jim!

There's Klingons on the starboard bow, starboard bow, starboard bow...

...thanks for the song virus.

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Why?

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F off. How many people have they harassed before with out finding anything?? You can feel free to move if you like, but this ruling is in line with the basic principles that this country was founded on.

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n/t

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At least according to the cops. So why follow him and start asking questions with an aim to find a reason to search him? So what if a few baggies of drugs don't get caught this way? If the cops tried forming relationships with the community instead of being adversarial, the situation will improve in the long run.

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he was just a consumer. Small volume. Not a dealer doing more damage to the community.

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