Court: If you're acting suspiciously outside a rival gang house, police have right to search your car

The Massachusetts Appeals Court ruled yesterday prosecutors can use a gun found in a car occupied by two East Boston men as evidence against them on charges of illegal gun and ammunition possession.

A lower-court judge had earlier tossed the gun as evidence, saying police didn't have enough evidence to warrant a search of the car in which Andres Buenrostro, 26, and Jose Ordaz, 25, had been sitting outside 128 Gladstone St. where a gang-linked shooting had occurred three weeks earlier in 2011.

The appeals court, however, said the men were acting suspiciously enough that officers had more than enough reason to order the pair out of the car and then search the car for their own safety:

The officers had encountered a vehicle parked at night, with its engine and lights on, in front of a house where a gang-related shooting had occurred some three weeks prior. The officers initially observed that the vehicle, although running, appeared unoccupied, and when they approached to investigate, the two occupants raised and then immediately lowered their heads out of view. This justifiably aroused the officers' concern. ... On arriving at the vehicle, the driver, later identified as Ordaz, reached for the center console. The officers could reasonably interpret this act as possibly an attempt to grab a weapon. ... In addition, Pereira testified that both men appeared "nervous," with Ordaz moving his hands towards the center console and looking around and backwards. This too supported the officers' apprehension of danger.

Officer Pereira immediately recognized Buenrostro, seated in the passenger seat, as a member of the 18th Street gang, one of the gangs that had allegedly participated in the shooting at this location three weeks earlier. While gang membership does not by itself create a reasonable fear for officer safety, it is certainly a factor that may be considered. ... As such, the judge erred by not weighing these facts, given that Buenrostro was a member of the same gang involved in the prior shooting, and given that he was in front of the same house as where that shooting took place.

The two men also didn't help relieve officer suspicions in their answers to some questions, the court said:

The judge also characterizes the threshold inquiry between the officers and Buenrostro and Ordaz as "a few routine questions"; this vastly understates the suspicious nature of the encounter which was by that point anything but "routine." In response to the officers' questions as to why the two men were parked there, both gave vague and conflicting answers, with Ordaz even changing his answer after hearing Buenrostro answer the same question differently. Indeed, rather than mitigate the officers' concern for their safety, we think the inconsistent and evasive answers given by Buenrostro and Ordaz, combined with their nervous movements and the other factors present, only heightened it.