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Court tosses gun found in double-parked minivan as evidence because police had no right to pull driver over after sending him on his way

The Supreme Judicial Court ruled today that police who pull over a vehicle and let the driver drive off can't then pull the vehicle over again, even on a good hunch, unless they saw the driver or passengers doing something illegal while pulling away.

And because of that, the state's highest court concluded, Erickson Daveiga's eight-year sentence for illegal possession of a firearm, meted out after he pleaded guilty, needs to be overturned.

Daveiga, who got the lengthy sentence in part because he is considered an "armed career offender," was a passenger in a Pacifica minivan that was double parked on Monadnock Street, a one-way Dorchester street, around 4 a.m. on Aug. 6 , 2017, according to the court summary of the case. Two BPD officers in an unmarked cruiser driving up the street found they couldn't get by without clipping the mirror on either the Pacifica or a parked car, so they pulled up as close as they could, then, through the rear passenger window, addressed the driver, who at first said he was waiting for a friend and asked what he was supposed to do.

One of the officers recognized Daveiga, sitting by that window, staring straight ahead:

McDonough was familiar with the defendant from at least thirty prior encounters, and had arrested him at least three times, including once in July of 2016 for a firearms offense. Nonetheless, McDonough considered that the two had a cordial relationship. The defendant referred to McDonough, who is bald, by the nickname "Baldy." Hours before this encounter, McDonough had seen the defendant walking, and the defendant had smiled and nodded at him.

In light of their relationship, McDonough thought that the defendant's demeanor in the Pacifica was unusual. He asked, "How are you, pal? Are you doing good today?" In a low tone, the defendant said that he was okay. The driver then told McDonough that he would move the Pacifica and park elsewhere, gesturing toward several open parking spots nearby. McDonough responded, "Yeah, sure, all right," and backed up to give the Pacifica more space to pull forward.

The Pacifica pulled out, but then the driver didn't pull into one of the spaces - he kept going and turned left onto Dudley Street.

Because a right turn would have been a more direct route back to Monadnock Street, the officers grew suspicious. McDonough then changed his mind about pulling over the Pacifica. After about ten to fifteen seconds, he activated the unmarked vehicle's blue lights, pursued the Pacifica, and pulled it over.

And this time, the other officer directed a flashlight towards the car - and promptly spotted something. The first officer ordered everybody out, the two confirmed it was a gun, near where Daveiga had been sitting, knew he had no right to possess a gun, and arrested him.

In its ruling, the SJC said the two officers did nothing wrong in asking the driver to move, but that once he did move, that should have been the end of things, even if the driver didn't pull into one of the spaces and didn't seem to be heading back to the street.

But because they did not see the driver or any of the occupants of the car do anything wrong after that, they should not have pulled the car over on the "pretext" of a traffic stop for an event that had, in fact, ended with resolution - the driver stopped blocking the narrow street and drove off.

Citing both state and federal cases that prevent officers from prolonging traffic stops because officers suspect something other than a traffic infraction is going on, the court said.

In addition to unreasonably prolonged stops and unreasonable delays, this case presents a third set of objective circumstances demonstrating that once the government's interest in traffic safety has been met, the individual interests prevail, and police authority to conduct a motor vehicle stop on the basis of an observed traffic violation terminates. Here, the officers approached the Pacifica with the "mission" of addressing the vehicle's blocking of the street, an apparent violation of Boston Traffic Rules and Regulations, art. VI, § 7. ... At that moment, the officers could have conducted a stop to investigate the parking violation and could have performed the various tasks tied to the enforcement of the traffic laws, such as asking the driver to produce his license and registration. The officers determined, however, that they would not issue a citation, and the Pacifica moved so as to stop blocking the street, thereby concluding the encounter and completing the "mission" of the investigation. ... Because the driver of the Pacifica did not commit any further traffic violations, the government's interest in ensuring traffic safety was met once the violation on Monadnock Street was resolved. ...

Here, the government interest ended when police resolved the illegal parking by the Pacifica on Monadnock Street. The defendant's individual interests thereafter prevailed, while the officers' authority to stop the Pacifica for the resolved traffic violation terminated. Because police otherwise lacked the authority to conduct a traffic stop on Dudley Street, the stop was unreasonable under art. 14 [the Massachusetts equivalent of the 4th Amendment].

And so, the court reversed lower court judge's denial of the request by Daveiga's attorney to toss the gun as evidence.

Because the defendant was convicted of carrying a firearm without a license, and the Commonwealth would not be able to establish beyond a reasonable doubt that then defendant possessed an operational firearm without the evidence of the gun, the defendant's conviction cannot stand.

Free tagging: 
PDF icon Complete ruling125.61 KB

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BPD Officers always give me tickets when I'm double parked at 4:00 AM. They have learned that even when a known offender behaves suspiciously at 4:00 AM they aren't supposed to think that anything unusual is going on, unless they clearly see a violation. They can't give someone the benefit of the doubt, and then act on an immediately subsequent suspicious act, regardless of their personal knowledge and experience.

Voting closed 20

These guys aren’t giving out parking tickets bud…

Voting closed 24

Erickson should buy a lotto ticket, that was a huge come up.

Voting closed 20