In these trying times it is great to see the Courts protect one's constitutional rights.
This case clearly defines a seizure by police.
The Supreme Judicial Court of Massachusetts (SJC) has just decided a case based upon the search and seizure of a pedestrian wherein a pedestrian was charged with carrying a firearm without a license and carrying ammunition without a license and without a firearm identification card. The court decided that the evidence should be suppressed on the ground that the police officer who stopped the defendant had based his action on an anonymous tip and did not have reasonable suspicion of criminal activity.
His conviction in the trial court was reversed.
The defendant was convicted in the District Court of carrying a firearm without a license and possession of ammunition without a firearm identification card. On appeal he claims error in the denial of his motion to suppress the firearm and ammunition taken from his person after a police officer stopped him based upon an anonymous tip and, he argues, without reasonable suspicion to believe he was committing a crime. The Appeals Court, concluding that the police officer had “insufficient basis to detain and search the defendant” when he did, vacated the order denying the defendant’s motion to suppress and reviewed his convictions…The SJC reached the same conclusion as the Appeals Court and reversed the decision of the Trial Court.
The Court summarized the facts that acting on an anonymous tip he had received, a Brockton Police Officer named McDermott, who was on duty and in uniform, drove his marked cruiser to the area of Main and Hancock Streets to look for a light-skinned Cape Verdean male, approximately five feet, six inches tall, wearing a blue baseball cap, a blue and white T-shirt, and blue jeans. The anonymous informant reported seeing the man take a handgun from his waistband and show it to others who were with him. “Within about three minutes of receiving the tip, McDermott came upon a group of Cape Verdean males walking along Main Street. One, the defendant, was similar in appearance to the description given by the informant. The officer recognized the defendant as someone he previously had told not to “hang around” in front of the stores in that neighborhood. He did not know whether the defendant was carrying a weapon. He drove alongside the group and said to the defendant, ‘Hey you..I want to speak to you’. The defendant looked at the officer, but otherwise kept walking and ignored his request. McDermott stopped his cruiser, got out, walked up to the defend and and, as two other officers arrived, pointed at him and said,’ Hey you, I wanna talk to you. Come here’. The defendant turned away from the officer, then stopped.
“The defendant moved his hands toward the front of his waistband. Concerned for his safety, McDermott drew his service weapon and told the defendant to raise his hands. The defendant did not respond, so the officer repeated his command. The defendant raised his hands and then turned and faced the officer, taking four steps backward.. Concerned that the defendant would flee, the officer handcuffed him, pat frisked him, and removed a loaded handgun from the front of the defendant’s waistband. When asked whether he had a license to carry the firearm, the defendant said he did not. he was placed under arrest.
The above were all the reported facts as summarized by the Court.
The SJC commented that the Appeals Court was correct that determining the precise moment of seizure was critical to the resolution of the seizure suppression. If seizure occurred when the officer drew his weapon out of concern for his own safety after the defendant mad a gesture toward his waistband, then the motion to suppress was correctly denied. If however seizure occurred when the officer pursued the defendant, pointed at him and said , “Come here, as the defendant argues, the result is altogether different.
“Police have seized a person in the constitutional sense only if, in view of all circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
United States v. Mendenhall, 446 U.S. 544 (1980) Under the Mendenhall test, the police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.
“The judge’s finding that McDermott’s initial request to the defendant to stop for questioning was not a seizure is supported by the record. McDermott remained in his cruiser while asking to speak to the defendant, and he did not impede or restrict the defendant’s freedom of movement. As cited in Commonwealth v. Murdough 428.Mass760.officers may make inquiry of anyone they wish and knock on any door, so long as they do not implicitly or expressly assert that the person inquired of is not free to ignore their inquiries”.
“However the officer’s second request had a compulsory dimension to it that his first request did not. Here after the defendant broke eye contact with , McDermott and refused to respond to the first request, McDermott stepped out of his cruiser and pursued the defendant.
The question that remains is whether McDermott, at the time of seizure, had an objectively reasonable suspicion of criminal activity, based on specific and articulable facts….The Appeals Court concluded that he did not.”, and the SJC agreed.
The tip, and McDermott’s corroboration of the defendant’s identity, did not provide sufficient indicia of reliability for suspecting that the defendant had a handgun.
(Rich C: Do you remember this type of problem from Summer Camp and lecture by Roy Bedard, sensei.)