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PostPosted: Tue Nov 27, 2001 9:52 pm 

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Here is a case in which a known juvenile gang member has a conviction of loitering and carrying a dangerous weapon reversed on strict Constitutional grounds.

This report is almost word for word on the descision as reported in Lawyer's Weekly.

The U. S. Court of Appeals, First Circuit has reversed a conviction of a juvenile who was carrying a dangerous weapon (a double edged knife).

A police officer, who was a member of a “gang suppression” unit in the City of Springfield, responded to complaints that alleged thath gang m
embers were congregating on Main Street in the North End section. The officer drove to the location at 11:00 PM. The juvenile was with five to eight other youths, several of whom, including the juvenile, were wearing black and yellow clothing, which the officer knew to be the colors of the Latin Kings, and that the youth was a member.

The officer, accompanied by two other officers approached the youths, with the intent of telling them to move along and to alert them that they were violating the loitering ordinance. However, before he did this, he pat frisked each member of the gang. The officer testified that although he did not observe any furtive movements of apparently suspicious activity other than the loitering, he searched them out of fear for his safety. The factors he cited were (1) the lateness of the hour (2) the large number of youths, (3) the place where he encountered the youths was a high crime area, and (4) several of the youth wore gang colors, and one was known to be member of the Latin Kings, a violent gang. In the search, the officer found the knife on the juvenile. Based on these findings, the judge found that the stop was valid because the officer personally observed the young men standing in front of a store, allegedly in violation of the loitering ordinance .The judge went on to quote from the Springfield loitering ordinance, which had not been offered in evidence. The judge listing the factors set out above, and placing reliance on Commonwealth v. Heon 44 Mass. App. Ct. 254 (1998), concluded that there was sufficient evidentiary support for the finding that the pat frisk was permissible due to the concern for the officer’s safety.

“We hold that the record does not support the judge’s conclusion that the stop was justified. The judge’s ruling was based on the officer’s having personally witnessed the juvenile and his companions allegedly committing the crime of the loitering ordinance. However, there was no evidence that the youths were obstructing, hindering or preventing others from passing by, as required by the ordinance. Prima facie mere sauntering or loitering on a public way is lawful and the right of any man, woman, or child.
The officer’s suspicion of a crime being c9omitted was unreasonable and not based on articulable facts. Pursuant to the ordinance, all that should have occurred was a request by the officer to move along. “Even though the officer was instructed by his supervisor to pay special attention to the North End because some residents and business owners complained of groups of alleged gang, members hanging out on the streets and sidewalks in front of their buildings and shops, he testified that he was not responding to a particular call or disruption that evening and this was the third or fourth group that he had encountered that evening. There was testimony that, even before the officer searched the individuals of the group, he inquired why they were there to which he was told that one of the individuals in the group lived in the building in front of which they were standing, and they were waiting for the juvenile’s girl friend, who lived there as well. To permit police investigative stops under the sparse facts present in this case4 would be to encourage unduly intrusive police practices. The problems that may face the high crime area will not be resolved any more readily by excluding the individuals who live there from the protections afforded by our Constitution .

“We reverse the order denying the motion. Without the suppressed evidence, the Commonwealth’s case at trial would have been lacking in essential proof. The judgment of delinquency is therefore reversed and judgment shall be entered for the juvenile.

Commonwealth v. Pierre P., a juvenile

In these times that we feel as if our Constitutional rights are being compromised (as I and many others believe) out of concern for the national interest, here is one that could have gone the other way, but the Constitution was indeed held up.

Alan K

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