State's highest court tosses two Dorchester gun convictions
The Supreme Judicial Court has overturned two Dorchester gun convictions in rulings that make it tougher for police to frisk somebody on the street to see if they have a weapon.
In both cases, the court ruled neither man had done anything suspicious enough to warrant the searches that found guns on them. That includes, in one of the cases, seeming to lie to an officer about his age.
The court said it was explicitly breaking with a past decision that allowed "protective" frisks during consensual chats between police and individuals because such chats often escalate quickly into "seizures" that are covered under a US Supreme Court decision on how to conduct a search, which makes it impractical to differentiate between the two: "We state expressly that police officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual has committed, is committing, or is about to commit a criminal offense and is armed and dangerous."
In the case of Mark Narcisse, police found a loaded .22-caliber gun in his jacket pocket on Jan. 30, 2005, after police stopped him and an acquaintance on Geneva Avenue, basically to ask them what they were up to. The court describes the events leading to his arrest:
"At 10 P. M., the officers drove down Charles Street in an unmarked cruiser. They observed two black men walking on Charles Street turn left onto Geneva Avenue. The officers pulled alongside and, not recognizing the men, decided to conduct a field interrogation observation in order to discover what the men were doing. While still in their cruiser, the officers asked the men who they were and whether they lived in the area. The men provided their names to the officers, and the defendant told the officers he was from Randolph. He also told the officers that he was coming from a store. Officer Romano knew that there were stores nearby, although not on Charles Street, but for some reason he found the defendant's response implausible.
"Officer Romano asked the men if they could step over to the sidewalk for further discussion, and the men complied. The officers got out of their vehicle and informed the men that there had been 'activity in the area.' After some conversation with the two men (the content of which was not specified), Officer Romano informed them that the officers were going to pat frisk them. In doing so, the officers recovered a loaded .22 caliber firearm from the front pocket of the defendant's jacket. Sergeant McLaughlin ascertained that the defendant did not have a license authorizing him to carry the firearm, and arrested him. After the defendant received the Miranda warnings, he stated that he had found the weapon under a nearby bridge."
The court ruled the officers had the right to conduct their "field interrogation observation," because the men were walking in a high-crime area that was especially tense following the shooting death of a local crime "impact player" the night before in Randolph. But they shouldn't have frisked him, the court ruled:
"The defendant clearly did not manifest behavior that indicated that he was engaged in criminal activity or that he was armed and dangerous. As the motion judge found, neither the defendant nor his companion did anything that would arouse suspicion that criminal activity was 'afoot,' including the possibility that they posed a present threat to the officers themselves."
In the case of Jamal Martin, the court ruled that being in a high-crime area along Woodrow Avenue and seeming to lie to officers who stopped and asked his age was not enough to justify the Oct. 8, 2006 search in which the cops found a loaded gun on him.
The Massachusetts Appeals Court had ruled the police frisk was warranted because after telling him they would frisk him, Martin tried to push one of the officers away, which provided the probable cause needed for a search. But the SJC said the appeals court was in error, because:
"In this case, nothing the defendant said or did justified an escalation of the consensual encounter. The defendant did not appear to possess a weapon or make any gestures indicating that he may have been concealing one that he was inclined to use."
The court provided an account of his arrest as well:
"Officer Henriquez asked the defendant if he had any weapons. When Officer Henriquez received no answer, he attempted to pat frisk the defendant, informing him that 'for safety,' he was going to conduct a patfrisk. The defendant pushed the officer's hands away, and stated, 'You can't touch me.' Officer Henriquez told the defendant to 'calm down' and proceeded with the patfrisk, which revealed a loaded gun. The defendant was then placed in handcuffs and asked if he had a license to carry the firearm. He stated that he did not. The defendant was arrested and brought to a police station.
"During the defendant's booking, he was allowed to make a telephone call. Officer Henriquez overheard the defendant say that he had 'just got locked up for the gun he had found.' The officers then learned that there was an outstanding warrant for the defendant's arrest. He was eventually charged for his possession of the firearm and for assault and battery on a police officer, the latter charge based on his brushing away of Officer Henriquez's hands.'