September 14, 2021
The Massachusetts Appeals Court ruled Tuesday that BPD gang-unit members didn't have enough reason to order a teen sitting in a Columbia Road barbershop to stand up for a pat frisk, which revealed he had a gun in his pants.
The ruling means the gun taken out of his pants can't be used as evidence against him and that he has to be given the chance to withdraw his guilty plea.
According to the court's summary of the case, a reliable informant had told a drug-unit detective on Sept. 21, 2015 that they could find a Columbia Road Gang member in a black hoodie and jeans with a gun in the area of Columbia Road and Devon or Stanwood streets, standing with another guy in "an off-white colored hoodie." The detective turned the matter over to the gang unit, where a supervisor dispatched several officers.
Two of the officers promptly found a guy in an off-white hoodie, whom they knew had prior criminal charges, standing alone. They stopped and frisked him, but found no gun. They kept looking and found another guy, wearing a black-and-gray hoodie, on Columbia Road and frisked him as well, but, again, found no gun. Then one of them looked into the barber shop near where that guy was standing and spotted somebody in a black hoodie and jeans sitting on a chair, talking on his phone - a teen they knew as a member of the Columbia Road Gang. They ordered him off the phone and to stand up:
"The juvenile asked why, and the officers 'pulled him up . . . to stand.' Once the juvenile was upright, the officers observed a bulge on the right side of his waist. The officers, from their training and experience, believed the bulge to be consistent with a firearm. Officer Small pat frisked the juvenile and felt what he believed to be a firearm. He lifted the juvenile's shirt and removed a firearm from his waistband. The juvenile was immediately brought to the floor and placed under arrest."
The teen was indicted as being delinquent for unlawful possession of a firearm. He pleaded guilty, but on the condition that he would appeal.
In its ruling today, the appeals court said he was right to do so, ruling that the police did not have enough probable cause to "seize" or detain him by pulling him out of the chair and frisking him, because they were going on fairly vague information, no crime had been committed immediately before and he did nothing suspicious or threatening in the moments before he was "seized."
The informant's description of somebody wearing a black hoodie and jeans by itself was not enough to warrant a stop, not on a busy street like Columbia, the court said. The fact that the officers frisked two other men in similar attire not long before is proof that the description was not really particular enough, the court said.
"he physical description of a young Black man in a black hooded sweatshirt and blue jeans was itself quite general. The accompanying information -- that the suspect, at approximately 5 P.M. on a Monday in September, was located on Columbia Road (a busy commercial area) with another Black male in an off-white hooded sweatshirt -- did little to narrow or particularize the description. Notably, the [informant] did not provide any information regarding "facial features, hairstyles, skin tone, height, weight, or other physical characteristics," Warren, 475 Mass. at 535, such that the officers would have the ability to distinguish the suspect from any other younger-looking Black males wearing that type of clothing in that area. Nor was this a situation where, given the time of day, it was unlikely that there would be others around who might match the description. ...
"Our case law is clear that this type of bare-bones description, without more, is insufficient to give the police reasonable suspicion to stop anyone who fits the description. ...
"Moreover, the location of the juvenile was at least somewhat at odds with the description provided by the [informant]. The juvenile was not with another Black male wearing an off-white hooded sweatshirt, nor was he standing outside in the area of Columbia Road and Devon and Stanwood Streets. The police determined that the male described as wearing the off-white sweatshirt was Norwood [one of the guys earlier stopped], and Norwood was not seen standing with the juvenile or close to the barbershop where the police observed the juvenile."
True, the officer immediately spotted the bulge in the teen's pants, but he wouldn't have if the teen had not been asked to stand, then pulled up from his chair, so that happened after his "seizure" not before, the court said. Further, the court continued, the teen was simply sitting in the chair when approached by the officer:
"The juvenile did not make any furtive movements, and there was no indication that he was attempting to conceal anything from the officers prior to being stopped."
So, again, no probable cause for the search, the court said.
The court also rejected the argument that the warrantless search was warranted because the barbershop was in a "high crime neighborhood," where "firearm-related
offenses, shootings, and homicides" were relatively common and Columbia Road Gang members were known to congregate, because that has to be tied somehow to a specific crime having just been committed, and that was not the case here.
"The only information connecting the juvenile to the neighborhood, and its 'high crime' nature, was Officer Conley's awareness that the juvenile was a 'close associate' of a member of the Columbia Road gang. That was simply not enough to justify a stop."
So in conclusion:
"Viewing all the facts and circumstances in their entirety, we conclude that the police lacked reasonable and individualized suspicion that the juvenile had committed or was committing a crime prior to his seizure. With only the minimal and vague information provided by the [informant], and no other factors indicating that the juvenile was in possession of a firearm, the police lacked 'specific, articulable facts' necessary to justify the stop."
The court sent the case back to juvenile court with an order to dismiss any evidence resulting from the search - the gun - and giving the teen, now an adult, the chance to withdraw his guilty plea.