Court upholds use of gun as evidence against robbery suspect found walking in the rain early one morning in Clam Point

The Massachusetts Appeals Court ruled Tuesday that Boston police officers did nothing wrong when they searched a man walking through Dorchester's Clam Point early one morning right after a nearby gas station had been robbed at gunpoint, so prosecutors can use the gun the officers found in his backpack as evidence against him.

Two offices in an unmarked car and a third were driving around Clam Point, a quiet residential area off Freeport Street and Morrissey Boulevard at 3:43 a.m on Aug. 12, 2018, looking for a suspect who had just held up the Shell station on Morrissey Boulevard and then ran away when, around the same time, they all spotted a man walking in the rain down Ashland Street. The cop who spotted him walking toward him stopped him and frisked him, but found nothing, except a wad of bills, which he gave back to the man. But the cop who spotted him walking way from him then searched his backpack and found a gun, at which point they detained him until other officers could get there with the gas-station clerk, who promptly identified him.

A judge ruled the gun could be used as evidence, but David Privette's lawyer appealed. In a ruling today, the appeals court agreed with the lower-court judge that the police had enough probable cause to stop and search Privette.

The court said that, unlike in the other gun case it decided Tuesday, the officers had sufficient details on which to look for a suspect, as well as evidence of a recently committed crime. Although one of the officers who initially interacted with Privette heard a radio call that did not describe the beard Privette had that morning, the officer in the other car heard a later call that said he had a beard. Both were also acting on radio broadcasts that described the suspect in the gas-station hold up as Black and in his late 20s, although the broadcasts described him as 5'7" or 5'8" when he was 32 and 5'11."

But while prosecutors could not claim Clam Point is a "high-crime area" - it isn't - the hour and the weather were additional reasons for the officers to suspect Privette had just been up to no good, the court ruled:

"We conclude that although the defendant did not exactly match the description, the defendant's appearance compared with that description, coupled with his direction of travel, his location seven minutes after the robbery, and his being the only person seen on the street by three separate officers searching for suspects -- all in the middle of a rainy night -- gave Doherty [one of the officers] reasonable suspicion that the defendant was the robber. "

The court also dismissed other arguments, including the fact that Privette was found just 700 feet away from the gas station - what sort of armed robber would hang out not far from a place he'd just robbed, even if just seven minutes later?

"But we know of no presumption that an armed robber will flee the area of the robbery as quickly as humanly possible."

Plus, the clerk spotted him heading south on Morrissey and Ashland is just south of the station, through a large gap in a fence between the two streets, the court said.

The court also rejected arguments that the cops should have considered that maybe Privette was a customer at a nearby CVS or the Chau Chow restaurant. Under Massachusetts case law, however, police do not have to "exclude all the possible innocent explanations for the facts in order to form a reasonable suspicion," the court said.

The ruling means that Suffolk County prosecutors can use the gun as evidence when he comes to trial in Suffolk Superior Court.

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