Court Suppresses Firearm Discovered During An Investigatory Stop After It Finds Stop Was Based On A Hunch Rather Than Reasonable Suspicion Grounded In Specific, Articulable Facts And Reasonable Inferences Drawn Therefrom.

• Steven Topazio wrote this May 12, 2020 at 6:26 pm

Commonwealth v. James Kearse, Docket # 18-P-1619 (2020)

After observing the defendant, James Kearse, standing in the vicinity of two other men who engaged in a quick handshake, Brigido Leon, an officer in the Boston Police Department’s drug control unit (DCU), believed he had observed a hand-to-hand drug transaction.  Officer Leon radioed other officers to conduct an investigatory stop of the defendant and his companion.  As a result of this stop, the defendant was pat frisked twice, which ultimately lead to the discovery of a loaded revolver.  Following an evidentiary hearing, a judge of the Superior Court allowed the defendant’s motion to suppress the firearm concluding that the stop of the defendant was not constitutionally permissible. 

The relevant facts of Commonwealth v. Kearse are as follows: Officer Leon had extensive experience in drug and firearm-related investigations.  On the afternoon of March 2, 2016, Officer Leon was conducting surveillance with other DCU officers in the area of Talbot and Wales Streets in the Dorchester section of Boston, which he described as a high crime area with frequent stabbings, shootings, and drug activity.  While on patrol, Officer Leon observed the defendant with a companion, Domenic Yancy.  Neither Kearse or Yancy were described as drug dealers or users, or otherwise known to the police.  Officer Leon observed a third unidentified male (third male) hop a fence,-cut through a yard, and approach the two individuals.   Yancy and the third male engaged in a quick handshake as Kearse stood approximately five feet away and looked around.  The judge specifically found that the entire encounter lasted less than two to three minutes after which the third male went back over the fence and the defendant and Yancy walked back through Franklin Field Park. The judge also found that no interaction took place between the defendant and the third male and no additional evidence presented relating to any interaction between the defendant and the companion either before or after the quick handshake. 

Believing that he had observed a hand-to-hand drug transaction between Yancy and the third male, Officer Leon radioed other officers to stop the companion and the defendant.    Minutes later, five to six uniformed and plain-clothed officers arrived to stop the defendant and Yancy a short distance away.  Unknown to Officer Leon, the responding officers pat frisked the defendant and Yancy prior to Officer Leon’s arrival.  No weapons or contraband were discovered as a result of these patfrisks.  When Officer Leon arrived, both the defendant and Yancy were unrestrained.  Officer Leon had a conversation with Yancy during which Yancy told police he had marijuana on him and gave a statement about where he was coming from that was not consistent with what Officer Leon had just observed. 

During the conversation with Yancy, the defendant was standing twenty to twenty-five feet away.  At this time, Officer Leon observed the defendant move his body in such a way that he believed, based on his extensive training and experience, that the defendant might be concealing a gun.  His observations included that the pocket of the defendant’s coat was sagging as if it contained something heavy, that the defendant would side-step or reposition himself when an officer was near him, and that the defendant was checking himself by patting himself in a manner consistent with a person carrying a firearm without a holster.  After making these observations, Officer Leon proceeded to pat frisk the defendant over the defendant’s black puffy coat.  Because he was unable to accomplish a patfrisk of the defendant due to his bulky layers, Officer Leon unzipped the defendant’s coat and pat frisked over the defendant’s sweatshirt.  At this time, Officer Leon felt a hard object that he immediately knew was the butt of a gun.  Officer Leon lifted up the defendant’s sweatshirt and saw a revolver. 

THE STOP

An investigatory stop is permitted only where police have “reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime.”  Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007).  See Terry v. Ohio, 392 U.S. 1, 21 (1968).  Reasonable suspicion “must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch.'”  DePeiza, supra, quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The test is not whether the officer is acting in good faith.  Commonwealth v. Grandison, 433 Mass. 135, 139 (2001).  Rather, the test is an objective one.  Commonwealth v. Bacon, 381 Mass. 642, 643 (1980).  In particular, a police officer’s suspicion that a crime has occurred will not be regarded as reasonable under art. 14 of the Massachusetts Declaration of Rights, unless that suspicion is grounded in specific, articulable facts and reasonable inferences drawn therefrom rather than on a hunch.  Commonwealth v. Warren, 475 Mass. 530, 534 (2016).

In addition to presence in a high crime area, the only factors identified by Officer Leon that are relevant to whether the reasonable suspicion standard was met are the following:  (1) during the afternoon hours an unidentified third male hopped over a fence and cut through a yard; (2) Yancy and that male engaged in a “quick handshake” that Officer Leon believed to be a drug transaction while the defendant stood nearby, looked around, but did not interact with the third male or with Yancy; and (3) after several minutes, the third male departed back over the fence and the defendant and Yancy walked back through Franklin Field Park.

A quick handshake in a high crime area between individuals unknown to the police, even when viewed by an experienced investigator, standing alone, does not provide more than a hunch that a drug transaction occurred, and certainly, no more than a hunch that a person standing near the individuals who engaged in the handshake was a participant in criminal activity.  

The facts in Commonwealth v. Kearse are distinguishable from other cases such as  Commonwealth v. Kennedy, 426 Mass. 703, 708-711 (1998), and Commonwealth v. Santaliz, 413 Mass. 238, 241-242 (1992), in which justification for an arrest or a stop existed because “the ‘silent movie’ observed by an experienced narcotics investigator revealed a sequence of activity consistent with a drug sale.  Commonwealth v. Freeman, 87 Mass. App. Ct. 448, 452 (2015).

 It is not necessary in cases such as this that the police officer observes an exchange of items or actually see drugs or cash, but it is necessary that the observations by the police occur in a factual context that points to criminal activity.  See Commonwealth v. Levy, 459 Mass. 1010, 1011 (2011).  Contrast Commonwealth v. Hernandez, 448 Mass. 711, 714 (2007) (reasonable suspicion existed where, prior to shaking hands, police observed defendant pacing back and forth in high drug trafficking area before giving person item hidden in his shoe).  Indeed, “other than the normal social intercourse that occurs with some frequency on the streets of Boston’s neighborhoods, nothing [the officer observed] supports the claim of conduct consistent with a drug transaction.”  Commonwealth v. Ilya I., 470 Mass. 625, 631 (2015). 

The fact that Officer Leon was an experienced drug investigator, while relevant to an assessment of reasonable suspicion, is not a substitute for details about how drug transactions occur based on that experience.