A quick handshake does not justify a search
- Steven Topazio wrote this January 24, 2024 at 6:53 pm
The Appeals Court affirmed the suppression of a gun seized by the police from the defendant, because the police did not have reasonable suspicion to stop the defendant. Commonwealth v. Kearse (Appeals Court No. 2018-P-1619) – April 9, 2020
After observing the defendant, standing in the vicinity of two other men who engaged in a “quick handshake,” an officer in the Boston Police Department’s drug control unit (DCU), believed he had observed a hand-to-hand drug transaction. The officer 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. A single justice of the Supreme Judicial Court granted the Commonwealth leave to file an interlocutory appeal from that order and transmitted the matter to the Appeals Court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). Concluding that police did not have reasonable suspicion to stop the defendant in these circumstances, the appeals court affirmed the decision to suppress the gun.
In this case, the court found that 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. See Commonwealth v. Meneus, 476 Mass. 231, 238 (2017) (simply because activity occurred in high crime area does not for that reason mean that activity was suggestive of criminal activity; inference that criminal activity is underway must meet objective standard of reasonableness).
It is not necessary in cases such as this that the police officer observe 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).
Background image courtesy of: Chris Liverani