June 21, 2007 — Vol. 42, No. 45
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SJC ruling OKs ‘stop and frisk’ searches

Dan Devine

The Massachusetts Supreme Judicial Court ruled last Friday that police officers who stop and frisk pedestrians they suspect of carrying illegal firearms — based on observational factors such as the way a person is walking — are not violating the pedestrians’ constitutional rights.

The court’s unanimous ruling upheld the conviction of 25-year-old Mattapan resident Michael DePeiza on charges of unlawfully carrying a firearm and ammunition and reversed a 2006 state Appeals Court decision that Boston police officers had violated DePeiza’s constitutional rights — even though he was carrying an illegal gun.

While police officials and prosecutors said the appellate court’s ruling hamstrung officers by precluding them from stopping pedestrians they believe to be armed, civil rights activists are worried that the SJC’s reversal will eliminate objective standards for constitutionally valid searches, leading to more instances of officers stopping people for dubious reasons.

Suffolk County District Attorney Daniel F. Conley said the SJC’s ruling “makes clear that Boston police — and police everywhere in the state — may and should rely on their training, experience and informed observations.”

“To disallow a police officer from acting on his or her reasonable suspicion that someone is carrying an illegal gun puts every other citizen at risk,” he said.

John Reinstein, legal director of the American Civil Liberties Union of Massachusetts, believes the SJC’s decision comes with risks, as well — namely, the danger of opening the door to tactics that previously would have been considered unduly intrusive and illegal.

“You’d like to think that there should be a bright dividing line that guides what police officers do, where you say that on one side, the search is legal, and on the other side of it, it’s not legal,” said Reinstein. “Decisions like this, which turn on a more subjective basis, blur the distinction between the two.”

Boston police officers John Conway and Dean Bickerton stopped DePeiza shortly after midnight on April 27, 2005, after the officers saw him walking near Dehli and Babson Streets in Dorchester, which police characterized at the time as a high-crime area.

The way DePeiza was walking — holding “his right arm stiff and straight, pressed against his side,” according to court documents — raised the officers’ suspicions, and they approached him without turning on the blue lights or siren of their unmarked Ford Crown Victoria. After calling out to get DePeiza’s attention, Bickerton asked him several questions, noting that he attempted to shield his right side from the officers’ view, avoided eye contact and shifted from side to side.

Bickerton then stepped out of the car and approached DePeiza, who continued to hide his right side from the officers as he reached into his pocket for identification. Seeing that the right pocket of his jacket sagged as if holding a heavy object, Bickerton told DePeiza that he believed the jacket contained a firearm, and that he intended to conduct a patfrisk.

As DePeiza moved away, Bickerton grabbed his right jacket pocket and felt the handle of a handgun. He seized the gun and arrested DePeiza for illegal gun possession, for which he was later convicted.

In the Appeals Court’s majority opinion overturning DePeiza’s conviction, Justice Joseph A. Grasso Jr. wrote that the court was “unpersuaded … that the manner of [DePeiza’s] walk, even in conjunction with the other cited factors, provided an objective factual basis for a reasonable suspicion that the defendant was engaged in criminal activity.”

On that point, the Supreme Judicial Court disagreed.

“Although nervous or furtive movements do not supply reasonable suspicion when considered in isolation, they are properly considered together with other details to find reasonable suspicion,” wrote Justice Roderick L. Ireland. “The officers’ suspicion that the odd way of walking was a sign of a firearm was not a mere hunch, but was the result of the application of their experience and training at the police academy to their detailed observations of the defendant.”

Ultimately, the combination of factors leading to DePeiza’s stop — most notably, his repeated attempts to hide the contents of his pocket from view — constituted a reason for officers to suspect him, according to Ireland.

“When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop,” Ireland wrote. “Although the question is a close one, we conclude that by the time the officers announced the patfrisk, they reasonably suspected that the defendant was committing the crime of carrying an illegal firearm, and the stop was therefore justified.”

Boston Police Commissioner Edward F. Davis on Tuesday called the SJC’s decision “a victory for law-abiding citizens.”

“Officers need to have tools to be able to do their job safely,” said Davis. “Everybody’s mindful of the Constitution, but we can’t constrain officers from doing what makes sense. And I think in this particular case, that’s exactly what happened.”

But in Reinstein’s view, moving away from that bright dividing line will make it harder for anyone to make sense of similar cases in the future.

“What we want is something that a court can get its hands around, and that people can get their hands around, and that everyone can understand is the standard,” he said. “And where it turns on highly subjective impressions of police officers — which you really can’t open up to a careful inspection — it is giving the police the benefit of the doubt.”

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