Search and Seizure Protective Frisk

Summer 2000

By Douglas I. Louison of Louison, Costello, Condon & Pfaff, LLP.

In Commonwealth v. Barros, the Massachusetts Appeals Court has issued a disturbing decision reversing a defendant’s conviction for carrying a firearm and ammunition without a license. The court ruled that the police had insufficient basis to detain and search the defendant and therefore the handgun and ammunition found as a result of a protective frisk should have been suppressed.

While on routine patrol, Officer McDermott of the Brockton Police Department was stopped in his marked cruiser by a white, well-dressed middle aged man in a motor vehicle whom he had never met before. The individual informed the officer that he did not want to identify himself other than the fact he was a business man on Main Street. The informant advised him that he had seen an individual pull a handgun from his waist band, show it to his friends, laugh and then return the gun to his waistband. The informant advised the officer of the location of the gun carrier as well as providing a detailed physical description.

After receiving the tip, Officer McDermott radioed for backup and went to the area. Approximately eight minutes after being flagged down by the informant, the officer observed a group of individuals that appeared to be in the specified location and observed an individual fitting the informant’s description. The officer pulled his cruiser along side the individual and made eye contact with him. (The officer did not observe the handgun at this time.) Officer McDermott recognized the defendant as someone he had seen before. McDermott called to the individual and indicated that he wanted to speak to him. The defendant ignored the officer and walked away from him. Officer McDermott then got out of the motor vehicle, called again to the defendant and stopped. At that point, Officer McDermott saw the defendant move his hands out of view towards his front waistband area. In fear and concern for his own safety and for the safety of those around him, the officer drew his service weapon and ordered the defendant to put his hands where they could be observed. After a second instruction, the defendant complied. The individual was handcuffed and brought to the police cruiser. A frisk of the defendant produced an illegal handgun loaded with ammunition resulting in the defendant’s arrest.

Subsequently, the defendant moved to suppress the evidence of the gun and ammunition which was denied. The motion judge ruled that the officer was justified in undertaking precautionary measures for his and others’ safety. The defendant was subsequently convicted.

The court first had to determine when the defendant was actually “seized”. The court ruled that if the seizure of the defendant did not occur until Officer McDermott drew his gun following the defendant’s hand motion towards his waistband, then the motion to suppress was correctly denied for the officer had a reasonable fear for his safety. It had appeared to him at that time that the defendant might be reaching for the weapon. The court acknowledged that when investigating an individual whom they reasonably believed to be armed and dangerous, the police may frisk individuals for their safety and the safety of others and a weapon found during such a search is admissible in evidence. The court stated, however, that a different result is required on the motion to dismiss if the defendant was seized at some point prior to his reaching towards the waistband.

The court’s seizure analysis was as follows. When Officer McDermott first confronted the defendant with the request “hey you… I want to speak with you.” The defendant was not seized as that was simply a request to engage in conversation. But when the officer, at first rebuffed followed up with “Hey you. I want to talk to you. Come here.” the defendant was seized. He reasonably would have believed that he was not free to leave due to the officer’s order to stop.

The court’s analysis went on to determine whether a reasonable suspicion existed to make the stop. The court’s analysis under federal and state constitutional law was that an officer must have an objectively reasonable suspicion of criminal activity to lawfully seize or stop an individual. The court acknowledged that a tip concerning a firearm certainly deserved immediate law enforcement attention. However, the court continued by saying carrying a gun in Massachusetts is not a crime. The crime is carrying a firearm without a license. The court’s analysis of the informant’s tip was that a report that someone was carrying a gun did not in and of itself constitute a reasonable suspicion to conduct a stop and frisk of that individual. The court stated that the information provided by the informant was not enough for the officer to reasonably believe that the defendant was about to commit a crime with the handgun. The court referenced a prior decision stating that police may not stop and frisk a person on the basis of the statistically likelihood that that person carrying the weapon is unlicensed to do so. The court acknowledged that where the police could reasonably assume that the defendant and his friends were not of an age to obtain a license to carry a firearm, then the officer would have had objectively reasonable suspicion to believe that the defendant was carrying unlawfully. However, here the informant’s description and the officer’s observations were that that the defendant was a male of legal age and the informant did not report nor did Officer McDermott observe any “strange, furtive or suspicious behavior that could otherwise infuse innocent activity with an incriminating aspect in the discerning eye of an experienced police officer.”

While ordering the reversal of the conviction, the court concluded that it is surely a source of frustration to law enforcement authorities that they may not play a hunch based on experience and street savvy. The court acknowledged that it was good police work to respond to a tip. Police might have seen conditions suggestive of a crime happening or about to happen or their surveillance alone might have had an effect in chilling criminal activity of the defendant or others.

If you have any questions regarding these issues, please feel free to contact Attorney Douglas I. Louison of Louison, Costello, Condon & Pfaff, LLP at (617) 439-0305.

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