The Massachusetts Appeals Court recently rejected the Commonwealth’s appeal from the suppression of drug evidence by the trial court, holding that the judge properly suppressed the drugs seized from the defendant because the Boston Police conducted an unlawful search and seizure of his person.
In the case of Commonwealth v. Johnny Evans, the defendant challenged the stop by the police and claimed that he was subjected to an unlawful search and seizure, despite the recovery of cocaine. The judge who heard the defendant’s motion to suppress agreed, ruling that the stop was unconstitutional, and suppressed the cocaine.
At the motion hearing, the judge heard evidence that, at 2:00 a.m. on a spring morning, the defendant was spotted by Boston Police Officers (who were on routine patrol) to be walking alone on the street. Despite having no real reason to investigate him, and admitting that they did not know him from any previous ‘encounter’, the Boston Police officers decided to approach him and ask him where he was going…. hmmmm…..
The defendant responded to the police officer’s questions and told them he lived nearby and was returning home.
The officers claimed, however, that while he was being questioned, the defendant “looked around” and “appeared to be nervous”. The Boston Police Officers got out of their unmarked police car and “walked right up to him on the sidewalk” and continued questioning him.
During their conversation with the defendant, the Boston Police officers testified at the hearing that they believed he had something in his mouth. They asked him if he had anything in his mouth and he responded “nothing”, and then opened his mouth to show them that he didn’t have anything. When the defendant opened his mouth, however, one of the police officers shined his flashlight to examine his mouth and saw a plastic bag containing what he believed to be cocaine. The defendant refused to spit the bag out and allegedly tried swallowing it. After his arrest, the defendant allegedly stated he was “just going home to get high”.
In this and the vast majority to drug street encounters with the police, the issue turns on whether the police had reasonable suspicion to stop the person and search them for evidence of criminal activity. Whether a person is “stopped” depends on the circumstances of each case independently, but for constitutional purposes, the person must be ‘seized’ – in other words, that he was not ‘free to leave’ and submitted to the authority of the police officer.
In these circumstances, the motion judge ruled, and the Massachusetts Appeals Court agreed, that the defendant was seized when the Boston Police Officers exited their cruiser, walked up to him, and began asking him what was in his mouth. These actions, the appeals court explained, the police officers’ questioning transgressed from a casual encounter to something more ‘pointed and accusatory in tenor’. They began to focus, in other words, on the defendant with an investigatory purpose and the encounter intensified and became more accusatory in nature. At this point, a reasonable person would feel compelled to respond to the officers’ questions about what was in his mouth.
That the officers’ suspicions that the defendant might have been carrying contraband does not matter. Any seizure by police must be supported by “specific, articulable facts” that give rise to reasonable suspicion. A guess or a hunch is not good enough, even if that hunch turns out to be true. That the defendant appeared nervous to police and that he had something in his mouth, without more, does not justify any reasonable suspicion of criminal activity. Although it was plausible that he was concealing contraband in his mouth; the circumstances are as equally consistent that the defendant had something other than drugs in his mouth, such as food, gum, tobacco, or even a speech defect.
The drugs were properly suppressed or thrown out of the case from the officers’ unconstitutional actions.
Massachusetts Criminal Defense Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all misdemeanor and felony crimes, as well as criminal appeals. Visit Our Website to Schedule a Free Consultation or call 617-325-9500.