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Pat Frisks When Suspected of Possessing a Firearm in Massachusetts

gun-1457134-e1462291545530In Commonwealth v. Bouyer, a Massachusetts defendant appealed from convictions of possessing a loaded firearm, possessing ammunition without a firearm card, and carrying a firearm without a license to do so. The case arose at around 12:20 a.m. when three plainclothes police officers were patrolling in an unmarked cruiser. They saw 8-10 people leaving an alley, and one of the officers told the others that two people in the group were gang members.

When the group noticed the cruiser, they changed their behavior. The defendant started walking faster with his right arm held to his body, although his other arm was swinging. Based on their training, the officers suspected he was holding an illegal firearm. The officers got out of the cruiser without activating their sirens or lights and without saying anything to the individuals or drawing weapons. Two officers followed the defendant, who slipped into a building.

The door shut before the second officer got there, but once he opened the door he saw the first officer in a struggle with the defendant. The first officer told the second officer that the defendant had a firearm, and so the second officer helped to subdue the defendant and get hold of the firearm, which was at the defendant’s waist.

The defendant filed a motion to suppress the evidence. On appeal, the defendant argued that the police officers’ pat and frisk was unconstitutional, and his motion to suppress should have been granted. The appellate court explained that in stop and frisk cases like this one, it would consider:  (1) whether the police were permitted to start the investigation under the Fourth Amendment and (2) whether the search’s scope was justified under the Fourth Amendment.

The defendant argued there wasn’t enough reason for the police to stop him to investigate. Generally, police officers can make investigatory stops if suspects act suspiciously, giving the officer reason to suspect someone is committing, has committed, or is going to commit a crime. The officer’s actions should be based on specific facts he or she can articulate, rather than a mere hunch.

The appellate court explained that in this case there were facts that could be articulated as the basis for the officers’ reasonable suspicion that the crime of illegally possessing a firearm had been committed. One of the officers, who had worked as an officer for nine years, had been trained in recognizing the characteristics of an armed gunman. The movements of the defendant’s arms were suspicious, as was the fact that he started walking faster once he saw the officers. Moreover, the area where the defendant was located was a high crime area known for firearm arrests and gang activity. Accordingly, it was reasonable for the officers to suspect the defendant had committed a crime.

The defendant argued that the scope of the search was unreasonable. The appellate court explained that if a suspected crime is one of violence, and the offender is likely armed, there is little else that must happen after the stop to justify doing a pat and frisk as long as the search is limited to what’s necessary to learn whether the suspect is armed and to disarm the suspect as necessary. The judgment was affirmed.

If you are charged with a firearms offense in Massachusetts, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014