In a slip opinion released yesterday, Judge Spina writing for the majority, agreed to suppress evidence obtained during an illegal “stop and frisk.” The defendant, Paul Gomes, was known to the Boston Police as an “impact player” and was found in a high crime area at 4:00 a.m. Based on observations between Mr. Gomes and another individual, the police believed that he was involved in a drug deal. The police approached the two men, asked the defendant what he was doing, and immediately conducted a patdown for weapons. During the patdown, crack cocaine fell out of the defendant’s pant leg and he was arrested.
The defense argued that the drugs should be suppressed because the terry pat was unlawful. The trial court disagreed, but in a 5-1 opinion, the SJC reversed. The SJC stated that the scope of a “stop and frisk” must be justified by the circumstances. While the court concluded that there was reasonable cause to approach the two men, there was no justification to search for weapons prior to arrest. Here, the defendant lacked any history of prior gun charges, the police offerred no testimony suggesting that they believed the defendant was armed, the defendant did not attempt to flee, and the police were not outnumbered. Based on these facts, Justice Spina concluded that, “the degree of police intrusion was not proportionate to the articulable risk to officer safety, and, therefore, was constitutionally impermissible.”
The case is Commonwealth v. Gomes and the text of the opinion is located here. For those of you interested in researching the history of the “Terry” pat, here is a link to the original US Supreme Court decision: Terry v. Ohio.