Many criminal prosecutions arise from evidence recovered by police during unplanned street encounters with citizens. Such "threshold inquiries" or Terry stops are standard investigative techniques employed by law enforcement after the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968). The success of motions to suppress evidence recovered from such encounters depends upon the details of the encounter — what did the defendant do or say that aroused suspicion, what did the police say to the defendant, how did they say it, how reasonable were their actions — and the experience and credibility of the police officers. In Commonwealth v. DePeiza, 449 Mass. 367 (2007)("DePeiza"), the SJC, while providing guidance on the reasonable suspicion required to conduct a threshold inquiry, revealed an inclination to credit the training and experience of the police in their on-the-street assessment of a defendant's objectively neutral conduct. DePeiza is a classic example of the fine lines that determine case outcomes and the importance of determining whether there is back-up data to support police conclusions about an area or an individual.
DePeiza involved an encounter between two plain-clothes police officers and the defendant in Dorchester shortly after midnight on April 27, 2005. The officers testified that the location was a "high crime" area where, on past occasions, shots were fired and arrests were made involving illegal handguns. They were patrolling the area because of a recent increase in firearm violence. When the officers saw the defendant, whom they did not know, walking on the sidewalk, they observed him walking in an "odd" manner, holding his right arm stiff and straight, pressed against his right side as if he were holding something. The officers, each of whom had three years' experience, testified that they had been trained to recognize a distinctive "straight arm" gait as evidence that someone was carrying a concealed firearm. Indeed, 10-15% of their 25 gun arrests in the previous eight months involved similar observations.
Suspicious, the officers turned around their unmarked cruiser and conversed with the defendant, who was shielding his right side from them, "as if trying to hide something." Exiting their cruiser, they approached the defendant, who was avoiding eye contact, looking from left to right and shifting his weight from side to side (signs of nervousness and intended flight, according to the officers). As the defendant reached into his pants pocket to produce identification, he turned his right side away in an awkward motion but the officers observed something heavy in his right jacket pocket. After the police announced an intent to frisk, the defendant jumped back and an officer grabbed the jacket pocket, felt the handle of a firearm, reached in, and pulled out a handgun.
The defendant's motion to suppress was denied and he was convicted of firearms offenses. The Appeals Court vacated the conviction 2-1, holding a Fourth Amendment "seizure" did not occur until the police declared their intent to frisk the defendant but that they lacked "reasonable suspicion" of criminal activity at that point. The Court discounted the "high crime" nature of the area and was not persuaded that the defendant's manner of walking, together with the other factors, "provided an objective factual basis for a reasonable suspicion that the defendant was engaged in criminal activity."
On further review, the SJC reinstated the conviction, agreeing that the "seizure" did not occur until the police declared their intent to conduct a frisk but holding that the police then possessed a reasonable suspicion of criminal activity. Because the defendant's conduct was consistent with non-criminal behavior, the Court acknowledged the question was close but ruled "[s]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." In so holding, the Court accorded greater deference to police testimony that the area had experienced "a recent increase in incidents of firearm violence" and that police reaction to the defendant's distinctive walk was proper because it "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." Unlike the Appeals Court, the SJC found the defendant's continuing effort to conceal his right side from view gave rise to an actionable suspicion that his probable possession of a firearm was unlawful rather than lawful.
DePeiza illustrates that a police officer's ability to articulate and explain his observations and actions in a credible manner can make the difference in the outcome. Prosecutors and defense counsel, however, should request from police the backup data regarding the nature of the specific location in which the stop occurred, the temporal proximity and similarity of other crimes in that area, and the prior experiences of the particular officer in relation to the observed conduct at issue. Under DePeiza, a properly-prepared officer's training and experience can carry the day but only if the Commonwealth lays a specific foundation supporting them.
Michael J. Pelgro is Counsel at Foley Hoag LLP in Boston, where he practices in the Business Crimes and Government Investigations Group. He spent several years as a state and federal prosecutor and was Chief of the Organized Crime Drug Enforcement Task Force Unit at the U.S. Attorney's Office in Boston.
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