Search and seizure – Investigatory stop – Handshake

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Where a Superior Court judge allowed a defendant’s motion to suppress a firearm found during a police pat-frisk, the suppression order should be affirmed because the police did not have reasonable suspicion to conduct an investigatory stop of the defendant.

“After observing the defendant, James Kearse, standing in the vicinity of two other men who engaged in a ‘quick hand shake,’ Brigido Leon, an officer in the Boston Police Department’s drug control unit (DCU), believed he had observed a hand-to-hand drug transaction. Officer Leon radioed other officers to conduct an investigatory stop of the defendant and his companion. As a result of this stop, the defendant was pat frisked twice, which ultimately led to the discovery of a loaded revolver. …

“… [W]e conclude that Officer Leon’s observations failed to establish reasonable suspicion that the defendant was engaged in criminal activity when the order to stop him was given by Officer Leon. …

“In addition to presence in a high crime area, the only factors identified by Officer Leon that are relevant to whether the reasonable suspicion standard was met are the following: (1) during the afternoon hours an unidentified third male hopped over a fence and cut through a yard; (2) [Domenic]Yancy and that male engaged in a ‘quick hand shake’ that Officer Leon believed to be a drug transaction while the defendant stood nearby, looked around, but did not interact with the third male or with Yancy; and (3) after several minutes, the third male departed back over the fence and the defendant and Yancy walked back through Franklin Field Park.

“A quick hand shake in a high crime area between individuals unknown to the police, even when viewed by an experienced investigator, standing alone, does not provide more than a hunch that a drug transaction occurred, and certainly no more than a hunch that a person standing near the individuals who engaged in the hand shake was a participant in criminal activity. …

“It is not necessary in cases such as this that the police officer observe an exchange of items or actually see drugs or cash, but it is necessary that the observations by the police occur in a factual context that points to criminal activity. …

“The fact that Officer Leon was an experienced drug investigator, while relevant to an assessment of reasonable suspicion, is not a substitute for details about how drug transactions occur based on that experience. … Subjecting a quick handshake, without more, to the scrutiny of a nonconsensual police encounter is not consistent with the reality that ‘law-abiding citizens live and work in high-crime areas. Those citizens are entitled to the protections of the Federal and State Constitutions, despite the character of the area.’ …

“In addition, we note that this is not a case where ‘the aggregation of otherwise innocent activities may give rise to reasonable suspicion.’ … Here, the third male’s hopping a fence to meet Yancy and the defendant standing nearby did not meaningfully add to the calculus. … Nor is this a case where a participant to the alleged drug transaction was known to police. …

“While the police undoubtedly could have continued their investigation by way of continued observation or a field interrogation observation, … an immediate, nonconsensual stop of this defendant was not constitutionally justified.”

Commonwealth v. Kearse (Lawyers Weekly No. 11-037-20) (15 pages) (Agnes, J.) A motion to suppress evidence was heard by Sharon E. Donatelle, J., and a motion for reconsideration was considered by her. Ian MacLean for the commonwealth; Dennis M. Toomey for the defendant (Docket No. 18-P-1619) (April 9, 2020).

Click here to read the full text of the opinion.