SJC throws out gun and drug evidence from illegal search Dr. Q The Massachusetts Supreme Judicial Court affirmed in a recent ruling that Worcester police conducted an illegal search during a traffic stop in 2008. The Court tossed the gun and drug evidence found by police during the search, forcing prosecutors to drop the case (Source: Telegram & Gazette). Here’s how the Telegram summarized the case: Officer George Lavin, a five-year member of the police department, was on routine patrol at Hooper and Catharine streets about 10:30 p.m. May 18, 2008, when he saw a gray Hyundai Sonata run a stop sign at the intersection. Officer Lavin turned on his cruiser’s blue lights and the Hyundai stopped less than a block away in the parking lot of an apartment building at 42 Catharine St. Officer Lavin got out of his cruiser, approached the vehicle and called for backup just before seeing two male passengers get out of the Sonata and walk toward the apartment building. Officer Lavin ordered both men to get back into the car. One began running toward the building while the other hastened his pace. Fabian Perkins of 26 Ethan Allen St., the driver of the car, remained seated and identified himself to Officer Lavin. The officer ordered Mr. Perkins out of the car, pat-frisked him and asked him for identification and the names of the passengers who fled. Mr. Perkins responded that he did not know the men. He produced a learner’s permit, which required him to have a licensed driver with him while behind the wheel of a car. Officer Lavin again asked Mr. Perkins to identify the occupants of the vehicle. He did not respond and was handcuffed. Officer Timothy Segur, a three-year member of the police department, arrived at the scene, spoke to Officer Lavin and then entered 42 Catharine St. to look for the two passengers. He checked the first-floor common areas and hallway and immediately returned to the stopped vehicle. Officer Segur asked Officer Lavin if he had searched the car, and Officer Lavin said he had not. One door of the Sonata was ajar and the interior light was on. Judge Page found that the officers did not see any contraband in plain view, but conducted a search of the vehicle that yielded a firearm, marijuana and a substance believed to be crack cocaine. At least a half-dozen additional officers arrived at the scene and entered 42 Catharine St. in search of the two men who had been in the car with Mr. Perkins. One of them, Tareek Hendricks, now 31, of 144 Stafford St., was found in one of the apartments and was arrested. The second man, identified as Elijah Cherry, now 28, of 20 Svea St., was caught while leaving the building through a back door. All three men were charged with firearm and drug offenses, and their cases were pending in Worcester Superior Court when Judge Page issued her ruling. Lawyers for the three suspects argued at the hearing on the motion to suppress that the actions of the police, including the initial stop of the car, the pursuit of Mr. Hendricks and Mr. Cherry, the pat-frisk of Mr. Perkins, the warrantless search of the car and the entry into the apartment were unlawful and violated their constitutional rights. The prosecution countered that the firearm was in plain view in the car and provided probable cause for the search of the vehicle, that the search of the vehicle was permissible as a search incident to Mr. Perkins’ arrest and that Mr. Hendricks and Mr. Cherry lacked standing to challenge the search because they abandoned the contents of the car, as well as any reasonable expectation of privacy, when they left the scene. “This court’s finding that the officers did not see the gun in plain view, and that they only located the contraband after conducting a more intrusive search, renders the search illegal,” Judge Page wrote. “While Lavin was justified in stopping the car for a traffic violation, and his detention of Perkins to determine whether he was properly operating the vehicle was reasonable, the Commonwealth has failed to establish that the officers needed to search the car to ensure their safety or that any other applicable exception to the warrant requirement would justify the search of the car. Therefore, the gun, cocaine and marijuana must be suppressed,” she wrote. Prosecutors appealed the ruling to the state Appeals Court and the SJC took jurisdiction of the case on its own initiative. “Because there was no error in the judge’s finding that the firearm was not in plain view, because the search cannot be justified as a search incident to arrest, and because the Commonwealth failed to establish that Hendricks and Cherry abandoned the contents of the automobile when they left the scene, we agree with the judge’s conclusion that the search of the automobile constituted an unlawful warrantless search requiring suppression of the evidence seized,” Judge Barbara A. Lenk wrote for the SJC. The SJC focused on the narrow question of whether Judge Page properly suppressed the evidence found in the Sonata and did not address the propriety of Officer Lavin’s order to Mr. Hendricks and Mr. Cherry to return to the car. The court said in a footnote to its decision that it would “leave this issue for another day.”
Posted on: Fri, 15 Aug 2014 02:11:00 +0000
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