Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Criminal Defense Attorney Wins Search Issue In Drugs And Guns Case

The city of Lynn’s top cop, Police Chief John Suslak, is unhappy. His ire has been raised by a ruling by the Supreme Judicial Court in Boston. On Friday, he joined law enforcement officials across the state in saying that the decision barring police from frisking suspected drug dealers for weapons in most cases endangers officers. To said officials, those pesky defense attorneys have done it again. More loopholes for criminal defendants to slip through.

To said attorneys, however, as well as the Court, those “loopholes” are Constitutional safeguards.

Last week, the SJC, the Commonwealth’s highest court, ordered police to stop pat-frisking suspected drug dealers for weapons unless they have specific information the person is armed or has a history of violence. One member of the Court disagreed with the majority, claiming that the ruling puts police officers in jeopardy. Various members of law enforcement agree with that dissenting opinion and Chief Suslak.

“Police work by its nature is dangerous, and drug work is even more so,” said Lawrence Police Chief John Romero. “We will comply with the ruling . . . but it’s going to put officers at risk.” Suffolk District Attorney Daniel F. Conley, however, is not so compliant. He has said that he wants Boston police officers to protect themselves and that he is prepared to lose some cases if a judge rules drugs were found after an illegal pat frisk.

“I don’t want officers out there risking their lives by not pat frisking defendants in these circumstances.” he said. “If we have to lose an occasional case . . . then I guess that’s what’s going to happen.”

Well, I guess that’s one way of looking at it. There is, however, another.

For example, David M. Siegel, a New England School of Law professor who filed a brief for the Suffolk Lawyers for Justice, said the court ruling protects individual liberty, especially for residents in high-crime areas who could find themselves being pat frisked simply because they encountered police while walking in their neighborhood.

The SJC ruled in a case involving the drug conviction of Paul G., (hereinafter, the “Defendant”), who was stopped by Boston police in the Theater District in December 2005 and arrested after crack cocaine allegedly fell out of his pants leg.

It was 4 a.m., and the officers spotted Gomes who was known as a “high impact player” who had at least one drug conviction. They frisked for weapons out of concern for their safety. No weapon, however, was found.

The ruling states that there are legal standards which govern the legality of street encounters between police and suspects. Specifically, the police were within constitutional boundaries when three officers stepped out of a cruiser and approached the Defendant as he stood in a Stuart Street doorway allegedly making a hand-to-hand drug sale. However, their decision to immediately pat-frisk him, which led to the discovery of the crack, was ruled to have violated the Defendant’s constitutional rights. Despite the high crime area, there had been no indication that the Defendant was armed or had used weapons in the past. Without such specific evidence linking him to weapons or violence, the Court ruled, police had no right to frisk him.

Justice Judith Cowin, however, did not agree with the rest of the bench and wrote a dissenting opinion arguing that the ruling is putting police at risk without, legally speaking, needing to do so. She said that while officers may not have had information that the Defendant was armed, the fact that he was a known drug dealer who was considered a “high impact player” justified the pat frisk.

Justice Cowin also stated that police, especially those working in high crime areas, could encounter irrational people and need to protect themselves and the public.

“The court’s conclusion ignores reality . . . [and it is] unreasonable to subject law enforcement officers to the risk of attack,” she wrote. “We are not dealing with an innocent person who happens to live in a high crime area.”

Police Chief Suslak said the Boston arrest involved a “highly experienced officer who has made hundreds of arrests.”

Apparently, to the Chief, quantity of arrests equals quality of arrests.

If only those darned Constitutional rights did not keep popping up…!

Attorney Sam’s Take:

Why am I reminded of the new “Watchmen” movie’s slogan…”Who watches the watchmen?”

Let’s put this ruling into perspective.

Police have not lost their right to frisk, or even search, someone whom they believe they have probable cause to arrest. This is called a “search incident to arrest”. That has not changed.

All the Supreme Judicial Court’s ruling is saying is that pat-downs for weapons are legal only if police have specific information the person is armed or has a violent past.

In other words, an officer eyes someone he deems suspicious in a “high crime area”. Maybe he even believes he may be involved in a crime. The SJC says that this is not enough to go up and frisk the suspect.

I remember, years ago, when the Theatre District was known as the “Combat Zone”, and I was having trouble finding a certain address. I was also late. Boy, I’ll bet I looked pretty rushed, nervous and awkward. In other words, suspicious. There is no one who would have said that the Combat Zone was not a high crime area.

Should I have been frisked?

How about if I started trying to stop passers-by to ask directions?

Well, I say I was asking directions. Perhaps the police believe I am trying to sell or buy drugs. Enough to stop and frisk me?

The SJC has answered “no”.

“Oh, come on, Sam”, you say to your computer screen. “No cop is going to stop you just because you are lost and talking to people.”

No?

Would it really shock you to hear that, sometimes, there are a variety of reasons for which police officers stop and question people? Should the police be allowed to frisk anyone they stop in all those situations?

You may have thought that the state of the law was already that police cannot simply stop and frisk anyone they want to. After all, you always believed that police have long had the right to stop someone they suspect has committed a crime or is about to commit a crime.

In theory, you would have been right.

However, in reality, it would not have been so clear.

The SJC’s ruling simply reminds police that they must have more evidence before they inject direct physical contact into the encounter.

How does one safeguard the right not to be stopped and frisked for no reason other than being in the wrong place, “looking wrong” or being the wrong color? Perhaps if there were never abuses of police discretion, this would not be such an issue.

But, then, we are supposed to be talking about reality, right?

Sometimes, “reality” works both ways.

The full articles of this story can be found at http://www.itemlive.com/articles/2009/04/04/news/news02.txt and http://www.boston.com/news/local/massachusetts/articles/2009/04/03/sjc_puts_limit_on_pat_down_searches/

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