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The Massachusetts Appeals Court addresses the issue of reasonable suspicion when police observe a quick hand-to-hand transaction

As a Massachusetts Criminal Defense Lawyer, often the most promising defense in a case of drug distribution or a gun possession charge, is an attack on the Constitutional basis for the stop.  In many cases, police came that a quick transaction was an illegal drug sale and use that as a basis to seize a person and search their person.  When these cases make it to court, it is because the person had some illegal substance on them or illegally possessed a firearm.

That was the legal issue under the Fourth Amendment and Article 14 that the Massachusetts Appeals Court had to address in the case of Commonwealth v. Kearse, decided on April 9, 2020.

What happened in the Kearse Case?  

In the Kearse case, the Boston police saw two men engaged in a quick hand-to hand transaction in a high crime area and believed that they had witnesses a drug transaction.  The police officers ordered the defendant to be stopped and pat-frisked.  During the pat-frisk the officers found a loaded revolver.

The defense lawyer filed a motion to suppress, challenging the reasonable suspicion for the initial seizure and the Constitutional basis for the pat frisk.

What is Reasonable Suspicion under the Constitution?  

Reasonable suspicion has been defined by Courts to mean a specific articulable fact and reasonable inferences therefrom rather than a hunch.  Reasonable suspicion is an objective standard and the totality of the facts on which the seizure is based must establish a suspicion related to that particular individual.  If a stop is constitutional justified, the SJC has explained, meaning there is reasonable suspicion, a pat frisk is only justified if the officer has reasonable grounds to believe that the suspect is armed and dangerous.

The Appeals Court found that the stop was not justified in this case.  In this case, The Appeals Court found there was no dispute that the defendant was seized.   In order to have an illegal search and seizure,  the Court must first determined that the defendant was seized.  Otherwise, there is no constitutional violation.

The Boston police officers stopped the defendant after observing a quick hand to hand exchange. The defendant was stopped and pat frisked along with the other individual who he was seen making an alleged exchange with.  While the defendant was standing 20 feet from the officers, the officers testified that they believed his coat was sagging at the motion hearing, consistent with something heavy being in it. The officers testified that the defendant was checking himself.  After making these observations, the officers conducted a pat frisk.

Decision of the Appeals Court

The Appeals Court found that there was no reasonable suspicion; that the only facts were that an unknown male, jumped a fence and engaged in a quick hand to hand with someone the defendant was with while the defendant stood close by.  The defendant did not interact with the person that jumped the fence and engaged in the believed hand to hand transaction.  The Appeals Court noted that a quick transaction even in a high crime area does not provide reasonable suspicion to believe that there was criminal activity.

This is an important decision because the potential for a high crime area to diminish Constitutional rights would have a disproportionate impact on minorities.  The Commonwealth attempts to justify these seizure based on quick exchanges based on the location of where they occur.  Here, there was nothing else of significance to add to the officer’s suspicion.  The Appeals Court properly found that the officer did not have reasonable suspicion to believe that a crime occurred and acted on a mere hunch which is impermissible under the Constitution.

You can read the decision in Kearse here.

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