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When is a Stop and Frisk Justified? Massachusetts Appellate Court Decides in Commonwealth v. Privette

Massachusetts Appellate Court Decides Stop and Frisk Case 

The controversial police method of stop and frisk had been heavily debated since its inception. However, some courts have held stop and frisks to be legal so long as there is a reasonable justification. The Massachusetts Appellate Court looked at this issue in Commonwealth v. Privette

What happened in the Privette case?

On August 12th, 2018, Officer Doherty of the Boston Police Department was working a midnight shift in plain clothes in an unmarked car. At approximately 3:36 am Doherty received a radio transmission that there had been a robbery at gunpoint of a gas station nearby. 

The radio identified the suspect as a black man in his late twenties, medium build, and wearing jeans and a blue sweatshirt. The radio did not mention that the suspect had any facial hair. The suspect left the gas station on foot in the direction of a CVS store down the street. After learning this information Doherty did not go to the gas station but instead decided to search the streets for the suspect. Doherty traveled along the road and observed side streets, but did not see anyone on the streets. 

At 3:43 am, Doherty saw a man, later identified as the defendant, walking in the direction of the car. The man was a black man in his late twenties and had noticeable facial hair. He was wearing black pants and a green sweater. The man did not match the description on the police radio, with the exception of race and age. 

Doherty parked his unmarked car and approached the defendant on foot. He identified himself as a Boston police officer and directed the defendant to show his hands. The defendant complied. Then while in plainclothes, in the middle of the street at nearly 4 in the morning, Doherty conducted a pat frisk. He felt the front pocket of the defendant’s jeans and felt a large wad of cash. He removed it from the defendant’s pocket and then returned it to the defendant. 

At the same time, another Boston police officer arrived on the scene. He also conducted a pat frisk and located a gun in the defendant’s backpack along with a blue sweatshirt. The defendant was arrested and indicted. 

The defendant moved to suppress the evidence obtained during the stop and frisk because it was not justified. The defendant argued that officers did not have reasonable supposition that he was the armed robber. 

According to Massachusetts law, under the Fourth Amendment, police must have reasonable suspicion that the person has committed, is committing, or is about to commit a crime in order to justify a police investigatory stop under the Fourth Amendment. 

Reasonable suspicion is not a clearly defined standard and is subjective. Doherty gave contradictory testimony over whether he was aware that the suspect was described as having a beard. However, the other Boston police officer who arrived at the scene heard an updated description that included the fact that the defendant had a beard. 

Although Doherty was not aware of the facial hair, the appellate court used the collective knowledge doctrine to justify the stop. Under the collective knowledge doctrine, the knowledge of each officer is treated as the common knowledge of all officers and must be examined to determine whether reasonable suspicion exists. 

In this case, both Doherty and the other officer were both involved in monitoring the same radio channel and were both at the scene, so the appellate court reasoned that the other officer’s knowledge of the defendant having a beard was imputed onto Doherty even though this information was never told to Doherty. 

Further, the court reasoned that reasonable suspicion was present in this case because a complete match is not required. Although the only common factors Doherty examined were race and age range, this is good enough for the court. 

With this decision, the Massachusetts Appellate Court has weakened the ability for citizens to be free from stop and frisks by law enforcement officers. The common knowledge doctrine assumes that police can somehow all read each other’s minds, and the knowledge of one is the knowledge of all. However, the facts are clear, Officer Doherty saw a black man walking alone at night and on this basis, he stopped and searched the defendant. Will we have to wait and see if the Massachusetts Supreme Judicial Court hears this case and comes to a different conclusion. 

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