From a distance, cop thought teen at Mildred Hailey had a gun in her waistband; he was right and a court says the gun can be used as evidence against her

A divided Massachusetts Appeals Court ruled Friday that a Boston police officer had probable cause to stop a teenager at the Mildred Hailey complex in Jamaica Plain on Nov. 1, 2018 and have her frisked, which means the gun found on her can be used to try to convince a Juvenile Court judge she is guilty of being delinquent for possession of an unlawful firearm.

At issue in the case were the increasingly fine lines police have to navigate when deciding whether to stop and frisk somebody, especially a member of a minority group, whom the court has ruled in the past might have good reason to run from police even if they are not guilty of anything.

In this case, the court had to consider whether to accept the prosecution's argument that the then-16-year-old was trying to evade the cop, whether she was "blading," or angling her body to try to hide the gun, and whether here touching her waistband was an attempt to keep the gun from falling down her pants, in a particular area where residents had reported youths with a gun earlier in the day, in a housing development where somebody had been shot the day before, where several gunfire incidents had been reported in the week before and which in general is considered a high-crime area.

Under the federal and state constitutions, police can't simply stop somebody and frisk them; they need a really good reason, or, in Massachusetts legal terms, "reasonable cause." In a 3-2 decision, the court decided that Officer Samora Lopes, a member of the BPD gang unit had such reason to stop the teen and to summon a female officer to frisk her, which resulted in a gun being found and her placed under arrest.

According to the court's summary of the case:

From about sixty feet away, Lopes saw two people, including the juvenile, walk in the direction of the other officers. It appeared that once the two saw the officers, they "broke right" into an alley and headed back toward the housing complex. As the juvenile walked, she continuously looked back and forth over her shoulder at the officers before changing direction, adjusted her waistband, and turned her body away from view. During Lopes's testimony at the hearing on the motion to suppress [the gun as evidence], he stood and demonstrated the juvenile's behavior. The judge found that the juvenile "bladed" her body so as to conceal something on her person.

Lopes testified that based on training he had received from federal experts, this was just the sort of thing somebody with a gun. And because he was familiar with both the earlier call about the kids with the gun in particular and with gun violence at Mildred Hailey in general, he got out of his cruiser, along with this partner, to talk to the two teens - whom he said tried to evade them, only to run into a group of BPD officers who were also walking around looking for the teens with the gun. After a female officer arrived to start the frisk:

[T]he juvenile turned to a woman who was in charge of a nearby youth program and said, "Tell my mom I love her." In the course of the patfrisk, the female officer found, among other things, three cell phones and a loaded gun in the juvenile's waistband.

The majority on the court concluded that Lopes did, in fact, have "reasonable cause" that the teen was in the act of committing a crime - walking around in public with a firearm, which is completely illegal for minors in Massachusetts.

At the time of the stop, Lopes was aware of the telephone call from a concerned citizen as well as reports of shots fired at the housing complex the day before the stop and in the recent past. He also made observations of the juvenile, which, based on his training and experience, were consistent with people who carry unholstered firearms. These facts, taken together and not in isolation, provided Lopes with constitutional justification to stop the juvenile.

The court ruled similar reasoning applied to the pat down.

Here, the confluence of the juvenile's movements, the presence of firearm activity at the housing complex both the day before and that week, along with Lopes's specialized knowledge regarding the indicia of someone carrying an unholstered firearm amounted to reasonable suspicion to patfrisk the juvenile.

Two justices, however, disagreed, saying Lopes really didn't have enough cause to stop the teen and that the gun should therefore be tossed as evidence because without reasonable cause, the stop and search was unconstitutional.

They argued that, as the Supreme Judicial Court has ruled in recent years, that people don't lose their constitutional rights just because they live in a high-crime area, and that Black people in particular cannot be blamed for trying to evade police.

In the case before us, there is no indication that the juvenile was under any obligation to respond to a police inquiry at the time that Lopes seized her [by grabbing her arm] and it is uncontested that the juvenile is black. Therefore, following Warren and Evelyn, I believe that we should significantly discount the fact that the juvenile sought to avoid the police and looked over her shoulder at them more than once as she was walking away. That is especially appropriate where, as here, the police were approaching in such numbers. I recognize that the juvenile is female, unlike the people stopped by the police in [the two SJC cases]. However, I discern no compelling reason not to apply the guidance of those cases to African-American females. putting aside issues of race, age, and gender, law abiding citizens and criminals alike might well walk the other way to avoid five to seven oncoming police officers.

Also, they continued, the teen's actions that night might have been innocent - such as touching her waist, which might just mean she was adjusting her clothing or fiddling with a phone and that what Lopes saw as "blading" might just be her looking behind herself:

In evaluating the significance of the juvenile's actions, it is important to keep in mind that it is nearly impossible for someone to look behind herself without turning her body to the side in a manner that might be characterized as blading. In the circumstances of this case, any evidence that the juvenile intentionally positioned her body so as to hide something from the police was slight at best.

They continued that judges must be particularly discerning when it comes to police officers and "talismanic" recitals from the training of what exactly certain things mean.

As generations of medical students learning to be diagnosticians have been taught, "When you hear hoofbeats behind you, don't expect to see a zebra. Here, the notion that people walking away from police while carrying an illegal handgun in their waistband likely would check to see whether that gun was secure is sound. However, the fact that someone is both walking away from police and has her hand near her waist says remarkably little about the probability that the individual is in possession of an illegal firearm. Conflating such probabilities is an error known by many names, including -- as particularly apt here --"the prosecutor's fallacy."

Also, the call about kids with a gun had come in three hours before Samora arrived on scene, and that no testimony was given as to the identity of the caller or even any identifying characteristics he or she gave to point to specific kids. Nor was any information provided in hearings that might have tied the teen either to that gun call or the earlier incidents of violence in the large Mildred Hailey complex, further reducing the "reasonable cause" that she might have needed a search.

The Commonwealth's case largely rests on Lopes's surmise that the juvenile's movements of her hand in the area of her waist indicated that she was adjusting her waistband, and that this in turn made it sufficiently likely that she was carrying a gun there to justify his stopping her to conduct a patfrisk. Viewing his observations together with the other circumstances, I do not believe they provide reasonable suspicion.