Court tosses man's illegal-gun conviction based on what it determined was an unconstitutional pat frisk

A man ordered out of a car that was wanted in connection with a Roxbury shooting in 2019 can't be charged for possession of the loaded gun police found on him because officers didn't have probable cause to search him, the Massachusetts Appeals Court ruled today.

Aaron Powell of Brockton was a passenger in a white Fusion that police stopped on West Broadway and Traveler Street in South Boston early on July 24, 2019 after an off-duty officer going home for the night spotted the car and recognized it and its license plate on a BOLO flyer from a shooting at Mount Pleasant and Vine streets in Roxbury a couple days earlier, according to the court's summary of the case.

The officer called in the car and followed it to a nearby Chinese restaurant, where Powell got out and picked up some takeout and got back in the car. On-duty officers arrived, ordered Powell out and, after a pat frisk revealed what police said was "a Black High Point, Model C9, 9MM Luger Firearm with 1 round in the chamber and 7 rounds in the magazine," arrested him on a variety of gun charges.

Powell's attorney moved to have the gun stricken as evidence, but a Superior Court judge ruled Suffolk County prosecutors had enough evidence to warrant the search, after which Powell agreed to a "conditional" guilty plea that would let him appeal.

In its ruling today, the appeals court said accepting the gun into evidence was an error, because Powell was stopped long after and nowhere near the shooting that led to the BOLO, because he was not described in that flier and because he did nothing possibly suspicious when seven to ten BPD officers arrived on the scene: No furtive movements, no attempt to disobey the officers or leave. So, the court concluded, there was no evidence that he might be "armed and dangerous" and so could be frisked without a warrant.

Given the lack of evidence linking the defendant to the report of shots fired, coupled with the amount of time that had passed since the report, and the lack of any other facts that would create a reasonable suspicion that the defendant was armed, the judge erred in concluding, based on the very limited evidence provided, that the Commonwealth had met its burden to show a reasonable suspicion that the defendant was armed and dangerous. The arresting officers had no suspect and no description of a suspect. Both the registered owner and the driver at the time of the stop were women, but the officers did not know who the driver was, and did not find out before the patfrisk was conducted. The Commonwealth offered no evidence at the hearing to link the registered owner of the car to the driver at the time of the stop, or to link the defendant to criminal activity. The BRIC [Boston Regional Information Center] flyer referred to "ties to Heath St.," a residential street, but no evidence was submitted at the hearing that the reference was meant to describe gang activity, or that the car was tied to gang activity.

The court continued:

The fact that the car was used in a shooting did not provide reasonable suspicion that an armed shooter or shooters were still in the car thirty-four hours later. ... In the absence of a description of suspects, the BRIC flyer, on its own, was inadequate to create a reasonable suspicion that the unidentified passenger in the car was armed and dangerous. ... Furthermore, nothing occurred after the stop to create reasonable suspicion that the defendant was armed and dangerous. During the police encounter, the defendant obeyed officer directives and made no suspicious movements. There was no evidence (and consequently no finding) of furtive or evasive behavior.

And so:

Absent specific articulable facts tending to establish that this defendant was armed and dangerous, the patfrisk violated constitutional norms.