Submitted by Angryboy on Wed, 07/07/2010 - 09:39
At an outdoor event in Boston I was seen by a cop holding a beer in a plastic cup. He came over to ask me about it. Then he asked me what was in my pocket and then patted me down and found a knife that he says is illegal. So now I have to go to court for the knife and the beer. Is it legal for him to search me like that or can I get the thing thrown out?
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Editor's Response
Hard to tell from the limited amount of information in the questions, but if certain conditions are met, when an officer reasonably suspects criminal activity and lawfully stops a person to investigate a crime or possible crime, he or she is allowed to protect himself by performing a check of the outer clothing of the person being detained (to check for concealed weapons). This is sometimes called a "stop and frisk" or a "Terry stop," after the Supreme Court decision that allowed the practice. If I were you, I would contact a Massachusetts criminal law attorney, or get a court appointed attorney and discuss the details of the stop. The illegal knife charge may have serious consequences, and if the search was illegal you may be able to get that charge thrown out.
Illegal Search under MA Law?
The Supreme Judicial Court recently has limited the circumstances when an officer may properly frisk a suspect. (See the Boston Globe article here: http://www.boston.com/news/local/massachusetts/articles/2009/04/03/sjc_p...). To get your case "thrown out" you should speak with an attorney and have him file a motion to suppress after a careful analysis of established and recent case law.
Attorney Kevin Gaughen, Jr.
Editor's Response
Yes, Attorney Gaughen is correct. In Commonwealth vs Paul Gomes (453 Mass. 506) the Court held that the police must have particular facts from which a reasonable inference could be drawn that the defendant was armed and presented a danger to the police or others. The Gomes case makes it all the more imperative that you talk to an attorney about the specific facts surrounding your arrest.