United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
For Lance Smith, Defendant: J. Thomas Kerner, LEAD ATTORNEY, Boston, MA.
For USA, Plaintiff: John A. Wortmann, Jr., LEAD ATTORNEY, United States Attorney's Office, John Joseph Moakley Federal Courthouse, Boston, MA.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
Richard G. Stearns, UNITED STATES DISTRICT JUDGE.
Defendant Lance Smith, who is charged with being a felon in possession of a firearm, moves to suppress the weapon, which was seized by Boston Police in the mid-morning of May 8, 2013, on the premises of the Mary Ellen McCormack Housing Development (Project) in South Boston. An evidentiary hearing was held on July 2, 2014, and thereafter, at counsel's request, several extensions were granted to permit the filing of supplemental briefing pending the availability of the hearing transcript. Final argument on the motion was heard by the court on November 4, 2014.
Based on the credible testimony and exhibits offered into evidence, I find the following material facts.
1. On the morning of May 8, 2013, Officer Stephen Horne, a Boston Police veteran of (at the time) nineteen years, and his partner Officer Brendan Kelly, were on uniformed patrol in the area of the Project in South Boston. Dkt. #48-Tr. at 88, 91 & 118. The officers were aware of an armed bank robbery that had occurred nearby the preceding day, the perpetrators of which had fled into the Project, and one of whom was still at large. Id. at 90 & 117-118. The officers also knew of firearms and other arrests that had been made in and around the Project. Id. at 90 & 117. As the officers traveled through Sterling Square, they observed defendant Lance Smith, then unknown to them, retrieving an object from the trunk of a green Honda parked on O'Callaghan Way. Id. at 95-96 & 121. A young woman, later identified as Rhonda Zablocki (Smith's girlfriend and the owner of the Honda), was slumped down in the driver's seat. Id. at 95. The officers had seen the Honda parked in the same location an hour or so earlier with the same woman in the car by herself. Id. at 94-95 & 119. At the first encounter, the officers had run the plate of the Honda and learned that it was it was registered to an address in the nearby suburb of Weymouth. Id. at 95 & 119.
2. The officers observed Smith retrieve an object from the trunk and thrust it into his right sweatpants packet. Id. at 96 & 121. Although Smith appeared to be looking to his left and right while he did so, he did not see the cruiser. Id. at 96-97 & 121. He then began walking quickly down O'Callahan Way without speaking or gesturing to Zablocki. Id. at 97 & 122. The officers followed with Kelly driving. Id. at 123. At no time did the officers activate the cruiser's lights or siren. Id. at 100 & 123. As the officers pulled abreast of Smith, he appeared momentarily shocked. Horne asked, " Excuse me, you mind if I talk to you?" Id. at 100. Smith ignored the request and continued walking. Id. at 101. Horne persisted and asked who owned the car that Smith had exited. He replied, " It's my girlfriend's car. Go talk to her." Id. at 133. Horne exited the cruiser and approached Smith, asking him for his name. Id. at 101-102 & 124. Smith gave his true name, standing stiffly with his right side turned away from Horne. Id. at 102 & 124. Suspicious, Horne asked Smith if " he had anything on him the officers should be aware of." Id. at 103. Smith did not reply, but began
backing up. As he did so, Horne observed a bulge in Smith's right pocket. Id. Horne grabbed the pocket and felt what he believed to be the frame of a gun. Id. at 104. Smith batted Horne's hand away and began running in the opposite direction towards Kemp Street. Id. at 105 & 134. Horne shouted to Kelly, " Gun." Id. at 106 & 124. Horne unholstered his service weapon. Id. at 106. Kelly yelled to Smith, " Stop. Drop the gun." Id. at 125. In response, Smith took the gun from his pocket and threw it to the pavement, along with a cell phone. Id. at 108 & 126. Kelly tackled Smith ...