allowing motion to suppress affirmed.
K. Anderson, Assistant District Attorney, for the
Kiley for the defendant.
case began when two men, one of whom is the defendant, ran
out of a nightclub [47 N.E.3d 692] in Stoughton at 12:52 a.m.
on April 21, 2013. When stopped by Stoughton police Officer
Mark Baldner, they said that they were leaving the club
because there was a fight inside, which was true. The officer
told them that they could leave, and saw them get into a
Nissan Altima motor vehicle, the license plate number of
which he wrote down. He did not see them again.
ten minutes later there was a shooting outside the nightclub.
The officer told Stoughton police dispatch to issue a "
be on the lookout" (BOLO) bulletin for the Altima,
requesting that it be " stop[ped] and h[e]ld."
the defendant and his companion had left the scene before the
shooting occurred, the Boston police department issued a
broadcast for units to be on the lookout for a Nissan Altima
with the license plate number provided by Officer Baldner,
which was described as " coming back to 130 Cummings
Highway, [Boston] containing two occupants" and "
last seen heading north-
bound on route 138." The broadcast directed units to
" stop and hold for the Stoughton [police department]
regarding a shooting" and, for reasons that are
unexplained in the record, added that the occupants "
should be considered armed and dangerous."
police officers saw the Altima on Radcliffe Street in the
Mattapan section of Boston. They stopped the car and
approached it with guns drawn, ordering its occupants to keep
their hands up and make no sudden movements. The officers
secured the defendant, who had been driving, and put him in a
police car with his hands cuffed behind his back.
searched the car for a gun without success. An officer from
the K9 unit then conducted a more thorough search, during
which he lifted the armrest of the driver's side door,
which seemed to be loose and not sealed as designed. He saw a
cloth bag and the baseplate of firearm magazine. He then
closed the armrest and put his K9 partner inside the car, and
the dog alerted to the driver's side door armrest. Two
firearms were recovered.
Suffolk County grand jury returned indictments against the
defendant, and the defendant filed a motion to suppress. A
judge of the Superior Court allowed that motion, and the
Commonwealth filed this interlocutory appeal.
Commonwealth does not contend that the Stoughton police had a
reasonable basis based upon articulable facts to believe that
the defendant or his companion had committed, was committing,
or was about to commit a crime, see Terry
v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), let alone to believe that they were armed
and dangerous, see Arizona v.
Johnson, 555 U.S. 323, 326-327, 129 S.Ct. 781, 172
L.Ed.2d 694 (2009). They left the scene of the shooting ten
minutes before the shooting took place, and there is
no evidence in the record that they had anything to do with
the shooting or that they were seen with any firearms at the
nightclub. The Commonwealth argues only that the evidence
should not have been suppressed because the Boston police
officers were acting reasonably in response to a BOLO radio
report that described the defendant and his companion as
" considered armed and dangerous."
Commonwealth misperceives the nature of the constitutional
inquiry. Of course the Boston police officers on the scene
responded appropriately to the BOLO. Indeed, we may assume
that their response was reasonable given the incorrect
information they had been given.
question whether there was a constitutional violation, and
whether the Fourth Amendment to the United States
Constitution requires the suppression of the evidence seized,
requires an [47 N.E.3d 693] examination not only of the
actions of the Boston police but of the Stoughton police as
well, and not only of the police officers, but also of the
police dispatchers. In United Statesv.Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604
(1985), the United States Supreme Court addressed the
question whether an officer of a police department may make a
Terry stop in reliance on a " wanted
flier" issued by a neighboring police department
indicating that the defendant was suspected of robbery. The
Court upheld such a stop provided, among other things, that
" the police who issued the flier or bulletin
possessed a reasonable suspicion justifying a stop."
Id. at 233. " Of course, this requirement is
equally applicable where information ...