Article from: www.thenewspaper.com/news/38/3874.asp

8/21/2012

Massachusetts: Police Cannot Search Nervous Motorists
Appellate court in Massachusetts rules police cannot search a motorist simply because he is nervous.

For many drivers, being pulled over can be traumatic. A nervous reaction to the sound of a siren, flashing lights in the rear view mirror and a trooper at the window asking for license and registration does not, however, justify a search of that motorist's automobile, according to the Massachusetts Court of Appeals.

On Thursday, a three-judge panel considered the case of Jeromie Johnson who did not react well on April 30, 2009 when Boston police Officers Dennis Medina and Brian Ball and State Trooper William Cameron pulled him over in the Roxbury section of town, allegedly for making a rolling right-hand turn on red without signaling. When asked for his license, Johnson's hands were shaking and he "fumbled with his wallet." He did not look at the officer at his window, but his hands always remained within sight and he made no furtive gestures.

Officer Ball asked Johnson to get out of the car and frisked him, finding nothing. Johnson cooperated, but argued with them over whether he had an outstanding arrest warrant for a minor traffic infraction. Officer Medina questioned the passenger, Johnson's cousin Patricia Felix, and ordered her out of the car as well. Officer Medina said he "didn't feel right about the whole situation" so Officer Ball decided to search the vehicle. He found a gun in the back seat wrapped in a sock and a towel, in violation of the state's strict gun control laws.

The three-judge panel found the arrest warrant combined with the nervous glances made the situation a "close question" ultimately resolved in favor of the defendant. The court found the search unreasonable, in violation of the Fourth Amendment.

"The arrest warrant was for nonviolent motor vehicle offenses," Justice Scott L. Kafker wrote. "The police officers had no reason to believe that either occupant had a history of weapons possession or dangerous crimes."

Without specific information suggesting the presence of a weapon, it was unreasonable to think the two officers and a state trooper on the scene legitimately believed they were in danger.

"A protective sweep of an automobile for weapons must be based on reasonable fears for the safety of officers or others," Kafker wrote. "The officers here had no reasonable concern based on specific, articulable facts that there might be weapons in the vehicle. Therefore, the firearm and other evidence resulting from the search (including the defendant's statements) should have been suppressed. Without the firearm or the defendant's statements, there was insufficient evidence to convict the defendant."

Source: Massachusetts v. Johnson (Court of Appeals, State of Massachusetts, 8/16/2012)

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