The Massachusetts Appeals Court today upheld a man's conviction for exposing himself to an undercover cop, ruling that wearing a badge doesn't shield police officers from the same feelings of shock anyone else might experience when confronted close up with something unwelcome, such as a stranger's penis on a near-deserted street corner.
Johnathan Pasquarelli was convicted of open and gross lewdness and lascivious behavior in 2018 following his arrest by Salem police officers trying to catch a guy who kept flashing women in downtown Salem. In a sting operation one night, Det. Charlene Sano posed as a pedestrian, walking up and down a particular street until one guy drove past her some 25 times, then got out and walked by her a couple of times. And then, according to the court's summary of the case, when Sarno got on her phone to talk to her partner, who was parked nearby and keeping his own eye on her:
[T]he driver approached Sano and said, "[E]xcuse me." Then lifting his sweatshirt and exposing his genitals, he said, "[C]an you put this in your mouth?" Sano screamed to the surveillance officer, "[H]e just did it, he just did it, he just exposed himself." At trial, the surveillance officer testified that Sano's tone of voice was "fearful, shocked," and "surprised."
At issue in Pasquarelli's appeal is a requirement in Massachusetts case law that requires prosecutors to prove a witness was "shocked" or "alarmed" by the activity in question; it's not simply enough to prove that a person took down or lifted up clothing hiding naughty bits. Pasquarelli's lawyer argued the prosecution could not possibly prove that in this case because police officers, as hardened as the criminals they pursue, become immune to such feelings.
Wrong-o, the appeals court ruled.
An officer is not immune -- either by nature of her position or by nature of the investigation she is conducting --to feelings of fright. See State v. Wood,180 Ariz. 53, 66 (1994), cert. denied, 515 U.S. 1147 and 515 U.S. 1180(1995)("Police officers, of course, are not immune from the fear that anyone would reasonably feel. . ."). We would not tell an officer responding to a report of an armed suspect that feelings of fear on being confronted with a gun are unreasonable. Nor would we dismiss the shock an officer may experience on arriving at a bloody murder scene. We likewise decline to conclude that as a matter of law an officer's shock or alarm when accosted by a suspect engaging in lewd behavior, even if anticipated, are objectively unreasonable. ...
Specifically, the question is whether Sano's shock "was an objectively reasonable reaction in the circumstances of the conduct." ... Here, the defendant drove his vehicle past Sano over twenty-five times as he repeatedly circled the neighborhood; it was after 9 P.M. and there were only a few people around; the defendant walked past Sano a couple of times and poked his head around a building a couple of times; and he then approached Sano, expressly called for her attention, and exposed his genitals. We think this evidence was sufficient to establish that Sano's shock "was an objectively reasonable reaction," ... and thus sufficient to satisfy the [shock and alarm requirement].