Court: Prosecutors can't tell jury about illegal gun found in guy's waistband because cops didn't find it the right way

The Massachusetts Appeals Court ruled yesterday Suffolk County prosecutors won't be able to use an allegedly illegal handgun seized from a Dorchester man in 2008 in their case against him, because the Boston police officers who found the gun should have frisked him first instead of making him raise his hands and then lifting up his T-shirt.

On the evening of July 18, 2008, the two officers - assigned to follow a BWSC crew along Draper Street to keep the workers from being "harassed" - noticed a guy whose house had been shot up earlier that day, and who'd been shot at a couple of months earlier. They decided to have a chat with him:

While Officer Small and the defendant were talking, Officer Williams approached the defendant's left side. From a distance of approximately four or five feet, Officer Williams noticed a bulge at waist height, beneath the defendant's T-shirt (which was hanging over his cargo shorts). The defendant told the officers that he wanted to leave to get his slice of pizza. Officer Williams told the defendant, "Before you go, I'm going to have to lift your T-shirt." Officer Williams told the defendant to put his hands in the air and then lifted the left side of the defendant's T-shirt, revealing a large, loaded revolver tucked into the defendant's waistband. The defendant was then placed under arrest.

The appeals court said officers had the right to stop him:

[T]he police had reasonable suspicion of the defendant's involvement in criminal activity sufficient to justify the stop, based on a belief that he had been involved in the reported incident of shots fired in a residential neighborhood, including a belief that he may have fired some of the shots.

But when it comes to searches of a person who is not obviously in the middle of committing a crime, officers have to use the least intrusive method for determining whether he is in possession of something illegal, based on the Supreme Court's decision in Terry v. Ohio, the court ruled:

In the present case, there was no reason why Officer Williams could not conduct a pat-down of the exterior of the defendant's clothing in the location of the suspicious bulge, to determine whether the object felt like a weapon. The defendant was cooperative, had made no threatening movements toward the police (who had no particularized information placing a gun or other weapon in the defendant's waistband), and had his hands in the air. We accordingly conclude that the circumstances of the encounter between Officer Williams and the defendant furnished no grounds to justify a departure from the usual and preferred method of beginning a Terry search with an exterior patfrisk.

Complete ruling.