‘Stop and frisk’ search standards are questioned

Dan Devine

In a ruling that has sparked debate in the law enforcement and civil rights communities, the state Court of Appeals last week called a “stop and frisk” search in Dorchester unconstitutional, despite the fact that it turned up an illegal handgun.

“Whether viewed from the standpoint of reasonable suspicion of criminal activity or that of reasonable apprehension of danger,” Justice Joseph A. Grasso Jr. wrote in the appellate court’s majority opinion, “the stop and immediate patfrisk of the defendant [was] not constitutionally supportable.”

While state law allows officers to conduct a “stop and frisk” search if they have reason to suspect that an individual’s actions are of “unlawful design” or places others in “danger of life or limb,” the court’s 2-to-1 verdict ruled that the circumstances surrounding the stop in question failed to meet those standards.

The ruling was based on a case that involved Boston police officers John Conway and Dean Bickerton. They had stopped Michael DePeiza shortly after midnight on April 27, 2005.

The officers, dressed in plainclothes and riding in an unmarked Ford Crown Victoria, said they saw DePeiza walking in the vicinity of Delhi and Babson Streets in Dorchester — at the time characterized by police as a high-crime area.

The way DePeiza was walking — “with an arm rigid and pressed against his right side” — raised the suspicions of the officers, according to the ruling. The officers testified that in an eight month period, they had made 25 gun arrests, and as many as 15 percent of them were based on observing this “straight-arm method” of carrying a gun.

They turned around to approach him without putting on the vehicle’s blue lights or siren.

After calling out to get DePeiza’s attention, Officer Bickerton asked him several questions, noting that he attempted to shield his right side from the officers’ view, avoided eye contact and shifted from side to side.

Bickerton then stepped out of the car and approached DePeiza, who continued to hide his right side from the officers as he reached into his pocket for identification. Seeing that the right pocket of his jacket sagged as if holding a heavy object, Bickerton told DePeiza that he believed the jacket contained a firearm, and that he intended to conduct a patfrisk.

As DePeiza moved away, Bickerton grabbed his right jacket pocket and felt the handle of a handgun. He seized the gun and arrested DePeiza for illegal gun possession, of which he was later convicted.

Ruling to overturn DePeiza’s conviction, Grasso wrote that the Court was “unpersuaded … that the manner of [DePeiza’s] walk, even in conjunction with the other cited factors, provided an objective factual basis for a reasonable suspicion that the defendant was engaged in criminal activity.”

The opinion addressed the initial rationale for the stop, stating that an “individual’s manner of walking, like his hairstyle or his clothing, is by itself too idiosyncratic to serve as the basis” for reasonable suspicion. Grasso also said that before encountering DePeiza, “the officers had neither observed nor received any report of criminal activity, a firearm being brandished, or shots being fired.”

Without proper context, Grasso concluded, “there are too many innocent explanations to permit idiosyncracy to serve as the critical identifier of criminal conduct.”

In his concurring opinion, Justice Frederick L. Brown identified “stop and frisk” searches as a popular tool in racial profiling, lamenting “a few of the extraordinary, yet disturbing, instances of flagrant abuses of the constitutional rights of certain citizens by police officers.”

“I can only hope that these practices will not degenerate into stops based upon ‘breathing while black,’” Brown wrote.

The lone dissenting opinion came from Justice Phillip Rapoza, who concluded that, when considered in combination, the factors contributing to the officers’ assessment “provided an objective factual basis for [them] to suspect that the defendant illegally possessed a firearm.”

Rapoza also disputed the majority’s assessment of the case’s primary question.

“What was significant to the officers was not the observation of ‘idiosyncratic’ behavior, but conduct that was entirely consistent with the actions of persons known to conceal firearms,” he wrote.

According to spokesman Jake Wark, the Suffolk district attorney’s office plans to appeal the ruling to the Supreme Judicial Court. Wark told reporters that the office “respectfully [feels] that this decision could have a significant detrimental effect on our ability to prosecute gun crimes.”