Massachusetts Appeals Court Rules Boston Police Unconstitutionally Seized Cocaine from Defendant’s Mouth

The Massachusetts Appeals Court today upheld a district court judge’s decision to suppress a bag of cocaine that Boston police officers found in the defendant’s mouth, ruling that the cops’ conduct was unconstitutional.  The name of the case is Commonwealth v. Evans. 

The defendant was charged with possession of a class B substance (crack cocaine) following an incident with the police in March of 2011.  At approximately 2:00 a.m., the defendant was walking by himself along a road in Dorchester.  Two Boston cops, wearing plain clothes and driving in an unmarked police cruiser, were on routine patrol in the area.  The officers saw the defendant, who they did not recognize, and began to follow him.  When the defendant realized he was being followed, he turned left onto another road and continued to walk.  The cops continued to follow him and drove right next to him.  While still sitting in their vehicle, the cops asked the defendant where he was going and the defendant said he was walking to his house which was nearby.  While he was talking to the cops, the defendant appeared to be nervous.  At one point the officers told the defendant to take his hands out of his pockets and the defendant hesitated before complying.

The cops got out of their cruiser and walked up to the defendant on the sidewalk to continue to interrogate him.  While they were not in uniform, the officers were carrying their guns and were wearing their badges around their necks.  While speaking to the defendant, the officers noticed that it appeared he had something in his mouth.  They asked the defendant what was in his mouth and one of the officers shined his flashlight into the defendant’s mouth and saw what appeared to be a bag of crack cocaine wedged into his cheek.  The defendant refused to spit out the object and one of the cops grabbed his jaw and physically forced him to expel the object from his mouth.  The cops released the defendant and later summonsed him to court to answer to the charges.

Once in court, the defendant filed a motion to suppress the drugs, arguing that the police conduct in stopping him and seizing the crack cocaine was unconstitutional.  The motion judge agreed and suppressed the evidence.  The Commonwealth appealed and the Appeals Court upheld the decision of the motion judge.

The issue related to the motion to suppress was: (1) when was the defendant “seized?” and (2) did the police have reasonable suspicion to seize him?  The police are allowed to approach people on the street and engage them in conversation.  However, in order to seize somebody, the police need to reasonably suspect that the person has committed, is committing, or is about to commit a crime.  Seizure occurs when the person being questioned reasonably believes he or she is not free to leave.

The Court found that the defendant here was seized by the time the cops asked him what was in his mouth.  The defendant was walking alone in the middle of the night when two armed police officers pulled their car along side of him and confronted him.  The Court said the officers’ approach of the defendant along with their accusatory questions would have sufficiently intimidated a reasonable person to feel compelled to answer their questions.  A reasonable person would not have believed he or she was free to leave.  The Court further held that the officers did not have a reasonable basis to believe the defendant had violated the law before seizing him.  The defendant’s nervous demeanor was insufficient.  The officers had nothing more than a hunch (which proved to be correct) that the defendant was breaking the law.  Unfortunately for the police, the constitution does not allow a police officer to seize someone based on a hunch.

This case illustrates the importance of aggressively litigating pretrial motions to suppress evidence.  Once the drugs were suppressed in this case, the Commonwealth could no longer continued with the prosecution of the defendant.