48 Mass. App. Ct. 912 | Mass. App. Ct. | 1999
The motion to suppress the gun should have been allowed. There is no question that, if the officers had reasonable suspicion to justify a Terry stop (Terry v. Ohio, 392 U.S. 1 [1968]), they could effect a limited search for weapons to safeguard themselves from attack. See Commonwealth v. Ballou, 350 Mass. 751, 755 (1966); Commonwealth v. Fraser, 410 Mass. 541, 544-547 (1991). What they lacked, however, were reasonable grounds or suspicion to justify a Terry detention. There had been no report of a crime or of a weapon. Contrast Commonwealth v. Fraser, supra; Commonwealth v. Stoute, 422 Mass. 782, 789-791 (1996); Commonwealth v. Gunther G., 45 Mass. App. Ct. 116, 118-119 (1998). The officers had observed no motion suggestive of drug dealing or other crime. Compare Commonwealth v. Lara, 39 Mass. App. Ct. 546, 547-548 (1995). The defendant’s evasion of the police by walking away did not by itself suffice to create articulable suspicion. See Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981); Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 71-72 (1997). Contrast Commonwealth v. Williams, 422 Mass. 111, 113-114 (1996), where the fleeing defendant discarded his shirt without breaking stride, dropped a beeper, ran through backyards, and scaled chain link fences, and Commonwealth v. Harkess, 35 Mass. App. Ct. 626, 632 (1993), where the police had information connecting the defendant to a drug and gun group operating where he was spotted, and where he “fled on his own propulsion” after spotting the police at a distance.
Viewed objectively, nothing more happened in this case than that a youth in a high crime area put his hand in his pocket and walked away upon seeing the police. More is needed to create an articulable suspicion. We think the youth’s ignoring the direction to stop cannot be treated as affecting the analysis without empowering the police to create articulable suspicion where none existed before.
The judgment is reversed, the finding is set aside, and a new judgment shall enter for the defendant.
So ordered.
