DePeiza: SJC Affirms Terry Stop Based On Police Training And Experience

Many criminal prosecutions arise from evidence recovered by police during unplanned street encounters with citizens. Such "threshold inquiries" or Terry stops are standard investigative techniques employed by law enforcement after the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968). The success of motions to suppress evidence recovered from such encounters depends upon the details of the encounter what did the defendant do or say that aroused suspicion, what did the police say to the defendant, how did they say it, how reasonable were their actions and the experience and credibility of the police officers. In Commonwealth v. DePeiza, 449 Mass. 367 (2007)("DePeiza"), the SJC, while providing guidance on the reasonable suspicion required to conduct a threshold inquiry, revealed an inclination to credit the training and experience of the police in their on-the-street assessment of a defendant's objectively neutral conduct. DePeiza is a classic example of the fine lines that determine case outcomes and the importance of determining whether there is back-up data to support police conclusions about an area or an individual.

DePeiza involved an encounter between two plain-clothes police officers and the defendant in Dorchester shortly after midnight on April 27, 2005. The officers testified that the location was a "high crime" area where, on past occasions, shots were fired and arrests were made involving illegal handguns. They were patrolling the area because of a recent increase in firearm violence. When the officers saw the defendant, whom they did not know, walking on the sidewalk, they observed him walking in an "odd" manner, holding his right arm stiff and straight, pressed against his right side as if he were holding something. The officers, each of whom had three years' experience, testified that they had been trained to recognize a distinctive "straight arm" gait as evidence that someone was carrying a concealed firearm. Indeed, 10-15% of their 25 gun arrests in the previous eight months involved similar observations.

Suspicious, the officers turned around their unmarked cruiser and conversed with the defendant, who was shielding his right side from them, "as if trying to hide something." Exiting their cruiser, they approached the defendant, who was avoiding eye contact, looking from left to right and shifting his weight from side to side (signs of nervousness and intended flight, according to the officers). As the...