A Massachusetts State Police Trooper pulled over two Boston men in Stoughton late Sunday night, ultimately arrested the passenger on Massachusetts Gun Crimes Charges.
The passenger, Brian Marsh, 45 of Hyde Park, was arrested and arraigned in Stoughton District Court for unlawful possession of a firearm and unlawful possession of drugs.
According to the Massachusetts State Police, a trooper on his way home from a paid detail after 11:00 p.m. Sunday night observed a car with an invalid inspection sticker. Attempted to pull the car over for this violation, the trooper alleged that the vehicle accelerated to speeds of approximately 90 miles per hour.
When the car finally pulled over, the trooper approached the driver and could smell an odor of marijuana. The operator of the car, Jason Brewer of Roxbury, allegedly admitted he was unlicensed and could not locate the registration for the car. The trooper additional spoke with the passenger of the, who allegedly made inconsistent statements concerning the who owned the vehicle.
The Massachusetts State Police trooper, based on inconsistencies of the passenger's stories, ordered him out of the car and conducted a pat-frisk. As a result of the frisk, state troopers recovered an unloaded revolver on the passenger.
The fact pattern in this incident is one that could potentially raise several constitutional challenges by way of a motion to suppress evidence. For instance, was the officer's stop of the car even lawful in the first place? The trooper is going to say that it was because he saw the car traveling with an expired inspection sticker...but are we really going to believe that? How did he see it? At 11:00 p.m. at night while the car was traveling down the road and through his rear view mirror?
Secondly, there is a serious concern whether the trooper's exit order and pat-frisk of the passenger was even lawful. Under Massachusetts law, before a police officer in a routine traffic stop may order a person out of the car, he must have a reasonable belief that his safety or the safety of others is in danger. I also don't believe that simply because the passenger's story was inconsistent was enough to justify the exit order. There must be something specific that would give the officer concern that his safety was in danger, and hunch is not enough.
Additionally, with regard to pat frisks, Massachusetts law considers even a limited search for weapons as a serious intrusion against a person's constitutional rights. Unless there is probable cause to arrest, a search will only be justified if there is both a reasonable suspicion of criminal activity and a reasonable apprehension of danger.
If the prosecutor cannot meet his burden in establishing that the exit order and subsequent pat frisk was justified pursuant to constitutional standards, then any evidence obtained as a result should be suppressed or excluded from the case.