As a Brockton criminal defense lawyer, a question that arises in many cases is did the officer conduct a legal stop under the Fourth Amendment. The Massachusetts Supreme Judicial Court just discussed this issue in the recent case of Commonwealth v. McKoy.

In Commonwealth v. McKoy, two Brockton police officers drove by the defendant and his brother walking down the street on a freezing snowy night. Moments later, the police officers received a call about a shooting that occurred about 100 yards from where they had seen the two men walking. The officers reversed direction and saw the two men continuing to walk with their hands in their pants. The officers got out of the vehicle and drew their weapons and ordered both suspects to the ground. One suspect got away but the defendant was handcuffed and searched. Officers found ammunition and a gun that the defendant had dropped on the ground. The defendant was arrested and found guilty of unlawful possession of firearm and ammunition.

The defendant contends that the search was unlawful and that the evidence of the gun and the ammunition should be suppressed. The SJC upheld the conviction and ruled that the search was legal and the evidence did not have to be suppressed. For the police officers to engage in a stop, they must have reasonable suspicion that the suspect has committed a crime. The court stated that reasonable suspicion is a twofold test; first was the original stop reasonable and second was the search justified under the circumstances. Reasonable suspicion is defined as would a reasonable officer given the facts of the situation find the actions appropriate? Furthermore an officer can take reasonable steps if they feel they are in danger.

The court ruled that in this case this search was reasonable. Due to the fact that the defendant and the other suspect were the only two on the road and were right near the reported shooting gave the police a reasonable suspicion. Furthermore the fact that a gun had to be close to the area and the defendant dropping a large object on the ground when being ordered to put up his hands, the court ruled this justified the stop.

One judge dissented and vigorously disagreed with the opinion above. Justice Berry stated that the rule for reasonable Commonwealth v. Scott provides that this suspicion is based on specific articulable facts and reasonable inferences drawn from those facts; not just a hunch. Justice Berry explains that there was no reason for the officers to expect that these men had committed the shooting and it was simply a hunch of the officers that they may have been involved. The call the officers received never explained the suspects, what they were wearing or where they were traveling. Without this, there was no basis for the officers to believe these men had committed the crime.

The law is well settled that an officer must base his or her reasonable suspicion on actual facts and not just a hunch, even if that hunch turns out to be correct. This result seems to go against that law. The officers seemed to just guess that the defendant was involved in the shooting because of where he was walking instead of basing it on any description of a suspect or direction a suspect was heading. Police officers should not be allowed to base their stops on a hunch a convict a defendant simply because their hunch was correct. In those cases it is still not a legal stop and any evidence collected through the illegal stop should be suppressed.