Supreme Judicial Court (May 27, 2010)
Police officers may not escalate a consensual encounter into a protective frisk absent a reasonable suspicion that an individual is 1) engaged in criminal activity and 2) armed and dangerous.
During a consensual encounter with the defendant, the police pat frisked him and found a loaded firearm. The defendant was charged with carrying a firearm without a license and possessing ammunition without a firearms identification card. The defendant's motion to suppress the firearm and ammunition failed, and he was convicted of both offenses. The Appeals Court, relying on Commonwealth v. Fraser, 410 Mass. 541 (1991), affirmed the defendant's convictions. Upon granting further appellate review, the SJC criticized the Appeals Court's interpretation of Fraser and reversed and remanded the case.
In Fraser, the SJC determined that a stop and frisk was constitutional when the officer believed that the defendant was armed and posed a danger. Stating that the facts of Fraser were "anomalous," the Court did not address whether the officer had a reasonable belief that the defendant was engaged in criminal activity.
In this case, the SJC disavowed any suggestion that Fraser established a new or lesser standard for a stop and frisk. The Court stated that it was reframing Fraser to conform to the traditional constitutional requirements for a stop and frisk articulated in Terry v. Ohio, 392 U.S. 1 (1968).
In Terry, the Supreme Court articulated a two-prong test for a constitutional stop and frisk: 1) the police officer must have a reasonable suspicion that the person stopped is committing or has committed a crime, and 2) to escalate the stop to a frisk, the police must have a reasonable suspicion that the person stopped is armed and dangerous. These two requirements may be satisfied sequentially or simultaneously (such as having a reasonable belief that an individual has a weapon and appears inclined to use it).
In this case, the SJC found that, while the police had a right to conduct their initial "field interrogation observation," the defendant did nothing to escalate the consensual encounter to satisfy either Terry prong. As such, the case is remanded, and the order denying the defendant's motion to suppress the firearm and ammunition is vacated.
In a similar case, the SJC also decided Commonwealth v. Martin, which again reviewed the Appeals Court's application of Fraser, and reiterated that the Terry analysis must be applied to stop and frisk cases.