PAX Centurion - Summer 2014

www.bppa.org PAX CENTURION • Summer 2014 • Page 25 Legal Thoughts: Kenneth H. Anderson, Esq. Byrne & Drechsler, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Putting your best foot forward while testifying in court See Testifying on page 33 A s I often state in these articles, your job is not easy.You work in rain, sleet, snow, cold, and now the heat; contending with guns, drugs, domestic violence, and emotionally disturbed people. And all of that is just a drop in the bucket compared to what your own department can often do to you. And then, at the end of it all, you have to deal with the court system, a world unto itself inhabited by (often overwhelmed) prosecutors, (occasionally overzealous) defense attorneys, and (sometimes cranky) judges.Your testimony in court is what brings the ball across the goal line, and your preparation for this testimony is of paramount importance. Doing things properly to make a good arrest is essential at the outset, but being able to explain why your actions were proper is often the most difficult part of your job. This maxim is evident in the recent case of Commonwealth v. Jones-Pannell , 85 Mass. App. Ct. 390 (2014), a case that highlights the importance of each and every factual distinction that can tip the scales in favor of a successful prosecution. Like many of the important search and seizure cases, Jones-Pannell is a Boston police case. In this one, Officer LuisAnjos fromB-2 made a gun arrest. The gun was suppressed by Judge Raymond Dougan in the Boston Munici- pal Court, who was recently overturned by the MassachusettsAppeals Court for the umpteenth time. In considering the findings made by Judge Dougan, the MassachusettsAppeals Court stated the following to highlight the sig- nificance of the factual findings from a judge: Findings of fact are factual deductions from the evidence, essential to the judgment in the case. Such findings should be stated clearly, concisely and unequivocally, and be worded so that they are not susceptible of more than one interpretation. A judge should rely on the facts derived from the evidence to reach the ultimate facts that resolve the case in light of applicable law. The judge’s findings as to ultimate facts should be founded on reasonable inferences that flow logically from the eviden- tiary facts [emphasis added]. Because the judge’s findings of fact flow from your testimony, and are arrived at based on how thoroughly and credibly you testify, the importance of bringing forth every relevant factor in a clear and honest way is of undeniable significance. In terms of the facts of the case, here is how they were summa- rized by the Massachusetts Appeals Court based on the testimony of Officer Anjos: At the time of the encounter he had served with the Boston police department for nine years. He had worked in the Roxbury district throughout that time. His basic training at the Boston police academy had included instruction for identification of persons carrying con- cealed firearms. According to that instruction, an unlicensed carrier will be less likely to employ a holster and therefore more likely to be adjust- ing a weapon manually inside his clothes. Another characteristic will be his head movements in multiple directions in an effort to anticipate and to avoid detection. OnAugust 6, 2011, Anjos was engaged in an overnight shift as one of two uniformed officers in an unmarked patrol car in the Norfolk Street area. Anjos occupied the passenger seat. The neighborhood contained three or four gangs. Two weeks earlier in that area, he had responded to a gunfire incident resulting in a neck wound to a victim. Three to four months earlier, another shooting incident had occurred in the vicinity. On a separate occasion during that period, police had recovered a firearm. At approximately 12:30 a.m., Anjos and his partner saw the defen- dant walking alone along the Norfolk Street sidewalk onAnjos’s side of the car. As the defendant walked, he held his right hand inside the front of his pants and was “jousting” or “adjusting” an object. He saw the car, appeared surprised, and looked up and down the street. As the car drew even with the defendant, Anjos two or three times asked, “Excuse me sir, can I talk to you?” The defendant looked away, continued down Norfolk Street, and kept his right hand inside his pants. He turned a corner, and accelerated into a jog. His right hand remained inside his pants. At that point Anjos yelled, “Wait a minute,” and got out of the cruiser. The defendant then broke into a full sprint. Anjos pursued him on foot, as his partner followed in the car. The chase ensued for twenty to thirty sec- onds through one and one-half blocks. Anjos overtook the defendant in a driveway. As Anjos attempted a patfrisk, the defendant resisted. As they grappled, a handgun fell out of the defendant’s pants. Anjos placed the defendant under arrest and read him his Miranda rights. A subsequent inspection of the handgun housing revealed the seven rounds of ammunition. Until these events, Anjos had no familiarity with, or knowledge about, the defendant. Anjos and his partner had received no information of any incident in the area during that evening. In his findings, Judge Dougan noted two important factors that leaned in favor of the constitutionality of the seizure: (1) the evasion/ flight of the suspect and (2) the fact that the suspect ran away from the police with his hand in his waistband. While conceding these factors, Judge Dougan noted that people can also run with their hand on the waistband because their pants are baggy, because they are not wear- ing a belt, or because they are holding another item such as a wallet. Judge Dougan did not consider the time of this incident, and also did not consider this area to be a “high crime” area despite the testimony that someone had been shot in the neck on this street two weeks earlier, that there had been another shooting three or four months before that, and that a firearm had also been recovered on that street. The Mas- sachusettsAppeals Court disagreed with the manner in which Judge