Illegal Search and Seizure Results in Reversal of Gun Possession Conviction

At a hearing on a motion to suppress an illegal search and seizure, a Boston police officer testified about responding to a radio broadcast for someone wanted in connection with a domestic assault and battery. The broadcast identified the license plate of the car the suspect might be in, the vicinity it was in and warned that he may have a gun. The officer continued that the victim of the domestic assault and battery went into the station to report the crime. After the motion judge made her findings the defense attorney requested factual clarification. After some additional inquiry the judge struck the portion of the officer’s testimony regarding the victim’s in person report of the domestic assault and battery. However, in denying the motion to suppress the judge found sufficient independent corroboration based on the broadcast stating that the vehicle was heading towards the defendant’s mother’s home. In fact, there was no such evidence in the record.  

Never Relinquish Your Rights

The defendant in this case went to trial and was convicted. He appealed his conviction. The Massachusetts Supreme Judicial Court reversed the conviction holding that the motion judge’s decision on the motion to suppress was wrong. See Commonwealth v. Pinto, SJC-12134 (2017). There was no reasonable suspicion justifying the stop. In cases such as this, where a radio broadcast is used to justify the stop, the prosecution must show that the information was reliable and particularized. Reliability was not met here. The source of the information was not disclosed or known. Additionally, there was no basis of knowledge indicating that the source of the information was reliable or credible. Nor was there sufficient independent information corroborative of the broadcast.

Find an Attorney Who Will Fight for You

As a criminal defense attorney here is what I find most troubling about this case. Interlocutory appeals in Massachusetts are discretionary and they are not often granted. Consequently, in cases like this one the only way to be vindicated after losing a motion to suppress that you should have won is to go to trial, lose and attack the issue on appeal. The problem with this is that more likely than not you have had to serve a jail sentence and probably got released before your appeal was heard. More troubling is the fact the motion judge made factual findings not supported by the record. The Supreme Judicial Court commented on this stating “The motion judge’s conclusion that the radio broadcast was corroborated by the fact that the vehicle was near the house of the defendant’s mother is not supported by the record”. I give a tremendous amount of credit to the defendant’s lawyer in this case. He did everything he could to make sure the judge got the facts right. Unfortunately, in spite of those efforts an extremely erroneous, unsubstantiated finding was made that resulted in Mr. Pinto having to go to trial.

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