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Ammunition, stickers, knives, aggresive stance= pat frisk of bag

Primus

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Commonwealth v Jason Whitehead, Mass. Appeals Court No. 12-P-1970

Background: Officer Kevin Donovan (hereinafter referred to as “Officer Donovan”) was dispatched to Cape Cod Community College on a report that security officers had observed ammunition in plain view inside a locked Jeep in a college parking lot. After the vehicle was identified, Officer Donovan observed decals that included "Kill 'Em All Let God Sort It Out" and "Sniper No Need to Run--You'll Only Die Tired,” attached to the vehicle along with a sign that said "Funeral," hanging in the rearview mirror. Officer Donovan observed three (3) rounds of ammunition for a semiautomatic weapon--a nine millimeter round, a .38 caliber round, and an empty nine millimeter shell casing and a camping knife on the center console when he looked inside the closed window of the vehicle.

Officer Donovan was verifying who the owner of the vehicle was, when the defendant, Jason Whitehead (hereinafter referred to as “Whitehead”) walked towards the vehicle. Whitehead was wearing Army camouflage pants, black boots, a dark black sweatshirt, a camouflage hat, and he had a black backpack strapped to his back. Whitehead yelled to Officer Donovan, "Can I help you?" Officer Donovan asked Whitehead if he was the owner of the vehicle. Whitehead approached Officer Donovan in an "aggressive posture" responded that he was the owner of the vehicle. When Officer Donovan asked Whitehead whether he had a firearm on his person, Whitehead responded “No, are you supposed to be asking me that question?"Officer Donovan conducted a patfrisk of Whitehead and did not recover any weapons or
contraband. Whitehead did have a firearm identification (FID) card which allowed him to carry
ammunition in a locked vehicle. Officer Donovan told Whitehead he was going to place him in
the backseat of the cruiser while he patted Whitehead’s backpack and advised him of his
Miranda rights. At that point, Whitehead said "Wait there's a loaded gun in the bag." Officer
Donovan immediately placed Whitehead in the back of the cruiser with a closed the door, and
searched the backpack. A black Smith & Wesson 380 semiautomatic handgun loaded with
eighteen bullets, an ankle-style holster, and two additional magazines were recovered and Officer
Donovan arrested Whitehead.

Whitehead was charged with carrying a firearm without a license, carrying a firearm on
school grounds, and possession of a firearm without a FID. Whitehead filed a motion to suppress
and argued that Officer Donovan exceeded the Terry-type patfrisk of his person in searching his
backpack after finding Whitehead’s FID card. The judge denied the motion and concluded that
Officer Donovan’s patfrisk was justified as well as the search of Whitehead’s backpack. The
discovery of the FID card did not dispel the possibility that Whitehead may be armed. The judge
noted that an open college campus, along with Whitehead’s attire and aggressive posture further
supported Officer Donovan’s actions. “Although Officer Donovan focused on the ammunition,
the language on the decals affixed to the vehicle is an additional factor that would warrant an
individual in the officer's position to fear that his safety or the safety of others was in jeopardy."
After a bench trial, Whitehead was convicted of unlawfully carrying a firearm on school grounds
and carrying a firearm without a license and appealed.

http://www.mass.gov/eopss/docs/mptc/search-and-seizure.pdf

Just found this while reviewing some other recent cases. Posting this to show the emphasis of the factors that can come into play not just at a stop, but the actual trial.

The topic has come up about engravings on guns, stickers on vehicles, funny t-shirts, etc. Everything we do and say in public can and is used against us. So be careful with stickers like the above. Especially if you decide to not follow the law that day.

This conviction was upheld. If you click the link, you'll see the break down of the case and the reasoning. For example:

"1st Issue: Was the stop and frisk justified?
The Court held that there were a number of factors that justified Officer Donovan’s stop
and frisk of Whitehead. The initial report that Officer Donovan received regarding the discovery
of ammunition in “plain view” inside a vehicle parked on an open college campus heightened
concern “in the wake of school shootings such as Columbine, Colorado; Santee, California; and
Newtown, Connecticut, " Commonwealth v. Milo M., 433 Mass. 149, 156 (2001). “The presence
of the ammunition alone gives rise to the reasonable inference that a gun might be nearby.” See
Commonwealth v. Kitchings, 40 Mass.App.Ct. 591, 598 (1996) ("the loaded ammunition clip in
the van ... conveyed the clear message that one or more guns were probably in the van").
Whitehead’s camouflage attire and aggressive posture as he approached Officer Donovan
raised further concerns. Additionally, the threatening decals attached to Whitehead’s vehicle
along with three (3) types of ammunition and a hunting knife openly displayed in the vehicle
increased the possibility that Whitehead could have multiple firearms.
As the Court noted “there is a heightened sensitivity of school officials to signs that a student may have brought guns onto school property and might embark on a shooting rampage.” See generally G.S. Katzmann (ed.), Securing Our Children's Future: New Approaches to Juvenile Justice and Youth Violence 1-27, 386-414 (2002). The Court does not expect officers to have “absolute certainty that the individual is armed, but rather the basis for his acts must lie in a reasonable belief that his safety or that of others is at stake. The process of determining whether an officer had reasonable suspicion does not deal with hard certainties, but with probabilities.” See Commonwealth v. Silva, 366 Mass. at 406. The purpose of a Terry-type stop and frisk is not to discover evidence of a crime, but to protect police and the public and allow police officers to pursue their investigation without fear of violence. Terry v. Ohio, 392 U.S. 1, 27, 29 (1968)."

Bolde emphasis is mine.
 

davidmcbeth

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I'm not going to read a copy/paste of 1/2 a memo ...

what's the bottom line of this decision?

You can provide your commentary but just to post the text in one paragraph in chopped up text blocks is not going to lean me to read it.

Just post a link to the memo, an abstract (short abstract) of why you posted it..and any comments you have on it.

Sorry to be so blunt ...
 

WalkingWolf

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North Carolina
Standing with aggressive posture=Any act of standing.

It should have tossed on free speech, but it does not look like the appeal was based on that. The bumper stickers were covered under free speech, and NOT RAS to a crime, even with the lawful ammo in the vehicle. The defendent screwed up when he told them he had a gun in the backpack.
 
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davidmcbeth

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The issue before us is whether the motion judge correctly found that the police officer’s patfrisk and search of the backpack were permissible, where the officer observed several types of ammunition inside the defendant’s vehicle, which was parked on a college campus and which bore threatening decals, and where the defendant was wearing camouflage attire. We affirm.
 

Primus

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Oct 24, 2013
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I'm not going to read a copy/paste of 1/2 a memo ...

what's the bottom line of this decision?

You can provide your commentary but just to post the text in one paragraph in chopped up text blocks is not going to lean me to read it.

Just post a link to the memo, an abstract (short abstract) of why you posted it..and any comments you have on it.

Sorry to be so blunt ...

The summary was the first 2 paragraphs. Link and comments were posted will bolding for emphasis.

No apology necessary.

Also, this isn't remotely a wall of text. I just know most guys don't click links so I provide enough info so then can decide if its worth it.

Sent from my XT907 using Tapatalk
 

davidmcbeth

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Joined
Jan 14, 2012
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16,169
Location
earth's crust
The summary was the first 2 paragraphs. Link and comments were posted will bolding for emphasis.

No apology necessary.

Also, this isn't remotely a wall of text. I just know most guys don't click links so I provide enough info so then can decide if its worth it.

Sent from my XT907 using Tapatalk

Your welcome :)

(4 post 5)
 
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