Hinson: Pressure Points

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NOTES:
PRESSURE POINTS: HOW A

COMBINATION OF METHODS
EMPLOYED TO REDUCE URBAN
FIREARM CRIME THREATENS THE
4TH AMENDMENT AND PROPOSED
SOLUTIONS
David Hinson *
Abstract: A combination of several factors designed and implemented to
protect citizens from firearm violence may actually cause harm by
marginalizing fundamental individual rights and damaging the judicial and
law enforcement system as a whole. This Note identifies various pressure
points at which Fourth Amendment abuses may occur. Increasing judicial
deference to street-level police discretion and city-wide programs such as the
Safe Homes Initiative first increase the number of suspects acquired in
violation of their constitutional rights. Additional measures, such as specialty
gun courts, then expedite the prosecution of these crimes and thus decrease
the opportunities to identify and cure those illegal acquisitions. The analysis
section of this Note proposes a list of solutions (parallel to the list of pressure
points) to minimize the potential for serious harm. The aggregate effect of
the proposed solutions would create stop-points along the path from stop to
search to arrest to prosecution to conviction at which the underlying legality
of each would be directly scrutinized and established. Notwithstanding the
vital importance of effectively combating firearm-related crime, the more
opportunities that exist for an abuse of constitutional rights to be exposed
and curedwhether occurring at the source police conduct or during the
subsequent journey through the systemthe more the integrity of the entire
criminal process will be fortified and protected.
867
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868 NEW ENGLAND LAW REVIEW [Vol. 43:867
INTRODUCTION ..........................................................................................869
BACKGROUND ............................................................................................871
I. The Gun Crisis, The Law, and Expanding Discretion:
How Did We Get Here?...........................................................871
A. The Gun Crisis....................................................................871
B. The Rise of the Gun Court ..................................................873
C. The Safe Homes Initiative ..................................................874
D. Development of the Law ....................................................875
E. The Law of Evidentiary Suppression ..................................878
II. Identifying the Pressure Points...................................................880
A. Pressure Point One: Increasing Numbers of
Unconstitutional Searches, Seizures, and Arrests..............881
1. Police Conduct Troubling Numbers of Illegal
Searches and Seizures .................................................881
2. Recent Massachusetts Case Law and Official
Responses Indicate an Increasing Judicial
Deference to Police Discretion in Street-Level
Encounters...................................................................884
3. City-Wide Initiatives Create More Opportunities
for the Loss of Constitutional Protections and
More Unconstitutional Arrests. ...................................890
B. Pressure Point Two: Decreasing Opportunities to
Recognize and Redress Unconstitutional Searches,
Seizures, and Arrests .........................................................891
ANALYSIS ..................................................................................................894
III. A Proposed Strategy to Minimize the Damage.........................894
A. Addressing Pressure Point One: Increasing Numbers
of Unconstitutional Searches, Seizures, and Arrests .........894
1. Change the Metaphor, Change the Incentive.................894
2. Require Clearer Guidance from the Courts ...................896
3. Diversify Police Training...............................................897
B. Addressing Pressure Point Two: Decreasing
Opportunities to Recognize and Redress
Unconstitutional Searches, Seizures, and Arrests..............898
1. Create a Presumption of Unconstitutionality in
Motions to Suppress Evidence ....................................898
2. Create Mandatory Suppression Hearings in
Specialty Gun Courts ..................................................900
CONCLUSION ..............................................................................................901
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2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 869
INTRODUCTION
Over the past decade in Massachusetts, a troubling problem has risen
to the forefront of judicial, prosecutorial, police, and public concern the
dramatically styled gun crisis. 1 In the mid-1990s, city officials
implemented the highly publicized and successful Boston Gun Project. 2
The program combined police and judicial initiative with public service
organizations and volunteer community interest groups to wage war on the
increasing number of gun-related crimes and fatalities in the greater Boston
area. 3 In the following years, the Commonwealth advanced several
additional efforts to further combat the problem. 4 Boston Mayor Thomas
Meninos Mayors Against Illegal Guns coalition reached across the
country, increasing its original membership of 15 in 2006 to over 250 by
2007. 5 The citys specialty gun court, opened in 2004, not only eradicated a
massive backlog of firearm cases during its first three months of existence,
but did so with a conviction rate of over eighty-five percent that continues
today. 6 In 2007, the Supreme Judicial Court of Massachusetts reversed a
controversial appellate decision and granted police an unprecedented level
of discretion to stop and search pedestrians for weapons. 7 Finally, in late
November of 2007, the Boston Police Department unveiled its new Safe
Homes Initiative, designed to remove potentially hundreds of illegal guns
from the private homes of Boston residents. 8 These various components
* Candidate for Juris Doctor, New England School of Law (2009). B.A., English, North
Carolina State University (2004). The author may be contacted at dshinson@gmail.com. I
would like to thank my family for their constant faith, support, and encouragement.
1. See Erik Larson, Squeezing Out the Bad Guys: How ATF and Local Police Have
Dramatically Turned the Tide in the Battle Against Crime Guns, TIME, Aug. 9, 1999, at 32,
available at 1999 WL 6291844.
2. See Harvard University Kennedy School of Government, Operation
Ceasefire/Boston Gun Project, http://www.hks.harvard.edu/criminaljustice/research/bgp.htm
(last visited Feb. 20, 2009) [hereinafter Operation Ceasefire].
3. Id. The resulting eighty percent drop in Boston homicides was commonly referred to
as the Boston Miracle. See, e.g., Donovan Slack, Menino Hopes to Work Miracle: For
Hubs Youth, BOSTON GLOBE, Jan. 15, 2008, at 1B, available at 2008 WL 810271.
4. See infra Part I.A-C.
5. Mayors Against Illegal Guns, http://www.mayorsagainstillegalguns.org
/html/about/principals.shtml (last visited Jan. 19, 2009).
6. Shelley Murphy, Gun Court to Serve More Districts: Backlog of Cases Reduced, DA
Says, BOSTON GLOBE, Oct. 31, 2007, at 3B, available at 2007 WLNR 21455403.
7. See Commonwealth v. DePeiza, 868 N.E.2d 90, 97-98 (Mass. 2007).
8. See Maria Cramer, Police to Search for Guns in Home; City Program Depends on
Parental Consent, BOSTON GLOBE, Nov. 17, 2007, at 1A, available at 2007 WLNR
22897054.
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work in concert, resulting in an effective system designed to quickly and

efficiently reduce the number of illegal firearms in Boston. 9 The system
seems to be working. 10
But underneath the apparent success of these various initiatives lies
the potential for a dangerous and continual erosion of the fundamental right
to personal security and freedom explicitly guaranteed by the Fourth
Amendment to the United States Constitution. 11 The fundamental integrity
and effectiveness of both the judiciary and law enforcement are at risk. 12
The cost of this erosion spans beyond mere rhetoric and constitutional
debateit negatively impacts courtrooms, public streets, private homes,
and ultimately the daily lives of the citizens these initiatives are designed to
protect. 13
This Note argues that the combination of several factors designed and
implemented to protect citizens from firearm violence actually causes harm
by marginalizing fundamental individual rights and damaging the judicial
and law enforcement system as a whole. At the same time, the system
increases the number of illegally arrested individuals and decreases the
number of checkpoint opportunities for that illegality to be discovered and
cured. Part I of this Note provides background information, including the
history of the gun crisis in Massachusetts, the rise of the Boston Gun Court
and the Safe Home Initiative, and the relevant Federal and Massachusetts
law leading up to the currently existing judicial precedent. Part II examines
the manner in which the various factors identified in Part I, while
successful in reducing firearm-related crime, work in concert to create an
efficient mechanical system that potentially renders traditional,
longstanding constitutional protections meaningless and damages judicial
and police integrity. This will be accomplished by identifying various
pressure points at which constitutional abuses are most likely to occur. Part
III proposes a list of solutions to minimize the potential for serious harm
resulting from the pressure points identified in Part II.
9. See infra Part I.A-C.

10. See, e.g., Laurel J. Sweet, DA: Gun Court Surpassing Every Expection [sic],
BOSTON HERALD, Oct. 12, 2007, at 4, available at 2007 WLNR 20098343 (statement of
Suffolk District Attorney Daniel Conley) (We set the bar high and exceeded every
expectation.).
11. See infra Part II.A.1, 3.
12. See infra Part II.B.
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BACKGROUND
I. The Gun Crisis, The Law, and Expanding Discretion: How Did We
Get Here?
This section examines the background and context of Bostons gun
crisis, the various approaches taken by city and state officials to fight back,
and the current legal framework resulting.
A. The Gun Crisis

Between the late 1980s and the early 1990s, Boston, like many other
large cities in the United States, experienced an epidemic rise in youth
homicide rates. 14 Youth homicide rose by 230%, from twenty-two victims
in 1987 to seventy-three victims in 1990. 15 The rate of youth homicides
continued to remain high well into the mid-1990s, averaging forty-four per
year between 1991 and 1995. 16 In response, city law enforcement experts
and clergy implemented the Boston Gun Project to cut the homicide rate in
half by 2000. 17 The program was designed to achieve five central goals:
1) assembl[e] an interagency working group of largely line-level
criminal justice and other practitioners; 2) apply[] quantitative
and qualitative research techniques to create an assessment of the
nature of, and dynamics driving, youth violence in Boston; 3)
develop[] an intervention designed to have a substantial, near-
term impact on youth homicide; 4) implement[] and adapt[] the
intervention; and 5) evaluat[e] the interventions impact. 18
Many different agencies participated in the project, including the
Boston Police Department; the Suffolk County District Attorneys office;
the United States Attorneys office; the Bureau of Alcohol, Tobacco, and
Firearms; the Drug Enforcement Administration; and the Massachusetts
Attorney Generals office. 19 In the late spring of 1996, the program
implemented its intervention, Operation Ceasefire, utilizing a pulling
14. Operation Ceasefire, supra note 2.

15. Id.
16. Id.
17. James OBrien, Gun Control Program Lapsed, BOSTON NOW, Feb. 28, 2008, at 3.
18. Operation Ceasefire, supra note 2.
19. Id. The Massachusetts Departments of Parole and Probation, the Massachusetts
Department of Youth Services, Boston School Police, volunteer organizations linked to
Bostons Community Centers program, the Ten-Point Coalition of activist black clergy, and
the Massachusetts State Police also participated in the Project. Id.
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levers strategy to deter gang-related youth violence and focus attention on

chronically offending youth. 20 The data resulting from the impact
evaluation indicated significant reductions in related firearm crime. 21
In a related effort to bring awareness to the growing concern about
illegal gun possession, in April 2006, Boston Mayor Thomas Menino and
New York City Mayor Michael Bloomberg co-founded a group of fifteen
mayors known as the Mayors Against Illegal Guns coalition. 22 By the
end of 2007, membership had grown to over 250 mayors from across the
nation. 23 The coalition holds regional and national conferences to
encourage dialogue among city leaders to improve inter-city coordination
in the fight against illegal guns. 24
Despite the efforts of both the Boston Gun Project and the coalition,
the number of firearm-related injuries in Boston surged, increasing by
110% in 2005 compared to 1988. 25 In addition, the number of shootings in
Boston more than doubled, rising from 59 in 2003, to 119 in 2005.26
Comparing Boston police data spanning the months between January and
November, the city experienced a 34% increase in firearm-related
homicides and non-fatal shootings between 2004 and 2005. 27 The trend
continuedaccording to Boston Police Department statistics, 377
shootings occurred in 2006. 28
The combination of these factors resulted in a perception that the city
was in the grip of a firearm epidemic. 29 In 2006, a Harvard University
study revealed that 42% of Boston public school students surveyed said
20. Id. The pulling levers strategy focused criminal justice attention on a small
number of chronically offending gang-involved youth responsible for much of Bostons
youth homicide problem. Id.
21. Id.
22. See Mayor Menino, Mayor Bloomberg Host National Summit for Mayors Against
Illegal Guns, U.S. ST. NEWS, Jan. 23, 2007, available at 2007 WLNR 1696898 [hereinafter
National Summit].
23. Mayors Against Illegal Guns, http://www.mayorsagainstillegalguns.org/html/media-
center/pr015-07.shtml (last visited Jan. 16, 2009).
24. National Summit, supra note 22.
25. Brian R. Ballou, Survival Rate Up for Gun Victims: Doctors Report Is a Mixed
Bag, BOSTON GLOBE, May 18, 2006, at B5, available at 2006 WLNR 8539931.
26. Id.
27. Boston Police Department Crime Statistics, January November, 2004 vs. 2005,
http://www.bpdnews.com/Shootings-12-1-05.pdf (last visited Feb. 20, 2009).
28. Boston Police Department Crime Statistics, January 1st December 31st, 2005 vs.
2006, http://www.bpdnews.com/Shootings-1-2-07.pdf (last visited Feb. 20, 2009).
29. See Margaret Wente, Guns, Gangs and Bostons Miracle, GLOBE & MAIL, Nov. 24,
2005, at A25, available at 2005 WL 18970847.
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they either knew or were related to a homicide victim. 30 Reverend Shaun

Harrison, spearheading Operation Project Go (Gang Out) stated that
[youth in Boston] would rather be caught with a gun by the police than get
caught without one by their enemies. 31 The Suffolk County District
Attorneys office became a target of media criticism for failed gun
prosecutions and a dismal arrest rate for criminals in firearm-related
shootings and homicides. 32 In response, police and city officials worked to
create new methods to combat the presence of illegal firearms in Boston. 33
B. The Rise of the Gun Court

Gun courts are specialized courts that prosecute gun-related crimes. 34
Many larger cities have implemented the specialized gun court system
effectively, including New York and Boston. 35 Gun court judges exercise a
considerable amount of discretion, typically choosing to implement harsher
sentencing than those cases tried in traditional courts. 36 One theory to
explain why gun court judges choose to apply more serious sentences is
that prior to specializing, gun cases were mixed in with murders, assaults,
rapes, and other serious crimes. 37 Many judges likely treated illegal firearm
possession as a minor crime compared to those more serious offenses and
were thus inclined to offer weapons offenders probation instead of jail
time. 38
Bostons gun court session began in February of 2006 and has
exceeded every expectation. 39 The court recorded convictions in 85% of
the 238 cases litigated in the first eighteen months of its existence and
30. Editorial, A Questionable Search for Safety, BOSTON GLOBE, Nov. 21, 2007, at 18A,
available at 2007 WLNR 23058274.
31. Mike Underwood, Activists: Fearful Kids Arming Due to Violence, BOSTON
HERALD, Jan. 14, 2008, at 7, available at 2008 WLNR 765465.
32. Michele McPhee, Wheres Conley Amid Violence?, BOSTON HERALD, July 16, 2007,
at 5, available at 2007 WLNR 13553751 (Since Conley has been in office, the city has
become awash in bloodshed and holds virtually no one accountable for that violence.).
33. See infra Parts I.B-C.
34. See Editorial, Gun Court Sets Wider Net, BOSTON HERALD, Nov. 3, 2007, at 18,
available at 2007 WLNR 21748290.
35. See Gun Court Sets Wider Net, supra note 34, at 18; Wendy Davis, Quick on the
Trigger, LEGAL AFF., Nov.Dec. 2004, at 13.
36. See Davis, supra note 35, at 14 ([F]or the first 13 months of the gun courts
existence, roughly 75 percent of the roughly 300 defendants to appear . . . ended up with
sentences of at least one year in jail. In the rest of [New York], only about half the
defendants arrested on felony weapons charges were sentenced to one year or more.).
37. See id.
38. Id.
39. See Sweet, supra note 10, at 4.
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incarcerated 135 offenders for longer than one year. 40 Suffolk County
District Attorney Dan Conley stated, [a]s recently as a few years ago, no
one would have believed that we could cut a backlog of hundreds of cases
while simultaneously prosecuting large numbers of new ones as well. 41
New York had similar success. 42 To some, this information suggests that
because specialized courts allow gun-related cases to be processed much
more rapidly and effectively, they contribute to reducing the crime rate. 43
C. The Safe Homes Initiative

On November 16, 2007, Boston police unveiled a new campaign
referred to as the Safe Homes Initiative. 44 The initiative was designed to
remove guns from the hands of juveniles by securing the voluntary consent
of parents and guardians to search a targeted home for illegal firearms. 45
Under the program, searches are conducted by specially trained teams of
Boston Police Department School Police officers. 46 In an effort to reduce
the public distrust of such a method, police officials state that if the search
reveals a gun, the juvenile will not be charged with the illegal possession of
40. Id.
41. Id.
42. See Davis, supra note 35, at 14.
Although New Yorks weapons statute has long set out a mandatory
one-year sentence, judges have the flexibility to impose less time or
probation. Before there was a gun court, judges were more inclined to
do so. Now, although the law hasnt changed, sentences in gun cases
have. Nearly all defendants caught with an illegal gun in Brooklyn can
expect to do jail time.
Id.
43. See Murphy, supra note 6, at 3B (statement of Suffolk District Attorney Daniel F.
Conley) (My theory is the gun court is one of the reasons were seeing a reduction in
shootings in our city . . . [i]ts not the sole reason, but in my mind, it is one of the
contributing factors.).
44. See Cramer, supra note 8, at 1A.
45. See SAFE HOMES INITIATIVE (2007), http://bpdnews.com/safehomes/safehomes.pdf
(last visited Mar. 26, 2009). Homes are targeted based on input and referrals from
community members, police officers, clergy, coaches, and anonymous callers to a dedicated
hotline. Id. A similar consent to search and seize firearms program in St. Louis, MO
reported that more than 1300 guns were seized between 1994 and 1997, with over 260
searches occurring each year, roughly half resulting in seized weapons. Consent to Search
and Seize Firearms St. Louis, MO, http://www.ojjdp.ncjrs.gov/pubs/gun_violence/
profile15.html (last visited Feb. 20, 2009). The program was criticized as encroaching on
citizens right to protect themselves, and senior police officers expressed their preference for
legal warrants, which allowed them to not only seize weapons but also to arrest the
offenders. Id.
46. SAFE HOMES INITIATIVE, supra note 51.
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a firearm. 47 The caveat to that promise is the possibility of prosecution for

other crimes if later testing, performed on every gun recovered, reveals that
the firearm was used in a crime. 48 The initiatives website further promises
that citizens will be carefully informed of their constitutional rights,
including the right to withhold consent to the search, the right to withdraw
consent after the search begins, and the right to limit the scope of the search
to only those parts of the home the citizen allows. 49 Local citizens
surprised Boston police officials with vocal criticism of the program,
referring to police tactics as invasive and misleading. 50 Despite the
criticism, however, the initiative formally launched on Thursday, March
27, 2008. 51
Within the context described above, 52 the law began to adapt to
further enable police, prosecutors, and judges to more effectively address
the growing problem of firearm violence. 53 To analyze those changes and
to identify the resulting areas of concern, it is necessary to explore the
relevant legal principles relating to firearm crime. 54
D. Development of the Law

The Fourth Amendment of the Constitution of the United States
protects [t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures. 55
Similarly, the Massachusetts Declaration of Rights guarantees that [e]very
47. Id.; see Maria Cramer, Police, Activists Battle Over City Antigun Effort, BOSTON
GLOBE, Nov. 21, 2007, at 1B, available at 2007 WLNR 23058248.
48. See Cramer, supra note 47, at 1B.
49. See SAFE HOMES INITIATIVE, supra note 51.
50. Maria Cramer, Police Limit Searches for Guns, BOSTON GLOBE, Mar. 25, 2008, at
1A, available at 2008 WLNR 5699097.
51. See Tony Lee, BPD Launches Safe Homes Initiative, METRO BOSTON, Mar. 28,
2008, at 5, available at http://www.metro.us/us/article/2008/03/28/04/0901-66/index.xml.
52. See supra Part I.A-C.
53. See infra Part I.D-E.
54. See infra Part I.D-E.
55. U.S. CONST. amend. IV.
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subject has a right to be secure from all unreasonable searches, and

seizures. 56 The protection afforded by both sources shields citizens from
the unreasonable stop and frisk of their person for illegal firearms. 57
The seminal case regarding the law of stop and frisk is Terry v.
Ohio. 58 In Terry, the United States Supreme Court first considered the issue
of whether, under case-specific circumstances, a stop and seizure
conducted by police violated a citizens right to personal security. 59 The
importance of Terry and its progeny is the judicial recognition that, under
certain narrow circumstances, a seizure that is brief and conducted for
appropriate limited investigative reasons can be permitted for less than
probable cause. 60 It is in these narrow circumstances that the law of stop
and frisk is implicated. 61 A stop occurs when police lack probable cause
but possess a reasonable suspicion based on specific and articulable facts,
and based on that suspicion, conduct a brief investigatory detention. 62
When police reasonably believe, based on specific and articulable facts,
that their own safety or the safety of others is in danger, they may conduct
a limited search, or patfrisk, by patting down the individual. 63
To determine whether a stop and frisk is permissible, a court must
consider first, whether the initiation of the investigation by the police was
permissible in the circumstances, and, second, whether the scope of the
search was justified by the circumstances. 64 Stop and search analyses are
chronologically ordered; the stop comes before the search. 65 Because not
56. MASS. CONST. pt. 1, art. 14. Although beyond the scope of this Note, it is interesting
to note that Article 14 of the Massachusetts Constitution not only predates the Fourth
Amendment by nearly ten years and served as its progenitor, but also affords greater
protection to criminal defendants than the Fourth Amendment by employing stricter
requirements to establish probable cause for warrants. JOSEPH A. GRASSO, JR. & CHRISTINE
M. MCEVOY, SUPPRESSION MATTERS UNDER MASSACHUSETTS LAW 1-3, 1-11 (Matthew
Bender & Co., Inc. 2003) (stating that M.G.L. c. 276, 2B imposes a statutory rule of
exclusion of evidence seized under a warrant without probable cause).
57. See supra notes 55-56 and accompanying text.
58. 392 U.S. 1 (1968).
59. See id. at 22-24.
60. See id. at 22.
61. See GRASSO & MCEVOY, supra note 56, pt. 2, at 3.
62. Id.
63. Id.
64. Commonwealth v. Silva, 318 N.E.2d 895, 898 (Mass. 1974).
65. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (stating that a permitted search occurs after
an individual is stopped upon reasonable suspicion).
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every encounter between police and pedestrians implicates constitutional

rights, 66 the legitimacy of a stop and frisk cannot be analyzed until the
court finds that a seizure has occurred. 67
After stop and seizure has been established, the next consideration is
whether it was justified. 68 The standard for justifying a stop is a reasonable
suspicion that the person has committed, is committing, or is about to
commit a crime. 69 This reasonable suspicion must be based on facts that
are specific and articulable, and on reasonable inferences that the
officer draws from those facts based on his or her experience. 70 This is an
objective standard. 71 Importantly, a simple hunch (or a good faith belief for
that matter) is not enough to create reasonable suspicion. 72
Courts have identified certain factors that can be relevant in a
determination of reasonable suspicion, such as officers training, furtive
gestures by the suspect, and the high-crime nature of the suspects
location. 73 One factor on its own is generally not enough to meet the
standard. 74 Rather, [t]he facts and inferences underlying the officers
suspicion must be viewed as a whole when assessing the reasonableness of
his acts. 75 In other words, an officer must have an objective factual basis,
not founded on a mere hunch, to reasonably believe that an individual was
engaging in criminal activity. 76 The second inquiry is whether there was a
justification for conducting a patfrisk. 77 The sole justification for a patfrisk
66. Id. at 19 n.16; Commonwealth v. Stoute, 665 N.E.2d 93, 98 (Mass. 1996) ([N]ot
every encounter between a law enforcement official and a member of the public constitutes
an intrusion of constitutional dimensions requiring justification.).
67. See, e.g., Commonwealth v. Sykes, 867 N.E.2d 733, 736 (Mass. 2007)
(Determining the precise moment at which a seizure occurs is critical to resolving the issue
of suppression.). Generally, seizure occurs when, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
68. GRASSO & MCEVOY, supra note 56, pt. 2, at 4-22.
69. Silva, 318 N.E.2d at 898.
70. Id.
72. Terry v. Ohio, 392 U.S. 1, 22 (1968); Silva, 318 N.E.2d at 898 (A mere hunch is
not enough. Simple good faith on the part of the officer is not enough.).
73. See Commonwealth v. Kennedy, 690 N.E.2d 436, 441 (Mass. 1998) (officers
training, education, and knowledge a factor); Commonwealth v. Moses, 557 N.E.2d 14, 16-
17 (Mass. 1990) (high-crime location a factor); Commonwealth v. Grinkley, 688 N.E.2d
458, 465 (Mass. App. Ct. 1997) (furtive or strange behavior could infuse otherwise
innocent activity with incriminating aspect).
75. Commonwealth v. Thibeau, 429 N.E.2d 1009, 1010 (Mass. 1981).
76. See supra notes 69-72 and accompanying text.
77. See GRASSO & MCEVOY, supra note 62, pt. 2, at 5-2. Not every stop justifies a frisk;
HINSON FINAL 1/13/2010 11:25:29 AM
is safety. 78 The purpose is not to discover a crime, but to allow the officers
to continue investigations without the fear of violence. 79 The standard for
justification is a reasonable fear for the safety of self or others, founded on
specific facts. 80 Because reasonableness for both stops and frisks can only
be founded on specific and articulable facts, understanding the facts and
circumstances of the field encounter is essential to a stop-and-frisk
analysis. 81
E. The Law of Evidentiary Suppression

The U.S. Supreme Court first held that the Fourth Amendment bars
the admission of evidence obtained through an illegal search in Weeks v.
United States. 82 In that case, local police searched the defendants home for
evidence that he had illegally transmitted lottery tickets through the mail. 83
After submitting certain evidence to the U.S. Marshalls office, the police
returned, this time with the U.S. Marshall, and executed a second search of
the home without a warrant. 84 The Court held that the papers seized during
the second search could not be allowed as evidence against the defendant
because they were illegally obtained. 85 Evidence obtained during the first
search was admitted howeverthe Court stated that despite barring
evidence illegally seized by federal agents, the Fourth Amendment is not
directed to individual misconduct of such [state] officials. 86 It was not
until 1961 that the Supreme Court extended the exclusionary rule to the
states in Mapp v. Ohio, holding that all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority,
inadmissible in a state court. 87
even a limited search for weapons is a serious intrusion upon the sanctity of the person,
which may inflict great indignity and arouse strong resentment, and it is not to be
undertaken lightly. Terry, 392 U.S. at 17.
78. GRASSO & MCEVOY, supra note 56, pt. 2, at 5-2 (stating [t]he sole rationale for a
frisk is safety, i.e., the protection of the police or others from danger).
79. See Commonwealth v. Almeida, 366 N.E.2d 756, 759-60 (Mass. 1977). To hold
otherwise is . . . to allow the police to turn a hunch into reasonable suspicion by inducing
the conduct justifying the suspicion. Commonwealth v. DePeiza, 848 N.E.2d 419, 425
(Mass. App. Ct. 2006) (quoting Commonwealth v. Barros, 755 N.E.2d 740, 746 (Mass.
2001)).
80. See Commonwealth v. Va Meng Joe, 682 N.E.2d 586, 588 n.7 (Mass. 1997).
81. See GRASSO & MCEVOY, supra note 56, pt. 2, at 4-24.
82. 232 U.S. 383 (1914).
83. Id. at 386.
84. Id.
85. Id. at 398.
86. Id. at 398.
87. 367 U.S. 643, 655 (1961).
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Since it was conceived, the exclusionary rule has served as a

principal mode of discouraging lawless police conduct. 88 Its primary
purpose is deterrence, and without it the constitutional guarantee against
unreasonable searches and seizures would be a mere form of words. 89
Based on that foundation, suppression of evidence provides courts the
mechanism by which they may refuse to legitimize and condone
unreasonable searches. 90 As the United States Supreme Court clearly
articulated in Terry, [c]ourts which sit under our Constitution cannot and
will not be made party to lawless invasions of the constitutional rights of
citizens by permitting unhindered governmental use of the fruits of such
invasions. 91 Suppression also fortifies public confidence and trust of the
government and the judiciary. 92
The difficulty in discussing the dangers associated with suppression
hearings in the context of illegally obtained evidence is that such cases
usually involve individuals who clearly possessed the evidence in
question. 93 This can be a logical stumbling blockreleasing an offender
for something that resembles a technicality. But evidentiary suppression is
not a mere technicality; rather, it serves to ensure the legitimacy of the
entire criminal legal system. 94 For example, it can be easy, if not reflexive,
to view the deference given to officers discretion 95 as a fully positive
policy when illegal guns are being removed from the streets. 96 But the
88. Terry v. Ohio, 392 U.S. 1, 12 (1968) (citations omitted).

89. Id. (citing Mapp, 367 U.S. at 655).
90. See Terry, 392 U.S. at 13; see also Elkins v. United States, 364 U.S. 206, 222 (1960)
(stating that the exclusionary rule serves the imperative of judicial integrity).
91. Terry, 392 U.S. at 13.
92. See United States v. Calandra, 414 U.S. 338, 357 (1974) (stating that the
exclusionary rule assur[es] the peopleall potential victims of unlawful government
conductthat the government would not profit from its lawless behavior, thus minimizing
the risk of seriously undermining popular trust in government).
93. See Withrow v. Williams, 507 U.S. 680, 691 (1993) ([T]he evidence excluded
under Mapp is typically reliable and often the most probative information bearing on the
guilt or innocence of the defendant.) (quoting Stone v. Powell, 428 U.S. 465, 490 (1976));
GRASSO & MCEVOY, supra note 56, pt. 1, at 1-2 (The consequence of suppressing illegally
obtained evidence is that an otherwise guilty individual goes free.).
94. See Mapp, 367 U.S. at 659 (The criminal goes free, if he must, but it is the law that
sets him free. Nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter of its own existence.).
95. See infra Part II.A.2.
96. See Raja Mishra, Appeals Court Sets Limit on Police Stops, BOSTON GLOBE, June 3,
2006, at B1, available at 2006 WLNR 9607493 (statement of Boston resident) (I think its
good [a criminal defendant] got stopped because he had a gun; theres no telling what he
was going to do with it . . . . Its a shame he was stopped for walking strangely, but it really
bothers me that he had a gun and is now back on the streets.).
HINSON FINAL 1/13/2010 11:25:29 AM
underlying truth is that police, like anyone else, should not simply be
trusted as a matter of law to always exclusively safeguard the rights of the
people, regardless of their good intentions. 97 In addition, it is important to
recognize that the protection of constitutionally guaranteed rights and the
removal of illegal firearms from the streets should be viewed as equally
important societal interests. 98
II. Identifying the Pressure Points

The most serious and damaging consequence of the recent
developments in gun control enforcement discussed above is the steady
erosion of constitutionally protected rights. 99 The expansion and deference
to police discretion first increases the number of suspects illegally
obtained. 100 This in turn harms judicial decision-making and marginalizes
the importance of constitutional rights. 101 As a result, the integrity and
legitimacy of the entire criminal process is weakened. 102 Part II.A discusses
the harm resulting from increased arrests for gun crimes with seemingly
only cursory concern for the Fourth Amendment rights of the arrestees.
Part II.A.1 outlines a pattern of police abuses of constitutional rights. In
Part II.A.2, a controversial decision by the Massachusetts Supreme Judicial
Court, reversing an appeals court acquittal, serves as a template to illustrate
the growing trend towards deferring to officer discretion and the harm
resulting. Part II.A.3 then critically examines certain city-wide initiatives
both in Boston and similar cities, and demonstrates how such systems tend
to equate productivity with success at the expense of individual liberties. In
addition, the changing face of the judiciary with regard to firearm crime
seems to substitute efficiency for fundamental rights such as due process.
Part II.B identifies the failure of the judiciary to provide sufficient guidance
to police and lower courts in determining reasonableness and its failure to
adequately require detailed police testimony in trial court proceedings.
97. See Crawford v. Washington, 541 U.S. 36, 66-67 (2004) (explaining the Framers
fear of leaving too much discretion in the hands of government officers); Rakas v. Illinois,
439 U.S. 128, 169 (1978) (White, J., dissenting) (Some policemen simply do act in bad
faith, even if for understandable ends, and some deterrent is needed.).
98. See, e.g., KENNETH J. HODSON & FRANK J. REMINGTON, AMERICAN BAR
ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE 1-52 (2d ed. 1980), available at
http://www.abanet.org/crimjust/standards/urbanpolice.html (The highest duties of
government, and therefore the police, are to safeguard freedom, to preserve life and
property, to protect the constitutional rights of citizens and maintain respect for the rule of
law by proper enforcement thereof, and, thereby, to preserve democratic processes.).
99. See discussion infra Part II.
100. See infra Part II.A.
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A. Pressure Point One: Increasing Numbers of Unconstitutional

Searches, Seizures, and Arrests
One potentially dangerous product of the systems described above is
an increase in the number of individuals stopped, searched, and arrested
unconstitutionally. 103 Statistics indicate that in both Boston and other large
cities, it is not uncommon for police to illegally search and arrest
suspects. 104 In addition, there has been a quiet but steady trend towards an
increased deference to officers discretionary decisions to stop and frisk
suspicious individuals. 105 Recent case law in Massachusetts and new
police-sponsored city-wide initiatives exacerbate this trend. 106
1. Police Conduct Troubling Numbers of Illegal Searches

and Seizures
Police conduct does not always comport with constitutional
principles. 107 In 1988, Boston police, faced with a rising gang problem,
assigned the City Wide Anti-Crime Unit to Bostons most violent
neighborhoods. 108 The Unit was expected to make a direct impact on the
violence and had a stop-and-frisk mentality that was highly aggressive and
reportedly indiscriminate. 109 In 1989, a Boston precinct commander
publicly referred to the tactics as a stop and frisk campaign (police
internally referred to the policy as tipping kids upside down) further
strengthening the publics distrust of the Boston Police Department. 110
In the early 1990s, while the Boston Gun Project was being
developed, Boston police were officially investigated by the Massachusetts
Attorney General for allegations of egregious police conduct and
constitutional violations. 111 The investigation revealed that police engaged
in unconstitutional and improper conduct in stopping and searching
minorities to a degree severe and pervasive enough to warrant mandated
changes in department practices. 112
103. See discussion infra Part II.A.1.

106. See infra Part II.A.2-3.
107. See supra note 97 and accompanying text.
108. Jenny Berrien & Christopher Winship, Lessons Learned from Bostons Police
Community Collaboration, FED. PROBATION, Dec. 1999 at 25, 26.
109. See id. at 26-27.
110. Id. The surrounding scandal resulted in the City Wide Anti-Crime Unit disbanding
in 1990. Id. at 27.
111. WELSH S. WHITE & JAMES J. TOMKOVICZ, CRIMINAL PROCEDURE: CONSTITUTIONAL
CONSTRAINTS UPON INVESTIGATION AND PROOF 433 n.10 (5th ed. 2004).
112. Id.
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Perhaps the most disturbing evidence was that the scope of a

number of Terry searches went far beyond anything authorized
by that case and indeed, beyond anything that we believe would
be acceptable under the federal and state constitutions even
where probable cause existed to conduct a full search incident to
an arrest. Forcing young men to lower their trousers, or
otherwise searching inside their underwear, on public streets or
in public hallways, is so demeaning and invasive of fundamental
precepts of privacy that it can only be condemned in the
strongest terms. The fact that not only the young men
themselves, but independent witnesses complained of strip
searches, should be deeply alarming to all members of this
113
community.
More recently, statistical data from prosecutions in Bostons gun
court suggests that the practice of stopping, frisking, and arresting suspects
with little regard for their constitutional rights still occurs with some
regularity. 114 Of the 368 firearm cases prosecuted and disposed in the Gun
Court between February 2006 and September 2007, six cases were
dismissed due to a lack of probable cause, and thirty-three motions to
suppress evidence were allowed because the search or seizure violated the
Constitution. 115 Those numbers suggest that just over one out of every ten
prosecutions for firearm possession during that time resulted from a stop,
search, and arrest that failed to meet minimum constitutional
requirements. 116
Similar trends can be seen in other cities as well. A recent police
crack-down on illegal firearm possession in Baltimore provides an
illustrative example. 117 Baltimore police were instructed to employ the
stop-and-frisk tactic aggressively, with little supervision or oversight from
their senior commanders. 118 Even the patrol officers conducting the
113. Id. (citing JAMES SHANNON, ATTORNEY GENERAL OF MASSACHUSETTS, REPORT OF

THE ATTORNEY GENERALS CIVIL RIGHTS DIVISION ON BOSTON POLICE DEPARTMENT
PRACTICES 60-61 (Dec. 18, 1990)).
114. See infra note 115 and accompanying text.
115. Suffolk County District Attorneys Office, Setting the Record Straight on Gun
Prosecutions (Oct. 11, 2007), http://www.mass.gov/dasuffolk/docs/8.6.07C_gun_court.html.
In addition, twenty-seven cases were dismissed after the prosecutors found no legal
sufficiency to warrant further prosecution. Id.
116. See id.
117. See Gus G. Sentementes, Police Step Up Frisking Tactic: Officials Say Searches
Deter Crime, but Lack of Tracking Raises Concern Over Practice, BALT. SUN, Nov. 13,
2005, at 1A, available at 2005 WLNR 18511458.
118. Id.
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searches felt the tactic was being overused. 119 The officers began to refer to
stop-and-frisk encounters as VCR detail for violation of civil rights. 120
Police commanders compiled their records and estimated that their officers
were conducting approximately 480 frisks a day. 121 Jeffery Fagan, a
Columbia University professor who conducted a stop-and-frisk study in
New York in 1999 commented about Baltimore, [w]hat doesnt get
spoken about . . . is the use of very aggressive street interactions at a very
low constitutional threshold in order to get guns off the streets. 122 The
officers involved felt pressured to prove their productivity with high arrest
rates resulting from these stops and frisks. 123 The initial numbers reported
by the Baltimore Southeastern Police District indicated that a single officer
conducted 481 searches over a five month period and never found a single
firearm. 124 The chief attorney at Central Booking for the Baltimore Office
of the Public Defender stated that her office hear[s] a consistent story
from [the] clients, of what their experience was like . . . . They will tell you
that that officer searches me every week, that theyre out there doing it on
a regular basis. 125 A spokesman for the police department responded by
stating [w]e make no apologies for being an aggressive Police
Department; thats why we have reduced crime this year. 126 As for New
York, Professor Fagans study, conducted for the New York Attorney
General in 1999, determined that approximately one out of every seven
stops by police in New York did not meet the minimum constitutional
standard required by the Fourth Amendment. 127 The community damage of
such practices is clear. 128
119. Patrol officers told their union representatives that their tactics, that could be an
effective law enforcement tool, were instead being overused in a daily push to ratchet up
statistics. Id.
120. Id.
121. Id.
122. Id.
123. See Sentementes, supra note 117, at 1A (statement of the president of the Baltimore
police union) (We get calls all the time from [officers] saying I just cant keep this pace up
. . . [p]eople are tired of me pulling up and harassing them. . . . Its all about numbers, and it
doesnt matter how you get them.) (internal quotation marks omitted).
124. Id.
125. Id.
126. Id.
127. Id.
128. See, e.g., Christopher Stone, A Tale of Two Cities: Boston, New York, and Crime,
BOSTON GLOBE, Feb. 12, 2006, at E12, available at 2006 WLNR 2595884 (New York paid
a very high price for its crime reductions. The aggressive use of stop and frisk tactics by the
Street Crimes Unit and thousands of new arrests for petty crimes were widening the gulf
between police and minority communities and weakening the protections of the justice
HINSON FINAL 1/13/2010 11:25:29 AM
2. Recent Massachusetts Case Law and Official Responses

Indicate an Increasing Judicial Deference to Police
Discretion in Street-Level Encounters.
One recent case, decided by the Supreme Judicial Court of
Massachusetts (SJC) in June 2007, strongly illustrates this trend. 129 The
case, in its simplest rendition, involved the stop, frisk, arrest, and
conviction of Michael DePeiza, a young African-American man in the
Dorchester section of Boston. 130 The arresting officers suspected DePeiza
of illegally possessing a firearm because they observed him walking alone
after midnight with his right arm pressed against his side and talking on a
cell phone in a neighborhood designated by police as high-crime. 131 After
observing DePeiza from their unmarked vehicle, the officers turned the car
around and approached him, calling out a random name to attract his
attention. 132 They neither activated the siren nor flashed their blue lights,
although their badges were visible at chest level. 133 They questioned him,
asking him where he was from, where he was going, and where he had
come from. 134 During this interaction, the officers felt DePeiza was
shielding his right side from view as if trying to hide something. 135 They
were concerned that DePeiza was poised to run because he appeared
nervous, looking from left to right and shifting his weight from side to
side. 136 At some point during the conversation, the officers stepped out of
the car. 137
DePeiza told the officers that he was from New York and was in
Dorchester staying with family in a nearby apartment. 138 Concerned that
the officers had misidentified him, DePeiza reached into his pocket and
volunteered his New York drivers license and his Berkeley College
student identification. 139 The officers noticed DePeiza continuing to turn
system.).
129. See Commonwealth v. DePeiza, 868 N.E.2d 90 (Mass. 2007).
130. Id. at 93.
131. Id.
132. Id. at 93-94. DePeiza testified that the officers yelled Hey, Dwayne. The officers
testified that they did not know DePeizas name, but hailed him with a random name in
order to get closer to him and more closely observe his behavior. Id. at 94 n.1.
133. Commonwealth v. DePeiza, 848 N.E.2d 419, 421 (Mass. App. Ct. 2006).
134. Id.
135. DePeiza, 868 N.E.2d at 94.
136. Id.
137. Id.
138. DePeiza, 848 N.E.2d at 421-22. DePeiza worked in New York in customer service
and as a teller, but his parents and brother had an apartment in Dorchester. Id. at 422 n.4.
139. Id. at 422 & n.5. Officer Conway ran the identification through the mobile computer
HINSON FINAL 1/13/2010 11:25:29 AM
his right side away from their view as he reached for his identification and
determined that his right jacket pocket appeared to contain something
heavier and larger than a cell phone or pack of cigarettes. 140
Officer Bickerton, believing that the pocket contained a firearm,
reached out toward DePeiza to conduct a patfrisk. 141 DePeiza backed away
to avoid Bickerton, prompting the officer to announce his intention to
conduct the frisk. 142 The officer again attempted to frisk DePeiza, who
again moved away, at which point Officer Bickerton grabbed DePeizas
pocket where he felt the handle of a handgun. 143 The officer then reached
into DePeizas pocket and seized the gun. 144
The Massachusetts Appeals Court reversed the trial courts
conviction, holding that the officers never possessed a reasonable suspicion
of illegal activity. 145 Among the concerns raised by the court was that
mere suspicion of possession of a firearm does not justify a stop or search,
because there must be suspicion that the firearm is possessed illegally. 146
The court held that the search of DePeiza was unconstitutional, rendering
the firearm it yielded inadmissible. 147 The appeals court dismissed the
factors relied on by the arresting officers as too idiosyncratic to create
reasonable suspicion. 148 It held that the officers placed themselves in close
proximity to DePeiza, based on a hunch, and induced the conduct they
later described in court when asked to justify the stop. 149 In short, the court
found the encounter to be an arrogant and unnecessary approach to the
constitutional line. 150
On appeal, the SJC reversed the appeals court decision and affirmed
the conviction. 151 The court conceded that each factor the police relied on
may have an innocuous explanation and that each alone would be
insufficient to support a finding of reasonable suspicion. 152 However, it
held that when observed together, and when based on rational inferences
and found no incriminating information or outstanding warrants. Id. at 422.

140. Id.
141. DePeiza, 868 N.E.2d at 94.
142. Id.
143. DePeiza, 848 N.E.2d at 422.
144. Id.
145. Id. at 427.
146. See id. at 424-26.
147. See id. at 426-27.
148. Id. at 424.
149. DePeiza, 848 N.E.2d at 427.
150. Id. at 423.
151. Commonwealth v. DePeiza, 868 N.E.2d 90, 93 (Mass. 2007).
152. See id. at 96-98.
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derived from the officers training, the factors provided the officers with a
reasonable suspicion that DePeiza illegally possessed a firearm. 153 The SJC
departed completely from the reasoning of the appeals court and simply
credited the officers training and experience, deferring to their street-level
decision making as a proper exercise of police discretion. 154
The SJCs finding of reasonable suspicion in DePeiza was a departure
from established Massachusetts case law. 155 There is certainly logic and
established precedential support behind the SJCs mantra that [s]eemingly
innocent activities taken together can give rise to reasonable suspicion. 156
The Commonwealth has found reasonable suspicion of criminal activity or
a reasonable apprehension of danger in a variety of situations, but the vast
majority of those cases are distinguishable from DePeiza. 157
Recent stop-and-frisk cases in Massachusetts have established that
reasonable suspicion generally exists where police respond to reliable
reports of shots fired or guns being brandished. 158 Other cases recognize
fleeing from or evading police or making furtive gestures as grounds for
reasonable suspicion. 159 Some cases arise out of factual scenarios that seem
to clearly justify finding reasonable suspicion. 160 However, recent
153. Id. at 95.

154. See id. at 97.
155. See infra notes 170-75 and accompanying text.
156. DePeiza, 868 N.E.2d at 95 (quoting Commonwealth v. Sykes, 867 N.E.2d 733, 739
(Mass. 2007)).
157. See infra notes 158-163 and accompanying text.
158. See, e.g., Commonwealth v. Haskell, 784 N.E.2d 625, 628 (Mass. 2003) (describing
an officer responding to reliable report that defendant was seen loading a handgun in high-
crime area well after midnight); Commonwealth v. Campbell, 867 N.E.2d 759, 763 (Mass.
App. Ct. 2007) (describing the police responding to reliable reports from multiple
informants of an individual with a gun in a bar, of subsequent gunshots in the vicinity of the
bar, of the individual leaving the bar in a black vehicle, and of license plate number of the
vehicle, resulting in the police finding of a black vehicle with matching license plate within
minutes near the bar).
159. See, e.g., Sykes, 867 N.E.2d at 739 (depicting a scene that when officers arrived at
the high-crime street where defendant was located, a large group of men had congregated,
that defendant turned his bicycle around and fled from officers, looked back at them several
times, collided with a tree, jumped off the bicycle, abandoned it, and clenched his waistband
while running away); Commonwealth v. Dasilva, 849 N.E.2d 249, 252-53 (Mass. App. Ct.
2006) (describing that officers knew prior to tip that defendant and a companion possessed
firearms and narcotics at a particular address, wearing particular clothing; that they knew
that the defendant had a pending court case involving charges of firearm possession and
assault with intent to murder; and that when defendant saw the approaching police, he
grabbed his waistband and fled, suggesting tip that defendant possessed a gun was grounded
in personal knowledge).
160. See, e.g., Commonwealth v. Perry, 818 N.E.2d 185, 189 (Mass. App. Ct. 2004)
HINSON FINAL 1/13/2010 11:25:29 AM
decisions also indicate that close 161 cases like DePeiza, 162 involving
several potentially innocuous factors and without flight or reports of
criminal activity, do not always justify a stop and frisk. 163
In this case, DePeiza was a young African-American man walking
down the street, alone, late at night, talking on his cell phone in
Dorchester. 164 When the police employed a ruse to get his attention, he did
not flee, but interacted with them in a tone that was conversational and not
aggressive. 165 He volunteered his name and identification. 166 Prior to
being engaged by the officers, DePeizas only allegedly suspicious
behavior was pressing his right arm against his side and walking in a high-
crime neighborhood. 167 But he did have an unlicensed gun. 168 And therein
lies the problem. That he was in possession of an illegal firearm is not to be
taken lightly, 169 but neither is his right to walk down the street without fear
of being unreasonably challenged by police. 170 The SJC decision allowed
(finding reasonable suspicion where police observed defendant throwing what appeared to
be a shotgun into bushes).
161. Commonwealth v. DePeiza, 868 N.E.2d 90, 96 (Mass. 2007).
162. See id.
163. See, e.g., Commonwealth v. Walker, 825 N.E.2d 491, 496 (Mass. 2005) (finding no
reasonable suspicion where officers responded to an anonymous tip of a robbery at gunpoint
by two men described only as African-American males, and the officers sighted defendant,
an African-American male, one block from the alleged robbery furiously pedaling a
bicycle); Commonwealth v. Quezada, 856 N.E.2d 189, 193 (Mass. App. Ct. 2006) (finding
no reasonable suspicion because a defendants flight could not be considered as a factor, the
fact that defendant was with a previously incarcerated companion provided no weight to
reasonable suspicion analysis, his presence in high-crime area did not justify stop, and the
officers concern that defendant appeared intoxicated by illegal drugs and thus might be in
possession of such drugs was nothing more than speculation).
165. DePeiza, 868 N.E.2d at 94; compare id. (describing DePeiza engaging in a short
conversation with officers when approached), with sources cited supra note 159 (describing
the defendants fleeing from police).
166. See DePeiza, 868 N.E.2d at 94.
167. Compare id. at 93 (finding reasonable suspicion where DePeiza was walking with
his arm pressed against his side with no report of criminal activity), with Walker, 825
N.E.2d at 496 (finding no reasonable suspicion where man matching description of reported
gun-wielding assailant was furiously pedaling on a bicycle within one block of robbery
site).
168. See DePeiza, 868 N.E.2d at 93.
169. The inherent dangerousness of guns in the streets is not diminished by the fact that
licensed carrying of a gun is lawful. Commonwealth v. Foster, 724 N.E.2d 357, 364 (Mass.
App. Ct. 2000) (Jacobs, J., concurring).
170. See Terry v. Ohio, 392 U.S. 1, 9 (1968) (explaining the importance of the right to
freedom from restraint or interference). The population of the zip code where DePeiza was
stopped suggests that racial profiling of his neighborhood could have influenced officers
HINSON FINAL 1/13/2010 11:25:29 AM
the officers to justify the stop and frisk by relying on DePeizas nervous
behavior they only observed after employing a trick to get his attention.171
Such methods are difficult to distinguish from inducing the conduct
justifying the suspicion, 172 and seem to depart from prior Massachusetts
case law.
Official responses to the opinions of the two courts also illustrate the
growing trend towards allowing police a more unchecked discretion at
street level to conduct stops and frisks. The Boston Police Department
harshly criticized the appeals court decision as impractical and
unrealistic. 173 Police spokesmen openly stated that police departments
would not be changing their procedures, despite the courts ruling. 174 In
addition, the Suffolk County District Attorneys Office made plans to
appeal the decision. 175 Not surprisingly, upon its release, the SJC decision
met with vocal support from the same figures that had criticized the appeals
court decision. 176 Boston Police Commissioner Edward F. Davis viewed
the decision as a vindication. 177 The Suffolk County District Attorneys
Office claimed that the SJC decision appropriately recognized the
challenges facing Boston police trying to get illegal guns off the streets. 178
suspicions. See 02126 Zip Code (Massachusetts) Detailed Profile, http://www.city-

data.com/zips/02126.html (last visited Feb. 20, 2009) (stating that as of 2000, 23,416 out of
27,815 total residents in the zip code where DePeiza was stopped were African American;
only 1639 were white).
171. See Commonwealth v. DePeiza, 848 N.E.2d 419, 427 (Mass. App. Ct. 2006)
(Brown, J., concurring) (explaining how the police used a ruse to reach the
unsupportable conclusion that DePeiza possessed a firearm illegally).
172. Id. at 425 (majority opinion) (quoting Commonwealth v. Barros, 755 N.E.2d 740,
746 (Mass. 2001)).
173. See Mishra, supra note 96, at B1 (statement of Boston Police Superintendent Robert
Dunford) (If we only relied on shots fired before we stopped anybody, thats kind of
ridiculous . . . . The judges have ruled sitting on the bench, not out on the street.).
174. See id.; Steve Urbon, Is That a Gun? Court Ruling Stymies Police Efforts to Find
Firearms, STANDARD TIMES, June 25, 2006, at B04, available at
http://archive.southcoasttoday.com/daily/06-06/06-25-06/01perspective.htm (New Bedford
police chief calling the appeals court opinion a horrible decision and stating that pending
an appeal, city police would be instructed to do their jobs as [they had been] doing it.).
175. See Mishra, supra note 96, at B1.
176. See Jonathan Saltzman, SJC Gives Police Leeway to Frisk, BOSTON GLOBE, June 16,
2007, at 1B, available at 2007 WLNR 11403442 (Boston police and Suffolk County
prosecutors praised [the] ruling.).
177. Id. (statement of Boston Police Commissioner Edward F. Davis) (This was a
common-sense observation and a truthful reporting of what the officers saw, and I think the
appeal courts [sic] . . . reasoning was faulty.).
178. See id.; Michele McPhee, SJC Decision in Frisking Case Is Right on Target,
BOSTON HERALD, June 18, 2007, at 12, available at 2007 WLNR 11424570 (statement of
HINSON FINAL 1/13/2010 11:25:29 AM
Even the local media praised the decision, vilifying DePeiza while casting
the SJC and police as heroic. 179
Alarmingly, the police response to the appeals court decision suggests
that the concept of favoring police discretion over following the law is not
foreign to Massachusetts police officers and officials. 180 Simply put, police
refusing to abide by a judicial decision they found unfavorable is a clear
example of discretionary abuse. 181 Worse yet, this reaction suggests an
actual willingness on the part of police to knowingly arrest and prosecute
defendants for illegal gun possession, in direct violation of their
constitutional rights, so long as the end result is another gun being taken off
the street. 182
That fact is not altogether surprising when considered in conjunction
with the notion that in most major American cities, police have a tendency
to view themselves as the front end of a system; they acquire criminals and
feed them into that system where they become someone elses problem. 183
Additionally, the productivity of the officers working under such a system

is measured in large part by the number of stops and arrests they make. 184
District Attorney Conley) (To disallow a police officer from acting on his or her reasonable
suspicion that someone is carrying an illegal gun puts every other citizen at risk.).
179. See McPhee, supra note 190, at 12 (Finally the Supreme Judicial Court stepped up.
. . . [DePeiza] was spotted by two decorated cops walking . . . with his arm rigid at his side,
his eyes darting back and forth nervously . . . . on a hotspot block marred by wounded
teens and dropped bodies. . . . Hopefully, [the] decision is going to make it easier for BPD
officers to arrest armed idiots, and make judges more prone to making the charges stick and
sending those responsible for the ceaseless bloodshed in our city to prison, where they
belong.).
180. See Urbon, supra note 174 (statement of Mass. attorney Greta Janusz) ([The
appeals court decision in DePeiza] is the law and any activities by police officers
inconsistent with this type of activity is [sic] illegal . . . . I think its unprofessional [that
police say they will not follow the ruling] and I dont think it should be tolerated. . . . If
theyre going to decide that if a dictate comes down, theyre not going to abide by it, theyre
telling society, Were going to do whatever we want. Were going to violate the rulings and
statements from the bench. I find that incredible.).
181. See id.
182. See id. Consider the statement of a Massachusetts Police Chief regarding the
possibility that a suspect was illegally searched for a firearm: If one or two officers seize a
gun and the judge looks at the case and determines there werent sufficient grounds, we lose
the case. But we got the gun off the streets, and were not going to return it to someone who
didnt legally possess it. Id.
183. George L. Kelling, Crime and Metaphor: Toward a New Concept of Policing, CITY
JOURNAL, Autumn 1991, at 67, available at http://www.city-journal.org/article01.
php?aid=1577.
184. Id.; Sentementes, supra note 117, at 1A.
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But harmful abuses of discretion play out on a larger scale as well.
3. City-Wide Initiatives Create More Opportunities for the

Loss of Constitutional Protections and More
Unconstitutional Arrests.
The Safe Home Initiative, while intended to remove guns from homes
without prosecuting the juveniles, potentially bypasses fundamental Fourth
Amendment protections. 185 Facially, this seems like a positive, beneficial
program. 186 However, the constitutional implications of this plan are
numerous. 187 Under the plain-sight doctrine, anything police notice upon
being invited into the home becomes open to seizure and arrest. 188 In place
of a statutory or common law guarantee of immunity from prosecution, the
police offer a promise not to prosecuteunless the officer determines a
need to do so. 189 Massachusetts does not recognize a parent-child privilege,
so there is nothing to prevent police from compelling parents to testify
against their own children. 190 In addition, because the immunity from
prosecution only relates to firearm possession, any information that police
uncover that is not related to a firearm could lead to prosecution for
separate offenses. 191 In some cases, this could lead to police compelling
parents to testify to the statements their children made to them or to their
own observations inside their home. 192 The Massachusetts ACLU has
urged police to extend immunity from prosecution to other items uncovered
in the home. 193 Perhaps the most glaring concern is the validity of the
consent parents give. 194 Parents will not necessarily feel free to refuse,
185. See Cramer, supra note 8, at 1A.

186. See Cramer, supra note 8, at 1A; Maria Cramer, Police, Activists Battle over City
Antigun Effort, BOSTON GLOBE, Nov. 21, 2007, at 1B, available at 2007 WLNR 23058248
(statement of a Boston resident) ([Regarding Safe Homes,] I understand people are worried
about being violated and their privacy . . . . But when it comes down to it, anybody would
give up anything to save a life . . . .).
187. Cramer, supra note 8, at 1A.
188. See GRASSO & MCEVOY, supra note 56, pt. 4, at 13-14.
189. See Hillary B. Farber, Editorial, As You Were Saying . . . Safe Homes Inherent
Perils, BOSTON HERALD, Feb. 23, 2008, at 16, available at 2008 WLNR 3595552.
190. Id.
191. Id.
192. See id.
193. Carol Rose, Letters to the Editor, Police Gun Searches Raise Concern, BOSTON
GLOBE, Feb. 13, 2008, at 12A. Ms. Rose is the Executive Director of the ACLU of
Massachusetts. Id.
194. Cramer, supra note 8, at 1A (statement of Amy Reichbach of the ACLU) (Our
biggest concern is the notion of informed consent . . . . [p]eople might not understand the
implications of weapons being tested or any contraband being found.).
HINSON FINAL 1/13/2010 11:25:29 AM
despite being informed of that right, when three officers show up at their
door unannounced. 195 In addition, parents may be misled by the stated
purpose of the search and the suggestion that they will not be prosecuted
for the possession of the guns. 196 A former Boston Police officer,
currently teaching at Boston University, stated that [t]he Constitution was
written with a very specific intent, and that was to keep the law out of
private homes unless there is a written document signed by a judge and
based on probable cause. Here, you dont have that. 197
Under this current police mentality, where the raw quantity of
acquired criminals or of seized firearms is a dominant factor in evaluating
officers success, 198 and where police may exercise considerable amounts
of discretion that courts will later defer to in legal proceedings, 199 the
illegal acquisition of both firearms and citizens threatens to become much
more frequent. 200 Such practices must be identified and addressed in their
early stagesif police are allowed to base their decisions on subjective
(even if good-faith) suspicions alone, and even to search citizens homes
with potentially coerced or uninformed consent, then the protections of the
Fourth Amendment would evaporate, and the people would be secure in
their persons, houses, papers and effects, only in the discretion of the
police. 201 But the harm will not end with the arrest.
B. Pressure Point Two: Decreasing Opportunities to Recognize

and Redress Unconstitutional Searches, Seizures, and
Arrests
The current criminal system does not stop at increasing the number of
individuals that are unconstitutionally arrested. 202 Once a suspect has been
unconstitutionally searched and arrested for illegal firearm possession, the
system also decreases the number of opportunities to discover and address
the illegal conduct. 203 The law of suppression itself is illustrative. The
Massachusetts Continuing Legal Education publication on effective
195. Commentary, Safe Homes at What Price?, MASS. LAW. WEEKLY, Nov. 26, 2007,
at 13, available at 2007 WLNR 23452783.
196. Id.
197. Cramer, supra note 8, at 1A.
198. See Kelling, supra note 183, at 67.
199. See supra Part II.A.1-2.
200. See, e.g., Commonwealth v. DePeiza, 848 N.E.2d 419, 428 n.2 (2006) (Brown, J.,
concurring) (This makes one wonder how many persons this officer has stopped (or has
interrogated) who had a peculiar walk, but who did not possess a weapon.).
201. Beck v. Ohio, 379 U.S. 89, 97 (1964).
202. See supra Part II.A.
203. See discussion infra Part II.B.
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criminal motions states that proportionally few motions to suppress are

successful, 204 and refers to the motion to suppress as a strategic decision
that should be filed to provide the only real discovery that a defendant
obtains before trial. 205 Lawyers view suppression as a useful tool for
discovery to such an extent that the Massachusetts Continuing Legal
Education guide counsels that [a]ctually winning any of these motions
would be an unexpected bonus. 206
Specialty gun courts focus on speed and efficiency and exhibit a trend
of harsher sentencing than that found in traditional courts. 207 Against that
framework, consider that out of the 295 prosecuted cases in Bostons gun
court in 2006, known for its 85% conviction rate and harsh sentencing,
thirty-five people were released because the judge ruled that police had no
constitutionally legitimate reason to stop the pedestrian. 208 That number
might at first seem favorably high to a potential defendant, given the
courts high rate of conviction. However, it can also emphasize a much
greater concern for personal freedom and constitutional protections. In a
system where officers feed criminals into the prosecutorial machine and
numbers of arrests can measure success, 209 the expediency of gun courts
might work a devastating harm on due process that gets obscured by the
positive feedback surrounding the success of the court. 210 It has been
suggested that specialty courts discount the importance of procedural due
process rights, including the right to challenge the admissibility of
evidence due to illegal police searches. 211 If that is true, and if police are
being pressured to conduct more stops and more searches, 212 then
increasing numbers of people are being fed into a system that is increasing
the number of convictionsthe likelihood of a defendant being
unconstitutionally convicted because of an initial abuse of police discretion
204. Alan D. Tuttman, Motion to Suppress, in EFFECTIVE CRIMINAL MOTIONS 145, 145
(1996).
205. Robert L. Sheketoff, The Defendants Perspective on Motions to Suppress and
Dismiss, in EFFECTIVE CRIMINAL MOTIONS, supra note 216, at 117, 117.
206. Id. at 118.
207. See supra notes 34-43 and accompanying text; see also Murphy, supra note 6, at 3B;
Davis, supra note 35, at 14 (statement of defense attorney practicing in a specialty gun court
in Brooklyn, N.Y.) (You go in there and its like: Abandon all hope . . . .).
208. Michelle McPhee, Gun Judges Leniency Benches Logic, BOSTON HERALD, Aug. 6,
2007, at 4, available at 2007 WLNR 15094793.
210. See Sweet, supra note 10, at 4.
211. See Tamar M. Meekins, Risky Business: Criminal Specialty Courts and the Ethical
Obligations of the Zealous Criminal Defender, 12 BERKELEY J. CRIM. L. 75, 125-26 (2007).
212. See generally Sentementes, supra note 117, at 1A (explaining that stop and frisk in
Baltimore is over-utilized as a way to improve arrest statistics).
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in stopping and frisking a pedestrian necessarily multiplies.

The testimony of arresting officers is also a pressure point where
Fourth Amendment protections are inadequately protected. Inherent to a
suppression hearing is the testimony of the arresting officer as to the
existence of reasonable suspicion. 213 The law of search and seizure is
highly fact-intensive: changing only one fact can produce a diametrically
different result. 214 The officers should typically testify extensively about
their training, the factors they observed, and specifically, why each
observation was relevant and how it worked to create a reasonable
suspicion of criminal activity. 215 Additionally, [w]hat factors law
enforcement officers may consider in deciding to stop and question citizens
minding their own business should, if possible, be carefully circumscribed
and clearly articulated. 216 Without clear guidance, police can simply
repeat the necessary terminology in their testimony, even when it might be
almost fully unsupported by the facts, to ensure that the court finds their
suspicion justified:
When courts invoke multi-factor tests, balancing of interests or
fact-specific weighing of circumstances, this introduces a
troubling degree of uncertainty and unpredictability into the
process; no one can be sure whether a particular combination of
factors will justify a stop until a court has ruled on it. It also
creates an incentive for officers to exaggerate or invent factors,
just to make sure that the judges who review the case will
approve their balancing act. 217
In that context, it is important to consider that police officers . . . like
criminals, respond to judicial decisions. 218 Thus, if the courts begin a
trend of finding officer testimony regarding one factor unpersuasive, police
may simply alter their statements accordingly. 219 For example, if courts
signal their skepticism about nervousness testimony, police officers will
simply alter what they say. 220 The troubling concern is [w]hether they
213. Colin D. Wood, They Didnt Look Right to Me! Reasonable Suspicion in Kansas:
Through Whose Eyes Is It Viewed?, 76 J. KAN. B.A. 16, 20 (2007).
215. Wood, supra note 213, at 20.
216. United States v. Montero-Camargo, 208 F.3d 1122, 1142 (2000) (Kozinski, J.,
concurring).
217. Id.
218. See Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 VAND. L. REV.
407, 441 (2006).
219. Id.
220. Id.
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will meaningfully alter their behavior. 221
ANALYSIS
III. A Proposed Strategy to Minimize the Damage
A. Addressing Pressure Point One: Increasing Numbers of

Unconstitutional Searches, Seizures, and Arrests
1. Change the Metaphor, Change the Incentive

In order to minimize the risk of harm to constitutional rights resulting
from increasing numbers of arrests, a logical place to begin is by changing
the metaphor that defines the role of police. 222 The thin blue line
metaphor was coined in the 1950s by Los Angeles Chief of Police, William
Parker. 223 The essence of this metaphor is a thin blue line of heroesthe
only force for good standing between the passive citizenry and violent
chaos. 224
It is not hard to understand the attractiveness of the thin blue
line and the criminal justice system metaphors. It is far easier
to count how many arrests officers make than how effective they
are educating citizens or organizing a community. The idea of a
system with inputs and outcomes seems more dynamic than
informal peacekeeping. Fighting crime is much more dashing
than keeping peace. 225
The problem, however, is that [t]he metaphors set the police up for
failure, for the police cannot deliver what the metaphors promise . . . . They
cannot feed criminals into the system fast enough to win a war of
attrition . . . . 226 Redefining the thin blue line as heroes not responsible
solely for protecting passive citizens from criminal dangers, but for
safeguarding against all harmincluding harm to constitutional rights
shifts the fundamental police paradigm and creates a starting point from
which to build additional change. 227
Changing the metaphor by which officers and citizens define
221. Id.
223. Id.
224. Id.
225. Id.
226. Id.
227. Id.; see infra Part III.A.2-B.2.
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successful police work requires changing the official evaluation of an

officers success. As the system exists, in many cities, sheer numbers of
arrests or seized guns work to shift the focus of police responsibility away
from qualitatively community-focused policing, and towards quantitatively
feeding the system. 228 A comparative study of 150 police officer evaluation
forms used by police agencies from a wide range of sizes and locales is
illustrative. 229 The study was designed to evaluate what differences, if any,
existed between the factors used to evaluate individual officers
performance in police agencies that claimed to be community-focused
(implying, among other factors, awareness and concern for constitutional
rights), and more traditional police agencies. 230 Results indicated that the
vast majority of total officer evaluation content (approximately 70%),
regardless of community-focus or traditional designation, was designed to
benefit the police agencies themselves rather than external stakeholder[s]
such as the surrounding community. 231 These numbers indicate that
officers are not being encouraged to focus primarily on addressing
community needs or aiding the justice system. 232 Additionally, in several
of the individual agencies examined, more than 80% of officer rating
categories included generic assessments such as quality of work, attitude,
attendance, and grooming. 233 While these factors may be valid to some
degree for internal police department efficiency, they do not adequately
measure or control the quality of police service being delivered to the
community in any capacity. 234 Notably, officer grooming and appearance
constituted almost the same percentage of officer evaluation content as
those items related to actually aiding citizens. 235 To meaningfully impact
and reduce the increasing numbers of illegal police stop-and-frisk
encounters with citizens, evaluation of officers must focus on the officers
service to the communityincluding specific evaluation of their
compliance with and appreciation for constitutional rights and protections
of citizens. 236 This is a fundamental constitutional precept. 237

229. David Lilley & Sameer Hinduja, Organizational Values and Police Officer
Evaluation, 9 POLICE Q. 486, 486 (2006).
230. Id.
231. Id. at 505.
232. Id.
233. Id. at 508.
234. Id.
235. Lilley & Hinduja, supra note 229, at 506.
236. See HODSON & REMINGTON, supra note 98, at 1-52 (The highest duties of . . .
police[] are to safeguard freedom, [and] to protect the constitutional rights of citizens.).
237. See, e.g., Rakas v. Illinois, 439 U.S. 128, 169 (1978) (White, J., dissenting) (Of
course, most police officers will . . . continue to do their jobs as best they can in accord with
HINSON FINAL 1/13/2010 11:25:29 AM
Changing the incentives an officer works for could be a very

productive method of reducing the instances of illegal stops and searches.
The study referenced above also indicated that the vast majority of officer
evaluation forms focused on limiting or controlling mistakes, as opposed to
rewarding excellence in performance. 238 While this type of risk-aversion
can theoretically reduce unconstitutional behavior by officers, instead it
more likely encourage[s] mediocrity in performance. 239 A reward-based
system, emphasizing constitutional police conduct, could be more likely to
reduce the number of illegally acquired criminals than a deterrent
system. 240 For example, a department could elect to recognize an officer
for outstanding performance if he or she recorded a significantly low
number of successful suppression motions. This type of recognition would
not simply reward a high number of arrests, but also reward the consistent
awareness of and adherence to principles of constitutionality. Changing the
measures of police success is crucial; a shift away from simple numbers of
results, however obtained, and toward a broader measure that accounts not
only for the numbers, but their legality, will reduce the risk of abuses of
discretion and illegally stopped, searched, and arrested citizens. 241
2. Require Clearer Guidance from the Courts

The next proposed step to decrease the steadily increasing number of
arrests for firearm protection is for the courts to provide clearer guidance to
officers and to create more bright-line rules in the area of stop and frisk
encounters. 242 A recent study of 1259 New York City precinct police
officers indicated that 11% more officers would definitely not stop and
the Fourth Amendment. But the very purpose of the Bill of Rights was to answer the
justified fear that governmental agents cannot be left totally to their own devices, and the
Bill of Rights is enforceable in the courts because human experience teaches that not all
such officials will otherwise adhere to the stated precepts. Some policemen simply do act in
bad faith, even if for understandable ends, and some deterrent is needed.).
238. Lilley & Hinduja, supra note 241, at 507.
239. Id. Rating items that do not describe any specific positive or desirable behaviors
cannot inform officers as to what comprises excellence. By failing to define and reward
excellent performance, the motivating effect of evaluation is limited. . . . Id.
240. See Gary T. Marx, Alternative Measures of Police Performance, in CRIMINAL
JUSTICE RESEARCH (E. Viano ed. 1976), available at
http://web.mit.edu/gtmarx/www/alt.html (Without conjuring up wooden images of a
reward-seeking, punishment-avoiding man, if one wishes the restrained use of force, greater
police conformity to law, better community relations, and more effective police behavior in
conflict and helping situations, it is important to structure the job to measure and reward
such behavior.).
241. See id.
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search a vehicle in the presence of a bright-line rule identifying the stop as

illegal than would in the presence of a more ambiguous standard of
legality. 243 The two hypothetical scenarios, derived from recent cases, both
violated the law in reality. 244 The difference was that one scenario clearly
violated a recent Supreme Court holding, while the other relied on the
typically ambiguous guidance from the courts to determine the legality of
the stop. 245 In the context of the study, this indicates that significantly more
surveyed officers would not stop and search a suspected individual where a
bright-line rule more clearly identified the search as unconstitutional. 246
Additionally, 10% more officers reported uncertainty of what to do in the
ambiguous scenario than in the bright-line rule scenario. 247 The results of
this survey indicate that bright-line rules will help implementing
populations [of police] obey court decisions. 248 As such, requiring courts
to provide officers with more bright-line rules regarding the legality of
using specific factors in deciding whether to stop, frisk, and arrest a citizen
will reduce the numbers of citizens arrested and prosecuted in violation of
their constitutionally protected rights.
3. Diversify Police Training

The next strategy for change in this area is to diversify initial police
training to include discretion and constitutional sensitivity. 249 Courts have
widely identified police training as a factor that is relevant to finding
reasonable suspicion in stop and frisk matters, 250 so it seems reasonable to
address the lack of discretionary training at that level. It has been suggested
that [t]he current use of broad or arbitrary mandates to correct errors in the
exercise of discretion creates more injustice than it remedies. 251 Certainly,
police are universally well-trained on the criminal code and laws relating to
arrest. 252 However, very little, if any, training is provided to teach officers
how to properly exercise their discretion to determine whether to stop,
243. John A. Eterno, Understanding the Law on the Frontlines: The Need for Bright-Line
Rules, 43 CRIM. L. BULL. 706, 715, 717 (2007).
244. See id. at 711, 717.
245. See id. at 711.
246. Id. at 717.
247. Id.
248. Id.
249. See Robert M.A. Johnson, The Value of Discretion, 22 CRIM. JUST. 1, 9 (2007).
250. See, e.g., Commonwealth v. Kennedy, 690 N.E.2d 436, 440-42 (Mass. 1998)
(acknowledging an officers training, education, and knowledge as factors).
251. Johnson, supra note 249, at 9.
252. See id.
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search, or arrest individuals based on their suspicion. 253 Devoting equal

training time and attributing equal weight to both the criminal code and the
importance of constitutional protections will impart the importance of both
to police from the beginning of their training. 254 This will also help to
reinforce the new metaphor discussed above at the officer level, and over
time, will result in a more constitutionally-focused police force. The
training should be ongoing, similar to continuing legal education programs,
and ideally would be updated and guided by analyses of well-maintained
records of the jurisdictions discretionary decisions. 255 Providing or
mandating police training in the exercise of discretion and the importance
of constitutional protections from the viewpoint of the citizenry will
improve officers ability not only to effectively enforce the law, but to do
so in a way that does not offend bedrock principles of constitutional
protections. 256
B. Addressing Pressure Point Two: Decreasing Opportunities to

Recognize and Redress Unconstitutional Searches, Seizures,
and Arrests
1. Create a Presumption of Unconstitutionality in Motions

to Suppress Evidence
When filing a motion to suppress evidence that was the product of a
warrantless search, the defendant bears the burden of establishing that a
search occurred. 257 Once the search has been established, the burden then
shifts to the Commonwealth to prove that the search and seizure fall within
one of the exceptions to the warrant requirement. 258 If a defendant fails to
253. See id.

254. See id. (Any police officer can recite criminal code provisions and the law relating
to arrest. Little training is provided, however, in determining whether to arrest a person . . . .
should these decisions be the product of training, or simply intuitive?).
255. See id. (We should . . . determine whether we are properly exercising our
discretion. Well-structured and maintained, records of our discretionary decisions provide
an opportunity to reflect on the appropriateness of our decisions, and assist us in identifying
areas that require correction. No prosecutor, police officer, or judge is going to be right
every time.).
256. See id. ([S]uch record keeping demonstrates to society that the criminal justice
system is working to make the appropriate judgments. The transparency provided by such
records, and resulting corrective action, will elevate levels of confidence and lessen the
belief that more arbitrary controls are necessary.).
258. Commonwealth v. Franklin, 385 N.E.2d 227, 236 (Mass. 1978); see also GRASSO &
MCEVOY, supra note 56, pt. 1, at 2-14.
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move for suppression, the right to do so is deemed waived, and failure to

raise the issue is increasingly stronger grounds for defendants filing
motions for new trials due to ineffective assistance of counsel. 259 In the
same way that the presumption of a defendants innocence (until proven
guilty by evidence and testimony) safeguards several constitutional rights,
this presumption of a firearm searchs unconstitutionality (until proven
constitutional by evidence and vital police testimony) 260 safeguards Fourth
Amendment rights and the law of suppression by requiring it even in cases
where suppression is not requested by a defendant. 261 It is helpful to recall
that the danger being addressed by this prophylactic measure is the
increasing deference by the courts to police discretion and the ability of
police to recall and reproduce at trial the necessary magic words to
establish legality. 262 A rebuttable presumption of unconstitutionality would
require police and courts to scrutinize the legality of police action, thereby
increasing officers incentive to act appropriately[t]he rule is calculated
to prevent, not to repair. Its purpose is to deterto compel respect for the
constitutional guaranty in the only effectively available wayby removing
the incentive to disregard it. 263
The additional result of implementing this strategy would be an
increased dialogue between the arresting officers and the judge regarding
the permissibility of an arrest and prosecution for illegal firearm
possession. This, in conjunction with the alteration of the police-defining
metaphor, the clearer bright-line rules expounded by the courts, and the
increased officer training in discretion and constitutional protections, would
create a much more connected relationship between the sentencing judge
and the initial constitutionality of the stop, frisk, and arrest. Police would
no longer be able to simply memorize and repeat currently fashionable
factors to establish the legality of their actions. 264 Rather, prosecutors
would be required to overcome a presumption of unconstitutionality in
order to proceed with their case. In this context, ruling judges would
necessarily be more involved with the specific context of each encounter,
as the constitutionality of stop and frisk encounters are highly fact-
intensive determinations, 265 and would ideally be in a position to more

260. See supra text accompanying notes 225-27.
261. An additional benefit of this change would be an increase in judicial efficiencyif
there is a presumption of illegality, no defendant would be able to claim ineffective
assistance of counsel for that issue. See GRASSO & MCEVOY, supra note 56, pt. 1, at 2-14.
263. Elkins v. U.S., 364 U.S. 206, 217 (1960).
265. See supra text accompanying note 214.
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neutrally and constitutionally apply the law.
2. Create Mandatory Suppression Hearings in Specialty Gun

Courts
An alternative manifestation of a new presumption would be to
require mandatory suppression hearings in the specialty gun courts. With
the focus of these courts on heightened efficiency and tough sentencing, 266
requiring a mandatory suppression hearing would guarantee that every
defendant had the opportunity to confront and challenge the
constitutionality of his or her stop-and-frisk encounter, creating an
additional opportunity to identify and rectify illegal encroachments on the
right to privacy. Applying mandatory suppression hearings to gun court
prosecutions comports with the rationale behind well-established
constitutional protections. 267 As the Court stated, when recognizing that
the exclusionary rule applies to states:
[W]e can no longer permit [the Fourth Amendment right to
privacy] to remain an empty promise. . . . [W]e can no longer
permit it to be revocable at the whim of any police officer who,
in the name of law enforcement itself, chooses to suspend its
enjoyment. Our decision, founded on reason and truth, gives to
the individual no more than that which the Constitution
guarantees him, to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that

judicial integrity so necessary in the true administration of
268
justice.
These mandatory hearings would serve the same functionsensuring
the provision of no more or less than what the constitution guarantees and
requires. Mandatory suppression hearings in the gun court would further
strengthen the legitimacy and integrity of the judiciary by requiring that
they utilize this principal mode of discouraging lawless police conduct to
ensure that the constitutional guarantee against unreasonable searches and
seizures [does not become] a mere form of words. 269 The requirement
would provide a consistent, guaranteed checkpoint in the system for every

267. Mapp v. Ohio, 367 U.S. 643, 660 (1961).
268. Id.
269. Terry v. Ohio, 392 U.S. 1, 12 (1968).
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defendant to exercise their constitutional rights to confrontation, due

process, and freedom from unreasonable searches and seizures.
CONCLUSION
When a balance must be drawn to facilitate both effective law
enforcement and sufficient constitutional protections, it is difficult to
recognize the best course of action to follow. 270 However, when a
community begins to experience an increase in the number of
unconstitutionally arrested and prosecuted suspects, and a concurrent
decrease in the number of opportunities to cure that unconstitutionality, it is
vital to examine and re-evaluate the criminal justice system in place.
Increasing deference to street-level police discretion and city-wide
programs such as the Safe Homes Initiative increase the number of suspects
illegally acquired. This initial increase damages judicial decision-making
and marginalizes the importance of constitutional rights. When additional
measures expedite prosecution of these crimes, as in the specialty gun
court, the integrity and legitimacy of the entire criminal process is
substantially weakened. The aggregate effect of the system proposed by
this Note would create stop-points along the path from arrest to conviction
at which the underlying legality of the stop, frisk, arrest, and resulting
prosecution would be directly scrutinized and proven. The more
opportunities that exist for a flagrant abuse[] of constitutional rights 271 to
be exposed and curedwhether at the source of police conduct or during

the subsequent journey through the systemthe more the integrity of the
entire criminal process will be fortified and protected. 272
Constitutional protection of individual liberty exists for a reason.
Presumably, holding police officers to the standard of a reasonable person,
not a reasonable police officer, 273 sends the message that subjectively
enforced law, even when motivated by the best of intentions, has no place
in society. 274 The standard creates a necessary check on the exercise of
270. See id. at 39 (Douglas, J., dissenting) (There have been powerful hydraulic
pressures throughout our history that bear heavily on the Court to water down constitutional
guarantees and give the police the upper hand. That hydraulic pressure has probably never
been greater than it is today.).
271. Commonwealth v. DePeiza, 848 N.E.2d 419, 427 (Mass. App. Ct. 2006) (Brown, J.,
concurring).
272. See supra Part III.
273. The standard is not a reasonable police officer. See Commonwealth v. Santana, 649
N.E.2d 717, 720 (Mass. 1995) (declining to adopt the reasonable police officer test used
by some jurisdictions).
274. See Terry v. Ohio, 392 U.S. 1, 15 (1968) ([C]ourts . . . guard against police conduct
HINSON FINAL 1/13/2010 11:25:29 AM
police discretion, while maintaining a balance between the value of

officers judgment, 275 and the inestimable right of personal security. 276
This is a particularly critical balance because stop-and-frisk scenarios often
require officers to make life-and-death decisions. 277 It is equally vital to
recognize and appreciate that without legitimacy and integrity, courts will
never truly serve the greater community good, nor live up to the
fundamental principles of the Constitution itself, no matter how efficient
they become at removing weapons from the hands of criminals. Inevitably
in some cases, [t]he criminal is to go free because the constable has
blundered. 278 But as the Supreme Court has stated, there is another
considerationthe imperative of judicial integrity. 279 It is a bedrock
principle of law that [n]o right is held more sacred, or is more carefully
guarded . . . than the right of every individual to the possession and control
of his own person, free from all restraint or interference of others, unless by
clear and unquestionable authority of law. 280 Despite the inherent
challenges, no matter how worthy the ultimate objective, it is vital to
recognize, preserve, and strengthen the connection between law
enforcement methods and absolute constitutional integritya noble goal
cannot be achieved at the cost of tainting and corrupting the very system of
principles that lends it nobility. 281 After all, [n]othing can destroy a
which is over-bearing or harassing, or which trenches upon personal security . . . . When

such conduct is identified, it must be condemned by the judiciary and its fruits must be
excluded from evidence in criminal trials.).
275. Id. at 24 ([W]e cannot blind ourselves to the need for law enforcement officers to
protect themselves and other prospective victims of violence in situations where they may
lack probable cause for an arrest.).
276. Id. at 8-9; see Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine,
72 ST. JOHNS L. REV. 911, 974 (1998) (Terrys stop and frisk rule . . . has evolved to a
practically ideal approach for governing law enforcement efforts to deal with a range of
potentially criminal conduct without unnecessarily interfering with the liberty of ordinary
people.).
277. Commonwealth v. Almeida, 366 N.E.2d 756, 759 (Mass. 1977) (quoting Terry, 392
U.S. at 33 (Harlan, J., concurring)) ([W]e think it crucial to remember as shown by many
tragic climaxes to threshold police inquiries, the answer might be a bullet.).
278. Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting People v. Defore, 150 N.E. 585,
587 (N.Y. 1926)).
279. Id. (quoting Elkins v. United States, 364 U.S. 206, 222 (1969)).
280. Terry, 392 U.S. at 9 (citing Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251
(1891)).
281. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
Decency, security, and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are commands to the
citizen. In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our government is
HINSON FINAL 1/13/2010 11:25:29 AM
government more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence. 282
the potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by its example. Crime is contagious. If the government
becomes a lawbreaker, it breeds contempt for law; it invites every man
to become a law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the meansto
declare that the government may commit crimes in order to secure the
conviction of a private criminalwould bring terrible retribution.
Against that pernicious doctrine this court should resolutely set its face.
Id.
282. Mapp, 367 U.S. at 659.

Hinson: Pressure Points

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HINSON FINAL 1/13/2010 11:25:29 AM

PRESSURE POINTS: HOW A

868 NEW ENGLAND LAW REVIEW [Vol. 43:867

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 869

870 NEW ENGLAND LAW REVIEW [Vol. 43:867

work in concert, resulting in an effective system designed to quickly and

9. See infra Part I.A-C.

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 871

A. The Gun Crisis

14. Operation Ceasefire, supra note 2.

872 NEW ENGLAND LAW REVIEW [Vol. 43:867

levers strategy to deter gang-related youth violence and focus attention on

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 873

they either knew or were related to a homicide victim. 30 Reverend Shaun

B. The Rise of the Gun Court

874 NEW ENGLAND LAW REVIEW [Vol. 43:867

C. The Safe Homes Initiative

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 875

a firearm. 47 The caveat to that promise is the possibility of prosecution for

D. Development of the Law

876 NEW ENGLAND LAW REVIEW [Vol. 43:867

subject has a right to be secure from all unreasonable searches, and

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 877

every encounter between police and pedestrians implicates constitutional

878 NEW ENGLAND LAW REVIEW [Vol. 43:867

E. The Law of Evidentiary Suppression

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 879

Since it was conceived, the exclusionary rule has served as a

88. Terry v. Ohio, 392 U.S. 1, 12 (1968) (citations omitted).

880 NEW ENGLAND LAW REVIEW [Vol. 43:867

II. Identifying the Pressure Points

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 881

A. Pressure Point One: Increasing Numbers of Unconstitutional

1. Police Conduct Troubling Numbers of Illegal Searches

103. See discussion infra Part II.A.1.

882 NEW ENGLAND LAW REVIEW [Vol. 43:867

Perhaps the most disturbing evidence was that the scope of a

113. Id. (citing JAMES SHANNON, ATTORNEY GENERAL OF MASSACHUSETTS, REPORT OF

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 883

884 NEW ENGLAND LAW REVIEW [Vol. 43:867

2. Recent Massachusetts Case Law and Official Responses

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 885

and found no incriminating information or outstanding warrants. Id. at 422.

886 NEW ENGLAND LAW REVIEW [Vol. 43:867

153. Id. at 95.

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 887

888 NEW ENGLAND LAW REVIEW [Vol. 43:867

suspicions. See 02126 Zip Code (Massachusetts) Detailed Profile, http://www.city-

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 889

Additionally, the productivity of the officers working under such a system

890 NEW ENGLAND LAW REVIEW [Vol. 43:867

But harmful abuses of discretion play out on a larger scale as well.

3. City-Wide Initiatives Create More Opportunities for the

185. See Cramer, supra note 8, at 1A.

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 891

B. Pressure Point Two: Decreasing Opportunities to Recognize

892 NEW ENGLAND LAW REVIEW [Vol. 43:867

criminal motions states that proportionally few motions to suppress are

2009] CONSTITUTIONAL CONCERNS IN GUN CRIMES 893

in stopping and frisking a pedestrian necessarily multiplies.

894 NEW ENGLAND LAW REVIEW [Vol. 43:867

will meaningfully alter their behavior. 221

III. A Proposed Strategy to Minimize the Damage

A. Addressing Pressure Point One: Increasing Numbers of