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Stop and Search of Bicyclist



This problem concerns the validity of a pursuit, stop, and warrantless search of a bicyclist who, upon seeing a marked police car pull up beside him, made a sharp left into oncoming traffic. Defendant was convicted for the unauthorized possession of phencyclidine (PCP) with intent to distribute. The arresting officer testified as such:

As the marked vehicle pulled along side of him, he made a turn to his right and then just a quick left and went into the traffic and stuff. It was an unusual movement. And I pulled right behind him and chased him down St. John Street. . . . As I pulled in beside him, or behind him . . . he'd slow down and take off, preventing us from going around him. I sounded the siren several times, almost the length of St. John Street [about 200-250 yards] and then when there was an opening with parked cars, I pulled alongside of him and just grabbed him off the bike.

The officer then forced Defendant against the hood of the police car and observed three small manila envelopes sticking out of one pocket of his vest. The officer seized these envelopes along with six others he found while searching Defendant. The officer testified that bicycles are a common form of transportation for drug peddlers and that he had made several dozen similar drug arrests.

In a motion to suppress based on alleged lack of reasonable suspicion, how do you rule?

See Commonwealth v. Thibeau, 429 N.E.2d 1009.

Eric C. Johnson

Emory Law

Answer

However, the Judicial Supreme Court of Massachusetts overruled the Court of Appeals and held that the results of the search should have been suppressed, as the stop was not justified. Commonwealth v. Thibaeu, 429 N.E.2d 1009. The court said that an officer's "suspicion must be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officers experience." [Cites] Id. at 1010. The court lists the Court of Appeals reasons for calling the stop reasonable, and holds that "as a matter of law that these facts are insufficient to provide reasonable ground for a stop." The court continued:

 

The facts and inferences underlying the officer's suspicion must be viewed as a whole when assessing the reasonableness of his acts. United States v. Cortez, 449 U.S. 411, 417-418 (1981). However, the defendant's flight from the officer's pursuit cannot be considered for this purpose. Stops provoke constitutional scrutiny because they encumber one's freedom of movement. Pursuit that appears designed to effect a stop is no less intrusive than a stop itself. In other words, the officer's right to pursue when a stop appears imminent can be no broader than his right to stop. Thus, his suspicion must be reasonable before the pursuit begins. Were the rule otherwise, the police could turn a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion. For present purposes, a stop starts when pursuit begins. [Cites].

Thus, the reasonableness of the officer's suspicion must be assessed on the basis of two factors: the defendant's use of a bicycle and his sudden left turn.

These circumstances are probably less suspicious than those in Commonwealth v. Bacon, 411 N.E.2d 772. There two young-looking men drove by the police in a relatively expensive car on a Saturday morning about 4:10 A.M. The operator obstructed his face from view with his hand. The officers testified that, in whole or in large part, they stopped the car for running a red light. However, the trial judge disbelieved their testimony that a traffic violation had occurred. We held the stop unjustified, though we noted our reluctance to rule that concealing one's face, combined with other circumstances, could never warrant an investigatory stop. Here, all we have is a quick maneuver on a bicycle. No other circumstances are in the record. This maneuver, however dramatic, cannot rise to the level of suspiciousness justifying an investigatory stop.

 

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