BOSTON, Feb. 24, 2014—The Massachusetts Appeals Court today found that Boston Police were justified in conducting a pat frisk of a Mattapan man, reversing a lower court’s decision and allowing a recovered firearm to be used as evidence in the case, District Attorney Daniel F. Conley said.

In the unpublished decision today, the Appeals Court ruled that a Boston Municipal Court judge erred in allowing a motion to suppress evidence and statements made by defendant KASHAWN STEPHEN (D.O.B. 2/1/91) after his 2010 arrest. 

Prosecutors assigned to the DA’s Appellate Unit appealed from the decision, arguing that Boston Police officers assigned to the Youth Violence Strike Force had a reasonable basis to conduct a pat frisk of the defendant on Sept. 18, 2010, and that the firearm recovered by police and the defendant’s subsequent post-Miranda statements should be allowed as evidence.

“If a search is unconstitutional, then our options are sharply limited even if a gun is recovered,” Conley said. “But when police officers take reasonable steps for the safety of the community, then we’ll pursue that case as far as necessary to prove the facts to a jury. This was solid work by Boston Police and outstanding appellate advocacy by Suffolk prosecutors.”

The Appeals Court found that a combination of factors justifiably raised the officers’ suspicions when they encountered Stephen in the predawn hours at the intersection of Norfolk Street and Talbot Avenue – an area that had been the scene of prior arrests for firearm, drug, and other offenses.  The officers observed the defendant riding a bicycle in circles at the intersection and, based on their training, recognized the behavior as characteristic of someone acting as a look out, involved in a drug deal or a potential robbery.  During a brief conversation with officers, Stephen allegedly confirmed that a “W” on his baseball hat stood for Wheatland Avenue, about block from their location and home to a gang known for its involvement in criminal activity.  Stephen suddenly became very nervous when asked if he had anything on him that he should not.

Officers conducted a pat frisk and recovered the firearm from Stephen’s right pant pocket.  He allegedly told police during a post-Miranda interview that he was carrying it for protection after someone had pulled a gun on him.

The justices ruled that, while no single factor provided a reasonable basis for the pat frisk, the factors taken together provided the necessary probable cause.

“Specifically, the defendant’s odd circling behavior at 3:00 A.M. in a high crime area permitted an inference of imminent criminal activity,” the Appeals Court found.  “Moreover, while membership in a gang does not, alone, justify a search, the officers were permitted to take into account the defendant’s affiliation with a gang, particularly where, as here, they knew the gang’s close proximity to the defendant’s location and that its members had been arrested for armed robberies, firearm offenses, and other crimes.”

Assistant District Attorney Zachary Hillman of the DA’s Appellate Unit argued the appeal.  Stephen was represented by attorney Liam Scully.  He is scheduled to return to the Suffolk County Gun Court on March 20, where he is facing charges of unlawful possession of a firearm, unlawful possession of ammunition, and carrying a loaded firearm in connection with the case.

While prosecutors’ appeal of the suppression order was awaiting a decision, Stephen was arrested with yet another firearm just a few blocks away. In that case, he was charged with carrying a loaded Colt .38 revolver near the corner of Millet Street and Talbot Avenue shortly before 1:00 a.m. on May 4, 2013. That case is also still pending.

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All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.