Appeals court sets limit on police stops

Police officers cannot stop and frisk people on the street based solely on observing suspicious clothing, hairstyle, walk, or body posture, the state Court of Appeals ruled yesterday.

The decision calls into question widely used law enforcement techniques for fighting gun crime as police in Boston and elsewhere confront a wave of deadly shootings and gun violence.

Two Boston police officers had arrested a man for illegal gun possession after first noticing him strolling down a high-crime Dorchester street with his arm suspiciously rigid, which police say often indicates a concealed weapon.

In the 2-to-1 decision, the Appeals Court panel threw out the man's conviction, ruling that without reports of shots fired in the area or other indications of crime, police did not have ``reasonable suspicion" to question and frisk the man.

``An individual's manner of walking, like his hairstyle or clothing, is by itself too idiosyncratic to serve as the basis for a reasonable suspicion of criminal activity," Justice Joseph A. Grasso Jr. wrote for the majority. ``Prior to encountering the defendant, the officers had neither observed nor received any report of criminal activity, a firearm being brandished, or shots being fired."

The Suffolk district attorney's office said yesterday that it plans to appeal the ruling to the Supreme Judicial Court, setting up a high-stakes constitutional battle over techniques used by virtually every law enforcement department in the state.

``We respectfully feel that this decision could have a significant detrimental effect on our ability to prosecute gun crimes," said spokesman Jake Wark.

Boston police officials also vigorously disagreed with the appeal court's ruling and said that for the time being they will not alter their methods of street policing. Superintendent Robert Dunford said the decision was divorced from the realities of the streets.

``If we only relied on shots fired before we stopped anybody, that's kind of ridiculous," he said. ``The judges have ruled sitting on the bench, not out on the street."

The facts of the case played out just after midnight on April 27, 2005, as two officers in an unmarked cruiser drove down Delhi Street in Dorchester, which police at the time called a high-crime area.

The officers, John Conway and Dean Bickerton, recently won police awards for wrestling an armed suspect safely to the ground. ``These two officers are outstanding officers," said Dunford. ``They are very professional officers."

The two noticed a man walking down the street with his right arm rigidly against his body. About 15 percent of the gun arrests the duo had made recently involved this ``straight arm method," according to the ruling.

Without turning on sirens, the officers pulled up to the man, Michael DePeiza, and began questioning him. The man avoided eye contact, shifted his weight, and kept his right side from their view, according to court papers.

Bickerton stepped out of the car, and DePeiza gave him identification. A quick check of the police database found the man was not wanted for any crimes. But the officers noticed he was still keeping his right side concealed and that his jacket tilted to that side, indicating a weighty object inside.

The officers announced they would frisk him, and DePeiza attempted to move away. Bickerton grabbed at his right pocket, felt a gun handle, and removed a handgun. DePeiza was arrested.

At the trial, a Dorchester district judge rejected his argument that the questioning and frisk were unconstitutional. DePeiza was convicted of illegal gun possession and appealed.

Grasso, in his majority opinion, wrote that officers should not have confronted DePeiza. ``His activities do not take on a sinister cast merely because the street on which he is walking is located in Dorchester," he wrote.

In a concurring opinion, a second judge suggested that the officers' behavior in the case came close to stark racial profiling. ``I can only hope that these practices will not degenerate into stops based upon `breathing while black.' " Justice Frederick L. Brown wrote.

But Justice Phillip Rapoza, who cast the dissenting vote, wrote that all the factors taken together -- rigid arm, weighted jacket, shifty behavior, high-crime neighborhood -- justified the officers' actions.

``Although a number of the officers' observations could, considered individually, admit of an entirely innocent explanation, in combination they were sufficient to justify a reasonable suspicion on the part of the officers," wrote Rapoza.

Like the appeals court, opinions yesterday on Delhi Street in Dorchester, where the incident occurred, were divided.

``I don't feel police should harass people for just walking," said Marquette Gethers-Welch, 50.

Others disagreed.

``I think it's good he got stopped because he had a gun; there's no telling what he was going to do with it," said Darcia Rawles, 44. ``It's 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."

Globe correspondent Elizabeth Raftery contributed to this report. Raja Mishra can be reached at rmishra@globe.com.