SJC gives police leeway to frisk

Boston police and Suffolk County prosecutors praised a ruling yesterday by the state's highest court that said officers can stop and frisk a pedestrian they reasonably suspect is carrying an illegal firearm, based on factors that include an odd gait and presence in a high-crime neighborhood.

But civil libertarians and defense lawyers criticized the unanimous Supreme Judicial Court decision and expressed concern that it might embolden officers to stop more people in the street without good reason.

The ruling reversed last year's controversial Appeals Court decision in which a justice said an arrest by Boston police after one such search in 2005 resembled racial profiling and could ultimately "degenerate into stops based upon 'breathing while black.' "

Police and prosecutors said the earlier ruling would have made it harder for officers to stop someone based on well-founded suspicions that he or she was armed.

Justice Roderick L. Ireland, the lone black judge on the SJC and author of yesterday's ruling, said two Boston officers had legitimate grounds to stop and search Michael DePeiza shortly after midnight on April 27, 2005, as he walked down Delhi Street in Mattapan, which police said was a high-crime area.

DePeiza, who is black, was walking with his right arm rigid and pressed against his side, which police say often indicates a concealed weapon. The officers frisked him and found he was carrying a loaded illegal handgun. He was convicted of firearms charges by a Dorchester District Court judge in a bench trial , but the Appeals Court reversed the conviction last June. That reversal was an error, the SJC ruled yesterday.

"Although the question is a close one, we conclude that by the time the officers announced the patfrisk, they reasonably suspected that the defendant was committing the crime of carrying an illegal firearm, and the stop was therefore justified," Ireland wrote for the high court.

Much about DePeiza's actions were suspicious, Ireland wrote. His eyes darted when officers spoke with him, and he shifted his feet nervously, as though about to run, Ireland wrote. DePeiza also hid his right side from the officers' view, and that is where they found the handgun in his pocket.

"The officers' suspicion that the odd way of walking was a sign of a firearm was not a mere hunch but was the result of the application of their experience and training at the police academy to their detailed observations of the defendant," the court said.

Boston police Commissioner Edward F. Davis said his officers continued their method of street policing despite the appellate court's 2-to-1 ruling a year ago and viewed yesterday's decision as vindication.

"You have to look at the total circumstances to understand what constitutes suspicious behavior," Davis said. "This was a common- sense observation and a truthful reporting of what the officers saw, and I think the appeal court's . . . reasoning was faulty."

Suffolk District Attorney Daniel F. Conley, whose office challenged the appellate court decision, said the SJC ruling recognizes the challenges Boston police face as officers confront deadly shootings and try to get illegal guns off the streets.

"I am not saying that because we have a gun problem, we need not apply constitutional principles," Conley said. "What I'm saying is that these are real-world cases and these police officers are making these decisions in split seconds in high-crime neighborhoods late at night. There has to be some deference to their collective judgment."

But DePeiza's lawyer, Robert E. Fox, said the ruling will make it easier for police to stop pedestrians for no obvious reason. "I think this is one of the few cases where a search has been upheld where there's been no overt criminal activity or suspicious activity," said Fox. "Basically, everything the police saw was ambiguous."

DePeiza was convicted of illegal possession of a firearm and ammunition and sentenced to a year in jail, which he served, and placed on two years' probation.

John Reinstein, the legal director of the American Civil Liberties Union of Massachusetts, said yesterday's ruling failed to clarify what actions allow officers to stop and frisk a person and was too deferential to police.

"What the court is saying . . . is that they're going to give the police the benefit of the doubt," he said.

Jonathan Saltzman can be reached at jsaltzman@globe.com.