Commonwealth v. Berment

Kass, J.

(dissenting). To be sure, courts must take care that the Fourth Amendment to the Federal Constitution does not become a casualty of the war on crime. It is equally a mistake, however, to blind ourselves to the setting in which a search occurs. The Fourth Amendment is concerned with the *530 right of “the people to be secure in their persons . . . against unreasonable searches and seizures” (emphasis supplied).

In the early hours of the morning, two police officers are asked by radio dispatch to respond to a report of a man waving a gun at 11 Mount Pleasant Avenue, Roxbury, a section of the city where any moderately alert observer of the daily press and electronic media knows shootings have occurred — sometimes on slight or no provocation — with tragic frequency. “All others can see and understand this. How can we properly shut our minds to it?” Child Labor Tax Case, 259 U.S. 20, 37 (1922).

At precisely the location identified in the radio dispatch, at about 3 a.m., the officers see four persons. In that regard the case stands altogether distinct from Commonwealth v. Cheek, 413 Mass. 492, 493 (1992), in which a man walking on the street was stopped and searched one-half mile away from the reported stabbing. Would society not hold the officers severely to account if they did not question those four persons and, thereafter, someone were shot? In the circumstances (report of gun waved, plus early morning, plus area where shootings are too common), ought not the police pat down the persons to be questioned? Is not the situation described one in which the police officers face palpable risk of response “that the answer might be a bullet?” Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring). It seems to me the answer to all three rhetorical questions is “yes,” and that, therefore, the limited invasion of the defendant’s person was reasonable. See Commonwealth v. Moses, 408 Mass. 136, 140-142 (1990); Commonwealth v. Willis, 415 Mass. 814, 817-820 (1993).