# Commonwealth v. Martin

> Massachusetts Appeals Court · January 15, 2009 · 73 Mass. App. Ct. 526

URL: https://www.frixlaw.com/law-library/cases/6463420

## Case

- **Full name:** Commonwealth v. Jamal Martin
- **Court:** Massachusetts Appeals Court
- **Decided:** January 15, 2009
- **Citations:** 73 Mass. App. Ct. 526; 899 N.E.2d 869; 2009 Mass. App. LEXIS 38
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Kafker
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6463420

## Opinion text

Brown, J.
(dissenting). I respectfully dissent, as there is, in my view, an unclear line between Commonwealth v. Barros, 435 Mass. 171 (2001), and Commonwealth v. DePeiza, 449 Mass. 367 (2007), and, in any event, the factual circumstances in the case before us exceed even the dictates of the DePeiza decision.
In the factual scenario here we have a young man walking down the street at 10:30 in the morning, who is nervous upon being questioned by the police. His inconsistent answers were not germane to any crime being investigated, nor were there any visible signs that he was carrying a weapon, such as an unusually heavy pocket, or an odd gait. He did not make any furtive movement. Only after the police had ascertained that he was not the person they were seeking to apprehend was he asked whether he had a gun. 1 Thus, even under the teachings of Commonwealth v. Fraser, 410 Mass. 541 (1991); Commonwealth v. DePeiza, supra; Commonwealth v. Fletcher, 52 Mass. App. Ct. 166 (2001); Commonwealth v. Narcisse, ante 406 (2008); and Commonwealth v. Jackson, ante 411 (2008), there simply was not enough here to question the defendant further after the police realized he was not the person they were looking for. This is a case where “the police . . . tum[ed] a hunch into a reasonable suspicion by inducing the conduct justifying the suspicion.” Commonwealth v. Barros , 435 Mass, at 178.
*539 I am compelled to add an admonition about the current state of the law. The resolution of this category of cases apparently turns on the question whether the citizen had a gun. That may not be the only factor, but it certainly seems to be the controlling one. If it is not, we should pat frisk all travelers walking (or stopping) on the street, or at any intersection in a so-called high crime area (which I suspect is an area situated in most cities and towns). We already know even under Terry v. Ohio, 392 U.S. 1 (1968), that “running” and “straight-arm” walking are sufficiently indicative of reasonably suspicious behavior to justify a patfrisk. See Commonwealth v. DePeiza, 66 Mass. App. Ct. 398, 408-409 (2006) (Brown, J., concurring), S.C., 449 Mass. 367 (2007). In sum, we have here another example of the troubling tension that exists between the responses of law enforcement personnel to the dangers of illegal weapons on the streets of our cities and towns and respect for and adherence to the commands of the Fourth Amendment to the United States Constitution. My hope, however, is that the Fourth Amendment does not become “an inconvenient truth.”
I note that requiring an individual to respond to a specific question may in certain circumstances precipitate self-incrimination problems.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6463420. Public record. Not legal advice.