Commonwealth v. McKoy (Lawyers Weekly No. 11-029-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑191 Appeals Court COMMONWEALTH vs. DURON McKOY. No. 12‑P‑191. Plymouth. November 9, 2012. ‑ February 20, 2013. Present: Kantrowitz, Berry, & Grainger, JJ. Firearms. Assault and Battery by Means of a Dangerous Weapon. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on March 18, 2011. A pretrial motion to suppress evidence was heard by Joseph M. Walker, III, J. An application for leave to prosecute an interlocutory appeal was allowed by Fernande R.V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court. Stephen H. Elliott for the defendant. Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth. KANTROWITZ, J. The defendant, Duron McKoy, was indicted for unlawful possession of a firearm, unlawful possession of ammunition, and assault and battery by means of a dangerous weapon, in violation of G. L. c. 269, § 10(a), G. L. c. 269, § 10(h), and G. L. c. 265, § 15A(b), respectively. The defendant argues on appeal that the motion judge improperly denied his motion to suppress because the police unlawfully stopped him and, even if the stop were legitimate, the police used disproportionate force. Facts. On January 18, 2011, at approximately 9:20 P.M., while on patrol, Brockton police Officers John Lonergan and Peter Spillane received a report of a stolen car. As they drove, they passed Edgemere Street, where they noticed two men walking. The men caught the officers’ attention because they did not expect to see, and had not seen, anyone out during the adverse weather conditions: a cold, windy, wet night filled with snow and slush. As the officers passed them, the men, unsurprisingly given the poor weather, had their “hoodies” pulled over their faces and their hands inside their pockets. Upon seeing the officers, they looked away. Seconds after passing the men, the officers heard a radio call stating that a person had been shot at 41 Clarendon Avenue, which was no more than 100 yards from their current location. Both officers testified that they were familiar with 41 Clarendon Avenue because the police were frequently called to that address due to prostitution and gang […]