Cop Found Altered Gun in Bad Search, Judge Says

(CN) - Boston police did not have a reasonable basis to search a 140-pound man when they received an anonymous tip that someone who was 70 pounds heavier was carrying a gun in his waistband, a federal judge ruled, tossing evidence that the search produced: a gun with an altered serial number.

At about 9 p.m. on Oct. 25, 2009, a woman dialed 911 to report that a man with a gun was "harassing" somewhere between "17, 18, 19, and 23" Gleason St., in Dorchester. She described the suspect as a roughly 5-foot-6, 210-pound black man in black jeans and a black hoodie. The caller never gave her name and address, and the police never followed up with her.

An unmarked police cruiser summoned to the scene saw no one else on Gleason Street except three men outside of 17 Gleason. Jean Janvier, a 140-pound Haitian man, was wearing a white hooded sweater and a black puffy jacket. "As the officer noted, the details that did match could not have been more generic - 'dark top, black man in his 20's,'" U.S. District Judge Nancy Gertner explained (italics in original).

Gang Unit Officer Jack Conway tackled Janvier on his front porch and retrieved a firearm from the suspect's waistband. Though Conway changed his story over time, he essentially claimed that Janvier looked nervous and tried to flee into his home.

Conway said he gave chase, reaching Janvier already one step inside of his home. He grabbed Janvier, felt the gun and tackled him. Janvier's mother, who had been napping in the apartment, testified that she watched police hit and beat her son. He was charged with unlawful possession of a firearm and ammunition and possession of a firearm with altered serial numbers.

Janvier moved to suppress, and the judge agreed last week after rejecting the police's use of the 911 call and their version of the events.

"While I greatly appreciate the need to put an end to gun violence in Boston, and I understand that the area in which Janvier's home was located was a 'high crime area,' there are rules - constitutional rules - that define how officials must go about their investigations," Gertner wrote.

Quoting Terry v. Ohio, the court noted that "a police officer must have a reasonable, articulable suspicion of an individual's involvement in some criminal activity in order to make the initial stop." This case must meet the Terry standard because "reaching out to grab a suspect is surely a stop," the 16-page decision states.

Gertner first found that "the anonymous caller did not provide reasonable suspicion." Although "not every anonymous call should be discounted," the call here also bore no real signs of reliability, Gertner said. For example, the court repeatedly pointed out the major weight discrepancy between Janvier and the person described in the call.

Gertner also threw out the official version of the events. "I do not accept the government's characterization of Janvier's behavior at all," Gertner wrote.

"The account of the struggle on the stairs, in short, is inconsistent with the physical layout of the building," she added.

"The video suggested that it would have only taken a few steps for Janvier to get to his apartment," the judge went on to say, crediting footage of the area prepared by Janvier's attorney. "For Janvier to be where Conway reported he was suggests either that he was not fleeing at all, or the officer is wholly mistaken about the encounter on the steps."

Conway had claimed that Janvier appeared furtive and nervous, but Gertner said this is "not an unreasonable response, if I credit the testimony, for both the innocent and the guilty when police officers arrive at your doorstep."

"There is something particularly troubling about the government's argument," the judge summed up. "Retreating into one's home, as a matter of law, even if intended to avoid contact with the police, cannot per se give rise to suspicion of guilt."

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