According to a report in the Quincy Patriot Ledger a Quincy, Massachusetts police officer saw what he determined to be “suspicious behavior” at 2:30 in the afternoon in a residential neighborhood. The newspaper report says that the officer believed that two men sitting in a parked car were “acting suspicious”. The men were identified as Raul Fontana of Lawrence, Massachusetts and Harrich Garcia of Haverhill, Massachusetts. The officer also observed that the address where the car was parked, 10 Earnest Avenue, appeared to have been broken into. The belief was that there might be a break-in in progress and that perhaps these two men were involved. The officer searched both men. Fontana was found in possession of an unspecified quantify of Oxycontin. A third individual, Ely Thevenot exited the home with a shoebox. Police searched him and the box and found about ten thousand dollars cash. Another man, Jose Rosario was found hiding in a car nearby. Officers searched the home and found more Oxycontin. Two other people who were in the house at the time were not charged with any crimes. All four men have been charged with Trafficking Oxycontin, a Class A substance, Drug Conspiracy and Possession With the Intent to Distribute a Counterfeit Substance. The case is pending in the Quincy District Court but will probably be prosecuted in the Norfolk County Superior Court in Dedham.
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Accepting for now that the article is accurate the starting for a Massachusetts Criminal Lawyer defending this case is to evaluate the constitutionality of the stop and frisk of the individuals in the car and then the determine whether the search of Thevenot and the house were lawful. To justify the seizure of Fontana and Garcia the police must show that they had reasonable suspicion to believe that the occupants of the car had committed or were about to commit or were in the process of committing a crime. The district attorney in this case is going to argue that the broken window at 10 Earnest Street gave rise to this suspicion and permitted the search of the car occupants and Thevenot. A hunch does not meet the standard of reasonableness. In this case there appears to be an absence of specific facts that would lead a reasonable person to believe that the actions of Fontana and Garcia were consistent with criminal activity. Simply sitting in a car at 2:30 in the afternoon in a residential neighborhood does not support the officer’s actions. So what did the officer in fact see when he approached the car? Did he see some sort of object consistent with being used to break windows? Did he see cuts on the hands of either Fontana or Garcia consistent with them having suffered injury while breaking into the home? Were the officers notified about the possibility of a break-in at 10 Earnest Avenue? Or were Fontana and Garcia simply sitting in their car outside of the home? Did the officers know who lived in the home? Was the home associated with drug activity in the past? Here, it looks like the police officer was acting on a hunch. This should not survive a constitutional challenge.