, Newburyport, MA

December 29, 2012

Judge: Police search illegal

DA dismisses guns, cocaine charges from Route 110 stop


---- — SALEM — A veteran Amesbury police officer’s hunch — accurate, as it turns out — was far from an adequate basis to search a car where police found a bag of unlicensed, high-powered handguns earlier this year, a Salem Superior Court judge has ruled.

Police also found approximately $30,000 worth of cocaine in the groin area of one of the car’s passengers during the Jan. 3 stop on Route 110 in Amesbury.

Police characterized the search as a permissible “safety sweep” of the vehicle during a routine stop of a car for an equipment violation.

But a judge, in a 16-page ruling, disputed that, calling Amesbury Patrolman David Noyes’ claim a “subterfuge” for a search that violated the Fourth Amendment’s right against unlawful searches and seizures by police.

“In sum, the search of the rear hatchback of the vehicle and its closed containers was not a safety sweep of the vehicle and cannot be sustained as such,” Salem Superior Court Judge Timothy Feeley wrote in a decision granting a motion to suppress evidence filed by lawyers for three Maine residents charged in the case.

“It was an evidence search based on (the officer’s) hunch that the vehicle was carrying drugs from New York to Maine.”

The Essex County district attorney’s office has opted not to appeal Feeley’s finding in the case against the three Maine residents. The case was formally dropped by prosecutors yesterday because without the guns and cocaine, officials have no other evidence against the three suspects.

Anthony Jones, 25, of Portland; Andrew Palmer, 27, of Waterville; and Annissia Newcomb, 24, of Saco, were all arrested Jan. 3 on charges of illegal possession of a large-capacity firearm, possessing firearms without a firearms identification card and carrying a dangerous weapon after Noyes opened a drawstring bag he found in the hatchback area of their Chrysler PT Cruiser and saw four semi-automatic handguns, as well as ammunition.

Later, police added a charge of cocaine trafficking against Jones after noticing white powder cocaine all over the back seat area of the police car where he was sitting; Jones turned out to have a bag containing 85 grams (three ounces) of cocaine tucked into his groin.

The three were in a car that belonged to one of Newcomb’s relatives and had just pulled off Route 495 after the vehicle’s low tire pressure indicator light came on.

The car, which had Maine registration plates, pulled into a closed gas station on Route 110 in Amesbury, just past the exit ramp. It was around 2 a.m.

Noyes saw the car pull in, and said he noticed that the license plate light was not working.

He later testified that there had been a series of burglaries to businesses along that stretch of roadway between Interstates 495 and 95.

Noyes turned on his lights and pulled up to the exit to block the car from pulling out, then approached.

During the motion to suppress hearing, Noyes testified that while he was asking for identification from Newcomb, the driver of the vehicle, the two passengers, Jones and Palmer, appeared to be pulling up pieces of clothing toward their necks.

Noyes hadn’t told the three why he was stopping them, instead asking them a series of questions about where they were coming from and why they were at the gas station. One of the three told him they were on their way back to Maine from New York.

Noyes asked the passengers for identification, then ordered all three out of the car, pat-frisked them, found nothing at that point and then told Newcomb that “no one was getting back in the car or leaving until the vehicle was searched for weapons,” Feeley wrote. At that point, Newcomb told the officer, “go ahead and search.” That, suggested the judge, was not a voluntary consent.

No weapons were found in the passenger compartment of the car. At that point, backup officers had arrived, and Noyes asked another officer, Raymond Landry, to search the area behind the rear seats.

The first bag checked turned out to contain the guns.

The judge noted that at some point during the encounter, Noyes instructed a dispatcher to check all three individuals in the car for warrants. None of them had any warrants. The judge, in his ruling, noted that Newcomb is white, while Jones and Palmer are African-American.

“Noyes did not have sufficient reasonable suspicion at the time of the stop, or for that matter, during the duration of the stop, to believe that the occupants of the vehicle were engaged in criminal activity related to burglaries along Route 110 or drug distribution,” Feeley wrote.

The judge said in his ruling that while Noyes was not justified in making the sweep, he “would have been well within his rights ... to engage in a consensual encounter with the vehicle,” suggesting that he could have simply pulled alongside the car, without turning on the police lights, and asked the driver what she was doing there at that hour. That might have eventually elicited enough information to justify a search, said the judge.