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Judge Suppresses Traffic Stop Based Solely on Witness Description of Car

The Salem News

July 28, 2010

PEABODY, MA — When Peabody police arrested a pair of brothers in an early morning robbery of a Route 1 motel last September, a department spokesman praised it as good teamwork by officers in two parts of the city.

But last month, a Salem Superior Court judge tossed out the stop of the suspects’ car and the items found inside — including a gold neck chain and cash taken in the holdup — finding that police had no legal basis to stop the car when they did.

Prosecutors are now deciding whether to appeal Judge David Lowy’s decision to the Appeals Court. If they do not, or if they lose a further appeal, they’ll have to drop the unarmed robbery charges against Clovicel Davis, 29, of Beverly and Curtis Davis, 37, of Salem for lack of evidence.

Early on the morning of Sept. 10, police on Route 1 went to the Plaza Motel to take a report of a robbery from a clerk, who said two men came in, one with his hand in his pocket as if to suggest he had a gun, and pushed the clerk toward the front door, as the second man grabbed the clerk’s chain.

While the officers were taking the report from the clerk, a woman some five miles away on Central Street, near the downtown, called to report that two men, who had been in a light-colored car, were involved in a violent fight outside her home.

The officer responding to the call about the fight spotted a light-colored car, which he believed to be the one in the fight, near Peabody District Court. He stopped the car to investigate and saw money in plain view, which police later tied to the robbery.

Police justified the stop by saying that it was the only car in the area and that it matched the description given by the caller reporting the fight.

Lowy, in his decision, found that the officer had no way of knowing if it was the only car in the area, because he was on Lowell Street when he got the call and wouldn’t have been able to see any other cars turning off or onto Central Street.

That means there could have been any number of light-colored cars being driven in the area at that point, the judge found.

Prosecutors argued that the Appeals Court has previously upheld a stop when it involved the only car on the road. But Lowy said that case involved a stretch of state highway with minimal traffic, as opposed to a busy residential and business district with many side streets. Further, the judge noted that the officer apparently did not try to determine whether there were other cars in the area.

“There are many busy streets in the area of Peabody Square where light-colored cars travel during all hours,” Lowy (who grew up in Peabody) wrote. “There was nothing in the 911 call to distinguish the car the police stopped from any other light-colored car with two people in it.”

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Copyright © 2010, The Salem News, Beverly, Mass.

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