In Commonwealth v. Keene,  the Court of Appeals affirmed an order allowing a defendant’s motion to suppress firearms seized from his car.  The police who stopped the car were acting on the basis of a different police department’s dispatch that was not based on reasonable suspicion. . The defendant and a companion “ran out of a nightclub” and told a Stoughton police officer (Baldner) that “they were leaving the club because there was a fight inside, which was true.” As the men left the area, Baldner noted the license plate number of their vehicle, a Nissan Altima. “Approximately ten minutes later there was a shooting outside the nightclub.” “Although the defendant and his companion had left the scene before the shooting,  Baldner told Stoughton police dispatch to issue a ‘be on the lookout’ (BOLO) bulletin for the Altima, requesting that it be ‘stopped and held.’” Upon receipt of the bulletin, the Boston police department relayed to its units a directive “to ‘stop and hold the Altima for the Stoughton police department regarding a shooting’ and, for reasons that are unexplained in the record, added that the occupants ‘should be considered armed and dangerous.’” Boston police officers later observed the Altima and stopped it. They “approached it with guns drawn, ordering its occupants to keep their hands up and make no sudden movements. The officers secured the defendant, who had been driving, and put him in a police car with his hands cuffed behind his back.” They searched the car and found two firearms, which led to the issuance of indictments against the defendant. The defendant moved successfully to suppress the firearms. In its appeal, “the Commonwealth did not contend that the Stoughton police had a reasonable basis based upon articulable facts to believe that the defendant or his companion had committed, was committing, or was about to commit a crime, let alone to believe that they were armed and dangerous…. The Commonwealth argued only that the evidence should not have been suppressed because the Boston police officers were acting reasonably in response to a BOLO radio report that described the defendant and his companion as ‘considered armed and dangerous.’”

The Court noted that “the Commonwealth misperceived the nature of the constitutional inquiry. Of course the Boston police officers on the scene responded appropriately to the BOLO,” “given the incorrect information” that had been provided to them. “But the question whether there was a constitutional violation, and whether the Fourth Amendment requires the suppression of the evidence seized, requires an examination not only of the actions of the Boston police but of the Stoughton police as well, and not only of the police officers, but of the police dispatchers.” The Court cited United States v. Hensley, 469 U.S. 221 (1985), which “addressed the question whether an officer of a police department may make a Terry-stop in reliance on a ‘wanted flier’ issued by a neighboring police department indicating that the defendant was suspected of robbery. The Supreme Court upheld such a stop provided, among other things, that ‘the police who issued the flier or bulletin possessed a reasonable suspicion justifying a stop.’  ‘Of course, this requirement is equally applicable where information is transmitted between officers by radio rather than by a wanted flier.…’” The Court concluded that “here, where the Stoughton police department was not aware of any articulable facts that supported a reasonable suspicion sufficient to warrant a stop of the defendant’s vehicle, that stop violated the Fourth Amendment.”