The Massachusetts Appeals Court today agreed with Suffolk prosecutors that a gun defendant’s suspicious behavior during an investigation “amply” justified a Boston Police officer’s order that he exit his car for a search.
The decision reversed an earlier decision by a Boston Municipal Court judge assigned to the Suffolk County Gun Court in the case against Andres Buenrostro, 26, and Jose Ordaz, 25. The judge had granted a defense motion to suppress the gun from evidence, which Conley’s Appellate Division appealed.
“These officers were well within the law when they first took precautions for their safety and then took a loaded gun off the street,” said Suffolk County D.A. Dan Conley. “They had legitimate concerns that were borne out by the facts, and we’re glad the Appeals Court saw the case as we did.”
Boston Police officers patrolling in East Boston after a gang-related shooting at 128 Gladstone St. spotted a black BMW with its lights on and engine running outside that address. The car initially appeared unoccupied, but as the officers approached they saw two heads come up, duck down, and come back up again in the driver’s and front passenger’s seats. The officers saw Ordaz, the driver, reaching for the center console as they arrived at the car. One officer also recognized Buenrostro, the passenger, as a member of a gang involved in the earlier shooting.
As the officers spoke to the men in the moments that followed, both allegedly gave conflicting and evasive responses, and nervously looked around and backward. In light of their unusual behavior as the officers approached, Ordaz’ motion toward the center console, their questionable answers to basic inquiries, and Buenrostro’s alleged affiliation with a gang involved in a shooting at the very residence in front of which they were parked, the officers directed both men to step outside of the car to be pat-frisked.
“The [Boston Municipal Court judge’s decision] characterizes the threshold inquiry between the officers and Buenrostro and Ordaz as ‘a few routine questions’; this vastly understates the suspicious nature of the encounter which was by that point anything but ‘routine,’” the Appeals Court wrote. “Indeed, rather than mitigate the officers’ concern for their safety, we think the inconsistent and evasive answers given by Buerostro and Ordaz, combined with their nervous movements and other factors present, only heightened it.”
The officers didn’t find weapons on either man, but when Buenrostro returned to the front passenger’s seat he sat down sideways with his legs outside the car. The officers then saw a large folding knife in the side compartment of the passenger’s side door. At this point, the officers directed both men to stand at the front of the car. When Buenrostro did so, the officers spotted the barrel of a handgun underneath his seat. The weapon turned out to be a Pietro Beretta 9mm semiautomatic handgun loaded with five rounds of ammunition in the magazine and one in the chamber.
“The officers acted with restraint throughout the encounter, only escalating their inquiry into a stop when concerns for their safety justified it,” the Appeals Court wrote. “The combination of factors present here amply justifies the exit order and frisk of the defendant.” Assistant District Attorney Zachary Hillman of the DA’s Appellate Unit argued the case on appeal. Buenrostro was represented by Francis Napolitano and Ordaz by Richard Barrett. Their next appearance in the Suffolk County Gun Court has not yet been scheduled.