defendant's vehicle. She also testified that the defendant was asked to get out of his car and that he was not free to leave. The question this Court must decide, however, is whether the seizure and the subsequent search of the defendant's vehicle were unjustified, and thus, violated the fourth amendment.
It is well-settled that even absent probable cause to arrest, a police officer may stop briefly and frisk for weapons persons whom they reasonably believe to be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Moreover, the Supreme Court has held that in some circumstances, a Terry stop may be made "if police have reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony." United States v. Hensley, 469 U.S. 221, 229, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985). In Hensley, the Court upheld the detention of the defendant by officers of one police department who relied on another police department's flyer describing the defendant and indicating that he was wanted for investigation of a felony. The Court concluded that if the police department which issued the flyer possessed a reasonable suspicion justifying a Terry stop, then officers in another department could rely on the flyer in stopping the suspect, as long as the stop was not significantly intrusive. Id. 469 U.S. at 233; See also Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971) (holding that the sheriff who broadcast a radio bulletin describing the suspect and his car and indicating a warrant had been issued lacked probable cause for the warrant, therefore, the detention of the defendant by other officers violated his constitutional rights).
However, this case differs significantly from Hensley. First, the warrant which was issued against the suspect in this case was based on a custody order for a juvenile, and not on a felony as in Hensley. The Court in Hensley, 469 U.S. at 229, specifically refused to decide the question of whether Terry stops would be permitted to investigate crimes of a less serious nature.
Second, the arresting officers in Hensley apparently were acquainted with the defendant and he was known to be the subject of the warrant. Id. 469 U.S. at 223. In contrast, the officers who stopped McKinley Board did so based on a very general description which would fit innumerable black males in this city. The Court finds that the officers could not have reasonably suspected the defendant of criminal activity based on such a general description. Nor does the fact that the defendant was parked across the street from the apartment building where the turn up for the wanted juvenile had been conducted the day before, provide grounds for reasonable suspicion that the defendant was the suspect the officers were looking for. The radio run placed the suspect inside the apartment building. Moreover, the radio run offered no description of the defendant's car whatsoever. The mere fact that the defendant was stopped on the same street is insufficient for reasonable suspicion.
While the Court is distressed that a suspected drug dealer who carefully equips himself for violence may go free, it is bound to uphold the constitutional rights of all citizens subject to its authority. To hold otherwise would mean that any individual who fits the most general of descriptions and who happened to be in an area where a suspected wrongdoer might be located could be stopped and searched by law enforcement officers. Such an expansive power would lead inevitably to the erosion of our citizens' rights to privacy.
Thus, the Court concludes that the officers who stopped McKinley Board lacked reasonable suspicion that the defendant was engaged in or had engaged in criminal activity. The seizure of the defendant therefore violated his fourth amendment rights and taints the defendant's alleged consent to search his automobile. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Only "an intervening independent act of free will" . . . . "purge[s] the primary taint of the unlawful invasion." Id. at 486. The Court finds no intervening act present in this case. Consequently, the evidence which was obtained as a result of this search must be suppressed. An appropriate order is attached.
ORDER - August 1, 1990, Filed
Upon consideration of defendant McKinley L. Board's Motion to Suppress Physical Evidence; the papers submitted in support of and in opposition to the motion; the oral arguments of counsel; the entire record herein; and for the reasons set forth in the accompanying memorandum, it is by the Court this 1st day of August 1990,
ORDERED that defendant McKinley Board's motion to suppress evidence and statements is granted.