# Appeals Court Backs Police



## SinePari (Aug 15, 2004)

Ruling that freed suspect wrong
*By Milton J. Valencia TELEGRAM & GAZETTE STAFF
*

















The motion judge mistakenly found that Officer Oquendo stopped the defendant before he had observed the right arm movement. In fact, the Commonwealth argues, the record confirms, and defense counsel properly conceded at oral argument that Officer Oquendo neither left his cruiser nor spoke to the defendant until after he saw the defendant reach for his waist area.









*WORCESTER- *A Worcester man who was freed from jail while awaiting gun charges, then allegedly killed someone, should not have been freed in the first place, a state Appeals Court ruled in reversing a lower court's decision.

In a decision released Monday, the Appeals Court said police were justified in the 2003 search of Luis O. Vega, during which they found a loaded gun. Mr. Vega, now 23, had been charged with possession of a firearm and ammunition as a career criminal, possession of cocaine and marijuana with intent to distribute, and possession with intent to distribute the drugs within 1,000 feet of a school.

In 2003, Superior Court Judge John S. McCann granted a motion to suppress the evidence, effectively crippling the government's case, in ruling that police had no probable cause in searching Mr. Vega at a street corner known as a hot spot for drugs and crime.

Worcester District Attorney John J. Conte's office appealed the ruling, but Judge McCann in the meantime released Mr. Vega on his own recognizance, over the prosecutor's objections. Mr. Vega had previously been held on $50,000 cash bail. Judge McCann told him to stay away from guns and drugs.

Less than a year after he was released, Mr. Vega, of 5 King St., allegedly shot Luis A. Rosario, 30, of Milford, in the Great Brook Valley housing complex. The June 4 shooting apparently stemmed from a fight two weeks earlier in Lawrence. Mr. Vega was charged with murder after surrendering to police, and he has since been held without bail.

His alleged participation in the shooting frustrated police, who believe he should have been in jail for his 2003 arrest. Mr. Vega was identified by authorities in an Oct. 16 Sunday Telegram story as a career criminal who has committed acts of violence and been arrested many times, working a revolving-door justice system that seems incapable of keeping such criminals in jail.

Police and prosecutors were frustrated when he was released on the previous charges. Assistant District Attorney Blake J. Rubin, who handled the case, argued that police were justified in searching him in 2003. He opposed releasing Mr. Vega on personal recognizance.

Judge McCann, in his ruling, said police were "simply operating on a hunch," when they stopped Mr. Vega in 2003, and threw out the evidence in the case.

The Appeals Court reversed the judge's decision, however, stating police were justified, and also correcting findings of fact Judge McCann made in his report.

According to the initial report, Officer Carmelo Oquendo and members of the police gang unit had stopped at King and Main streets, a reputed hot spot for gang activity and drug dealing, to disperse a group of youths loitering.

Officer Oquendo reported that he recognized Mr. Vega as a person with a criminal past, and that he saw Mr. Vega reach into his waistband when he saw the officers arrive. The officer then called Mr. Vega over to him, but Mr. Vega would not respond and instead talked on a cellular phone, turning his back to the officer.

Eventually, after continuous calls by the officer, Mr. Vega responded. The officer allegedly saw a bulge in the waistband, where Mr. Vega had previously reached with his hand, and searched him, finding the loaded .22-caliber gun.

Judge McCann stated in his ruling that Officer Oquendo was acting on a hunch alone, and that the officer tried to stop Mr. Vega before noticing any suspect behavior. The Appeals Court disputed that fact, however, in a rare overturning of a judge's finding of fact.

"On review of a motion to suppress, we do not disturb the judge's findings of fact unless they are clearly erroneous," the Appeals Court ruling reads. "Here, the motion judge mistakenly found that Officer Oquendo stopped the defendant before he had observed the right arm movement. In fact, the Commonwealth argues, the record confirms, and defense counsel properly conceded at oral argument that Officer Oquendo neither left his cruiser nor spoke to the defendant until after he saw the defendant reach for his waist area."

The Appeals Court ruled that the reaching for the waistband area alone was enough cause to search Mr. Vega, because of his criminal past and police knowledge that people keep guns in their waistband area. The three-member panel added that Officer Oquendo was dealing with a career criminal in a known "hot spot," for crime, and that he was dealing with someone who would not comply with a request to stop.

"The fact that the defendant was stopped in the presence of a large group of males blocking a sidewalk at a known gang hot spot legitimately heightened the officer's concerns," the Appeals Court ruled. "The officer's familiarity with the defendant and his criminal record and the defendant's attempt to avoid contact with the police prior to the stop were also relevant. The stop was therefore proper."

The initial charge against Mr. Vega, in addition to the new murder charge, is expected to proceed in Superior Court.


----------



## MVS (Jul 2, 2003)

SinePari said:


> Ruling that freed suspect wrong
> *By Milton J. Valencia TELEGRAM & GAZETTE STAFF
> *


Yo G!, have you seen my pick yo? My hair is all deshizzled. :sly:


----------



## j809 (Jul 5, 2002)

I hope that judge can live with himself. Someone is dead because of his actions.


----------



## Guest (Dec 23, 2005)

I truly believe most of these judges do not really care what happens after some of there ridiculous decisions.


----------



## Deuce (Sep 27, 2003)

I swear we have some of the most asinine judges here. What's great for moral is when a judge calls a highly respected veteran Vice Sgt. an outright liar in court.. Makes ya just want to go out and get em even more...


----------



## sbf (Dec 14, 2005)

Want to stop the gun crime. the police, social workers and community activists are doing their share. Why does the press and the public never fault the judicial system. Most of these judges are
nothing more than bleeding hearts that retire to their homes in the suburbs. When someone is 
released with so many violent entries on the BOP's what do these judges think, that these defendants
are going to become valuable members to society. time to start holding judges accountable....


----------

