# SJC declines to act on gun, drug seizure



## policelaborlaw.com (Mar 7, 2006)

*SJC declines to act on gun, drug seizure*

*By Gary V. Murray TELEGRAM & GAZETTE STAFF
**WORCESTER- *A state Appeals Court ruling that a police officer acted properly when he seized a gun and drugs from a Worcester man three years ago has been allowed to stand.

Reversing a Superior Court judge's suppression of evidence decision, the Appeals Court ruled on Dec. 19 that Worcester police Officer Carmelo Oquendo acted "within permissible bounds" when he seized a handgun, cocaine and marijuana from Luis O. Vega on the afternoon of May 30, 2003.

Sean J. Gallagher, a lawyer representing Mr. Vega, filed an application for further appellate review to the state Supreme Judicial Court Jan. 12. The application was denied by the state's highest court March 1, according to court records. The denial allowed the Appeals Court decision to stand.

Mr. Vega, 23, of 5 King St., had been held on $50,000 cash bail on firearm and drug charges pending against him in Worcester Superior Court as a result of his 2003 arrest. On Sept. 6, 2004, Judge John S. McCann allowed a motion to suppress evidence in Mr. Vega's case that had been filed by his lawyer, David L. Cataldo. The judge found that Officer Oquendo, a 10-year veteran of the Worcester police gang unit, was "simply operating on a hunch" when he stopped Mr. Vega near the corner of Main and King streets and found a .22-caliber handgun, cocaine and marijuana on him.

Officer Oquendo lacked reasonable suspicion to stop Mr. Vega and the stop and seizure were therefore illegal, according to Judge McCann's ruling.

On Oct. 1, 2004, Judge McCann released Mr. Vega from custody on personal recognizance. Mr. Cataldo had requested a bail reduction in light of the suppression ruling. As conditions of his release, Mr. Vega was ordered to remain drug-free and to keep away from guns.

On June 6, Mr. Vega was charged with murder in the June 4 shooting death of 30-year-old Luis A. Rosario of Milford in the Great Brook Valley housing project. He is now being held in custody without bail on the murder charge, which is also pending in Worcester Superior Court and has been continued to April 3.

According to a transcript of Officer Oquendo's testimony during a hearing on the motion to suppress in the gun and drug case, Mr. Vega was among a group of men blocking the sidewalk at Main and King streets on the afternoon of May 30, 2003. The officer described the area as one of the city's "hot spots" for criminal activity.

Officer Oquendo testified that he and other members of the gang unit approached the group in a cruiser, intending to disperse the crowd. As he and the other officers got closer, Mr. Vega, who was talking on a cell phone, turned and looked in the direction of the cruiser, according to Officer Oquendo.

He said Mr. Vega then turned away, switched the cell phone to his left hand, reached toward his waist area with his right hand and began to walk off. The officer testified that he exited the cruiser and called out to Mr. Vega, who continued to walk away. Officer Oquendo said he called out to Mr. Vega again and Mr. Vega turned around and began to approach him.

It was at that point, the officer said, that he noticed a "bulge" in the area of Mr. Vega's waist. Officer Oquendo testified that he conducted a "pat frisk," found the handgun, determined that Mr. Vega did not have a license to carry the weapon and arrested him. He said he then discovered the drugs in Mr. Vega's pockets.

While Judge McCann found the stop-and-search to be unlawful, the Appeals Court said the circumstances of the case, particularly Mr. Vega's "arm movement toward his waist," justified the stop. The appellate court further found Officer Oquendo was "authorized, after making the stop, to pat-frisk the defendant for the officer's protection."

Mr. Vega is due back in court today on the gun and drug charges.


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## spdawg0734 (Nov 25, 2004)

the family for the victim of the murder should be allowed to sue the judge for make such a stupid ruling, allowing Vega out to commit the murder, the same way we would be held liable for our mistakes real or perceived.


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## sempergumby (Nov 14, 2003)

Terry vs Ohio......... How hard is it. Dam mass judges


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## policelaborlaw.com (Mar 7, 2006)

You can view the full-text of the Appeals Court Decision here:

http://www.policelaborlaw.com/crimcases/vega.pdf


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## dcs2244 (Jan 29, 2004)

I'd bet that if Officer Carmelo Oquendo's name was Officer Clive Spencer, the court would have found for the defendant. Just a thought. Not that the court would take the word of a nice Irish lad like Officer O'Quendo over someone with an English name. Or skin colour...national origin, religion, sexual orientation, etcetera.


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