The humor aside, I think the officer acted correctly.
'Banana story hard to swallow'
Wednesday, October 18, 2000
By Gary V. Murray
Telegram & Gazette Staff
WORCESTER-- A state trooper's apparent inability to distinguish between a banana and a firearm led to a cocaine-trafficking charge against a Lawrence man and a cry of foul from the defense lawyer in a recent court hearing.
On the night of March 14, while on patrol on Interstate 290, Trooper Jamie Vitale stopped a commercial van for speeding. As he approached the van, he said, he saw a fidgety front-seat passenger reach toward the floor and make a motion as if tossing an object under the seat behind him.
Because part of the van was in the travel lane, the trooper knocked on the passenger-side window, and the passenger rolled it down. Trooper Vitale said he saw that the passenger was not wearing a seat belt.
The trooper asked the driver for his license and registration, and the driver showed his license, but had no registration.
The passenger, when asked for identification, produced a Social Security card identifying himself as Pablo Paulina.
The trooper said the passenger appeared to be extremely nervous, breathing heavily, sweating and shaking. Because Trooper Vitale was concerned for his own safety, he said, he asked the passenger to leave the van and pat-frisked him for weapons.
Finding none, the trooper returned to the vehicle and looked inside. He found a black garbage bag partially tied off.
And there lay the test of the trooper's ability to separate fruit from firearm.
Trooper Vitale picked up the bag, felt that it contained several hard objects, and looked inside the partially secured opening. Moving what appeared to be paper towels revealed a white, rock-like substance, like cocaine, wrapped in a clear plastic bag.
Trooper Vitale issued the driver a warning for speeding and having no registration in his possession; he arrested the passenger on a charge of cocaine trafficking. Fingerprints during the booking procedure showed the suspect to be Leon-Pena Serso, 28, of Lawrence, rather than the man whose name appeared on the Social Security card.
Some time later, Mr. Serso's lawyer, John J. Roemer, filed a motion to suppress the seizure of the drugs as unlawful, claiming the search of the bag in the van was without legal justification.
Assistant District Attorney Donald H. Progen argued that the evidence was properly seized during a justified search for weapons.
After a hearing in Worcester Superior Court a few days ago, Judge James P. Donohue denied the motion to suppress. But neither the dispute nor the case is likely to conclude there.
During the hearing, Trooper Vitale testified that when he picked up the trash bag, he felt what he believed to be a small handgun and a box of ammunition inside. As it turned out, he said, the items were a hard green banana and the block of cocaine.
Mr. Roemer's memorandum of law in support of his motion to suppress was subtitled: “Even a Child Knows the Difference Between a Gun and a Banana.”
“The police practice of frisking and detaining ethnic minorities, upon the flimsiest pretenses, has become a scandal in the Commonwealth,” the memorandum began.
“The rationale for the search of the plastic bag in this case was that the bag held a banana; that Trooper Vitale cannot tell the difference between a handgun and a banana; and that the courts of the Commonwealth share the trooper's difficulties on this issue,” the defense lawyer said.
“The appearance of the banana comes late in the history of this case,” Mr. Roemer continued. “There was no documentation of it at the police barracks. There was no mention of it in the police report. The banana made its first public appearance at the motion hearing on Oct. 3. A discerning mind could well believe that October was too late in the season for this banana credibly to appear.”
Trooper Vitale's professed inability to tell the difference between the fruit and a firearm “would require a triumph over obvious facts,” according to Mr. Roemer.
“The trooper knows (because he wears one) that a gun has a hammer, a trigger and a loading mechanism: a square magazine in the case of an automatic; a cylinder in the case of a revolver. The fanciest banana lacks these improvements,” the defense lawyer wrote.
Bananas “have smooth, soft skins (even when the fruit is green) that taper into stems, advantages that guns lack,” Mr. Roemer pointed out.
Even if the court were to find that the trooper could not tell guns from bananas, it would not resolve the issue of whether an average, reasonable person could do so, by Mr. Roemer's calculations.
“For the court to hold that a person of reasonable intelligence in this Commonwealth cannot tell the difference would reflect adversely on the perspicacity of both the judicial and law enforcement systems,” he contended, adding: “This banana story is too hard to swallow. The search cannot be upheld as a reasonable protective measure.”
Judge Donohue concluded that Trooper Vitale had reasonable justification to order Mr. Serso from the van and to frisk him. He further found that the cocaine was “properly seized while the trooper was searching for a possible concealed weapon.”
Still, Mr. Roemer says he plans to appeal the ruling, likely setting the stage for another test of the distinction between fruit and firearm.
© 2000 Worcester Telegram & Gazette
'Banana story hard to swallow'
Wednesday, October 18, 2000
By Gary V. Murray
Telegram & Gazette Staff
WORCESTER-- A state trooper's apparent inability to distinguish between a banana and a firearm led to a cocaine-trafficking charge against a Lawrence man and a cry of foul from the defense lawyer in a recent court hearing.
On the night of March 14, while on patrol on Interstate 290, Trooper Jamie Vitale stopped a commercial van for speeding. As he approached the van, he said, he saw a fidgety front-seat passenger reach toward the floor and make a motion as if tossing an object under the seat behind him.
Because part of the van was in the travel lane, the trooper knocked on the passenger-side window, and the passenger rolled it down. Trooper Vitale said he saw that the passenger was not wearing a seat belt.
The trooper asked the driver for his license and registration, and the driver showed his license, but had no registration.
The passenger, when asked for identification, produced a Social Security card identifying himself as Pablo Paulina.
The trooper said the passenger appeared to be extremely nervous, breathing heavily, sweating and shaking. Because Trooper Vitale was concerned for his own safety, he said, he asked the passenger to leave the van and pat-frisked him for weapons.
Finding none, the trooper returned to the vehicle and looked inside. He found a black garbage bag partially tied off.
And there lay the test of the trooper's ability to separate fruit from firearm.
Trooper Vitale picked up the bag, felt that it contained several hard objects, and looked inside the partially secured opening. Moving what appeared to be paper towels revealed a white, rock-like substance, like cocaine, wrapped in a clear plastic bag.
Trooper Vitale issued the driver a warning for speeding and having no registration in his possession; he arrested the passenger on a charge of cocaine trafficking. Fingerprints during the booking procedure showed the suspect to be Leon-Pena Serso, 28, of Lawrence, rather than the man whose name appeared on the Social Security card.
Some time later, Mr. Serso's lawyer, John J. Roemer, filed a motion to suppress the seizure of the drugs as unlawful, claiming the search of the bag in the van was without legal justification.
Assistant District Attorney Donald H. Progen argued that the evidence was properly seized during a justified search for weapons.
After a hearing in Worcester Superior Court a few days ago, Judge James P. Donohue denied the motion to suppress. But neither the dispute nor the case is likely to conclude there.
During the hearing, Trooper Vitale testified that when he picked up the trash bag, he felt what he believed to be a small handgun and a box of ammunition inside. As it turned out, he said, the items were a hard green banana and the block of cocaine.
Mr. Roemer's memorandum of law in support of his motion to suppress was subtitled: “Even a Child Knows the Difference Between a Gun and a Banana.”
“The police practice of frisking and detaining ethnic minorities, upon the flimsiest pretenses, has become a scandal in the Commonwealth,” the memorandum began.
“The rationale for the search of the plastic bag in this case was that the bag held a banana; that Trooper Vitale cannot tell the difference between a handgun and a banana; and that the courts of the Commonwealth share the trooper's difficulties on this issue,” the defense lawyer said.
“The appearance of the banana comes late in the history of this case,” Mr. Roemer continued. “There was no documentation of it at the police barracks. There was no mention of it in the police report. The banana made its first public appearance at the motion hearing on Oct. 3. A discerning mind could well believe that October was too late in the season for this banana credibly to appear.”
Trooper Vitale's professed inability to tell the difference between the fruit and a firearm “would require a triumph over obvious facts,” according to Mr. Roemer.
“The trooper knows (because he wears one) that a gun has a hammer, a trigger and a loading mechanism: a square magazine in the case of an automatic; a cylinder in the case of a revolver. The fanciest banana lacks these improvements,” the defense lawyer wrote.
Bananas “have smooth, soft skins (even when the fruit is green) that taper into stems, advantages that guns lack,” Mr. Roemer pointed out.
Even if the court were to find that the trooper could not tell guns from bananas, it would not resolve the issue of whether an average, reasonable person could do so, by Mr. Roemer's calculations.
“For the court to hold that a person of reasonable intelligence in this Commonwealth cannot tell the difference would reflect adversely on the perspicacity of both the judicial and law enforcement systems,” he contended, adding: “This banana story is too hard to swallow. The search cannot be upheld as a reasonable protective measure.”
Judge Donohue concluded that Trooper Vitale had reasonable justification to order Mr. Serso from the van and to frisk him. He further found that the cocaine was “properly seized while the trooper was searching for a possible concealed weapon.”
Still, Mr. Roemer says he plans to appeal the ruling, likely setting the stage for another test of the distinction between fruit and firearm.
© 2000 Worcester Telegram & Gazette