COMMONWEALTH vs. JIMMY WARREN.
No. 13-P-820.
Appeals Court of Massachusetts
June 10, 2015
Further appellate review granted, 473 Mass. 1101 (2015).
87 Mass. App. Ct. 476 (2015)
Present: RAPOZA, C.J., CYPHER, GREEN, RUBIN, & AGNES, JJ.1
Suffolk. October 2, 2014. - June 10, 2015.
A Boston Municipal Court judge properly denied a criminal defendant’s pretrial motion to suppress a firearm recovered near a sidewalk following his seizure when a police officer (seeking to question the defendant concerning a breaking and entering that had occurred at a nearby residence earlier that evening) directed him to stop during a pursuit on foot, where the description of the perpetrators, together with the spatial and temporal proximity of the defendant and his companion to the scene of the home invasion, the defendant’s twice reversing direction and running away upon encountering the police, and the gravity of the crime under investigation gave rise to a reasonable suspicion justifying the officer’s stop of the defendant. [479-483]
AGNES, J., dissenting, with whom RUBIN, J., joined. RUBIN, J., dissenting.
COMPLAINT received and sworn to in the Roxbury Division of the Boston Municipal Court Department on December 19, 2011.
After transfer to the Central Division, a pretrial motion to suppress evidence was heard by Tracy-Lee Lyons, J., and the case was heard by Annette Forde, J.
Nelson P. Lovins for the defendant.
Michael Glennon, Assistant District Attorney, for the Commonwealth.
GREEN, J. On appeal from his conviction of carrying a firearm, the defendant claims error in the denial of his motion to suppress a firearm. The firearm was recovered near the sidewalk on which the defendant ran from police who sought to question him concerning a breaking and entering that had occurred at a nearby residence earlier that evening. At issue is whether there was
Background. We summarize the facts from the motion judge’s careful findings, supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the motion judge.2 See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).
On Sunday, December 18, 2011, Boston police Officer Luis Anjos was on duty and in uniform, traveling alone in a marked police cruiser, in area B-2 in the Roxbury section of Boston. At 9:20 P.M. he received a radio call “that there was a breaking and entry in progress and the suspects were fleeing the area.” The dispatcher gave “several paths of flight” from Hutchings Street — where the breaking and entering had occurred — one toward Seaver Street and one toward Jackson Square.3
Anjos went to the scene of the breaking and entering and spoke with the victims, a teenage male and his foster mother. The male victim told Anjos that he had left his room to go to the bathroom and that, when he was returning, his foster mother told him that she heard people in his bedroom. The male victim opened his bedroom door and saw a “black male jumping out of the window.” The man was wearing “a red hoodie” (hooded sweatshirt) and, when the male victim ran to the window to look outside, he saw “three black males, one was wearing a red hoodie and the other two [were] wearing all dark clothing.” One of the two in dark clothing was wearing a “black hoodie,” and the male victim could not be more specific about the third man except to say that he was “definitely wearing dark clothing.” The men ran down Hutchings Street — which could have led them either to Seaver Street or to Walnut Avenue. The male victim told the officer that his Apple MacBook and five baseball hats were missing. Both victims gave the officer their names, as well as their dates of birth.
Anjos spoke to the male victim and his foster mother for approximately eight to twelve minutes and broadcast the description he had been given. He then began to drive around the area to see if he could find anyone who fit that description. It was a cold
Anjos rolled down the passenger’s side window of his cruiser and yelled out, “Hey guys, wait a minute.” He still was sitting in the cruiser and had activated neither his lights nor his siren at any point. The two men “made eye contact” with Anjos, looking in his direction, and then turned around and “quickly started jogging” in the direction of Dale Street, down a path through a park. Anjos had worked in area B-2 for ten years and was familiar with the park; he had responded to calls for assaults and batteries, and firearm arrests, among others. He described the park as “a pretty busy area in the summertime.” He also testified, “There are a lot of gang members from the local area that hang out there. . . . Once you get inside [the park], you’ve got a cover so nobody can see you unless you walk in on them.”
After the two men jogged into the park, Anjos radioed to dispatch that men fitting the description were traveling through the park towards Dale Street.5 Anjos saw them later, after they were stopped, and he identified the defendant in court as one of the two.
Boston police Officer Christopher Carr responded with another officer, David Santosuosso, to Anjos’s request for help. Carr had been a Boston police officer for seven years and had received special training from the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives “on characteristics of an armed gunman,” and he had made several firearm arrests himself. Carr heard Anjos broadcast a description of “several males that matched a description from a previous [breaking and entering]“; Carr and Santosuosso were nearby and arrived in a matter of seconds. When they did, they saw “two males matching the description that Officer Anjos had broadcast walking through the park.” Both men were wearing dark clothing. Carr also was familiar with the
Carr pulled the cruiser to the side of the street, and both he and Santosuosso got out of the vehicle. No lights or sirens were activated. Carr was closest to the two men, and he started to speak to them; his firearm was not drawn. He “started to say, ‘Hey fellas, can I . . .’ and . . . only got about two words out, and the suspect made a right hand turn, one eighty, and took off back into the park.” The other man remained standing still.
Officer Carr ran after the young man, who appeared to him to be sixteen or seventeen years old (“[d]efinitely under the age of twenty-one“), losing sight of him “for a couple of seconds” at one point. Carr eventually saw the man run into the backyard of a residence on Wakullah Street. At one point during his pursuit, Carr saw that the man was “clutching the right side of his pants as he was running up the hill back into the park.”6 Carr shouted at the man to stop, but the man continued running. Eventually, Carr apprehended the man, later identified in court as the defendant, Jimmy Warren, and ordered him to get down on the ground.7 There was a brief struggle, and the defendant was placed under arrest.
A “Walther .22 caliber firearm” was recovered “less than five yards off the sidewalk on the inside of the fence of [the residential yard where the defendant was arrested].” The defendant and his companion were the first individuals whom any of the officers encountered after hearing the radio call about a breaking and entering.
Discussion. “In reviewing a decision on a motion to suppress, ‘we accept the judge’s subsidiary findings of fact absent clear
Equipped with information about the crime, and seeing two young men who matched the description he had been given minutes earlier, in a location that roughly corresponded to the distance the perpetrators might have traveled by foot in the interim, Officer Anjos properly sought to speak with the two young men. At that time, he was sitting in a police cruiser, with no lights or siren activated and no weapon displayed, and his statement, “Hey guys, wait a minute,” was not a stop. As observed in Commonwealth v. Martin, 467 Mass. 291, 303 (2014), “Although the record does not establish the precise words [the detective] used in addressing the defendant, the motion judge found that [the detective] had ‘called out to [the defendant] to hold up or stop we want to speak with you or words to that effect.’ These words more closely resemble a ‘request to speak with the defendant and ask questions,’ Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228-229 (2006), which does not rise to the level of a seizure, than a ‘command to stop,’ id., which is an ‘intrusion of constitutional dimensions that requires justification.’ Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). See, e.g., Commonwealth v. Lopez, 451 Mass. 608, 610 (2008) (statement ‘can I speak with you’ not seizure); Commonwealth v. Barros, 435 Mass. 171, 172, 173-174 (2001) (statement ‘Hey you . . . I want to speak with you’ was not seizure); Commonwealth v. Stoute, [422 Mass. 782, 789 (1996)] (police request that suspect
We consider it significant in the present case that, at the time Officer Carr directed the defendant to stop, he and other officers were engaged in the investigation of a report of recent criminal activity in the vicinity. In such circumstances, we find instructive the inventory of factors identified in Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554-556 (2002): (1) the particularity of the description of the suspects; (2) the number of persons in the area at the relevant time; (3) the proximity of the stop to the location of the reported crime; (4) the time elapsed between the reported crime and the investigatory stop; (5) the actions of the suspect upon the initial encounter with police (including any evasive action); (6) police corroboration of the reported criminal activity; (7) the geographic area where perpetrators might be expected to have gone after the crime; and (8) whether the area is or is not a “high crime area.”9
In weighing reasonable suspicion, the motion judge properly considered the fact that the defendant twice ran from police officers who approached him. See Commonwealth v. Depina, 456 Mass. at 246. See also Commonwealth v. Mercado, 422 Mass. 367, 368, 371 (1996) (defendant’s actions in ceasing to exit store and backing up into vestibule, upon seeing police officer, added to reasonable suspicion calculation); Commonwealth v. Stoute, 422 Mass. at 791 (“The defendant’s failure to stop at [the officer’s]
In addition, as we have observed, with Officer Anjos having interviewed the victims of the crime at the scene, the officers had verified the reliability of the report. The description of the men involved in the home invasion had included two men of color, dressed in dark clothing, with one man wearing a hooded sweatshirt. We acknowledge that the description was somewhat general and lacking in detail. Nonetheless, two men who fit that description were seen on the street some nine or ten blocks away, within only about thirty minutes of the report of the crime. It was twenty-three degrees outside, and none of the officers had seen anyone else walking on the street since the report. The relatively close proximity of the defendant to the time and place of the reported crime, together with the fact that the officers saw no one else on the streets on that cold evening, furnishes further justification for a threshold inquiry. Moreover, once the defendant started to run for a second time, to again avoid interaction with the investigating officers, Officer Carr had reasonable suspicion that the defendant was involved in the reported home invasion, meriting further inquiry to confirm or dispel that suspicion.10
“Neither evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support the reasonable suspicion necessary to justify a stop and frisk. . . . Each of these factors may, however, be considered by the police, and in combination may allow the police to narrow the range of suspects to particular individuals.” Commonwealth v. Mercado, 422 Mass. at 371. In this case, the facts, examined in combination, compare favorably to those in stops that have been upheld by the courts. See, e.g., Commonwealth v. Depina, 456 Mass. at 245-247. To make an investigatory stop based on a physical description, the description cannot be so general that it would include a large number of people in the area where the stop occurs, nor need it be so particularized as to fit only a single person, provided other accompanying circumstances are present. See id. at 246-247. Here, as in Depina, the description of the perpetrators, together with the spatial and temporal proximity of the defendant and his companion to the scene of the home
In sum, in the present case we see most of the Doocey factors. While the description itself was not precise, the fact that there were two individuals who fit it, rather than one, enhances its value. Contrast Commonwealth v. Cheek, 413 Mass. 492, 496 (1992). In addition, the defendant and his companion were close in time and proximity to the location of the report of a serious crime, and the “population of individuals in the area at the relevant time” included only the defendant and his companion. Commonwealth v. Doocey, 56 Mass. App. Ct. at 554. Furthermore, there was “independent police corroboration of the report of the criminal activity“; and the “characteristics of the place of the suspected criminal activity (including whether it is a high crime area)” also support the inference the officer drew. Id. at 556.
The motion to suppress was properly denied.11
Judgment affirmed.
AGNES, J. (dissenting, with whom RUBIN, J., joins). No one disputes that a police officer has the authority to stop and briefly to detain a person on the street in order to conduct a threshold inquiry whenever specific facts establish reasonable suspicion that the individual has committed, is committing, or is about to
Two ingredients must be present to establish reasonable suspicion: (1) police knowledge of objective facts and circumstances relating to a past, present, or future crime, as opposed to guesswork, a hunch, or intuition, and (2) a specific connection, i.e., individualized suspicion, between those objective facts and circumstances and the person stopped. See, e.g., Commonwealth v. Matthews, 355 Mass. 378, 380-382 (1969).2
In the present case, the description of the perpetrators taken by Boston police Officer Luis Anjos and passed on to other officers was too general to establish individualized suspicion connecting the defendant, Jimmy Warren, to the breaking and entering on Hutchings Street in the Roxbury section of Boston at the time of the stop. Neither of the two males Officer Anjos encountered
In Commonwealth v. Battle, 365 Mass. 472, 475 (1974), the Supreme Judicial Court also explained the limited significance of evasive behavior in the absence of other specific evidence of criminal activity:
“On seeing two persons run into an apartment building in apparent response to an approaching police vehicle, the police had the right — if not the duty — to conduct further visual investigation while the two persons remained in public view. Such police conduct is not a search or seizure, however expansively one wishes to interpret those terms, and therefore a lack of probable cause to arrest or even ground to conduct a ‘stop and frisk’ is irrelevant. The requirements of the Fourth Amendment to the Constitution of the United States enter into the picture at a later point in this case, when the arrest was actually made.” (Footnote omitted.)
This case is also distinguishable from Commonwealth v. Marrero, 33 Mass. App. Ct. 440, 444-445 (1992), where we held that the defendant’s flight when
A. Geography. In order to understand why the initial encounter between Officer Anjos and the two black males did not contribute in any objective sense to reasonable suspicion that they were
Second, there was testimony by Officer Anjos that approximately twenty-five minutes elapsed from the time of the initial 911 telephone call to when he first encountered the two black males about one mile from the scene of the crime. The perpetrators could have fled in any one of several directions. Assuming they were traveling on foot, they could have traveled to any
Third, Officer Anjos testified at the suppression hearing that the victim reported that the perpetrators were seen “running down Hutchings towards Harold Street in the direction of Seaver or Walnut Avenue.” The judge found that the victim “stated he saw them run down Hutchings Street towards Seaver Street. One black male ran towards Walnut” Avenue. The majority states that the victim reported the “men ran down Hutchings Street — which could have led them either to Seaver Street or to Walnut Avenue.” Ante at 477. While, as noted supra, the view from the victim’s bedroom was limited, a person running down Hutchings Street could navigate his way to Walnut Avenue or to Seaver Street. However, Walnut Avenue, like Seaver Street, winds its way through Roxbury, crossing many other streets, and is more than one mile in length, running both to the north and to the south of the crime scene. See Appendix B. Furthermore, as Officer Anjos candidly observed on cross-examination, Seaver Street from Hutchings Street is in the opposite direction of the Dale Street area where the arrest occurred. Thus, knowledge that one, two, or three black males wearing dark clothing who were involved in a breaking and entering at a home near the intersection of Hutchings Street and Harold Street fled toward Seaver Street or Walnut Avenue, even if the information is presumed reliable, is not, absent a description of their height, weight, age, facial features, distinctive clothing, or other distinguishing characteristics,10 probative of whether two black males wearing dark clothing encountered about thirty minutes later near the intersection of Walnut Avenue and Martin Luther King Boulevard were connected to the breaking and entering.
Fourth, the majority also relies on the fact that Officer Anjos testified that when he left the crime scene he “began to drive around the area” and saw no one else on the street until he was driving back to the police station and encountered the two males
B. Particularized suspicion. “To make an investigatory stop based solely on a physical description, the description need not be so particularized as to fit only a single person, but it cannot be so general that it would include a large number of people in the area where the stop occurs.” Commonwealth v. Depina, 456 Mass. 238, 245-246 (2010). See Commonwealth v. Grinkley, 44 Mass. App. Ct. 62, 67 (1997) (“Unparticularized racial descriptions, devoid of distinctive or individualized physical details — even were they of a certain person . . . — cannot by themselves provide police with adequate justification for stopping an individual member of the identified race who happens to be in the general area described by the informant“). For example, in Commonwealth v. Cheek, 413 Mass. 492, 496 (1992), the Supreme Judicial Court observed:
“[T]he description of the suspect as a ‘black male with a black ¾ length goose’ could have fit a large number of men who reside in the Grove Hall section of Roxbury, a predominantly black neighborhood of the city. The officers possessed no additional physical description of the suspect that would have distinguished the defendant from any other black male in the area such as the suspect’s height and weight, whether he had facial hair, unique markings on his face or clothes, or other identifying characteristics. That the jacket matched was not enough to single him out. Moreover, the Commonwealth presented no evidence to establish that a ‘¾ length goose’ jacket, the sole distinctive physical characteristic of the garment, was somehow unusual or, at least, uncommon as an outer garment worn on a cold fall night.”
In the present case, when Officer Anjos first encountered the defendant and his companion, Officer Anjos had even less evi-
In numerous decisions, both before and after Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Judicial Court has explained that individualized suspicion is the ingredient that differentiates reasonable suspicion from arbitrary police action. In Alegata v. Commonwealth, 353 Mass. 287, 293 (1967), the court declared unconstitutional that portion of G. L. c. 41, § 98, that authorized the criminal prosecution of persons found on the street during the nighttime in circumstances in which the arresting officer suspected the person of “unlawful design,” id. at 290, and was not satisfied with the person’s explanation for being abroad in the nighttime, ibid. Although the court reasoned that the statute was unconstitutionally vague because it did not give an ordinary person adequate notice of what conduct was proscribed, the court made the following observation, which is of special significance in this case: “The problem with suspicion is that it is a subjective term incapable of providing any intelligible standard to guide either suspect or court. The absence of limiting standards leaves the citizen at the ‘mercy of the officers’ whim or caprice.’ ” Id. at 292-293, quoting from Brinegar v. United States, 338 U.S. 160, 176 (1949). See Commonwealth v. Lawton, 348 Mass. 129, 133 (1964);11 Commonwealth v. Ballou, 350 Mass. 751, 755 (1966);12
C. Flight. “An attempt to avoid contact with or observation by
In addition to an understanding of the local geography and particularized suspicion, “a page of history” about encounters
“The evidence that the Commonwealth characterizes as irrelevant is the evidence concerning a Boston police department policy to ‘search on sight’ all young, black persons in Roxbury suspected of being gang members or of being in the company of a gang member. The Commonwealth also characterizes as irrelevant evidence of other allegedly illegal searches by either the officers who seized the firearm and ammunition in this case or other officers. We do not agree that the challenged evidence was irrelevant.
“It is undoubtedly true that, had there been no evidence of an official police policy of ‘searches on sight,’ evidence that the officers directly involved in this case or other officers on various occasions conducted unconstitutional searches would not have been relevant. Standing alone, evidence of those isolated events would not have increased the likelihood that the challenged search was unlawful. . . . However, the evidence of specific instances of constitutionally unreasonable ‘on sight searches’ tends to support the further evidence of an official policy approving such procedures and, in our view, the evidence of that official policy was relevant. That policy evidence tended to support the eyewitness testimony relied on by the judge to conclude that the search in this case was an ‘on sight search.’ ”
Although there is no evidence in this case that a “search on sight” policy continues to exist, the debate continues regarding whether certain street encounters between members of the Boston police department and civilians are influenced by race and not simply by the existence of reasonable suspicion or probable cause.18
“Preliminary findings show the Department is targeting gang members in high crime areas. The study showed that the amount of crime in a neighborhood is the most powerful predictor of the number of FIO’s done in a neighborhood. The study showed that officers are repeatedly stopping or observing individuals with criminal records and/or gang membership (5% of the individuals FIO’ed account for more than 40% of the total FIO’s). Gang Membership and prior arrest history are very strong predictors of repeated FIO’s. The study did show some racial disparities that must be addressed. Specifically, the study showed that during the given time period, minority neighborhoods do experience higher levels of FIO activity, approximately 1% of FIO’s completed per month, when controlling for crime. It also showed that Black subjects are 8% more likely to be stopped repeatedly and 12% more likely to be frisked and searched when controlling for other factors like Criminal History and Gang Membership in Violent Crime areas. While there is still some work be to done to ensure we are closing the gap on these racial disparities, the numbers of overall FIO activity are encouraging, and indicates the Department is headed in the right direction. BPD has decreased the number of FIOs it completes by almost 42% since 2008 and has decreased arrests by 33%, with steady reductions in overall crime. These numbers demonstrate that officers are utilizing targeted enforcement to reduce crime.”
Boston Police Commissioner Announces Field Interrogation and Observation (FIO) Study Results, available at http://bpdnews.com/news/2014/10/8/boston-police-commissioner-announces-field-interrogation-and-observation-fio-study-results [http://perma.cc/H9RJ-RHNB].
In a statement released contemporaneously with the release of the BPD study, the American Civil Liberties Union (ACLU) and the ACLU of Massachusetts took a different view.
“Key preliminary findings, all of which control for non-race factors, include the following: Young black men were more likely than young white men to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. When police-civilian encounters occurred, young black men were more likely than young white men to be frisked or searched. Young black men were more likely to be targeted for repeat police-civilian encounters.”
Boston Police Data Shows Widespread Racial Bias in Street Encounters with Civilians, available at https://www.aclu.org/criminal-law-reform-racial-justice/boston-police-data-shows-widespread-racial-bias-street-encounters [http://perma.cc/9ABJ-VT5C].
In October of 2014, the ACLU issued its own report based on the research conducted for the BPD entitled “Black, Brown and Targeted,” available at https://www.aclum.org/sites/all/files/images/education/stopandfrisk/black_brown_
“63% of Boston police-civilian encounters from 2007-2010 targeted Blacks, even though Blacks made up less than 25% of the city’s population. Even after controlling for crime, Boston police officers were more likely to initiate police encounters in Black neighborhoods and to initiate encounters with Black people. Boston police gave essentially no justification for 75% of these encounters, simply listing ‘investigate person’ as the reason. More than 200,000 encounters led to no arrest, and only 2.5% led to seizure of contraband.”
Stop and Frisk Report Summary, available at https://www.aclum.org/sites/all/files/images/education/stopandfrisk/stop_and_frisk_summary.pdf [http://perma.cc/7APK-8MG9].
These reports, the data contained within them, and the statements referred to, supra, about them, are not cited as adjudicative facts outside the record about what happened in this case or why the events occurred as they did. Rather, I consider this information solely to place the issues in historical context in order to illuminate what I regard as the policies underlying our precedents defining the objective test that the police must satisfy to conduct a valid stop for purposes of a threshold inquiry. See Advisory Committee’s Note to
D. Reasonable suspicion summary. In the present case, when Officer Anjos first encountered the defendant and another person near the intersection of Walnut Avenue and Martin Luther King Boulevard, Officer Anjos was not nearby the crime scene as the majority asserts. Ante at 478. Moreover, the only similarity between the two males Officer Anjos encountered and the description of the perpetrators of the breaking and entering was their race and the fact that they wore dark clothing and one man wore a hooded sweatshirt. There was nothing unusual or out of place about their clothing. The two males were walking, not running. The two males were not carrying anything that might suggest a connection to the crime, nor otherwise acting in a suspicious manner. Officer Anjos made no other observation that would indicate that the two males were engaged in criminal activity. The two males did not flee upon seeing the marked cruiser, but jogged away only when Officer Anjos asked them to wait. When, moments later, the males encountered the other two officers, the defendant began to run. These circumstances, while sufficient to raise suspicion, do not establish the degree of individualized suspicion that a crime has occurred, is occurring, or is about to occur to justify a detention for a threshold inquiry.
The majority seeks to buttress its view that Officer Anjos acted on the basis of reasonable suspicion by reference to the inventory of relevant factors we identified in Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554-556 (2002). Ante at 481. I agree that
Because the defendant and his companion were not targeted for investigation due to their presence in a high crime area, the only Doocey factor that Officer Anjos could rely on was the defendant’s flight. It is settled that a person is under no obligation to cooperate with the police when asked to stop and to submit to a threshold inquiry. Officer Anjos had every right to harbor a subjective belief that the two men he encountered were involved in the breaking and entering on Hutchings Street. Good police work often begins with a hunch. However, a hunch that criminal activity is underway because individuals choose to run away instead of declining, politely, an invitation to stop and to converse does not justify a seizure. The fact that the actions taken by the police in this case resulted in the seizure of a loaded firearm is of no consequence because “[a] search prosecuted in violation of the Constitution is not made lawful by what it brings to light; the doctrine has never been recognized by this Court, nor can it be tolerated under our constitutional system.” Commonwealth v. Holley, 52 Mass. App. Ct. 659, 665-666 (2001), quoting from Byars v. United States, 273 U.S. 28, 29 (1927).
For the within reasons, I respectfully dissent.
RUBIN, J. (dissenting). I join Justice Agnes’s dissenting opinion. Three African-American men were involved in the commission of a burglary, one dressed in red, two in black, at least one of those wearing a hooded sweatshirt (hoodie). They stole a backpack, a laptop computer, and five custom baseball hats. There were conflicting reports about the direction in which they ran.
Under art. 14 of the Massachusetts Declaration of Rights, the police were not entitled on this basis thirty minutes later to stop any pair of African-American men in dark clothes walking within
What ultimately divides the panel is the significance of this latter-described evasive action. I write separately because I do not think we need to address its significance in this case, and were it not for a majority of the court reaching the question, I would not do so. Although the majority holds, ante at 478, and Justice Agnes’s dissent assumes, ante at 493-494, that the defendant and his companion were stopped only after they ran from the police, they were, as a matter of law, stopped before that, while they were simply walking down the street. Boston police Officer Luis Anjos, after seeing them walking on the sidewalk yelled out, “Hey guys, wait a minute.” This was a “command to stop,” not a request, and it marks the point at which the defendant was seized for purposes of the Massachusetts Declaration of Rights. Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228 (2006) (Duffly, J.). Cf. Commonwealth v. Martin, 467 Mass. 291, 301, 303 (2014) (where officer testified that he said, “Hold on a second, I want to talk to you,” and judge “found that [he] had ‘called out to [the defendant] to hold up or stop we want to speak with you or words to that effect,” the officer’s words more closely resemble a ‘request to speak with the defendant and ask questions’ . . . than a ‘command to stop’ “). This seizure came before the individuals had engaged in their only suspicious conduct described in this case, i.e., jogging and then running from the
At the time of the stop, the police knew there were two individuals walking on the street, not three. They did not appear to have any of the proceeds of the burglary on their persons. They were stopped in a densely populated urban area thirty minutes after the burglary and about one mile away from the scene. Indeed, at the hearing on the motion to suppress, the arresting officer disclaimed having concluded that these individuals were suspects in the burglary — he would state only that Officer Anjos had reached that conclusion. Although of course reasonable suspicion must be measured on facts and circumstances known to police officers prior to the seizure, in this case it can come as no surprise that these two individuals never have been linked in any way to the burglary of which Officer Anjos testified he suspected them.
As I said at the outset, and as appears undisputed here, it is impermissible for the police to stop any two black men walking on the street wearing hoodies simply because thirty minutes earlier and one mile away two black men in dark clothing, at least one of whom was wearing a hoodie, were among three men involved in a burglary. Action of this type clearly violates the protection our Massachusetts Declaration of Rights provides to all persons in the Commonwealth. It is also corrosive of the relationship between law enforcement and the members of communities they are sworn to protect. Yet that describes what happened here. I respectfully dissent.