Lead Opinion
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.
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.
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.
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 (“[djefinitely 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.”
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,
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,
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,
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.
“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,
The motion to suppress was properly denied.
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,
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
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,
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,
“[T]he description of the suspect as a ‘black male with a black % 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 ‘% 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,
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.
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
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,
For the within reasons, I respectfully dissent.
Notes
We note that our two dissenting colleagues incorporate within their respective dissents reference to materials outside the record including, in some instances, hearsay material that would not have been admissible if offered in evidence at the motion hearing.
The two directions are inconsistent with one another.
The officer opined that it would have taken “probably ten to twelve minutes” to walk the distance between the scene of the break and the location where he saw the two men.
Anjos admitted on cross-examination that he said on the radio that he had seen three, rather than two, black males run through the park.
Based on his training and experience, Carr knew that that behavior was consistent with carrying a gun without a holster and, also, that it was not uncommon for people carrying guns illegally not to store them in a holster.
In her findings, the motion judge noted that Carr’s observation of the defendant “clutching his right side of his pants and holding it up while he ran... was after a verbal command to stop.” The Commonwealth argues that this finding “was unsupported by the officer’s testimony at the hearing, and thus clearly erroneous.” We disagree. On direct examination, the officer did testify, more than once, that he first “began issuing the defendant verbal commands to stop” at the end of the chase, when the defendant was “almost in the middle of the backyard.” However, on redirect examination, the prosecutor asked Carr, “And did you see him making that touching motion before you told him to stop?” The officer answered, “No.” The judge’s finding, therefore, was supported by the evidence.
For the same reason, Officer Carr’s statement “Hey fellas ...” was not a stop or a seizure: even though Carr and Santosuosso got out of the police cruiser at that point, no lights, sirens, or weapons were displayed.
As Doocey observes, the last of these factors often carries comparatively little weight. See
For the reasons already explained, the officer’s request to the defendant, who already had begun running for a second time, whether in the words, “Hey fellas,” or a more explicit request to “stop,” did not, without more, rise to the level of a seizure for constitutional purposes.
Though our view of the case obviates any need to consider the Commonwealth’s argument that the motion should have been denied without a hearing on the ground that the defendant abandoned the firearm, we note that the facts do not support that argument.
See Commonwealth v. Silva,
United States Supreme Court Chief Justice Earl Warren, writing for the Court in Terry v. Ohio, said, “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.”
See, e.g., Commonwealth v. White,
This principle is illustrated in Commonwealth v. Thibeau,
In Commonwealth v. Battle,
“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,
The rule in Mercado, supra, that flight to avoid the police, standing alone, is not sufficient to constitute reasonable suspicion, is not inconsistent with the holding in Commonwealth v. Sanchez,
“The defendant was running down a busy street at sprint pace in broad daylight.... The defendant was sweating, had a strained expression on his face, and discarded his shirt without breaking pace. The police, without solicitation, received a beeper dropped by the defendant (or his unnamed joint venturer). The defendant then took evasive action by running through back yards and scaling chain link fences. It was appropriate for the police to pursue the defendant in order to effectuate a threshold inquiry.”
Id. at 117.
See Commonwealth v. Wren, supra; Commonwealth v. Willis,
http://maps.google.com.
http://maps.google.com.
I take judicial notice of the accuracy of the layout of the streets and the measurement of the distances between landmarks in Roxbury, as depicted on both of the maps in the Appendix. See United States v. Perea-Rey,
Officer Anjos testified that there was nothing unusual about the color or the style of the hooded sweatshirts the two males were wearing, and that in his experience he had encountered many individuals in that neighborhood wearing hooded sweatshirts.
In Lawton, supra, the Supreme Judicial Court made this observation:
“We are of opinion that the combination of facts known to [the officer] reasonably permitted such a conclusion. He had learned of a recent break from his superiors and at once went to the house. He was told that a female occupant had seen a man in a heavy dark coat run out of the back door and onto and across the adjacent golf links toward Fuller Street. Soon after, while searching in the vicinity of the Fuller Street entrance to the golf course, he had come upon the defendant attired in a heavy dark coat. He could reasonably conclude that not many men would be abroad that night in that vicinity attired in an article of clothing so unsuited to a temperature of eighty-five to ninety degrees. He followed the elementary and highly reasonable course of attempting to interrogate the defendant by way of a brief threshold inquiry. ... He was rebuffed by obscene replies and outright refusals to answer.”
Consider this observation by the Supreme Judicial Court in Ballou, supra:
“We make no conclusion that there was probable cause to arrest before obtaining proof of secret possession of the revolver. The point we decide is that the two officers acted reasonably in the steps taken to avoid being shot down and to prevent a sudden breach in the community’s defences against crime. We do not depend upon judicial notice of a gang war. The*492 evidence admitted amply showed that [a police captain] knew of such a war. He further knew that he was looking for one who had achieved prominence in discussions in his own station house; who had gained notoriety in the State Police Journal and in State police circulars in connection with the recent wave of gangland killings; and who was an associate of [a police detective], a supposed participant in that war. He [the police captain] realized that both men had reputations for carrying guns, and was aware of the defendant’s conviction and sentence for gun carrying. Reference to the conviction viewed in perspective with the captain’s other information — in itself quite adequate to put an intelligent police officer on his guard — is not a classification of the defendant as an inferior grade of citizen, but it is the contribution of an additional fact of importance entering into the formation of a common sense judgment.”
In Dottin, supra, the Supreme Judicial Court made this observation:
“Upon the information the police officer had and what he observed there was ample basis for his stopping the cab. His official information acquired from his superiors at frequent roll call formations was that the Roxbury District was plagued by housebreaks and that the practice was to carry away the loot in cabs. This was not something for him to reject as hearsay. He saw the television set on the front seat, and one of the three men in back was well known to him as a housebreaker. Stopping the cab was the only proper course for him to take in discharge of his duty to protect the area to which he was assigned. . . . After the cab was stopped, the reasonable course was to identify the men whose general attitude was uncooperative. They united in an incredible reply as to ownership of the television set. It was reasonable to order them out of the cab. Since they were placing their hands in their pockets, the officer did not have to await the production of a gun to ascertain whether they were armed.”
In Wilson, supra, we explained that the police were justified in detaining the passenger in a vehicle that was validly stopped for a traffic violation because
“[t]he following facts were known by the police officers: (1) they were in a high crime area (2) at 3:30 a.m.; (3) a speeding car which they had stopped halted in the middle of the intersection and the driver and passenger side doors both opened; (4) the defendant, a passenger, ‘suddenly bolted from the car, [5] while holding his chest as if concealing something, ... [6] while looking around furtively.’ ”
In Anderson, supra at 395-396, the court described the facts as follows:
*493 “The sole witness for the Commonwealth was Officer William H. Kennefick, Jr., of the Boston tactical patrol force. On August 24, 1972, while in uniform, he was on duty on a paid detail at the Greyhound bus terminal in Boston, and about 12:20 a.m., having been summoned to the dispatcher’s booth, was handed a page from a newspaper called the ‘Good News of Jesus,’ published in New Jersey. Written on the newspaper was the message, ‘New York to Boston. Please get the Boston Police. Bus terminal Boston Greyhound. 1 Man Armed & Dangerous. Black. Blue hat. Brown Paper Bag. Important! has Narcotics. This is No Joke.’ The message was unsigned. The officer was told by the dispatcher that a bus driver had just handed it to him, the bus driver stating that he had been given the paper as he went through a toll booth on the road from New York to Boston. The toll booth operator had told the bus driver that the newspaper had been thrown into the toll booth shortly before by someone in a New York to Boston bus. The bus driver also told the dispatcher that he had passed the other New York to Boston bus and arrived at the terminal a brief period ahead of it. Soon after the dispatcher conveyed this information to Officer Kennefick a New York to Boston bus arrived at the terminal, and the first man to alight from the bus was the defendant, who was black, wore a blue hat, a T-shirt and dungarees, and carried a brown paper bag somewhat larger than an ordinary lunch bag. The officer indicated to two other uniformed police officers who had entered the terminal that he had a suspect and that they should cut off the street exit of the terminal. The defendant noticed Kennefick and walked briskly toward the interior of the terminal, looking back on certain occasions at Kennefick who was behind him at a distance of four to five feet. The defendant progressed approximately fifty to seventy-five feet across the terminal lobby to the exit door, at which point the other two officers entered through the doors. The defendant hesitated and then made a ‘gesture’ as if attempting to get rid of the bag in his hand. Officer Kennefick grabbed his wrist and shoved him against the wall, whereupon the bag fell to the floor. The other two officers also reached the defendant and began a pat-down. While the pat-down was proceeding, Kennefick, keeping his eyes on the defendant and holding his hand, groped for the bag which he accidentally picked up by the wrong end, with the result that the contents spilled on the floor. The contents consisted of three balls partially covered in aluminum foil and partially in cellophane. Through the cellophane Officer Kennefick could see numerous small envelopes containing white powder.”
For purposes of this analysis, I assume that the defendant was not seized until the second officer told him to stop as the defendant was running up the hill. See Commonwealth v. Rock,
See Illinois v. Wardlow,
Consider Officer Anjos’s candid admission at the suppression hearing. When asked about his intentions in approaching these two black males, he testified, “I was going [to] figure out who they were and where they were coming from and possibly do” a field interrogation observation (FIO).
In October, 2014, the Boston police commissioner released the results of a
“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 FlO’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/bostonpolice-commissioner-announces-field-interrogation-and-observation-fio-studyresults [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_ffisk_summary.pdf [http://perma. cc/7 APK-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 Fed.R.Evid. 201.
Dissenting Opinion
(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.,
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.
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As Justice Agnes explains, even if the individuals were walking, they could have gone two miles in that time, in any direction. Ante at 488-489 (Agnes, J., dissenting). The area of the circle described by this two-mile radius (area = it x radius
Staples, Young, Black, Male, and Stalked by Bias, N.Y. Times, Apr. 14, 2012, at SR10.
Chasmar, Smithsonian Director Wants Trayvon Martin’s Hoodie, Washington Times, July 31, 2013, available at http://www.washingtontimes.com/news /2013/jul/31/smithsonian-director-wants-trayvon-martins-hoodie/ [http://perma.cc /F35B-VPL9].