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SJC-12808
COMMONWEALTH vs. TYKORIE EVELYN.
Suffolk. January 7, 2020. - September 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.1
Threshold Police Inquiry. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court Department on March 20, 2017.
A pretrial motion to suppress evidence was heard by Michael D. Ricciuti, J.
An application for leave to prosecute an interlocutory appeal was allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
K. Hayne Barnwell (Janice Bassil also present) for the defendant.
1 Chief Justice Gants participated in the deliberation on this case prior to his death. 2
Cailin M. Campbell, Assistant District Attorney (David S. Bradley, Assistant District Attorney, also present) for the Commonwealth. The following submitted briefs for amici curiae: Katherine E. Burdick for Juvenile Law Center & others. Jin Hee Lee & Ashok Chandran, of New York, & Katharine Naples-Mitchell for Charles Hamilton Houston Institute for Race and Justice & another. Anthony Mirenda, Neil Austin, Rachel C. Hutchinson, & Ned Melanson for Massachusetts Association of Criminal Defense Lawyers & others.
GAZIANO, J. Thirteen minutes after a shooting, and one
half-mile away, two police officers encountered the defendant
walking on the sidewalk. They drove slowly alongside him for
approximately one hundred yards, while he repeatedly rebuffed
their attempts to speak with him. When one of the officers
started to get out of the cruiser, the defendant sprinted away.
The officers gave chase, stopped the defendant, and arrested
him. They found a firearm lying on the ground along the route
on which he had run. The defendant subsequently was indicted on
charges including murder in the first degree.
In a motion to suppress, the defendant argued that the
officers stopped him without reasonable suspicion at the moment
that one of the officers opened the door of the cruiser, and
that all of the evidence subsequently obtained as a result of
the stop must be suppressed. The defendant, who is Black, was
seventeen years at the time of the stop. He argued, as he does
before this court, that his race and age should form part of the 3
totality of the circumstances relevant to a determination of
when he was seized. The defendant contends that juveniles are
more susceptible to police coercion, and therefore will be
seized in circumstances where adults would not. He also
maintains that, based on the history and present reality of
policing and race, police communications directed at African-
Americans will have greater coercive power than those directed
at people of other races.
After his motion to suppress was denied, the defendant
sought leave in the county court to pursue an interlocutory
appeal. His petition was allowed, and his appeal was ordered to
proceed in the Appeals Court; we then transferred the matter to
this court on our own motion.
We conclude that the defendant indeed was seized when,
after having trailed him for one hundred yards in a police
cruiser and repeatedly having tried to converse with him, the
officer in the front passenger's seat opened the door of the
cruiser. On the record here, however, the judge did not abuse
his discretion in relying on the officers' testimony about their
experience with firearms, and in concluding that, in the
circumstances, they had a reasonable, articulable suspicion of
criminal activity. Accordingly, we affirm the denial of the
motion to suppress. Going forward, however, the age of a
juvenile suspect, if known to the officer or if objectively 4
apparent to a reasonable officer, will be part of the totality
of the circumstances relevant to whether the juvenile was seized
under art. 14 of the Massachusetts Declaration of Rights.
With respect to the defendant's arguments on race, we have
examined the continued relevance of our reasoning in
Commonwealth v. Warren, 475 Mass. 530, 540 (2016), on the
question of reasonable suspicion. In that case, we concluded
that an innocent African-American man in an urban area might
flee from police for fear of racial profiling, and therefore the
weight of the inference properly given to flight should be less
when the individual is African-American. See id. We conclude
that this reasoning remains pertinent to the reasonable
suspicion analysis, and should be extended to other types of
nervous or evasive behavior in addition to flight.2
Background. We summarize the facts as found by the motion
judge. See Commonwealth v. Phifer, 463 Mass. 790, 791 (2012).
Both of the arresting officers testified at the hearing on
the motion to suppress. At the time of the hearing, Officer
2 We acknowledge the amicus briefs of the Juvenile Law Center, Professor Kristin Henning, and the youth advocacy division of the Committee for Public Counsel Services; the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School and the NAACP Legal Defense and Educational Fund, Inc.; and the Massachusetts Association of Criminal Defense Lawyers, the American Civil Liberties Union of Massachusetts, the New England Innocence Project, and the Public Defender and Private Counsel Divisions of the Committee for Public Counsel Services. 5
Joseph Abasciano had been a Boston police officer for eleven
years, with gaps in service of several years due to military
deployment and an injury. He had been trained regarding the use
of firearms and the identification of concealed firearms by the
Boston police department and the United States Marine Corps.
Prior to the night of the shooting, he had participated in
multiple arrests of suspects in possession of firearms.3
At the time of the hearing, Officer Brian Garney had been
an officer for three years. He had been working patrol for
about several months before the night of the shooting. At that
point, he had never made an arrest, but had assisted with a few.
He had been trained to identify concealed firearms, in part
through a presentation at the police academy entitled
"Characteristic of Armed Gunman Overview."
On the evening of January 9, 2017, Abasciano and Garney
were on patrol in their marked cruiser; Abasciano was driving.
At about 7:27 P.M., they received a notification from
"ShotSpotter," a system that identifies firearm discharges by
3 The defendant argues that the judge's finding concerning the number of arrests was clearly erroneous. He notes that, in response to a court order directing the Boston police department to produce all firearm-related incident reports involving Officer Joseph Abasciano from 2007 to 2011, the department produced only two reports. Nonetheless, the judge's finding that Abasciano had made at least ten arrests was supported by Abasciano's testimony, and therefore was not clearly erroneous. See Commonwealth v. Tremblay, 480 Mass. 645, 655 n.7 (2018). 6
sound and directs officers to the general location of the shots.
The notification indicated that shots had been fired near
Dearborn Street in the Roxbury section of Boston.
The officers also received a radio report that a person had
been shot and was severely injured, and that three people had
run from the area. No descriptions of the suspects were given.
Unbeknownst to the officers, the victim died shortly thereafter.
The report indicated that the men had run towards Adams Street,
heading southeast on Eustis Street. The officers, however,
mistakenly believed that the report stated that the suspects had
run away from Adams Street. Accordingly, the officers headed to
the northwest of the location of the shooting. Abasciano was
aware that there had been a rivalry between gangs based near
that location, and that one gang was based in the area to which
they were driving. Garney testified that they drove in that
direction because of ongoing, gang-related violence in the area.
The evening was cold, and the officers did not see any
pedestrians. When they reached the corner of Melnea Cass
Boulevard and Shawmut Avenue, thirteen minutes after the
shooting, they saw the defendant walking on Dewitt Drive, one
street away. He was approximately one-half mile from the
reported location of the shooting.
The officers drove up to the defendant and saw that he
appeared to be holding an object in his right jacket pocket that 7
was consistent with the size of a firearm. The officers could
see immediately that the defendant was African-American and was
younger than twenty-one years old. Abasciano called out, "Hey,
man, can I holler at you?" The defendant increased his pace and
responded, "For what?" Abasciano said that something had
happened in the area, and he wanted to know if the defendant had
seen or heard anything. The officers could not hear the
defendant's response, which Abasciano described as a mumble.
They drove slowly alongside the defendant for approximately one
hundred yards as he walked on the sidewalk. Throughout the
exchange, the defendant did not make eye contact with the
officers. At one point, he turned the right side of his body
away from them, thereby blocking them from being able to see his
right jacket pocket. To Abasciano the movement appeared
unnatural. The defendant began looking around in various
directions.
Garney got out of the cruiser, and the defendant began to
run away. The officers gave chase; Garney was on foot and
Abasciano remained in the cruiser. During the pursuit, the
officers noticed the defendant running awkwardly with his hands
in his pockets. Abasciano got out of the cruiser and saw the
defendant starting to take an object out of his right pocket.
Abasciano drew his weapon and ordered the defendant to stop, and
the defendant stopped shortly thereafter. The officers 8
recovered a firearm on the sidewalk where the defendant had been
running.
Dr. Dawn Sweet, a professor at a large university,
testified for the defense. Among other testimony, she described
a recent study she had conducted, which was introduced in
evidence, on visual detection of concealed weapons. See Sweet,
Meissner, & Atkinson, Assessing Law Enforcement Performance in
Behavior-Based Threat Detection Tasks Involving a Concealed
Weapon or Device, 41 Law and Human Behavior 411 (2017) (threat
study). In the threat study, participants, some of whom were
carrying concealed firearms, were videotaped as they walked into
a secure facility. Fifty-one police officers and fifty-six
college students watched the recordings and attempted to
identify which subjects were carrying firearms. Ultimately, the
police officers performed no better than did the college
students. Officers with more years of experience were more
likely than those with fewer to identify someone as carrying a
concealed firearm where no weapon was present.
Sweet also testified that studies have shown that police
officers are more likely to view African-Americans as threats,
something she described as implicit bias. She explained that
police interactions could be affected by stereotype threat, a
phenomenon in which a member of a particular group exhibits
certain behaviors out of concern that he or she will be 9
stereotyped negatively based on membership in that group. Sweet
explained that stereotype threat could cause an African-American
teenager to experience anxiety. In response to a hypothetical
question based on the facts known to the officers before they
began the chase, Sweet said that there was no scientific
literature that would support the conclusion that the defendant
had been carrying a firearm. The defendant also introduced an
additional six studies regarding implicit racial bias and
stereotype threat.
The judge credited the officers' testimony, and discounted
Sweet's testimony and the results reported in the six other
studies. The judge concluded that the officers seized the
defendant near the end of the chase, when Abasciano pointed his
weapon and ordered the defendant to stop; the judge determined
that the stop had been supported by reasonable suspicion.
Discussion. When reviewing a ruling on a motion to
suppress, we accept the motion judge's findings of fact absent
clear error. See Commonwealth v. Franklin, 456 Mass. 818, 820
(2010). In addition, the motion judge, who heard and saw the
witnesses, determines the weight and credibility of the
evidence. See Commonwealth v. Gomes, 453 Mass. 506, 509 (2009).
With respect to legal questions, however, we "conduct an
independent review of [the] ultimate findings and conclusions of 10
law." Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015),
quoting Commonwealth v. Ramos, 470 Mass. 740, 742 (2015).
1. Seizure. The defendant argues that he was seized when
the officer opened the door of the cruiser, that his age and
race are two of the objective circumstances that should have
been considered in the seizure analysis, and that the judge
erred by not taking them into account.
Under the Fourth Amendment to the United States
Constitution, a person is seized "only if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he [or she] was not free to leave."
Michigan v. Chesternut, 486 U.S. 567, 573 (1988), quoting United
States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J.). See California v. Hodari D., 499 U.S. 621, 626
(1991) (seizure occurs only where officer applies physical force
or suspect submits to show of authority). Under art. 14, a
seizure occurs when an officer, "through words or conduct,
objectively communicate[s] that the officer would use his or her
police power to coerce [an individual] to stay." Commonwealth
v. Matta, 483 Mass. 357, 362 (2019), citing Commonwealth v.
Barros, 435 Mass. 171, 175-176 (2001). We interpret the
officer's actions based on the totality of the circumstances
surrounding the encounter. See Matta, supra. 11
To decide whether there was error in the judge's decision
to deny the motion to suppress, we first must determine the
moment of seizure. See Commonwealth v. Narcisse, 457 Mass. 1, 5
(2010). "[Article] 14 provides more substantive protection than
does the Fourth Amendment in defining the moment" of seizure.
Commonwealth v. Lyles, 453 Mass. 811, 812 n.1 (2009), citing
Commonwealth v. Stoute, 422 Mass. 782, 786-789 (1996).
Accordingly, we analyze the seizure under "the more stringent
standards of art. 14 with the understanding that, if these
standards are satisfied, then so too are those of the Fourth
Amendment." See Lyles, supra, citing Commonwealth v. Williams,
422 Mass. 111, 115 n.9 (1996).
a. Age. In J.D.B. v. North Carolina, 564 U.S. 261, 271-
276 (2011), the United States Supreme Court addressed whether
age is relevant to the custody inquiry under Miranda v. Arizona,
384 U.S. 436, 444 (1966) (requiring warnings prior to custodial
interrogation). Custody exists when "a reasonable person in the
suspect's shoes would experience the environment in which the
interrogation took place as coercive." Commonwealth v. Larkin,
429 Mass. 426, 432 (1999). See Commonwealth v. Sneed, 440 Mass.
216, 220 (2003) (setting forth certain "indicia of custody").
The Court in J.D.B., supra, was forced to reconcile two
potentially conflicting considerations. On the one hand, the
Court recognized the evident fact that "[i]n some circumstances, 12
a child's age would have affected how a reasonable person in the
suspect's position would perceive his or her freedom to leave"
(quotations and citation omitted). Id. at 271-272. But, on the
other hand, the Court was wary of undermining the objectivity of
the inquiry, which "avoids burdening police with the task of
anticipating the idiosyncrasies of every individual
suspect . . . ." See id. at 271, citing Berkemer v. McCarty,
468 U.S. 420, 430-431 (1984).
Ultimately, the Court determined that the effects of youth
on cognition are not entirely individualistic. See J.D.B., 564
U.S. at 272. See also Miller v. Alabama, 567 U.S. 460, 472-473
(2012); Commonwealth v. A Juvenile, 389 Mass. 128, 131-132
(1983). Rather, age is "a fact that 'generates commonsense
conclusions about behavior and perception.'" J.D.B., supra,
quoting Yarborough v. Alvarado, 541 U.S. 652, 674 (2004)
(Breyer, J., dissenting). Because those conclusions are widely
and easily understood, "so long as the child's age was known to
the officer at the time of police questioning, or would have
been objectively apparent to a reasonable officer, its inclusion
in the custody analysis is consistent with the objective nature
of that test." See J.D.B., supra at 277.
The defendant argues that the Court's reasoning in J.D.B.,
564 U.S. at 271-272, applies equally to the seizure analysis.
See 4 W.R. LaFave, Search and Seizure § 9.4(a) (5th ed. 2012 & 13
Supp. 2020) (predicting application of reasoning in J.D.B.,
supra, to seizure). See also United States v. Ricardo D., 912
F.2d 337, 342 & n.2 (9th Cir. 1990), citing Dunaway v. New York,
442 U.S. 200, 215 & n.17 (1979) ("Over a decade ago, the Supreme
Court suggested that a suspect's age may be considered in
determining whether a seizure constitutes an arrest"); In re
J.G., 228 Cal. App. 4th 402, 410-411 (2014) ("extending the
holding [of J.D.B., supra,] to search and seizure cases would
not be much of a stretch").
The custody and seizure inquiries, however, are not
identical. First, the custody inquiry under Miranda primarily
protects the right against self-incrimination and the right to
counsel under the Fifth and Sixth Amendments to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights. See Commonwealth v. Martin, 444 Mass. 213, 214-215
(2005), citing Commonwealth v. Snyder, 413 Mass. 521, 531
(1992). The seizure inquiry, by contrast, protects the right to
be free from unreasonable seizures under the Fourth Amendment
and art. 14. See Gomes, 453 Mass. at 509-510. To safeguard
these distinct rights, the inquiries consider somewhat different
questions. Compare Commonwealth v. Groome, 435 Mass. 201, 211
(2001) (custody is established "if the defendant reasonably
believed that he [or she] was not free to leave" [citation
omitted]) with Matta, 483 Mass. at 362 (seizure occurs when 14
officer "objectively communicate[s] that the officer would
use . . . police power to coerce [a suspect] to stay").
Despite their differences, the two inquiries also are much
the same. At their cores, both inquiries attempt to ascertain
whether, considering the totality of the circumstances, an
individual has been compelled to interact with the police. See
Matta, 483 Mass. at 362; Groome, 435 Mass. at 211. Under both
doctrines, the scope of review is limited to the objective
circumstances of the encounter. See Matta, supra (test to
determine whether someone is seized "is whether an officer has,
through words or conduct, objectively communicated that the
officer would use his or her police power to coerce th[e] person
to stay"); Commonwealth v. Morse, 427 Mass. 117, 124 (1998),
quoting Stansbury v. California, 511 U.S. 318, 323 (1994)
("determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person
being questioned").
In each context, the naiveté, immaturity, and vulnerability
of a child will imbue the objective communications of a police
officer with greater coercive power. See J.D.B., 564 U.S.
at 271-272. Pretending otherwise would diminish a juvenile's
right to be free from unwanted police interactions. See Barros,
435 Mass. at 178. The consideration of age will not undermine 15
the objective nature of the inquiry, because many of the effects
of youth "apply broadly to children as a class" and "are self-
evident to anyone who was [once] a child . . . ." J.D.B., 564
U.S. at 272. We therefore conclude that a child's age, when
known to the officer or objectively apparent to a reasonable
officer, is relevant to the question of seizure under art. 14.
The question will be whether the officer objectively
communicated to a person of the juvenile's apparent age that the
officer would use his or her police power to coerce the juvenile
to stay.4
Of course, the exact contours of this inquiry are not yet
known. As in any part of our art. 14 jurisprudence, a new rule
4 Numerous courts in other jurisdictions similarly have held that the age of a juvenile suspect should be considered in the objective seizure determination. See, e.g., Halley v. Huckaby, 902 F.3d 1136, 1145 (10th Cir. 2018), cert. denied, 139 S. Ct. 1347 (2019); In re Appeal in Maricopa County, 186 Ariz. 213, 217 (1996); Hunt ex rel. DeSombre v. State, Dep't of Safety & Homeland Sec., Div. of Del. State Police, 69 A.3d 360, 366 (Del. 2013); J.N. v. State, 778 So. 2d 440, 442 (Fla. Dist. Ct. App. 2001); People v. Lopez, 229 Ill. 2d 322, 353 (2008); In re I.R.T., 184 N.C. App. 579, 584 (2007). Other courts have concluded that the age of a juvenile may be relevant to the seizure inquiry. See, e.g., Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003), as amended on denial of reh'g (May 15, 2003); United States v. Ricardo D., 912 F.2d 337, 342 & n.2 (9th Cir. 1990), citing Dunaway v. New York, 442 U.S. 200, 215 & n.17 (1979); Phillips v. County of Orange, 894 F. Supp. 2d 345, 363 (S.D.N.Y. 2012). Other courts have noted that characteristics such as youth should be included in the seizure analysis only where they would be known or apparent to the officer, but have not decided whether youth or any other of these characteristics should be included in the seizure analysis. See, e.g., In re J.M., 619 A.2d 497, 501 n.5 (D.C. App. 1992). 16
inevitably invites questions of application that cannot be
answered in the first instance. See Commonwealth v. Eddington,
459 Mass. 102, 109 n.12 (2011) ("touchstone of
reasonableness . . . necessitates a case-by-case analysis").
Here, there is insufficient evidence that the officers knew
or should have known, prior to his arrest, that the defendant
was below the age of eighteen. The defendant was seventeen
years old and six feet tall. He was wearing a hat and jacket,
and the area was dark. The police report stated that the
officers did not ask the defendant if he had a license to carry
a firearm because they could tell after approaching him that he
was under twenty-one years of age. But that alone is
insufficient to trigger an inference that the officers should
have known that he was under the age of eighteen. Therefore, we
do not consider his age in our analysis.
b. Race. The defendant also argues that the fact that he
is African-American should inform our seizure analysis. In
Warren, 475 Mass. at 539, we discussed a report from the Boston
police department indicating that African-American men were
targeted disproportionately for stops, frisks, and searches in
the years 2007 to 2010.5 The Boston police department
5 See Commonwealth v. Warren, 475 Mass. at 539, discussing Boston Police Department, Boston Police Commissioner Announces Field Interrogation and Observation Study Results, 17
subsequently has released two similar reports.6 Although the
total number of field interrogation and observation (FIO)
encounters has fallen, African-Americans continue to be targeted
disproportionately in such encounters.7
In Warren, 475 Mass. at 539, we examined FIO data in the
context of reasonable suspicion, as we do in this case, infra.
The defendant argues that these reports also are relevant to the
seizure analysis. He contends that the documented pattern of
http://bpdnews.com/news/2014/10/8/boston-police-commissioner- announces-field-interrogation-and-observation-fio-study-results [https://perma.cc/H9RJ-RHNB].
6 One report analyzed field interrogation and observation (FIO) encounters from 2011 to April 2015. See Boston Police Department, Boston Police Department Releases Latest Field Interrogation Observation Data (May 23, 2015), https://bpdnews.com/news/2017/5/23/boston-police-department- releases-latest-field-interrogation-observation-data [https://perma.cc/6Z79-VRKM] (2017 Report). The other report analyzed information from June 2015 through June 2016. See Boston Police Department, Commissioner Evans Continues Efforts to Increase Transparency and Accountability of Policing Activities to the Public (Jan. 8, 2016), https://bpdnews.com /news/2016/1/7/commissioner-evans-continues-efforts-to-increase- transparency-and-accountability-of-policing-activities-to-the- public [https://perma.cc/4RDS-EWTH] (2016 Report).
7 In the earlier data, 63.3 percent of FIO subjects were African-American. See Warren, 475 Mass. at 539 n.15. From 2011 to April 2015, 58.5 per cent were African-American. See 2016 Report. From June 2015 through 2016, 63.6 per cent were African-American. See 2017 Report. In the most recent report, the Boston police department separated race and ethnicity, which previously had been combined in the same category, into different categories. See 2017 Report. In order to make appropriate comparisons with the report cited in Warren, supra, we reference the statistics given for the earlier classification scheme that combined race and ethnicity in one category. 18
disproportionate FIO stops of African-Americans by Boston police
injects an element of coercion into police encounters with
African-American individuals that is not present in other police
interactions.
We agree that the troubling past and present of policing
and race are likely to inform how African-Americans and members
of other racial minorities interpret police encounters. See
generally Commonwealth v. Buckley, 478 Mass. 861, 871 (2018)
(noting "enormity . . . of the problem of racial profiling");
Commonwealth v. Lora, 451 Mass. 425, 444-445 (2008), quoting
Commonwealth v. Feyenord, 445 Mass. 72, 88 (2005), cert. denied,
546 U.S. 1187 (2006) (Greaney, J., concurring) (discussing
"humiliating, painful, and unlawful" nature of some police
encounters with African-American and Hispanic individuals);
Commonwealth v. Gonsalves, 429 Mass. 658, 670 (1999) (Ireland,
J., concurring) (recognizing "widespread public concerns" about
racial profiling by police). African-Americans, particularly
males, may believe that they have been seized in situations
where other members of society would not. See Maclin, "Black
and Blue Encounters" -- Some Preliminary Thoughts About Fourth
Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev.
243, 255 (1991) ("Black males learn at an early age that
confrontations with the police should be avoided; [B]lack 19
teenagers are advised never to challenge a police officer, even
when the officer is wrong").
Notwithstanding these serious concerns, in determining
whether an individual had been seized, the analysis "must arise
from the actions of the police officer[,]" and not from the
individual's state of mind. See Matta, 483 Mass. at 363. See
also Chesternut, 486 U.S. at 574 ("'reasonable person'
standard . . . ensures that the scope of Fourth Amendment
protection does not vary with the state of mind of the
particular individual"). We maintain an objective standard so
that officers can "determine in advance whether the conduct
contemplated will implicate the Fourth Amendment" or art. 14
(citation omitted). See id.
Few courts have yet to reach the issue of race in the
seizure analysis. Among the few to have done so, the United
States Courts of Appeals for the Ninth and Tenth Circuits have
come to different conclusions about whether to include race in
that analysis.
The United States Court of Appeals for the Ninth Circuit
has included race in the seizure analysis. In United States v.
Washington, 490 F.3d 765, 768-769 (9th Cir. 2007), the court
concluded that recent well-publicized incidents in which police
officers shot African-American citizens passed the requisite 20
threshold of objectivity and therefore were relevant to whether
an African-American man had been seized.
Courts in some other jurisdictions have stated that race is
relevant to seizure, but have not undertaken a race-based
analysis; in the circumstances of the cases confronting them,
they have held that seizures occurred without considering race.
See United States v. Smith, 794 F.3d 681, 687-688 (7th Cir.
2015) (noting "relevance of race in everyday police encounters,"
as well as "empirical data demonstrating the existence of racial
profiling, police brutality, and other racial disparities in the
criminal justice system"); State v. Jones, N.H Supreme Court,
No. 2019-0057 at 6-7 (January 10, 2020) ("race is an appropriate
circumstance to consider in . . . seizure analysis" [citation
omitted]).
Conversely, the United States Court of Appeals for the
Tenth Circuit has determined that experiences with, and
attitudes towards, police are not universal across racial
groups, and therefore are not objective. See United States v.
Easley, 911 F.3d 1074, 1081-1082 (10th Cir. 2018), cert. denied,
139 S. Ct. 1644 (2019) (declining to consider race in seizure
analysis); United States v. Little, 18 F.3d 1499, 1505 & n.7
(10th Cir. 1994) (rejecting race as "general across-the-board
categorization[]" in seizure analysis). As the Tenth Circuit
explained in Easley, supra at 1082, 21
"Requiring officers to determine how an individual's race affects her reaction to a police request would seriously complicate Fourth Amendment seizure law. As the government notes, there is no easily discernable principle to guide consideration of race in the reasonable person analysis. . . . There is no uniform life experience for persons of color, and there are surely divergent attitudes toward law enforcement officers among members of the population. Thus, there is no uniform way to apply a reasonable person test that adequately accounts for racial differences consistent with an objective standard for Fourth Amendment seizures. This distinguishes race from the Supreme Court's consideration of age in the reasonable person analysis in J.D.B. v. North Carolina, 564 U.S. 261 [(2011)]."
As discussed infra, we agree with the defendant in this
case, based on factors other than race, that he was seized when
Garney opened the cruiser door. We therefore attempt to focus
attention on the issue of race, while not establishing bright-
line rules that potentially could do more harm than good.
Accordingly, we do not decide here whether the race of a
defendant properly informs the seizure inquiry. See
Commonwealth v. AdonSoto, 475 Mass. 497, 506 (2016), quoting
Commonwealth v. Raposo, 453 Mass. 739, 743 (2009) ("We do not
decide constitutional questions unless they must necessarily be
reached"); Commonwealth v. Kulesa, 455 Mass. 447, 457 n.9
(2009), quoting Commonwealth v. Paasche, 391 Mass. 18, 21 (1984)
(same).
c. Application. An officer generally does not objectively
communicate that he or she would coerce an individual to stay
merely by asking questions. See Franklin, 456 Mass. at 820. 22
Thus, the officers here did not seize the defendant when they
asked to talk with him, or when they explained that they wanted
to know if he had seen or heard anything. See Matta, 483 Mass.
at 364 (no seizure where officer said "Hey, come here for a
second"); Barros, 435 Mass. at 172 ("Hey you . . . I want to
speak with you" was not seizure); Commonwealth v. Rock, 429
Mass. 609, 611 (1999) (no seizure where officer stepped out of
vehicle, identified himself, and asked, "[C]an I talk to you for
a second?"); Stoute, 422 Mass. at 789 (request that suspect
"hold up a minute" was not seizure).
The defendant's reaction to the officers, however, altered
the nature of the encounter. In response to the request to
talk, the defendant said, "For what?" He walked quickly away,
and increased his speed as the interaction lengthened. During
his second, mumbled response, he began to look in various other
These actions communicated a desire to terminate the
interaction, but the officers continued to follow their
reluctant interlocutor for one hundred yards. Their persistence
came to a head when Garney opened the cruiser door, making clear
that the officers were going to converse with the defendant
notwithstanding his evident wishes to the contrary. We agree
with the defendant that, at that moment, he was seized. See
Barros, 435 Mass. at 175-176 (seizure occurred where officer 23
"le[ft] his cruiser and walk[ed] up to [defendant] after being
rebuffed" and said, "Hey you. I wanna talk to you. Come
here"); Commonwealth v. Evans, 87 Mass. App. Ct. 687, 691-692
(2015) (although initial questioning from cruiser was not
seizure, officer effected seizure by getting out of vehicle and
continuing to question defendant).
2. Reasonable suspicion. For an investigatory stop to
have been constitutional under art. 14, police officers must
have had "reasonable suspicion, based on specific and
articulable facts, that the defendant had committed, was
committing, or was about to commit a crime." See Commonwealth
v. Depina, 456 Mass. 238, 242 (2010). See also Terry v. Ohio,
392 U.S. 1, 21 (1968).
The defendant maintains that the officers did not have
reasonable suspicion to justify the stop, and that the judge
erred in relying upon police testimony regarding the
characteristics of an individual carrying a concealed firearm.
The Commonwealth argues that even if we place the moment of
seizure at the beginning of the chase, as we do, the officers at
that point had reasonable, articulable suspicion that the
defendant had committed a crime. The Commonwealth points to the
following factors to support this conclusion: the proximity of
the stop to a shooting, evidence that the defendant was carrying
a firearm, and the defendant's nervous and evasive behavior. 24
The judge also found the "high crime" nature of the area to be
probative. We agree that there was reasonable suspicion, but
for somewhat different reasons, primarily based on the proximity
to a recent shooting and the indications that the defendant was
carrying a firearm.
a. Proximity to a shooting. We consistently have held
that geographic and temporal proximity to a recent crime weigh
towards reasonable suspicion in the over-all analysis. See
Depina, 456 Mass. at 246; Commonwealth v. Riggins, 366 Mass. 81,
87 (1974) (reasonable suspicion was bolstered by fact that time
and location of encounter "was consistent with the time
necessary to travel there from the scene of the robbery").
Here, the officers encountered the defendant thirteen minutes
after the shooting, one-half mile distant from it. It was a
cold night, and the officers had not seen any other pedestrians
on the nearby streets. The defendant was walking away from the
location of the shooting, with his hands in the pockets of his
jacket. The time and location was consistent with the theory
that he had been present at the shooting and had walked to
Dewitt Drive in the intervening minutes. These facts track
closely with those in Depina, supra, where the defendant was
found three blocks from the shooting, ten minutes after it had
occurred. Therefore, his proximity to the crime supported
reasonable suspicion. Contrast Warren, 475 Mass. at 536 (no 25
reasonable suspicion where defendant was stopped twenty-five
minutes after crime, one mile away).
Additionally, the crime being investigated here was a
shooting that had left the victim in critical condition. These
circumstances indicated a potential ongoing risk to public
safety, and therefore weighed in favor of reasonable suspicion.
See Depina, 456 Mass. at 247 ("gravity of the crime" supported
reasonable suspicion); Commonwealth v. Hilaire, 92 Mass. App.
Ct. 784, 791 (2018), quoting Commonwealth v. Meneus, 476 Mass.
231, 239 (2017) (reasonable suspicion was supported by "fact
that the crime under investigation was a shooting, with
implications for public safety"); Commonwealth v. Doocey, 56
Mass. App. Ct. 550, 557 (2002) ("in circumstances where [a] gun
presents an imminent threat because of shots just fired, or
likely to be fired, . . . there is an edge added to the
[reasonable suspicion] calculus"). But see Meneus, supra ("we
have not gone so far as to carve out a public safety
exception").
In sum, although the defendant's proximity to a recent
shooting was not sufficient alone to establish reasonable
suspicion, it provided significant support.
b. Evidence of a firearm. The officers testified to
several observations that indicated that the defendant might
have been carrying a firearm. Before discussing the probative 26
value of that testimony, we address the defendant's evidentiary
challenges.
After filing his motion to suppress, the defendant sought a
Daubert-Lanigan hearing to exclude from the hearing on the
motion all testimony concerning the officers' training and
experience in recognizing individuals who are carrying concealed
firearms. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994). In
support of his motion, the defendant offered testimony by Sweet
regarding the scientific literature, and the absence thereof, on
the detection of concealed firearms. The Commonwealth, in turn,
moved to exclude Sweet's testimony as not meeting the standards
set forth in Daubert and Lanigan. The judge denied both
motions, and allowed both the officers' testimony and Sweet's
testimony to be introduced. Ultimately, the judge's decision
relied significantly on testimony by the officers, and largely
discredited Sweet's opinion testimony. We review the judge's
decisions on the introduction or exclusion of evidence for abuse
of discretion. See Canavan's Case, 432 Mass. 304, 311 (2000).
See also United States v. Bunnell, 280 F.3d 46, 49 (1st Cir.
2002) (reviewing admission of testimony at suppression hearing
for abuse of discretion). 27
The defendant argues that the officers' testimony based on
their training and experience in identifying concealed weapons
was inadmissible expert testimony under Daubert and Lanigan.
"[T]he rules of evidence normally applicable in criminal
trials do not operate with full force at hearings before the
judge to determine the admissibility of evidence." United
States v. Matlock, 415 U.S. 164, 172-173 (1974). See Mass. G.
Evid. § 1101(d) (2020). When deciding a question of
admissibility at a hearing on a motion to suppress, "the court
is not bound by the law of evidence, except that on privilege."
Mass. G. Evid. § 104(a) (2020).8 See Bourjaily v. United States,
483 U.S. 171, 178 (1987) (Federal rules of evidence "allow[] the
trial judge [in suppression hearings] to consider any evidence
whatsoever, bound only by the rules of privilege"); Bunnell, 280
F.3d at 49, citing United States v. Schaefer, 87 F.3d 562, 570
(1st Cir. 1996) (same). This policy is based on the view that a
"judge is much less likely than a lay jury to be intimidated by
claims of scientific validity into assigning an inappropriate
evidentiary value to [particular] evidence" (citation omitted).
8 The Reporter's Note, however, arguably is inconsistent with this statement; the note provides that, "[w]hile out-of- court statements are admissible as to the determination of probable cause or the justification of government action, other evidence that would be incompetent under the rules of evidence is not admissible at suppression hearings." See Mass. G. Evid. § 1101 note (2020). 28
United States v. Posado, 57 F.3d 428, 435 (5th Cir. 1995). At a
hearing on a motion to suppress, judges should "err on the side
of considering more, not less, information" and then determine
the credibility, reliability, and weight to be applied to that
evidence. See United States v. Stepp, 680 F.3d 651, 669 (6th
Cir. 2012) (Daubert requirements are inapplicable in suppression
hearing). Therefore, the judge did not err in allowing the
admission of the challenged evidence at the suppression hearing.
The defendant argues also that the judge erred by
dismissing Sweet's testimony regarding the threat study as
"unhelpful." The study reported that police officers were no
better than lay people at identifying concealed weapons in video
recordings. The judge, however, found the literature on threat
detection to be in its infancy. Indeed, Sweet herself testified
that the threat study, which was introduced in evidence, was the
only study of its kind. The study involved 107 people who each
watched eight video recordings and attempted to identify whether
the individuals in the recordings were carrying firearms. In
addition to the limitations inherent in relying upon only a
single study involving a small number of individuals, the study
itself noted several limitations in its design, including the
lack of physiological stress on the part of those carrying the
firearms, and a failure "to consider several environmental,
contextual, and personal factors that could influence judgments 29
of concealment." See Sweet, 41 Law and Human Behavior at 419.
Moreover, the officers in the study had not been trained in the
detection of concealed firearms. Thus, the judge did not abuse
his discretion by giving little weight to the study.
The judge also decided that the six studies on implicit
bias and stereotype threat were of little assistance because
they were not authored by Sweet, and because they were not
sufficiently related to her research. This decision was not an
abuse of discretion. See Gomes, 453 Mass. at 509 (motion judge
decides weight and credibility).
Finally, the defendant contends that the officers'
testimony, even if properly admitted, was unreliable and
therefore should not have factored in the judge's decision.
Both officers explained their length of service, and their
training and experience with detecting individuals carrying
concealed firearms. See Commonwealth v. Kennedy, 426 Mass. 703,
706 (1998) ("We prefer more extended testimony on an officer's
'inferential process'" [citation omitted]). They then provided
specific and articulable observations, noted infra, that the
defendant's behavior was consistent with that of individuals
carrying concealed firearms. The judge did not abuse his
discretion in relying upon the officers' testimony. See Matta,
483 Mass. at 366 n.8 ("when an officer relies on his or her
training and experience to draw an inference or conclusion about 30
an observation made, the officer must explain the specific
training and experience that he or she relied on and how that
correlates to the observations made").
In challenging the judge's reliance on the officers'
testimony, the defendant points to Sweet's testimony that there
is no scientific literature to support an inference, based on
the facts known to the officers when they were driving beside
him, that the defendant was carrying a firearm. Accordingly,
the defendant argues that the officers' testimony was
unreliable. The judge, however, did not find Sweet's testimony
credible and reliable. Even if he had, Sweet's testimony would
not have shown affirmatively that the officers' testimony was
false; rather, she testified that there was no scientific
literature to support it.
With respect to the evidence available to the officers, the
following evidence that the defendant was carrying a firearm
weighs towards reasonable suspicion. The officers observed that
the defendant was holding in his pocket an object that was
consistent with the size of a firearm. See Rock, 429 Mass.
at 612 ("officers saw a pronounced bulge protruding under the
defendant's shirt"). The defendant kept his hands pressed
against his body, which, based on the officers' training and
experience, indicated that he might be trying to conceal a
weapon. See Commonwealth v. Resende, 474 Mass. 455, 461 (2016) 31
(officer "observed the defendant holding his hand at his waist
in a manner that [officer] believed from his training and
experience was consistent with someone holding a gun"). The
defendant proceeded to turn his body away from the officers in a
manner that blocked them from seeing the object. See Resende,
supra at 461; Commonwealth v. DePeiza, 449 Mass. 367, 371
(2007); Rock, 429 Mass. at 612.
c. Nervous and evasive behavior. The Commonwealth argues
that the defendant behaved nervously and evasively, thereby
contributing to reasonable suspicion. Specifically, the
defendant did not make eye contact with the police throughout
the interaction. He walked quickly, speeding up as the police
continued to follow him, and he started looking in various
directions, which indicated to the officers that he might
attempt to flee.
In Warren, 475 Mass. at 539, we noted a "pattern of racial
profiling" documented in the FIO reports from the Boston Police
Department. Based on this pattern, we concluded that the flight
of an African-American man from police "is not necessarily
probative of . . . consciousness of guilt." Id. at 540. As
discussed, supra, this pattern of racial profiling has been
confirmed by more recent FIO reports. Even if this blight were
eradicated today, a long history of race-based policing likely
will remain imprinted on the group and individual consciousness 32
of African-Americans for the foreseeable future. See
Commonwealth v. Phillips, 413 Mass. 50, 53 (1992) (describing
how informal policy of Boston police created "martial law" for
some young African-Americans). See also Terry, 392 U.S. at 14
n.11 ("field interrogations are a major source of friction
between the police and minority groups" [citation omitted]);
Henning, The Reasonable Black Child: Race, Adolescence, and the
Fourth Amendment, 67 Am. U. L. Rev. 1513, 1531 (2018) ("many
[B]lack youth . . . transfer negative attitudes and resentments
about the police from one generation to the next as youth
internalize the negative experiences of their community").
Thus, the reasoning of Warren remains relevant to the
analysis of reasonable suspicion. That reasoning applies
equally to other types of nervous or evasive behavior in
addition to flight. Just as an innocent African-American male
might flee in order to avoid the danger or indignity of a police
stop, the fear of such an encounter might lead an African-
American male to be nervous or evasive in his dealings with
police officers. See Warren, 475 Mass. at 540. We therefore
significantly discount the weight of the defendant's nervous and
evasive behavior.
d. "High crime" area. The officers testified regarding
recent crime in the area of the shooting and their encounter
with the defendant, and the judge factored this testimony into 33
his analysis. The characterization of an area as "high crime"
cannot justify the diminution of the civil rights of its
occupants. See United States v. Wright, 485 F.3d 45, 54 (1st
Cir. 2007) (noting concern that "high crime" could be "used with
respect to entire neighborhoods or communities in which members
of minority groups regularly go about their daily business"
[citation omitted]). To guard against this risk, we consider
this factor only if the "high crime" nature of the area has a
"direct connection with the specific location and activity being
investigated." See Commonwealth v. Torres-Pagan, 484 Mass. 34,
41 (2020), citing Wright, supra at 53-54.
Here, the officers testified that there had been an ongoing
feud between gangs in the area. The police report, which was
introduced in evidence, listed the incident numbers of other
police reports of alleged gang-related crimes in the vicinity in
the months prior to the shooting. The dates, precise locations,
and alleged perpetrators of those incidents were not provided.
We are skeptical that these previous crimes, without additional
details, demonstrate a "direct connection" with the defendant or
the shooting at issue, so we do not consider the "high crime"
nature of the area in our analysis.
e. Weight. As discussed, we do not give much weight to
the defendant's nervous and evasive behavior. We do afford
significant weight to the defendant's proximity to the shooting 34
and the indications that he might have been carrying a firearm.
Although the facts of this case present a close question, we
conclude that there was sufficient evidence to establish a
reasonable, articulable suspicion.
Order denying motion to suppress affirmed.