HANDS UPNo, you have not accidentally stumbled upon the Georgia Criminal Law Blog, and I am not going to change my practice area just yet (though on the slow days I often think about it).  I happen to come across this case today and thought it may be of interest, especially with the news we see every day now.  With the BAPCPA now approaching 11 years in age and Bankruptcy slow, I may make a habit of occasionally straying from the topic.

In the case of Commonwealth v. Warren, No. SJC 11956 (September 20, 2016) (click here for .pdf of opinion) the issue before the Massachusetts Supreme Judicial Court was whether the police had “reasonable suspicion” to stop the defendant after a burglary in the neighborhood.  If they did not, statements made by the defendant and a firearm apparently in his possession would be suppressed in his trial.  A very brief description of the facts:  The police responded to a “breaking and entering in progress” call.  When they arrived, the victim said he saw a black male wearing a red hoodie going out the window, and two other black males outside – one wearing a black hoodie and the other wearing dark clothing.  The perpetrators ran down the street, after taking a backpack, computer and other items.    The call went out to be on the alert for persons meeting the description.

About 20 minutes later (9:40 p.m.), as the responding officer was cruising the neighborhood he saw two black males (the defendant and another male) walking down the street.  Both were wearing dark clothing, one a black hoodie, but neither had a backpack.  The officer yelled out of his car window “hey guys, wait a minute.”  The two individuals then turned and jogged away.  However, they were apprehended by other officers who had arrived in the area, and after the defendant had continued running to evade the officers.  One of the officers testified that he observed the defendant holding his pants as consistent with someone who is in possession of a gun.  Although no gun was found on the defendant when he was captured, one was found in a nearby yard.  The defendant was later convicted of unlawful possession of a firearm.

The Massachusetts Supreme Court held that the officers did not have sufficient reasonable suspicion to stop the defendants and, therefore, the gun and statements should have been suppressed.  Primarily, this was because of the description provided by the victim — three black males wearing a red hoodie, black hoodie and dark clothing.  There were insufficient details for the police to distinguish the defendant from other black males wearing dark clothes and a hoodie.  Time and proximity (25 minutes after the call, and a mile away from the victim) also did not support reasonable suspicion.  Please review the opinion for additional details on these factors.

Now to the primary part of this opinion that stands out – the court’s analysis of the defendant’s flight and evasive conduct.  The court noted the irony in considering flight as inculpatory while acknowledging that citizens do not have any obligation to speak with or cooperate with police.  The Court went further and recognized that black males may be justified in fleeing from the police:

Second, as set out by one of the dissenting Justices in the Appeals court opinion, where the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.  [Commonwealth v. Warren, 87 Mass. App. Ct. 476, 495 n.18 (Mass. 2015) (Agnes. J., dissenting)], citing Boston Police Commissioner Announces Field Interrogation and Observation (FIO) Study Results…  According to the study, based on FIO data collected by the department, black men in the city of Boston were more likely to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. Black men were also disproportionally targeted for repeat police encounters. We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.

While I do not expect this opinion to lead to a blanket “get out of jail free card” for black males who run from the police in Massachusetts, it certainly seems to open the door for raising the current climate as a factor.  I also do not expect many other states or courts to follow the actual holding anytime soon, even if the reasoning is sound.  It certainly is disheartening to see the incidents on the news day after day, regardless of who might be right or wrong in a particular incident.  The facts of a particular case, or statistics, do not mean there is not a problem that needs to be addressed.

As the court determined the police did not have reasonable cause to stop the defendant, presumably the gun and any statements or other “fruits” of the stop, will be suppressed if the case is retried.  Again, I am not a criminal lawyer, but I assume there is not a strong case for unlawful possession of a gun if there is no gun introduced at trial.  Whether these guys participated in the burglary – who knows?  I expect they did not, as there was no mention of charges or further investigation of that issue.

See also: Black Men Have Cause To Run From Police, Massachusetts High Court Says (NPR).

Scott Riddle’s practice focuses on bankruptcy and litigation. Scott has represented Chapter 7 and 11 debtors, creditors, creditor committees, trustees, court-appointed receivers and other interested parties in bankruptcy cases and bankruptcy litigation.  For more information, click here.