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SJC 11956
COMMONWEALTH vs. JIMMY WARREN.
Suffolk. February 9, 2016. - September 20, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1
Firearms. Practice, Criminal, Motion to suppress.
Constitutional Law, Search and seizure, Reasonable
suspicion. Search and Seizure, Reasonable suspicion.
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.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Nelson P. Lovins for the defendant.
Michael Glennon, Assistant District Attorney, for the
Commonwealth.
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
HINES, J. After a jury-waived trial in the Boston
Municipal Court, the defendant, Jimmy Warren, was convicted of
unlawful possession of a firearm, G. L. c. 269, § 10 (a).2 The
complaint arose from the discovery of a firearm after an
investigatory stop of the defendant in connection with a
breaking and entering that had occurred in a nearby home
approximately thirty minutes earlier. Prior to trial, the
defendant filed a motion to suppress the firearm and statements
made after his arrest, arguing that police lacked reasonable
suspicion for the stop. The judge who heard the motion denied
it, ruling that, at the time of the stop, the police had
reasonable suspicion that the defendant was one of the
perpetrators of the breaking and entering. The defendant
appealed, claiming error in the denial of the motion to
suppress.3 The Appeals Court affirmed, Commonwealth v. Warren,
87 Mass. App. Ct. 476, 477 (2015). We allowed the defendant's
application for further appellate review and conclude that
because the police lacked reasonable suspicion for the
2
The trial judge allowed the defendant's motion for a
required finding of not guilty on a trespass charge, G. L.
c. 266, § 120.
3
Given our conclusion, we need not address the defendant's
argument about the sufficiency of the evidence supporting his
conviction.
3
investigatory stop, the denial of the motion to suppress was
error. Therefore, we vacate the conviction.
Background. We summarize the facts as found by the judge
at the hearing on the motion to suppress, supplemented by
evidence in the record that is uncontroverted and that was
implicitly credited by the judge. Commonwealth v. Melo, 472
Mass. 278, 286 (2015). On December 18, 2011, Boston police
Officer Luis Anjos was patrolling the Roxbury section of Boston
in a marked police cruiser when, at 9:20 P.M., he received a
radio call alerting him to a breaking and entering in progress
on Hutchings Street, where the suspects were fleeing the scene.
The dispatcher gave several possible paths of flight from
Hutchings Street, one toward Seaver Street and the other toward
Jackson Square, locations that are in the opposite direction
from one another.4
Anjos went to the scene and spoke to the victims, a teenage
male and his foster mother. The male reported that as he was
leaving the bathroom in the residence, his foster mother said
that she heard people in his bedroom. The victim opened his
4
The record contains a map of the area in question,
providing geographical context for our review of the judge's
ruling that the police had reasonable suspicion for the seizure
of the defendant. We may take judicial notice of the location.
See Commonwealth v. Augustine, 472 Mass. 448, 457 n.14 (2015),
citing Federal Nat'l Mtge. Ass'n v. Therrien, 42 Mass. App. Ct.
523, 525 (1997) ("facts that are verifiably true, such as
geographic locations, are susceptible to judicial notice").
4
bedroom door and saw a black male wearing a "red hoodie" (hooded
sweatshirt) jump out of the window. When the victim looked out
the window he saw two other black males, one wearing a "black
hoodie," and the other wearing "dark clothing." When the victim
checked his belongings, he noticed that his backpack, a
computer, and five baseball hats were missing. The victim saw
the three males run down Hutchings Street, but he could only
guess which direction they took thereafter. Anjos peered out
the window but could only see twelve to fifteen yards up the
street to the intersection of Hutchings and Harold Streets.
After speaking to the victims for approximately eight to twelve
minutes, Anjos left the scene and broadcast the descriptions of
the suspects.
For the next fifteen minutes or so, Anjos drove a four to
five block radius around the house, searching for persons
fitting the suspects' descriptions. Because of the cold
temperature that night, Anjos did not come across any
pedestrians as he searched the area. At around 9:40 P.M., Anjos
headed back toward the police station. While on Martin Luther
King Boulevard, he saw two black males, both wearing dark
clothing, walking by some basketball courts near a park. One
male wore a dark-colored "hoodie." Neither of the two carried a
backpack. Anjos did not recognize either of the males, one of
5
whom was the defendant, as a person he had encountered
previously in the course of his duties as a police officer.
When Anjos spotted the defendant and his companion, he had
a hunch that they might have been involved in the breaking and
entering. He based his hunch on the time of night, the
proximity to the breaking and entering, and the fit of the males
to the "general description" provided by the victim. He decided
"to figure out who they were and where they were coming from and
possibly do [a field interrogation observation (FIO)]."5 He
rolled down the passenger's side window of the cruiser and
"yelled out," "Hey guys, wait a minute." The two men made eye
contact with Anjos, turned around, and jogged down a path into
the park.
After the two men jogged away, Anjos remained in the police
cruiser and radioed dispatch that three men6 fitting the
descriptions provided by the victim were traveling through the
park toward Dale Street. Boston police Officers Christopher R.
5
"A 'field interrogation observation' (FIO) has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009). FIOs are deemed consensual encounters because the
individual approached remains free to terminate the conversation
at will. See id. at 815, and cases cited.
6
During cross-examination, Officer Anjos admitted that he
observed only two males.
6
Carr and David Santosuosso, who had heard the original broadcast
of the breaking and entering, were very near Dale Street and
headed in that direction. Arriving quickly, Carr and
Santosuosso observed two males matching Anjos's description
walking out of the park toward Dale Street. Carr parked the
cruiser on Dale Street and both officers approached the
defendant and his companion as they left the park. The
defendant and his companion walked with their hands out of their
pockets. Carr saw no bulges in their clothing suggesting the
presence of weapons or contraband.
Carr was closer to the two males, approximately fifteen
yards away. When he uttered the words, "Hey fellas," the
defendant turned and ran up a hill back into the park. His
companion stood still. Carr ordered the defendant to stop
running. After the command to stop, Carr observed the defendant
clutching the right side of his pants, a motion Carr described
as consistent with carrying a gun without a holster.7
Ignoring the command to stop, the defendant continued to
run and eventually turned onto Wakullah Street. Carr lost sight
7
The Commonwealth persists in claiming that the police
observed the defendant clutching the right side of his pants
before the command to stop. As did the Appeals Court, see
Commonwealth v. Warren, 87 Mass. App. Ct. 476, 479 n.7 (2015),
we reject this view of the facts where the judge explicitly
found that "[t]his observation was after a verbal command to
stop."
7
of the defendant for a few seconds before catching up with him
in the rear yard of a house on Wakullah Street. Carr drew his
firearm, pointed it at the defendant, and yelled several verbal
commands for the defendant to show his hands and to "get down,
get down, get down." The defendant moved slowly, conduct that
Carr interpreted as an intention not to comply with his
commands. After a brief struggle, Carr arrested and searched
the defendant but found no contraband on his person. Minutes
after the arrest, police recovered a Walther .22 caliber firearm
inside the front yard fence of the Wakullah Street house. When
asked if he had a license to carry a firearm, the defendant
replied that he did not.
Discussion. The defendant challenges the judge's denial of
the motion to suppress, claiming error in the judge's ruling
that at the time of the stop on Dale Street, the police had a
sufficient factual basis for reasonable suspicion that the
defendant had committed the breaking and entering.8 In sum, he
argues that the police pursued him with the intent of
8
Although the defendant argues in his brief that a stop
occurred "when Officer[s] Anjos and Carr approached the
defendant . . . with the intent of questioning the defendant,"
we assume that this was a typographical error because it is
undisputed that Anjos never left his vehicle. Rather, it was
Officers Santosuosso and Carr who approached the defendant and
his companion as they exited the park. Therefore, we do not
address whether the first encounter, when Anjos called out to
the defendant from his cruiser, was an investigatory stop.
8
questioning him, while lacking any basis for doing so.
Accordingly, he claims that any behavior observed during the
pursuit and any contraband found thereafter must be suppressed.
1. Standard of review. "In reviewing a ruling on a motion
to suppress evidence, we accept the judge's subsidiary findings
of fact absent clear error and leave to the judge the
responsibility of determining the weight and credibility to be
given oral testimony presented at the motion hearing" (citation
omitted). Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
However, "[w]e review independently the application of
constitutional principles to the facts found." Id. We apply
these principles in deciding whether the seizure was justified
by reasonable suspicion that the defendant had committed the
breaking and entering on Hutchings Street. Commonwealth v.
Scott, 440 Mass. 642, 646 (2004).
2. Reasonable suspicion. The judge ruled, and the
Commonwealth concedes, that the seizure occurred when Officer
Carr ordered the defendant to stop running and pursued him onto
Wakullah Street. If a seizure occurs, "we ask whether the stop
was based on an officer's reasonable suspicion that the person
was committing, had committed, or was about to commit a crime."
Commonwealth v. Martin, 467 Mass. 291, 303 (2014). "That
suspicion must be grounded in 'specific, articulable facts and
reasonable inferences [drawn] therefrom' rather than on a
9
hunch." Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),
quoting Scott, 440 Mass. at 646. The essence of the reasonable
suspicion inquiry is whether the police have an individualized
suspicion that the person seized is the perpetrator of the
suspected crime. Commonwealth v. Depina, 456 Mass. 238, 243
(2010) (stop is lawful only if "information on which the
dispatch was based had sufficient indicia of reliability, and .
. . the description of the suspect conveyed by the dispatch had
sufficient particularity that it was reasonable for the police
to suspect a person matching that description").
According to the judge's ruling, the following information
established reasonable suspicion for the investigatory stop:
the defendant and his companion "matched" the description of two
of the three individuals being sought by the police; they were
stopped in close proximity in location (one mile) and time
(approximately twenty-five minutes) to the crime; they were the
only persons observed on the street on a cold winter night as
police canvassed the area; and they evaded contact with the
police, first when both men jogged away into the park, and later
when the defendant fled from Carr after being approached on the
other side of the park.9
9
The judge also cited her finding that the police observed
the defendant engaging in behavior suggestive of the presence of
a firearm. That finding must be discounted in the reasonable
10
We review the judge's findings as a whole, bearing in mind
that "a combination of factors that are each innocent of
themselves may, when taken together, amount to the requisite
reasonable belief" that a person has, is, or will commit a
particular crime. Commonwealth v. Feyenord, 445 Mass. 72, 77
(2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth
v. Fraser, 410 Mass. 541, 545 (1991). We are not persuaded that
the information available to the police at the time of the
seizure was sufficiently specific to establish reasonable
suspicion that the defendant was connected to the breaking and
entering under investigation.
a. The description of the suspects. First, and perhaps
most important, because the victim had given a very general
description of the perpetrator and his accomplices, the police
did not know whom they were looking for that evening, except
that the suspects were three black males: two black males
wearing the ubiquitous and nondescriptive "dark clothing," and
one black male wearing a "red hoodie." Lacking any information
about facial features, hairstyles, skin tone, height, weight, or
other physical characteristics, the victim's description
"contribute[d] nothing to the officers' ability to distinguish
suspicion analysis, however, as the judge explicitly found that
this conduct occurred after the police commanded the defendant
to stop.
11
the defendant from any other black male" wearing dark clothes
and a "hoodie" in Roxbury. Commonwealth v. Cheek, 413 Mass.
492, 496 (1992) (insufficient detail in generalized description
of suspect to justify stop where defendant was observed walking
on street approximately one-half mile from scene of reported
stabbing, without indication he was fleeing crime scene or had
engaged in criminal activity).
With only this vague description, it was simply not
possible for the police reasonably and rationally to target the
defendant or any other black male wearing dark clothing as a
suspect in the crime. If anything, the victim's description
tended to exclude the defendant as a suspect: he was one of two
men, not three; he was not wearing a red "hoodie"; and, neither
he nor his companion was carrying a backpack.10 Based solely on
this description, Anjos had nothing more than a hunch that the
defendant might have been involved in the crime. He
acknowledged as much when he explained that the purpose of the
stop was "to figure out who they were and where they were coming
from and possibly do an FIO." As noted, an FIO is a consensual
encounter between an individual and a police officer.
Therefore, the defendant was not a "suspect" subject to the
10
There is no suggestion in the judge's findings that the
defendant and his companion changed clothing or jettisoned the
backpack before being stopped by the police.
12
intrusion of a threshold inquiry. Unless the police were able
to fortify the bare-bones description of the perpetrators with
other facts probative of reasonable suspicion, the defendant was
entitled to proceed uninhibited as he walked through the streets
of Roxbury that evening.
b. Proximity. We agree with the motion judge that
proximity of the stop to the time and location of the crime is a
relevant factor in the reasonable suspicion analysis.
Commonwealth v. Foster, 48 Mass. App. Ct. 671, 672-673, 676
(2000) (reasonable suspicion established where police observed
persons matching physical description on same street and headed
in same direction as indicated by informant). Proximity is
accorded greater probative value in the reasonable suspicion
calculus when the distance is short and the timing is close.
See Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 555 n.8
(2002), and cases cited. Here, the defendant was stopped one
mile from the scene of the crime approximately twenty-five
minutes after the victim's telephone call to the police.
Several considerations, however, weigh against proximity as a
factor supporting an individualized suspicion of the defendant
as a suspect in the breaking and entering.
The location and timing of the stop were no more than
random occurrences and not probative of individualized suspicion
where the direction of the perpetrator's path of flight was mere
13
conjecture. Although the police appropriately began their
investigation with the information available to them, this lack
of detail made it less likely that a sighting of potential
suspects could be elevated beyond the level of a hunch or
speculation. As noted by the dissenting Justices in the Appeals
Court opinion, given the nearly thirty-minute time period
between the breaking and entering and the stop on Dale Street,
the suspects could have traveled on foot within a two mile
radius of the crime scene, a substantial geographic area
comprising 12.57 square miles.11 Warren, 87 Mass. App. Ct. at
499 n. 1 (Rubin, J., dissenting). See id. at 488-489 (Agnes,
J., dissenting). Other than the victim's report that the
perpetrators fled toward Harold Street, the responding officers
had nothing more than the information in the dispatch suggesting
that the perpetrators could have fled toward Seaver Street or
Walnut Avenue. Depending on the direction taken, these paths of
flight would lead to different Boston neighborhoods, Dorchester
or Jamaica Plain, in different areas of the city.
In addition, Anjos testified to two important geographical
facts that undermine the proximity factor. He acknowledged that
11
Because the map of the area is part of the record, we are
persuaded by the observation of a dissenting Justice in the
Appeals Court opinion that the suspects could have been anywhere
within twelve square miles of the crime scene by the time of the
encounter with Anjos. See Warren, 87 Mass. App. Ct. at 499 n.1
(Rubin, J., dissenting).
14
Dale Street is in the opposite direction from where either of
the reported paths of flight might lead. And, most important,
Anjos also stated that if the perpetrators had headed in the
direction of Dale Street, they likely would have reached that
location well before his first encounter with the defendant and
his companion. Thus, where the timing and location of the stop
lacked a rational relationship to each other, proximity lacks
force as a factor in the reasonable suspicion calculus.
c. Lack of other pedestrians. The judge considered in her
analysis that the defendant and his companion were the only
people observed on the street as Anjos canvassed the four to
five block radius of the Hutchings Street address, traveling "up
and down Harold Street, Walnut Avenue and Holworthy Street"
before turning onto Martin Luther King Boulevard to return to
the station.12 This factor also is of questionable value in the
analysis given the lapse of time and the narrow geographical
scope of the search for suspicious persons. Anjos spoke to the
victim for approximately fifteen minutes and thereafter
12
One of the police officers testified during the motion to
suppress hearing that another officer reported seeing a
different young black male with a backpack in a nearby
neighborhood. Thus, we agree with one of the dissenting
Justices in the Appeals Court opinion that if the judge credited
this testimony, the fact that Anjos saw no other pedestrians on
the street that night was not a factor supporting reasonable
suspicion that the defendant was involved in the breaking and
entering. See Warren, 87 Mass. App. Ct. at 489-490 (Agnes, J.,
dissenting).
15
canvassed only four to five blocks surrounding the location of
the breaking and entering. The lapse of time between the
victim's report and the canvassing suggests that the
perpetrators could have fled the immediate area before Anjos
began his search. Thus, the defendant's presence on the street,
some distance away from the crime, within a time frame
inconsistent with having recently fled the scene, is hardly
revelatory of an individualized suspicion of the defendant as
the perpetrator of the crime.
d. Flight. We recognize that the defendant's evasive
conduct during his successive encounters with police is a factor
properly considered in the reasonable suspicion analysis.
Commonwealth v. Stoute, 422 Mass. 782, 791 (1996) (failure to
stop combined with accelerated pace contributed to officer's
reasonable suspicion). But evasive conduct in the absence of
any other information tending toward an individualized suspicion
that the defendant was involved in the crime is insufficient to
support reasonable suspicion. Commonwealth v. Mercado, 422
Mass. 367, 371 (1996) ("Neither evasive behavior, proximity to a
crime scene, nor matching a general description is alone
sufficient to support . . . reasonable suspicion"); Commonwealth
v. Thibeau, 384 Mass. 762, 764 (1981) (quick maneuver to avoid
contact with police insufficient to establish reasonable
suspicion). "Were the rule otherwise, the police could turn a
16
hunch into a reasonable suspicion by inducing the [flight]
justifying the suspicion." Stoute, supra at 789, quoting
Thibeau, supra. Although flight is relevant to the reasonable
suspicion analysis in appropriate circumstances, we add two
cautionary notes regarding the weight to be given this factor.
First, we perceive a factual irony in the consideration of
flight as a factor in the reasonable suspicion calculus.
Unless reasonable suspicion for a threshold inquiry already
exists, our law guards a person's freedom to speak or not to
speak to a police officer. A person also may choose to walk
away, avoiding altogether any contact with police. Commonwealth
v. Barros, 435 Mass. 171, 178 (2001) (breaking eye contact and
refusing to answer officer's initial questions did not provide
reasonable suspicion for detention or seizure as "[i]t was the
defendant's right to ignore the officer"). Yet, because flight
is viewed as inculpatory, we have endorsed it as a factor in the
reasonable suspicion analysis. See Commonwealth v. Sykes, 449
Mass. 308, 315 (2007) (defendant's abandonment of bicycle in
"effort to dodge further contact with the police was
significant" in determining reasonable suspicion); Commonwealth
v. Grandison, 433 Mass. 135, 139-140 (2001) (attempt to avoid
contact with police may be considered with other factors in
establishing reasonable suspicion). Where a suspect is under no
obligation to respond to a police officer's inquiry, we are of
17
the view that flight to avoid that contact should be given
little, if any, weight as a factor probative of reasonable
suspicion. Otherwise, our long-standing jurisprudence
establishing the boundary between consensual and obligatory
police encounters will be seriously undermined. Thus, in the
circumstances of this case, the flight from Anjos during the
initial encounter added nothing to the reasonable suspicion
calculus.
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. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-police-
commissioner-announces-field-interrogation-and-observation-fio-
study-results [https://perma.cc/H9RJ-RHNB].13 According to the
13
See also Warren, 87 Mass. App. Ct. at 495 n.18 (Agnes, J.,
dissenting), citing American Civil Liberties Union, Stop and
Frisk Report Summary, https://www.aclum.org/sites/all/files/
images/education/stopandfrisk/stop_and_frisk_summary.pdf
[https://perma.cc/7APK-8MG9] ("[sixty-three per cent] of Boston
18
study, based on FIO data collected by the department,14 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.15 Black men were also
disproportionally targeted for repeat police encounters.16 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
police-civilian encounters from 2007-2010 targeted blacks, even
though blacks made up less than [twenty-five per cent] of the
city's population").
14
The study by the Boston Police Department (department)
reviewed all field interrogation and observation (FIO) reports,
approximately 205,000 in total, submitted by Boston police
officers from 2007 through 2010. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes, J., dissenting).
15
"[T]he targets of FIO reports were disproportionately
male, young, and Black. For those 204,739 FIO reports, the
subjects were 89.0 percent male, 54.7 percent ages 24 or
younger, and 63.3 percent Black." Final Report, An Analysis of
Race and Ethnicity Patterns in Boston Police Department Field
Interrogation, Observation, Frisk, and/or Search Reports, at 2
(June 15, 2015).
16
The department's study revealed that five per cent of the
individuals repeatedly stopped or observed accounted for more
than forty per cent of the total interrogations and observations
conducted by the police department. Warren, 87 Mass. App. Ct.
at 495 n.18 (Agnes, J., dissenting), quoting Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/
10/8/boston-police-commissioner-announces-field-interrogation-
and-observation-fio-study-results [https://perma.cc/H9RJ-RHNB].
19
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.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.
Conclusion. For the reasons stated above, the police
lacked reasonable suspicion for the investigatory stop of the
defendant. Therefore, we vacate the judgment of conviction and
20
remand the matter to the Boston Municipal Court for further
proceedings consistent with this opinion.
So ordered.