Commonwealth v. Evelyn

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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

directions.

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.