On September 20, 2016 the Massachusetts Supreme Court held that fleeing from the police is insufficient to establish reasonable suspicion to stop and frisk. While this rule applies to every civilian in Massachusetts, the Court specifically stated that since black males in Boston are more likely to be targeted in FIO’s (Field Interrogation Observation) encounters “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,” thus, fleeing from the police does not give police reasonable suspicion to conduct a pat down investigation.
The case originated when Jimmy Warren was arrested and convicted of unlawful possession of a firearm. A Boston police officer received a radio dispatch alerting him to a breaking and entering in progress and the suspects were fleeing the scene. The officer spoke with the victim who stated that he heard a noise in his bedroom, opened the door and saw a black man wearing a “red hoodie” jump out the window. When the victim looked out the window, he saw two more black males, one wearing a “black hoodie” and the other wearing “dark clothing.”
The officer drove a four block radius around the house looking for the three suspects. He saw two black males, one Jimmy Warren, both wearing dark clothing. The officer testified during trial that he believed the two males might have been involved in the breaking and entering based on the time of night, the proximity to the home, and the fit of the general description provided by the victim. The officer shouted out for the men to stop and the two men made eye contact with the officer and started jogging away. Warren was later arrested and searched. No contraband was recovered from him but a .22 caliber handgun belonging to Warren was found in a nearby yard.
The Court started its analysis of determining whether the seizure of the defendant was justified by reasonable suspicion by first addressing when an officer has reasonable suspicion to conduct an investigatory stop. Reasonable suspicion must be grounded in “specific, articulable facts and reasonable inferences rather than based on a hunch.” The officer relied on four reasons to justify the stop; (1) the defendant and his companion “matched” the description of the perpetrators; (2) the defendant and his companion were stopped in proximity to the house; (3) the men were the only individuals on the street on a cold night; and (4) both the defendant and his companion evaded contact with the police. The Court was not persuaded that the four factors establishing the reason for the officer conducting the investigatory stop were sufficiently specific to establish reasonable suspicion.
While all the reasons given by the officer are proper factors to consider in a reasonable suspicion analysis, the court found that the vagueness of the description and the coincidental nature of the other factors was not enough to justify the stop. But what the Court found most troubling was the use of flight as a factor in a reasonable suspicion analysis, pertinently, a black male fleeing from police. Although flight is relevant to a reasonable suspicion analysis in appropriate circumstances, the Court set out a cautionary note regarding the weight to be given to this factor.
In Massachusetts, an individual is under no obligation to respond to a police officer’s inquiry and as such, may choose to walk away avoiding contact with the officer altogether. The Court believed this is a factual irony since flight is typically viewed as consciousness of guilt and is considered a probative factor in determining whether to conduct an investigatory stop. But the Court took this irony an additional step further and stated that when the “suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in a reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department report.”
In 2014, the Boston Police Department released the preliminary results of a study conducted to determine how Boston Police Officers were utilizing the Field Interrogation Observation Program (FIO). The FIO program was developed to document when individuals were stopped and frisked, when officers engaged in consensual encounters with individuals, and when officers observed an individual for intelligence purposes. While the study’s results showed that the Department was targeting gang members in high crime areas, the study also revealed a pattern of racial profiling of black males in Boston. Out of the 204,739 FIO reports used in the study, the subjects were 89 percent male, 54.7 percent ages 24 or younger and 63.3 percent Black.
It is important to note that the Court is not eliminating flight as a factor in a reasonable suspicion analysis just because a suspect is black. “However in such circumstances, flight is not necessarily probative of a suspect’s state of mind of consciousness of guilt. Rather, the finding that black males are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt.”
At a time when police shootings against unarmed black men are occurring more frequently, do you think the Court got this right, or do you think this will lead to negative repercussions down the road as police have more hurdles to leap in order to catch those breaking the law? Let us know what you think in the comments below.
Here is the full court opinion.