-: SJC 12808 Commonwealth v Tykorie Evelyn.
Chief Justice: Ms.Barnwell, good morning.
-: Good morning Mr. Chief Justice
and may it please the court.
My name is Hayne Barnwell and I represent Tykorie Evelyn.
With me at counsel table is attorney Janice Bassil.
In any suppression case, whether the court is analyzing
when a seizure occurred
or whether there was reasonable suspicion for the stop
the court of course
considers the totality of the circumstances.
However in this case, the Commonwealth
wishes this court to ignore two significant circumstances.
One is that Mr. Evelyn is a young black male.
The other significant circumstance is the reality
for young black males in Boston.
As this court recognized in Commonwealth versus Warren,
and that's nearly 30 years after Charles Stuart's hopes
triggered a wave of illegal searches and seizures
in Boston's black community.
Young black men are disproportionately targeted
by the Boston Police Department for FIOs
which include humiliating stops and frisks.
The Superior Court also did not follow
this court's direction in Commonwealth versus Warren.
And actually there were two directions
in Commonwealth versus Warren
first being that a person's flight
should have little to no weight
in the reasonable suspicion analysis
given the fact that people are free
to avoid police officers.
-: Counsel, I would like to, in general I understand
your broader points and the broader statistics.
I'd like to focus more narrowly on this particular case
and I'm wondering what if any factors
would distinguish it from Warren?
-: Well actually...
I'm sorry, is the court focused on seizure right now
or on reasonable suspicion?
Because there are-- -: It's a difficult question
because, let's first focus on the seizure,
because well they relate together.
They're hard to separate those two things in my mind,
because if there's no reasonable suspicion,
then it changes when the seizure is.
So let's focus first on just,
'cause certainly agree a police officer
can stop somebody on a street and say,
"I wanna ask you a question",
especially in these, and let's focus on these circumstances,
which are what again?
-: So the circumstances here is we have
a black teenage boy, he's alone who's walking
on the residential street in Roxbury.
Two white Boston police officers,
they are in full uniform in a marked cruiser.
They shadow him.
-: And why, why, why were they there?
-: That's an excellent question. (laughs)
What the officers testified to is that they get
a ShotSpotter call as they're on patrol.
-: A ShotSpotter call came in within what radius
of where they were?
-: Half a mile, 13-- -: Half a mile.
-: About half a mile. -: Thank you counselor.
-: I'm just trying to recall where they exactly were
when they got the ShotSpotter.
But they were, I would think around a half a mile
is still correct. -: And how much time
had passed between the ShotSpotter
and when they were located?
When they first see Mr. Evelyn it's 13 minutes
after they get the ShotSpotter.
-: Okay so let's stop with that and then go to Warren.
What were the facts in Warren that are similar?
-: So in Warren the officer interviewed the victim,
apparently very quickly, 20 minutes later
they see the defendant
and then 25 minutes later they stop him.
-: And what was the distance?
That was a mile.
A mile is my recollection.
And just to quickly turn to Commonwealth versus Cheek,
in Commonwealth versus Cheek, that was actually a half mile
so that's even more similar
to this case. -: So let me ask you,
another question I have is,
when the police approach,
do you consider that that require reasonable suspicion
at that moment?
-: No, reasonable suspicion is required,
once Officer Garney opens the passenger door.
-: Once he opens the passenger door.
Hayne: Yes, that's when we locate the seizure.
But, I'm sorry. -: Okay so
once he opens the passenger door,
is that when the seizure starts?
-: Yes and I'm sorry. -: No.
-: I just wanted to add to that that...
That that of course doesn't make
what happened before irrelevant.
That of course the shadowing, the following alongside,
all of that was starting to escalate and intimidate.
So even though the seizure didn't happen before,
there was certainly an escalation,
a very quick escalation.
There was the intimidation that objectively,
any reasonable person,
certainly a young black male would feel,
you know being shadowed, then alongside.
Both officers testified,
"he clearly did not wanna talk to us.
"He was responding, but he did not wanna talk to us.
"He kept his eyes either straight ahead
"or darting all around, any direction but us."
"He kept walking" Officer Abasciano testified
and he actually picked up pace.
He did not want to talk to them.
And so that's why when he opens the passenger door,
it's clear that, you know, you're not talking to us,
we're gonna make you talk to us.
That's why that's where the seizure is located.
And even if happens,
even if this court finds that it happens a bit later
(clears throat) so for example
when Officer Garney gives chase.
So once the--
-: So how does that work though?
So you say under Warren we can't consider the fact that
your client ran, right?
So should we not consider that the police ran after him too?
I mean, is running on both sides irrelevant?
Hayne: No not at all, because--
-: Though but if your guy runs
and we can't take that into account
how does that work?
-: I'm sorry.
The law is clear that pursuit is a seizure.
-: Well it's not so-- -: Well let's stop there.
Justice Kafker: Go ahead.
-: You know that has always confused me in some ways.
And I understand there are, they're considered to be
problems with Hodari D. from the federal circuit,
the federal position.
But that's a very simple rule.
You're seized when you submit to authority
one way or the other.
So wouldn't that be an easier way
for us to analyze this?
-: No I would certainly not recommend
that this court go back on its case law,
under Article 14.
Whatever the federal rule is,
because any reasonable person,
or let's take it from a (drowned out by cough) perspective,
what is a police officer objectively communicating
to a young black male by getting out of a car
and chasing him?
It's I'm gonna stop you.
You can't go anywhere.
So he's running.
He wants to avoid that. -: Well Warren doesn't say
you can never consider flight though.
-: That's true.
Warren did say we're not eliminating it,
but approach with extreme caution,
especially when you have this very scenario
of a black teenage boy,
who is trying his best to avoid this encounter
with two white police officers.
-: So what would you suggest,
assuming that the community wants policing
and assuming that there's been shots fired
not that far away,
and he's the only person in the vicinity,
what should the police do?
Hayne: Well he wasn't the only person in the vicinity.
-: Okay.
-: The officers clarified that.
"No we're not saying there was zero pedestrian traffic,
"there was minimal."
And so also in, I believe it's Meneus,
where the court looked at,
or I'm sorry it was Warren itself I believe
where it said, you know when you've got this sort of
narrow geographical area
and you're riding around for just a certain amount of time,
you might not come across that many people,
even when it's, you know, it's cold.
So Warren actually looked at that very piece
and said we're not gonna, that doesn't add anything.
-: Can you factor the DePeiza into this now?
-: So DePeiza, so let me turn my DePeiza notes.
DePeiza is foreign case.
-: Can I clarify something before you
jump onto DePeiza if that's okay Justice Cipher?
-: Sure.
-: So your position is that when he opens the door,
that's when reasonable, articulable suspicion stops right?
You need reasonable at this.
But you also then said,
it could have happened later,
i.e. when the police officer gave chase.
But nothing really happens to change the composition
of the facts between the door opening
and the chase, 'cause it happens (snaps fingers)
instantaneous. -: Exactly.
-: Right, so it doesn't really matter in this case.
-: Well, I'm sorry. -: So under your view
we look at what the police knew at that time
to see whether there was articulable suspicion.
-: Yes, I agree.
But I may I just-- -: Sure
-: The reason why I do argue that as an alternative,
is because the Superior Court,
if you actually look page 130 of the record appendix,
which I started reading that again
I found that very important,
the court seems to take a lotta stock in the flight.
That seemed to change-- -: Sure, sure,
and we would have to,
on your view we would have to take the flight out of it
and then look to see if there was
reasonable articulable suspicion.
-: Correct. -: Which now we just,
to Justice Cypher's question about DePeiza
and why we should backtrack from DePeiza.
-: I'm sorry. -: Why should we
overrule DePeiza essentially?
-: Oh, oh it consonant with DePeiza.
This court would not have to overrule DePeiza at all.
In DePeiza (clears throat) there was a straight arm gait.
So a straight arm gait looks especially strange
because you've got one arm stiff to the side
and then this defendant had the other arm free.
So he's clearly like holding something down
that you know, that raises their suspicion.
It might be a firearm.
Justice Cypher: That's here or that's in DePieza?
-: That's in DePiaza. -: Okay.
-: And then so, in other words there's not just the
so called blading,
and in DePiaza it was actually repeated blading.
Here there's really only one time
they say he quote, bladed.
So he's got the repeated blade,
he's got the awkward motions,
he reaches into his right pocket,
I'm sorry I'm still talking about DePiaza,
he reaches into his right pocket,
he keeps turning away from them,
then at that, then this is a crucial moment,
the police officer sees quote something heavy
in the pocket.
And even with all of those facts,
which are very different from the facts here,
because there's no bulge, there's no outline of gun,
et cetera, et cetera, et cetera,
even then this court said this is a close case.
So when you have far fewer facts,
this court should absolutely reverse.
-: Is your view that,
I mean there are various kinds of flight.
I mean there's a sprint and there's jog.
I get the impression here this was a sprint.
Hayne: It was a full sprint, yes.
-: Okay so, both by the defendant
as well as by Officer Geary or Garney, correct?
-: Garney, mm hmm.
-: Garney, okay. So this is different from cases
in which they're sort of jogging
and sort of surveilling them,
this is a full sprint.
I thought there was evidence
that defendant's hands were in his pocket
as he was running.
-: Yes but that was (clears throat)
that clearly happened after,
or I'm sorry the observation of that very thing
happened after they gave chase
or sorry after-- -: How soon after?
-: I mean...
Are you saying that that is within the scope
of our consideration with regard to reasonable suspicion
or beyond the scope?
-: Well it depends on where you locate the seizure.
-: Well I understand. (Hayne laughs)
-: Right, but if you look at the seizure where,
I know Takomoff disagrees with me here,
the way I read his decision,
is he seems to locate the seizure
right where your honor says,
that he's running awkwardly,
he's got his hands still in his pockets.
That seems to be where the court locates the seizure.
But even then, even if you locate it there,
we would absolutely not concede it.
It's still winter and it's single digits.
-: I mean you can question its weight,
but generally when you're running at a full sprint,
your hands are gonna be extended if you're gonna be,
your hands are not generally in your pocket
if you're in a full sprint.
So it's...
I don't claim that it bears a great deal a weight,
but it bears some in terms of the calculus.
You would agree that if we were to find
that if that were within the scope of RAS,
of reasonable articulable suspicion
it would bear some modest weight.
-: I would give it only a hunch.
A hunch that something's amiss with this teenage boy.
Why is he doing that, you know.
-: I mean in Depina we said
that the gravity of the crime
and the present danger of the circumstances
may be considered in the reasonable suspicion calculus.
I take your point that if there had been no shooting
and all we had was these officers
seeing this individual on the street
that all that you described would fall short
of a basis to stop him,
but we do have a shooting minutes before.
Be have somebody who is down.
We have multiple shots fired.
We have reasons to believe that it was
a gang related shooting given the circumstances,
of multiple people fleeing a shooting
in a neighborhood with a history of gang violence.
Doesn't that change the calculus from a situation
where somebody simply sees a 17 year old black youth
on the street?
-: Oh I wanna be clear that there was
of course no information that this was at all gang related.
In fact--
-: Well but can't one infer that from the circumstances here?
We have a history of gang violence.
It's in the neighborhood where there's gang violence.
Three individuals fleeing after a shooting.
It doesn't sound like a bank robbery.
It doesn't sound like a domestic.
It could be other things, but...
-: Well as this court has said time and time again,
that same with now flight with Warren,
certainly high crime area needs to be
taken with extreme caution. -: I'm not saying
high crime area.
I'm saying an area which has a history of gang violence
and a crime occurring in that context
in a circumstance which is consistent with a gang shooting.
That's different from saying it is simply
a high crime area in general.
-: I see my time's expired,
may I respond to that. -: That all right,
you can answer. -: 'Cause this is
really important.
First of all the suspects were fleeing
in the opposite direction of Mr. Evelyn.
So when you talk about
individualize suspicion. -: You say that,
but the judge, I shouldn't have.
The judge made a finding that he credited the testimony
in the entirety of both officers
and they said, that they may have misheard it,
but don't we need to take the fact that they
honestly were under a misunderstanding
as to where they had fled.
So in their mind, the persons had fled in that direction.
Don't we have to accept that that was what they had
in their mind?
-: Well, that's not the objective reality though.
I mean it certainly was in their subjective mind,
but A, that wasn't the objective reality.
But even if, let's say the objective fact,
based on their understanding,
is that they were fleeing away from Adams Street,
if I commend to you the Google Maps
that were submitted as suppress exhibits,
there are so many directions you go, even that way.
So many roads, there are houses,
there's any number of cars these suspects
could have gotten into.
And what's remarkable about this case,
you know when I was trying to distinguish this
from other cases, Warren also,
at least in Warren there was some kind of description.
It was three black males.
One had a red hoodie.
Another had a black hoodie.
This case is remarkable
in there's nothing. -: Well but that's relevant
if we accept the premise that opening the door
starts the seizure.
If a police officer just opens a door,
what other factors go into that to make a seizure.
I mean that can be the only factor.
-: Can I add to that?
Doesn't Matta which is our last statement on this
inconsistent with your argument
that opening the door is enough?
Matta, Matta, they're trailing this guy.
They ask him, hey come over here for a second
and they head towards him.
That's not enough, right?
-: I'm sorry may I answer Justice Cypher's question first
and then maybe you can remind me?
-: No he'd prefer you answer his question,
but you go ahead. -: Okay, okay.
-: It's okay when
she interrupts me. -: But pre-Matta.
-: It's okay when she interrupts me,
she just doesn't want me to interrupt her.
(justices laugh)
-: So the general case law is,
and this is where Commonwealth versus Barrows come in.
So it's not just, he didn't just sort of pull up
and open the door, right?
There was interaction before hand.
And so what the court has said,
and again I've looked at all the cases
and pretty much all of them that I can find,
the suspect, the individual is responding
in an affirmative way.
Hey, what's your name?
My name is Mr. Daly.
Maybe they are a little uncomfortable
but they are consenting to this conversation.
My client was not.
And then I'm sorry, so Matta.
Would you?
-: I mean Matta is, hey come over here for a second.
-: Right. -: Two men get out
of their vehicles in unison.
"And the defendant began walking away from the officer.
"As the defendant did so, the officer said,
"in substance, hey, come here for a second.
"The officer and the defendant locked eyes
"and then the defendant began running away."
So we don't, we certainly don't find it
before he runs in Matta.
-: Oh well that's right,
but that was all the context that the court had.
It was just that single or statement really,
"come over here for a second."
And it was for a second.
It wasn't like, that was it. -: But we have,
all that we have is, hey can I,
what's the holler at you.
I can't remember what he-- -: "Hey, hey my man,
"can I holler at ya."
-: And how is that different from Matta
before the running.
I mean I see where your point,
although I don't necessarily agree
that running is irrelevant,
but I see your point once they start running after him.
But I don't,
'cause that to me under Matta is,
seems like a show of authority.
But I don't get how just opening the door is anything.
-: Because the tell in this, is the officers,
both officers testified, he didn't wanna talk to us.
We knew he didn't wanna talk to us.
And we kept following him anyway.
We kept--
-: We have a bunch of cases where trailing has been okay,
right, lots and lots a cases.
-: Well trailing, but again, this is trailing plus, right?
-: Not trailing plus until they start to run.
When they start to run after him I get it.
But I don't see it before then.
Justic Lowy: Can I ask one more question Chief.
-: I got one more too.
-: With respect to a big part of the case
had to do with the expert testimony.
And I know you wanted to address that.
I wanna give you that opportunity.
-: I'm at the court's disposable.
-: So on the expert, the Judge Ricciuti below
allowed the expert to testify.
-: Correct. -: And then made
three particular findings.
And the expert is my memory is,
testified as to the unreliability of blading
and inobjective criteria that the police use.
And also, he also expounded on...
-: She. -: She, oh she, I'm sorry.
Yeah she had expounded on what we had written in Warren
regarding racial profiling, right?
But Judge Ricciuti listened to that testimony,
then found it not credible for three reasons.
Why should we disregard his findings?
-: Well he found it not helpful,
not that it wasn't credible, just that it wasn't helpful.
Well one is, so there seems to be
a misunderstanding that the defendant is arguing
that there's needs to be this,
and that's his first point, that quote,
"there's no requirements that conclusions drawn
"in the real world by police officers
"based on their training and experience
"satisfies scientific standard of proof."
I agree with that.
It's just that this kind of testimony, these studies,
should set off alarm bells about whether
police officers, I'm sorry.
-: But if he hears the description of the study
that was done at Iowa State I think it was,
and then the people walking down the Quad
and police officers and says,
you know, that's a very small sampling.
Our experience in the identification realm
over the last 20 years has
certainly upped the ante on the social science,
but we're not really there on this kinda embryonic study.
Isn't that what he's kinda saying?
-: When does he say that?
Oh he says that the literature does not exist.
But that really redounds to the defendant's benefit,
because it's the Commonwealth
who is the proponent of this testimony,
this expert testimony by these police officers.
They're using their specialized, their training experience,
so it's really on them to show that their training
and experience is based on some kind of objective criteria
or at least some kind of makes sense.
But all they have is a PowerPoint,
and so what this study kind of brings out,
is that whoa, maybe our assumptions aren't right.
Our assumptions that police officers
are better than lay people.
-: But if the judge had said, I absolutely agree with that
and this expert is 100% right then the Commonwealth
would be arguing something different,
but that's not what happened here.
So how do you get around the judge's factual findings
after hearing all this evidence
that this testimony wasn't helpful?
Do you want us to say that
it was a clearly erroneous finding?
-: Well I'm saying, well...
The unhelpful, it struck me as more of a legal conclusion,
so it seems like more of a either de novo
or abuse of discretion.
But it certainly is an abuse of discretion
when he's not, or the court is not,
is not only just setting it aside,
but is not then turn to the Commonwealth basically
and saying okay, maybe I don't find this
all that definitive, but this does raise my alarm bells,
my heckles if you will,
about whether the Boston Police Department's training
and experience is a really all that competent or reliable.
And that should absolutely, that's always weighed
in a reasonable suspicion analysis
and he just didn't do that,
so that would be my response to that.
-: Chief can I? -: Sure, sure.
-: Thank you.
Miss Barnwell, before you sit down,
I have a couple of questions
that I expect Miss Campbell's gonna bring up
and I just like to have you have an opportunity
to respond to the inevitable questions.
The first one is going back to Commonwealth versus Stout,
and Powell and Franklin and the issues of what flight means.
And the Commonwealth inevitably is going to say that
we can consider the flight because it preceded the pursuit
and Commonwealth versus Warren is an issue of weight
and certainly the judge should take Warren into account
and discount the flight because of Warren,
but that none the less there is flight
that gets built into the calculus
or reasonable articulable suspicion
if opening the door was not the moment of seizure.
Could you respond to that argument
that we'll inevitably hear?
-: Well as this course recognized in Warren,
the case law preceding it,
as your honor pointed out
there are cases that essentially imply consciousness
of guilt from flight.
And Warren I think made two critical points
about the quote factual irony in the case law.
On the one hand, the court says, you can avoid the police.
You don't have to engage with the police, that's fine.
But on the other hand if you avoid the police,
or you avoid them in certain ways,
you're nervous, you don't look at them, you flee,
then actually we're gonna hold that against you
in the reasonable suspicion analysis.
And so Warren says again, approach with extreme caution,
we're eliminating it,
but we don't want to essentially
trap young black men in Roxbury, right?
On the one hand I don't have to engage
with this white Boston police officer,
on the hand a court later on is gonna see me
as a criminal or see me as suspicious
because I didn't engage with the white
Boston police officer. -: So if I can just
sort of recapitulate,
your argument is, well no our case law does allow
the judge to consider the flight that preceded the pursuit,
but considering these circumstances
in Commonwealth versus Warren,
it just doesn't add a lot.
-: Exactly and again, and the second point of Warren
of course is, it's just as likely
that this young black male
is trying to avoid the recurring indignity
of being racially profiled.
-: Okay and then the second things is,
when you're being asked questions about
what the, Mr. Evelyn was doing as he was fleeing
at this point in time from the police
and holding onto something.
Of course if the seizure had already occurred,
then we don't really take that into account.
But if the seizure, if there's a seizure hadn't occurred,
the judge's finding also was that he reached,
tried to reach into his pocket and take something out,
if you recall.
"He tried to draw an item out of his pocket,
"while he was still running."
You remember that finding?
-: I do.
That was in the fact finding.
And frankly what confused me of that very point,
the Commonwealth pointed out,
there's one point when he says the seizure happened
at the end of his run.
Then there's like four, I'm sorry.
(justice talking in the background)
Oh I'm sorry, then like four pages later
he doesn't even mention.
I mean you would think that's an important fact.
You know he's trying to draw something out.
You know, he did the command.
But he doesn't locate it there.
If the seizure is even beyond the sort of awkward running
and now we're in the space of
he's trying to drawn an item out,
I understand I would have a difficult,
probably a difficult road, but I still would not concede it,
because we still don't know what that item is.
He doesn't see an outline of a gun,
he doesn't see a holster, he doesn't see anything like that.
It's kind of vague.
-: Thank you. -: Thank you.
-: Now before you're gonna leave, one more question,
just to clarify.
I understand, that's all right, I sure Ms. Bassill
will give you extra pay for...
(justices laugh)
-: She's giving me coffee later, thank you.
(multiple people laugh)
-: I understand the argument that we made in Warren
that when one evaluates the inference
to be taken from flight or evasiveness
that one can take race and let's say youth
to that calculus to say that,
we must recognize that there's a reason why
black youth may run or be evasive for the police
that may not be present for an old white man.
Where I have some trouble though is
are you asking us to say that in terms of the
timing of the seizure,
that the timing of the seizure differs
between whether you are a black youth
or an old white man?
-: In this case, let me be clear, in this case,
Mr. Evelyn should prevail at the opening
of the passenger door,
whether or not the court takes into account his race and age
but it certainly should matter.
If it's a reality for young black males.
So Warren is saying, this is the reality
for young black males in Boston period.
That reality is the same under the totality
of the circumstances when we're talking about seizure
or whether we're talking about behavior.
-: Okay, but think of what that means.
That means that anytime a police officer
wants to speak to a young black male,
that according to your understanding that would be,
would become essentially a seizure
and you could not do it without reasonable suspicion.
But if this same person were an older white person,
you could have that questioning.
Well in JDB versus North Carolina,
the United States Supreme Court
confronted that very question
and the response is look
it's not always gonna be dispositive.
The individual's age, and in this case,
the individual's race it's not always gonna be dispositive.
In Matta, for example, it may not have turned anything,
because there was again, no other intimidating context
other than, "hey come here for a second."
That was it.
So it's not always gonna be dispositive,
but there are important circumstances.
This is a totality of the circumstances test.
They should be part of the circumstances, absolutely.
-: So the timing of the seizure depends on the race
and age of the individual who was being seized?
-: Those are factors to be considered
along with everything else,
along with everything else.
Male Justice: The race of the police officer.
-: I'm sorry.
-: The race of the police officer?
That should also be considered, yes.
-: So the same circumstances, same conduct,
different timing of the seizure
depending on all of these issues of race and age?
-: It could in a particular case.
Again, in this case, it doesn't really matter
whether the court, I mean it does matter.
Let me be clear, it does matter whether this court
considers race and age,
but the calculus should still be to Mr. Evelyn's benefit,
that there's still a seizure when he opens the door.
-: What's a police officer to do?
I mean it's hard enough now for them to understand
when they need reasonable suspicion to stop somebody,
as opposed to simply saying can I speak with you.
But if you're right, then the officer is gonna have to
look and evaluate the race and age of the person.
And how's the officer supposed to know then
whether or not the police officer
can seek to question that person.
Because it maybe a seizure if he's black and young,
but not be a seizure if he's white and old.
-: So certainly the court need not hold
that the police officers must be certain.
The JDB versus North Carolina standard
I think works really well in this context,
which was what was reasonably apparent
to an objective officer.
And in this case, they both testified,
we saw a young black male.
He was tall.
And you know, they know,
they didn't even ask for his license
for the firearm because he looked so young.
They also know or should know
that their department has this very, very troubled history
of racially discriminatory stops.
That's gonna create dynamic if they're in (mumbles)
talking to an old white man.
-: So if we have
a patrol car driven by two black police officers,
you're tellin' us there's a different set of rules?
-: No not necessarily-- -: Well you just told us
that the race of a police officer matters,
so we would have a different standard
if two black police officers are involved here.
-: What about if the defendants are Hispanic or Cambodian?
Or are we gonna have different rules for each nationality?
-: Well again, it's what's reasonably apparent to
the police officer.
I don't know the statistics.
Do they have a history of racially discriminatory stops
against-- -: But I'm just trying
to understand, are we gonna have some kinda different,
as Justice Gaziano's saying,
where if we have black cops and black defendants
or white cops and Hispanic defendants.
-: How about an undocumented person,
who escaped a totalitarian regime?
-: Only I would say, only if the officer knows that,
or if that's reasonably apparent to the officer.
If it's not reasonably apparent to the officer,
then it's just not weighed
is how I think the balance happens in JDB,
which this court should apply.
-: So what is the test for seizure?
When does it occur, just to sort of,
not here, but in general, when does a seizure occur?
Is it when a reasonable person feels unfree to leave.
-: When a, so Matta has I suppose somewhat,
well Matta says it's not really changing anything,
but yes I think the test is whether a reasonable person
from the defendant's position,
in this case he's a young black male,
would feel free to leave.
(multiple people speaking)
-: That's not it, not whether they'd feel free to leave.
(multiple people speaking)
Objectively communicated the officer
would use his or her police power
to coerce the person to stay. -: I'm sorry what?
Could you repeat that? -: Correct and so in this--
-: Yeah sure, whether or not the officer has through
words or conduct objectively communicated
that the officer would use his or her police powers
to coerce the person to stay.
-: So that has no relationship to who the person is,
who's being-- -: So in this...
I mean the problem is, right, is that
we often talk about this as a silent movie,
and it's like watching this as a silent movie
and then pretending that he's not young and black
and pretending that the police officer's aren't white,
and all of that, that that entails.
Oh and that the film isn't filmed in Roxbury.
We can just sort of have an abstract.
I mean that doesn't make any sense.
The totality of the circumstances
should absolutely take that into account.
And as to Matta's compelled to stay,
here's the situation is that the officers ask,
or sorry one officer keeps asking Mr. Evelyn questions.
He does not wanna talk to them.
Okay, this is what the officer objectively communicated,
you don't wanna talk to us, you don't wanna talk to us,
all right, we're getting out,
we're gonna make you talk to us.
-: Objectively, objectively. -: Compelled to stay.
-: I don't know what objectively means in this situation
and that's my problem.
-: What are we talking about?
Objective from what point of view?
-: Well I would submit it's the reasonable person's standard.
I have advocated for modifying Matta,
not that it would have to reverse anything in Matta,
but that it should be,
really these two things are intertwined.
What is the officer communicating
and then how would a reasonable person perceive it.
There's no way really to divorce those two things.
And so, you know, and I gave the example of,
you have sort of an easy example.
A police officer goes and is talking to a person
walking down the street.
And officer goes, sees a woman in a wheelchair
and starts talking to the woman in the wheelchair.
I mean the woman in the wheelchair
is gonna have a very different experience, right,
than someone freely walking.
-: But I mean that's the point.
That's the point.
How would you judge it?
From the point of view of the person in the wheelchair
or the point of view of some reasonable person standard
that we would presume would be the case for everyone,
including the person in the wheelchair.
-: Well I think it should be the reasonable person
from the standpoint of the woman in the wheelchair.
-: But you just told me that it doesn't matter
if somebody is undocumented from a totalitarian regime
and is gonna think, there's nothing but trouble.
-: Oh I didn't say it doesn't matter.
What I'm saying is under Matta--
-: No you said if the police officer doesn't know--
-: Oh. -: It doesn't matter.
-: That was your answer to the question.
I mean as far as from whose perspective.
-: Well as far as when the seizure was.
If the officer doesn't know it
or it's not reasonably apparent,
in the case of the wheelchair, it's very obvious
that the person's in the wheelchair.
In our case, it's very obvious.
He's young, he's black, they're in Roxbury,
the Boston Police Department has this troubled history.
-: Okay, thank you. -: Thank you.
-: Miss Campbell.
-: Good morning and may it please the court,
Cailin Campbell on behalf of the Commonwealth.
With me today is David Bradley
who is this motion prosecutor in this case.
We ask you to affirm the denial of the defendant's motion.
-: Why shouldn't the age and race of Mr. Evenlyn here,
go into, as a matter of weight, similar to Warren,
into how much his conduct in avoiding the police
matters in calibrating reasonable articulable suspicion?
Why shouldn't that be considered by the judge
in his or her findings of facts
in determining how much weight to give that behavior?
-: So in so far as Warren recognizes the realities in Boston,
I say it could be, right, and it should be.
I think it's important to clarify what Warren stands for
and what it doesn't stand for.
And I point the court, first of all just factually,
it was 30 minutes from the report of the crime,
two miles away.
But I would point the court to page 538
in which it says that evasive conduct,
so it's not just limited to flight,
it's evasive conduct, and I'm quoting,
"is a factor properly considered
"in the reasonable suspicion analysis."
Jumping down it says, "evasive conduct in absence
"of any other information is insufficient
"to support reasonable suspicion."
So it's you can't just point to the flight and say
that's what supports the reasonable suspicion.
And I think factually here you can distinguish Warren.
Even if you were to place the stop as early as
Officer Garney opening the door,
there are still objective things
that the officers-- -: Do you win if we do that?
-: Yes, yes, because you have,
I think it's important, thought dispositive as Depina says
that they're investigating not only shooting,
but a shooting in which an individual has been shot
and is in life threatening condition.
Not only that, the specific testimony
from the officers which was credited and found
by the motion judge,
first appearing on page five of the opinion,
is that Officer Abasciano had seen no pedestrians
on Harrison Avenue and that he had seen no one on Melniacas.
-: You're not asking us to overrule Warren or Meneus correct?
-: No.
-: Because what those cases do is describe the realities
of racial profiling,
but they also talk about the Hobson's choice
in that if someone is free to leave,
they have to be free to leave.
So you can't take that in part of the calculus
for reasonable suspicion, correct?
-: Correct, but that's not--
It's a hollow right if they do leave
and you grab them and arrest them.
-: Yes I can understand that argument.
I think here, that's why I argue,
and I argue it in my brief the way that I do
is even if you were to consider this
at its earliest moment,
there's reasonable suspicion at this moment.
I think looking at the modest standard,
it's sort of the juxtaposition between the two.
And that's why I think it's important,
even in Meneus they talk about how officers,
especially when they're investigating violent crime,
such as happened here,
need to be able, that is also a fact.
-: But in Meneus we had a police officer,
that was a shooting case,
he goes up to a group of kids, talks to a bunch of 'em
and then Mr. Meneus says I don't want any part of this,
just starts to walk away. -: Yes.
-: And we said, once the police officer chased after him,
he was seized. -: Yes.
-: And we looked to see whether
there was reasonable suspicion, which there wasn't
at that point, right? -: Correct, correct.
-: So I know what you argue in your brief, but
are you saying that the judge was wrong in his
seizure analysis as far as at the end of the event,
almost at a Hodari D. point.
When are you saying the seizure occurred?
-: No, I think the judge is absolutely supported
based on the case law to find the seizure when he does.
I understand for purposes of sort of,
trying to figure this out in argument,
placing it as early as when Officer Garney opens the door.
But I think if you look at Matta
and the standard articulated in Matta which is,
the words or conduct objectively communicating
that the officer would use his police power
to coerce an individual to stay.
You know Judge Ricciuti didn't have the benefit
of that standard at the time
that he made his factual findings.
I don't think it changes the ultimate outcome in the case,
but I also don't think it's fair to look at his analysis--
-: But what inference can be drawn by the fact that
he says the holler thing,
the defendant keeps walking straight ahead,
doesn't want anything to do with the police,
and then the door opens.
And as Miss Barnwell argued, the only message
that can be conveyed from that is,
you ain't got no choice.
-: And even if you were to construe the moment
of Constitutional seizure at that point,
I think there are significant other facts
that support reasonable suspicion.
-: What are they? -: Sure I'll tell you.
As I just mentioned, it's the fact that
there has just been a shooting,
that there's been a victim shot.
It's 13 minutes away and it's a half mile away.
The specific testimony of the officers,
which was found by the judge
and this is on page five of his decision
and page eight of his decision
is that the defendant was the first person
that they saw in the vicinity of this crime.
-: They didn't have a description of anybody did they?
-: They didn't have a description of anybody, no.
-: Think it was more than one shooter?
-: Yes, there was a report
of three individuals. -: So, so,
this sort of, you could look at it as just,
what basis would they have for stopping
this particular person?
-: Sure and if that was the only fact,
I could understand it and I don't think
I'd be able to make the argument that I am now though.
-: What other facts though? -: Sure the other facts are
that the officer, and this is credited testimony,
that the location of the shooting
suggested to the officer that it was an area
where an active gang feud was going on
and that's why he went,
in addition to the radio dispatch call,
but that's why he went in the direction that he did.
But even more so than that,
when they first see the defendant
and I think that this is important,
it's 13 minutes after the shooting,
they see his right hand,
and this is credited by the judge,
clutching an object in the defendants right pocket.
Female Justice: And they saw it from the beginning.
-: What? -: They see this right
from the beginning-- -: Right when they pull up.
-: When they start to pick him out
as somebody to talk to? -: Correct.
-: They've already seen that?
-: Yes when they go.
They see him when they pull up alongside the sidewalk,
the testimony is that they see that he has his right hand
in his right pocket, that he's clutching an object.
Not just clutching an object,
but the specific finding is clutching an object
that was consistent with the size of a firearm.
And the specific testimony was
"that it's consistent in size and scope of a firearm."
-: What does that mean exactly?
I mean I'm walking to work today in winter coat
and I got my cell phone in my pocket.
Does that meet that description?
-: I would say it depends on how you're holing it.
And again this is not the--
-: I got my wallet in my...
It's winter right? -: Absolutely.
-: It's winter, he's in a coat
and he's got something in his pocket.
I don't know how much that adds.
But, but no, I think that adds a lot,
because it informs the blading observation.
Because it's not just that, it's not just--
-: I get that blading is something different,
but the object in the pocket in the winter,
I mean almost everyone here probably walked to work today
in a big coat with their hand in their pockets.
-: Absolutely but looking at that one,
that doesn't mean
that you can't consider that factor, right?
Again if I only had that factor,
it would be a different argument.
But looking at this factor,
and I also think it's important
throughout the context of all this
and considering Dr. Sweet's testimony as well,
to remember that we're talking about reasonable suspicion.
So there's no requirement,
I mean even if you were to elevate it
to probable cause that the officer's observations be
actually accurate, there just has to be an objective
factual basis by which they make the observation
that they do that supports--
-: I should know this, but forgive me,
did the blading occur before or after the door opens?
-: It happens before.
And the observation is that they see the
hand in the pocket, clutching the item
which is consistent with the size of the firearm.
They then follow
and then that's when they notice the blading, which--
-: 'Cause he can see them apparently,
so now he blades his body to conceal the weapon.
-: Correct, correct.
And I think it's not,
that's where the Amicus and My Sisters brief
kind of ignore.
I think you can't ignore the item in the pocket
and the blading and sort of the timeline of these events
as how they occur.
I also think it's significant
that this is not an instance.
They pull alongside him, they follow him.
They roll down the window.
They say "Can I holler at you?"
And he responds to them.
And he says, "for what?"
And they explain to him,
there was something that happened in the neighborhood.
We wanna see if you heard or say anything.
And the testimony was that he mumbled something
that they couldn't understand.
And it's that point that they decide to get out of the car.
So this seems different from, to me,
than someone who absolutely is not engaging with the police.
He does respond to the questions that they ask.
Justice Kafker: Yeah, but he doesn't want to.
-: Then we get the Warren factors
kick in at that point though.
The I don't want to engage, that triggers Warren.
-: It does, but I think it's different
than sort of looking at a case
of someone who's actively rebuffing
any attempt for the police is talking to them
or trying to absolutely leave.
At the first question running away.
-: I guess when you say someone keeps their,
you know the police make a big deal
that he locks eyes and he won't engage.
-: Sure. -: He gets his eyes fixed
and they find that nefarious.
But that's also indicative of someone
who doesn't wanna talk to them.
-: Absolutely, and while if that was that factor alone,
I couldn't be making the argument that I am.
It's not that factor alone.
It's the totality of all of the factors together.
And so I would suggest if you look at a case like DePiaza,
I mean this is so much more than DePiaza
because you have an actual, not just shots fired,
someone who's shot
and then objective criteria which they look at.
I will say it again, the right hand in the pocket,
clutching an item consistent with a firearm,
followed by the blading, and the evasive behavior,
which even if you open the door
that supports reasonable suspicion.
-: Can you address the judge's finding
that opening of the door was appropriate from an officer's
safety perspective. -: Sure.
-: And then the judge further finds that Evelyn
thus ran on his own,
not occasion by anything the police did.
That doesn't sound correct.
-: So there was testimony from Officer Abasciano
which I keep on saying wrong,
but (laughs) that based on the observations they made,
and this again goes to the subjective intent of the officers
so I'm not sure how much it actually plays into the...
-: Objective. -: Objective criteria
which are to be considered.
But to answer you question, there was direct testimony
from the officer that based on the observations
that they made of the hand in the pocket and the blading
in conjunction with you know the reason why
they were in the area,
they believed that he could have a firearm
and that the officers thought that
if he were inclined to pull the firearm out
and use it, they were in a bad tactical position,
so it would make more sense to get out of the car
for that reason.
-: So do you agree that if there had been
no shooting that night,
if it was a quiet night,
that all the inferences which they drew
from his observation would not suffice
for reasonable suspicion?
-: That's a tough question. (laughs)
-: That's why they pay you the big bucks.
(multiple people laugh)
-: Correct, correct.
I mean (sighs) it would depend.
If we have the same gang activity, recent shots fired.
-: I'm saying it's a quiet night.
-: Quiet night.
Then probably not.
But here what you have is the reason why
they're in the area and the recency of the shots fired
and someone actually shot.
-: You also have El Dorado issues too.
-: Correct, correct.
Correct, I mean we don't need to reach that question,
obviously because we have the facts--
-: Well it bears on the weight
that we are gonna be giving.
I mean it matters whether or not
we're gonna be saying that all these,
the blading and the evasiveness and the flight,
especially for a young black male
would suffice to enable a police officer to do a stop.
That's important.
-: It absolutely is important.
-: And so that's why I'm asking you,
whether or not you're saying on these facts
that would suffice, in the absence of their being
a nearby shooting.
-: No and I would say, I (mumbles),
you know I, you almost can't divorce...
I guess I will say the critical fact in this instant
is that there was a shooting 13 minutes before,
a half mile away.
-: Let me follow up on on that.
Everybody will get their chance.
(multiple people laugh)
Do you also agree with regard to Warren,
in terms of the inference,
the weight of the inference to be derived
from evasiveness and flight,
that it's appropriate for us to include,
not only race, but also youth?
That we should, that when somebody is a young person,
of arguably any race,
but certainly an African American,
that the weight to be given to evasiveness
and flight should be less than for an old white man?
-: And I guess my answer to that would be,
it would depends the facts of the case.
So My Sister brought up JDB and the amicus
almost solely relied upon JDB to make this argument.
But I think the actual limitations
which are contained within JDB are important.
Because the first one is that age is to be considered,
so long the child's age is known
or would have been objectively apparent to the police.
And in that case it's not a question,
because it's a seventh grader
and they take him out of his seventh grade class.
He's 13 years old.
It gets difficult when you have here, I mean,
and even in JDB they say sometimes age would be
an insignificant factor
and they point to Yarborough v. Alvarado
in which there's a 17 year old.
And so what objectively appears to the officers,
I'd say that's murky,
that becomes murky when you have an instance
as you have here,
where you have a 17 year old
who appears is over six feet tall.
-: I thought you'd answered the same question
that the chief just asked, when I asked it, yes.
I mean, when you're evaluating all of that behavior,
and how much weight it adds to the
reasonable articulable suspicion calculus,
that you do consider race and age as a matter of weight
as you would with Warren.
-: As a matter of weight.
It becomes interesting, right, because.
I just wanna make sure that he's getting this,
we're getting the same answer,
'cause it's the same question.
-: And maybe I didn't understand it to be the same question.
That's probably on me
and not on the way that the question was asked.
But you know in the considerations,
Justice Leng asked the question as to whose perspective
it's considered by.
Is the person who's stopped or is it the police officer
and their behavior?
And I think that's sort of the crux of it.
And when you think and you look at the case laws
as to the purpose of the exclusionary rule,
it is "to deter future unlawful police misconduct,
"thereby effectuating the guarantee of the Fourth Amendment
"against unreasonable searches and seizures."
So it is focused at the police conduct
and whether it's reasonable or unreasonable.
Sure that may be informed by the totality
of the circumstances and in actually it must be.
And Warren that recognizes sort of realities regarding race.
But you also have to consider what would be apparent
to a police officer when they're investigating a crime
and when they're investigating
a serious violent crime, such as what happened here.
And what you don't wanna happen,
and what is really the harm
in sort of expanding this too far.
Again I would point to JDB where
you know that the Supreme Court
and the Appeals Court,
and there's no case in this Court that I could find
sort of analyzing JDB and explaining it,
but it talks about too much individualization
and looking at the individual characteristics
of an individual.
In this context it's Miranda,
so it's for the purposes of custody.
But importantly,
the Court and the Supreme Court does so,
says "that standards should avoid burdening the police
"with the task of anticipating the idiosyncrasies
"of every individual, defining how those particular traits
"effect each person's subjective state of mind."
And that's where there has to be a balance
between investigating crime and a defendant's rights.
And we're not suggesting that there
shouldn't be that balance or that race or age
would never be considered in the totality of that balance,
it's just that it has to be a balance.
I'd say here, given all the factors
that I've pointed to before,
the fact that there was a shooting
close in temporal proximity and geogrphy,
based on the specific observations
that they made of this defendant,
even taking into account his youth and his race
and the history of Boston and policing,
which is recognized by Warren,
there still is reasonable suspicion
to support this stop. -: That was what
I was gonna ask you.
If you put aside the evasiveness and the flight,
do you still win? -: Correct.
-: And you're saying you do. -: Correct.
-: Okay so we can take that out of the calculus completely
and you still win in a court.
-: I don't think you should and I don't think Warren.
-: I understand that
but I'm saying that you're saying we could.
-: You could, yeah absolutely. -: And you would still win,
so that doesn't matter.
-: Correct.
I'm more forward looking in seeing how you sort of
engage in this calculus going forward on different facts
that aren't as strong as this. -: I understand that.
I'm just saying here. -: But if he had...
-: No, no I just wanted to make sure.
-: But if he had just kept walking...
I'm just trying to understand, if he'd kept walking,
and we take Warren into account.
I think it's a lot harder.
When he sprints, that seems to me significant.
But you don't seem to think you need that.
But you don't have a lot except for maybe blading
and I'm not sure what blading means.
-: See I disagree there with it a lot
and I think you can't divorce it from the crime.
-: Right I understand this is a shooting.
-: Absolutely.
I understand your concern--
-: If this were, let me change the facts.
It's a 75 year old man or woman walking down the street,
with his hand in his pocket.
Got a hand in his pocket, it's cold outside,
and he mumbles to the police,
or she mumbles to the police,
do you have enough to stop that person if he doesn't run?
She doesn't run?
-: It depends on what the testimony is
as to the hand on the pocket, right?
-: Really, it's a 75 year old woman
and you got enough to pull her over, come on.
-: No, but I think the facts here matter.
And I'm not arguing sort of anytime
anyone has their hand in their pocket
walking down the street
that there's reasonable suspicion to stop or search them.
I definitely don't think that that's the case.
But I don't think that this case boils down
or distills to those facts,
especially in light of, you know,
I don't wanna be repetitive,
but the sort of, as the court recognized in both Meneus
and Depina that the crime under investigation
and the fact that it's a violent crime
and the fact that it's 13 minutes later
in close geographical proximity
with the observations that the police do make,
that is essentially and the only context in which
this case we consider. (justice drowned out)
-: Blading them, it's better to say what happened,
rather than use the word blading.
What happened, that's the problem,
it's a load term,
is that in that context,
he turns the right side of his body--
-: Yes. -: Away from where
the police car is coming along next to him.
-: Absolutely and if you look at the testimony
and the judge's factual findings
based on that testimony,
the officer says he's heard it referred to as blading,
but then he describes the specific observations
that he makes. -: The word blading
doesn't do anything for me.
It's what he actually, allegedly did.
-: And what did he allegedly do?
Describe it.
What is he doing?
As he's walking he does what?
-: Sure as he's walking there's the hand in the pocket
which we won't get into again.
(justices laughing)
And there is...
I wanna make sure I'm being precise.
His hands remain in his pockets.
The officer says that he knows it as blading,
"but that he turned the right side of his body
"unnaturally away from the police car
"to the left so that it was not facing
"the side of the police car."
-: Isn't the core issue here ultimately for us
to decide whether or not the police officers
are obliged to let him run away,
under these circumstances.
-: Obliged to let him run away.
-: 'Cause if it turns out that we say
there was not reasonable suspicion to stop them,
then they were obliged to let him run away.
-: Yes, yes. -: I'm not sure
that you said that before though.
I need to get at where your seizure moment is.
Because you said that the seizure
was when the police basically take out the gun and say stop.
And okay and maybe that's it.
That's certainly a seizure.
I think it's earlier than that.
And that putting into account that our cases in Franklin,
they're not exactly clear on what pursuit means
for the purposes of Stout. -: Correct.
-: But putting that aside,
in this context, considering everything that's happened,
if they had pursued him,
before he started to flee,
I'm not sure we could really count that.
But he takes off and then they pursue him.
And my question is, when they start to chase him,
under Stout, isn't that the seizure?
-: Well no and I think it's interesting too,
looking at the new articulation of the under Matta
and the objective communication
as to whether he would be compelled to stop.
I would say that changes the analysis, correct?
Because if you look at a case like Messiah Franklin,
running after an already running person,
because there was no additional level of seizure,
that's how that came out.
It wasn't the same sort of standard that exists now,
objectively communicating.
I say objectively communicating
once you start running after somebody,
I would agree that, under Matta,
that probably is the moment of seizure.
(multiple people speaking)
-: Apply Matta now, don't we, to this case.
I mean the judge didn't have the benefit of it--
-: The judge didn't. -: But we do.
-: You do. -: So now that Matta exists
and is our law-- -: Correct.
-: When do you say the stop occurred?
Upon the beginning of the sprint or at a later point?
-: No well under the Matta the focus would be
on the officers objective communication
through either words or a physical act,
so I would say once Officer Garney
starts running after the defendant.
-: No please. -: So basically you say
when the sprint began? -: Yes.
-: When he started to sprint? -: Yes.
-: Not when he left the car.
'Cause that would not be enough you're saying.
-: On these facts no.
-: 'Cause he didn't say anything.
-: He doesn't say anything
and given where the defendant's body is turned,
the sort of positioning of everybody involved.
-: And then then judge,
so the judge may consider the flight
because the flight was before the pursuit.
But when we take into account how much the flight's worth,
we take it into account contemplating
Warren. -: Warren.
Correct, correct. -: Yeah, all right.
If I may 'cause I see that I'm over time,
just addressing the expert testimony,
just briefly. -: Briefly.
-: I think it's important to look at the judge's findings.
He permitted this expert to testify
and he gave it the weight that he saw fit.
I think the critical finding is that
Dr. Sweet testified that there was no study
other than her own threat study
which researched the characteristics of armed gunman.
But when you look at her testimony and the study itself,
it explicitly stated that the findings could not be applied
to real life incidents in high crime urban environments
where the consequences of finding a weapon are high
and where police are trained in detecting such threats.
So I'd say her study by its own very terms
didn't apply to these circumstances
which were before the judge,
so that the weight that he chose to not give it
in this instance was entirely supported.
If the Court has no further questions,
the Commonwealth will rest
on its brief. -: Okay thank you.