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<v ->SJC 12808 Commonwealth v Tykorie Evelyn.</v>

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<v Chief Justice>Ms.Barnwell, good morning.</v>

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<v ->Good morning Mr. Chief Justice</v>

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and may it please the court.

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My name is Hayne Barnwell and I represent Tykorie Evelyn.

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With me at counsel table is attorney Janice Bassil.

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In any suppression case, whether the court is analyzing

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when a seizure occurred

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or whether there was reasonable suspicion for the stop

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the court of course

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considers the totality of the circumstances.

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However in this case, the Commonwealth

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wishes this court to ignore two significant circumstances.

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One is that Mr. Evelyn is a young black male.

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The other significant circumstance is the reality

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for young black males in Boston.

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As this court recognized in Commonwealth versus Warren,

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and that's nearly 30 years after Charles Stuart's hopes

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triggered a wave of illegal searches and seizures

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in Boston's black community.

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Young black men are disproportionately targeted

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by the Boston Police Department for FIOs

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which include humiliating stops and frisks.

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The Superior Court also did not follow

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this court's direction in Commonwealth versus Warren.

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And actually there were two directions

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in Commonwealth versus Warren

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first being that a person's flight

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should have little to no weight

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in the reasonable suspicion analysis

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given the fact that people are free

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to avoid police officers.

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<v ->Counsel, I would like to, in general I understand</v>

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your broader points and the broader statistics.

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I'd like to focus more narrowly on this particular case

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and I'm wondering what if any factors

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would distinguish it from Warren?

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<v ->Well actually...</v>

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I'm sorry, is the court focused on seizure right now

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or on reasonable suspicion?

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Because there are--
<v ->It's a difficult question</v>

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because, let's first focus on the seizure,

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because well they relate together.

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They're hard to separate those two things in my mind,

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because if there's no reasonable suspicion,

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then it changes when the seizure is.

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So let's focus first on just,

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'cause certainly agree a police officer

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can stop somebody on a street and say,

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"I wanna ask you a question",

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especially in these, and let's focus on these circumstances,

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which are what again?

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<v ->So the circumstances here is we have</v>

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a black teenage boy, he's alone who's walking

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on the residential street in Roxbury.

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Two white Boston police officers,

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they are in full uniform in a marked cruiser.

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They shadow him.

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<v ->And why, why, why were they there?</v>

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<v ->That's an excellent question. (laughs)</v>

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What the officers testified to is that they get

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a ShotSpotter call as they're on patrol.

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<v ->A ShotSpotter call came in within what radius</v>

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of where they were?

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<v ->Half a mile, 13--</v>
<v ->Half a mile.</v>

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<v ->About half a mile.</v>
<v ->Thank you counselor.</v>

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<v ->I'm just trying to recall where they exactly were</v>

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when they got the ShotSpotter.

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But they were, I would think around a half a mile

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is still correct.
<v ->And how much time</v>

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had passed between the ShotSpotter

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and when they were located?

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When they first see Mr. Evelyn it's 13 minutes

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after they get the ShotSpotter.

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<v ->Okay so let's stop with that and then go to Warren.</v>

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What were the facts in Warren that are similar?

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<v ->So in Warren the officer interviewed the victim,</v>

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apparently very quickly, 20 minutes later

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they see the defendant

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and then 25 minutes later they stop him.

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<v ->And what was the distance?</v>

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That was a mile.

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A mile is my recollection.

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And just to quickly turn to Commonwealth versus Cheek,

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in Commonwealth versus Cheek, that was actually a half mile

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so that's even more similar

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to this case.
<v ->So let me ask you,</v>

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another question I have is,

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when the police approach,

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do you consider that that require reasonable suspicion

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at that moment?

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<v ->No, reasonable suspicion is required,</v>

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once Officer Garney opens the passenger door.

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<v ->Once he opens the passenger door.</v>

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<v Hayne>Yes, that's when we locate the seizure.</v>

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But, I'm sorry.
<v ->Okay so</v>

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once he opens the passenger door,

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is that when the seizure starts?

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<v ->Yes and I'm sorry.</v>
<v ->No.</v>

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<v ->I just wanted to add to that that...</v>

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That that of course doesn't make

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what happened before irrelevant.

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That of course the shadowing, the following alongside,

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all of that was starting to escalate and intimidate.

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So even though the seizure didn't happen before,

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there was certainly an escalation,

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a very quick escalation.

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There was the intimidation that objectively,

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any reasonable person,

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certainly a young black male would feel,

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you know being shadowed, then alongside.

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Both officers testified,

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"he clearly did not wanna talk to us.

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"He was responding, but he did not wanna talk to us.

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"He kept his eyes either straight ahead

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"or darting all around, any direction but us."

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"He kept walking" Officer Abasciano testified

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and he actually picked up pace.

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He did not want to talk to them.

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And so that's why when he opens the passenger door,

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it's clear that, you know, you're not talking to us,

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we're gonna make you talk to us.

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That's why that's where the seizure is located.

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And even if happens,

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even if this court finds that it happens a bit later

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(clears throat) so for example

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when Officer Garney gives chase.

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So once the--

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<v ->So how does that work though?</v>

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So you say under Warren we can't consider the fact that

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your client ran, right?

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So should we not consider that the police ran after him too?

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I mean, is running on both sides irrelevant?

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<v Hayne>No not at all, because--</v>

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<v ->Though but if your guy runs</v>

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and we can't take that into account

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how does that work?

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<v ->I'm sorry.</v>

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The law is clear that pursuit is a seizure.

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<v ->Well it's not so--</v>
<v ->Well let's stop there.</v>

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<v Justice Kafker>Go ahead.</v>

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<v ->You know that has always confused me in some ways.</v>

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And I understand there are, they're considered to be

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problems with Hodari D. from the federal circuit,

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the federal position.

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But that's a very simple rule.

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You're seized when you submit to authority

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one way or the other.

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So wouldn't that be an easier way

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for us to analyze this?

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<v ->No I would certainly not recommend</v>

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that this court go back on its case law,

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under Article 14.

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Whatever the federal rule is,

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because any reasonable person,

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or let's take it from a (drowned out by cough) perspective,

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what is a police officer objectively communicating

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to a young black male by getting out of a car

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and chasing him?

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It's I'm gonna stop you.

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You can't go anywhere.

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So he's running.

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He wants to avoid that.
<v ->Well Warren doesn't say</v>

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you can never consider flight though.

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<v ->That's true.</v>

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Warren did say we're not eliminating it,

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but approach with extreme caution,

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especially when you have this very scenario

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of a black teenage boy,

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who is trying his best to avoid this encounter

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with two white police officers.

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<v ->So what would you suggest,</v>

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assuming that the community wants policing

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and assuming that there's been shots fired

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not that far away,

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and he's the only person in the vicinity,

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what should the police do?

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<v Hayne>Well he wasn't the only person in the vicinity.</v>

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<v ->Okay.</v>

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<v ->The officers clarified that.</v>

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"No we're not saying there was zero pedestrian traffic,

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"there was minimal."

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And so also in, I believe it's Meneus,

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where the court looked at,

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or I'm sorry it was Warren itself I believe

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where it said, you know when you've got this sort of

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narrow geographical area

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and you're riding around for just a certain amount of time,

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you might not come across that many people,

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even when it's, you know, it's cold.

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So Warren actually looked at that very piece

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and said we're not gonna, that doesn't add anything.

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<v ->Can you factor the DePeiza into this now?</v>

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<v ->So DePeiza, so let me turn my DePeiza notes.</v>

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DePeiza is foreign case.

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<v ->Can I clarify something before you</v>

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jump onto DePeiza if that's okay Justice Cipher?

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<v ->Sure.</v>

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<v ->So your position is that when he opens the door,</v>

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that's when reasonable, articulable suspicion stops right?

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You need reasonable at this.

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But you also then said,

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it could have happened later,

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i.e. when the police officer gave chase.

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But nothing really happens to change the composition

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of the facts between the door opening

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and the chase, 'cause it happens (snaps fingers)

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instantaneous.
<v ->Exactly.</v>

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<v ->Right, so it doesn't really matter in this case.</v>

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<v ->Well, I'm sorry.</v>
<v ->So under your view</v>

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we look at what the police knew at that time

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to see whether there was articulable suspicion.

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<v ->Yes, I agree.</v>

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But I may I just--
<v ->Sure</v>

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<v ->The reason why I do argue that as an alternative,</v>

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is because the Superior Court,

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if you actually look page 130 of the record appendix,

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which I started reading that again

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I found that very important,

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the court seems to take a lotta stock in the flight.

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That seemed to change--
<v ->Sure, sure,</v>

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and we would have to,

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on your view we would have to take the flight out of it

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and then look to see if there was

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reasonable articulable suspicion.

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<v ->Correct.</v>
<v ->Which now we just,</v>

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to Justice Cypher's question about DePeiza

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and why we should backtrack from DePeiza.

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<v ->I'm sorry.</v>
<v ->Why should we</v>

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overrule DePeiza essentially?

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<v ->Oh, oh it consonant with DePeiza.</v>

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This court would not have to overrule DePeiza at all.

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In DePeiza (clears throat) there was a straight arm gait.

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So a straight arm gait looks especially strange

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because you've got one arm stiff to the side

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and then this defendant had the other arm free.

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So he's clearly like holding something down

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that you know, that raises their suspicion.

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It might be a firearm.

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<v Justice Cypher>That's here or that's in DePieza?</v>

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<v ->That's in DePiaza.</v>
<v ->Okay.</v>

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<v ->And then so, in other words there's not just the</v>

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so called blading,

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and in DePiaza it was actually repeated blading.

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Here there's really only one time

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they say he quote, bladed.

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So he's got the repeated blade,

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he's got the awkward motions,

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he reaches into his right pocket,

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I'm sorry I'm still talking about DePiaza,

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he reaches into his right pocket,

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he keeps turning away from them,

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then at that, then this is a crucial moment,

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the police officer sees quote something heavy

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in the pocket.

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00:11:14.020 --> 00:11:16.540
And even with all of those facts,

257
00:11:16.540 --> 00:11:18.590
which are very different from the facts here,

258
00:11:18.590 --> 00:11:20.748
because there's no bulge, there's no outline of gun,

259
00:11:20.748 --> 00:11:22.510
et cetera, et cetera, et cetera,

260
00:11:22.510 --> 00:11:24.860
even then this court said this is a close case.

261
00:11:25.770 --> 00:11:28.969
So when you have far fewer facts,

262
00:11:28.969 --> 00:11:31.143
this court should absolutely reverse.

263
00:11:34.250 --> 00:11:35.370
<v ->Is your view that,</v>

264
00:11:35.370 --> 00:11:37.580
I mean there are various kinds of flight.

265
00:11:37.580 --> 00:11:40.160
I mean there's a sprint and there's jog.

266
00:11:40.160 --> 00:11:43.080
I get the impression here this was a sprint.

267
00:11:43.080 --> 00:11:44.852
<v Hayne>It was a full sprint, yes.</v>

268
00:11:44.852 --> 00:11:47.890
<v ->Okay so, both by the defendant</v>

269
00:11:47.890 --> 00:11:52.890
as well as by Officer Geary or Garney, correct?

270
00:11:53.322 --> 00:11:54.310
<v ->Garney, mm hmm.</v>

271
00:11:54.310 --> 00:11:55.976
<v ->Garney, okay. So this is different from cases</v>

272
00:11:55.976 --> 00:11:57.150
in which they're sort of jogging

273
00:11:57.150 --> 00:11:58.550
and sort of surveilling them,

274
00:11:58.550 --> 00:11:59.793
this is a full sprint.

275
00:12:01.810 --> 00:12:03.500
I thought there was evidence

276
00:12:03.500 --> 00:12:06.770
that defendant's hands were in his pocket

277
00:12:06.770 --> 00:12:07.863
as he was running.

278
00:12:08.980 --> 00:12:10.780
<v ->Yes but that was (clears throat)</v>

279
00:12:10.780 --> 00:12:12.220
that clearly happened after,

280
00:12:12.220 --> 00:12:14.638
or I'm sorry the observation of that very thing

281
00:12:14.638 --> 00:12:17.020
happened after they gave chase

282
00:12:17.020 --> 00:12:19.200
or sorry after--
<v ->How soon after?</v>

283
00:12:19.200 --> 00:12:20.033
<v ->I mean...</v>

284
00:12:22.635 --> 00:12:24.480
Are you saying that that is within the scope

285
00:12:24.480 --> 00:12:26.810
of our consideration with regard to reasonable suspicion

286
00:12:26.810 --> 00:12:28.423
or beyond the scope?

287
00:12:29.280 --> 00:12:32.440
<v ->Well it depends on where you locate the seizure.</v>

288
00:12:32.440 --> 00:12:33.486
<v ->Well I understand.
(Hayne laughs)</v>

289
00:12:33.486 --> 00:12:37.130
<v ->Right, but if you look at the seizure where,</v>

290
00:12:37.130 --> 00:12:39.040
I know Takomoff disagrees with me here,

291
00:12:39.040 --> 00:12:40.910
the way I read his decision,

292
00:12:40.910 --> 00:12:43.480
is he seems to locate the seizure

293
00:12:43.480 --> 00:12:45.980
right where your honor says,

294
00:12:45.980 --> 00:12:48.410
that he's running awkwardly,

295
00:12:48.410 --> 00:12:50.440
he's got his hands still in his pockets.

296
00:12:50.440 --> 00:12:53.860
That seems to be where the court locates the seizure.

297
00:12:53.860 --> 00:12:56.734
But even then, even if you locate it there,

298
00:12:56.734 --> 00:12:58.701
we would absolutely not concede it.

299
00:12:58.701 --> 00:13:02.410
It's still winter and it's single digits.

300
00:13:02.410 --> 00:13:05.840
<v ->I mean you can question its weight,</v>

301
00:13:05.840 --> 00:13:09.336
but generally when you're running at a full sprint,

302
00:13:09.336 --> 00:13:12.420
your hands are gonna be extended if you're gonna be,

303
00:13:12.420 --> 00:13:13.930
your hands are not generally in your pocket

304
00:13:13.930 --> 00:13:14.910
if you're in a full sprint.

305
00:13:14.910 --> 00:13:16.170
So it's...

306
00:13:17.510 --> 00:13:21.150
I don't claim that it bears a great deal a weight,

307
00:13:21.150 --> 00:13:23.110
but it bears some in terms of the calculus.

308
00:13:23.110 --> 00:13:24.740
You would agree that if we were to find

309
00:13:24.740 --> 00:13:29.630
that if that were within the scope of RAS,

310
00:13:29.630 --> 00:13:31.330
of reasonable articulable suspicion

311
00:13:31.330 --> 00:13:33.970
it would bear some modest weight.

312
00:13:33.970 --> 00:13:35.800
<v ->I would give it only a hunch.</v>

313
00:13:35.800 --> 00:13:39.770
A hunch that something's amiss with this teenage boy.

314
00:13:39.770 --> 00:13:41.743
Why is he doing that, you know.

315
00:13:43.000 --> 00:13:48.000
<v ->I mean in Depina we said</v>

316
00:13:50.550 --> 00:13:53.770
that the gravity of the crime

317
00:13:53.770 --> 00:13:55.720
and the present danger of the circumstances

318
00:13:55.720 --> 00:13:59.950
may be considered in the reasonable suspicion calculus.

319
00:13:59.950 --> 00:14:02.970
I take your point that if there had been no shooting

320
00:14:04.010 --> 00:14:06.480
and all we had was these officers

321
00:14:06.480 --> 00:14:09.050
seeing this individual on the street

322
00:14:09.050 --> 00:14:12.041
that all that you described would fall short

323
00:14:12.041 --> 00:14:14.940
of a basis to stop him,

324
00:14:14.940 --> 00:14:18.840
but we do have a shooting minutes before.

325
00:14:18.840 --> 00:14:21.440
Be have somebody who is down.

326
00:14:21.440 --> 00:14:23.700
We have multiple shots fired.

327
00:14:23.700 --> 00:14:25.810
We have reasons to believe that it was

328
00:14:25.810 --> 00:14:29.530
a gang related shooting given the circumstances,

329
00:14:29.530 --> 00:14:33.670
of multiple people fleeing a shooting

330
00:14:33.670 --> 00:14:36.663
in a neighborhood with a history of gang violence.

331
00:14:38.030 --> 00:14:40.789
Doesn't that change the calculus from a situation

332
00:14:40.789 --> 00:14:45.789
where somebody simply sees a 17 year old black youth

333
00:14:45.850 --> 00:14:47.140
on the street?

334
00:14:47.140 --> 00:14:48.070
<v ->Oh I wanna be clear that there was</v>

335
00:14:48.070 --> 00:14:50.810
of course no information that this was at all gang related.

336
00:14:50.810 --> 00:14:51.643
In fact--

337
00:14:51.643 --> 00:14:56.643
<v ->Well but can't one infer that from the circumstances here?</v>

338
00:14:56.690 --> 00:14:58.560
We have a history of gang violence.

339
00:14:58.560 --> 00:15:01.540
It's in the neighborhood where there's gang violence.

340
00:15:01.540 --> 00:15:04.020
Three individuals fleeing after a shooting.

341
00:15:04.020 --> 00:15:06.090
It doesn't sound like a bank robbery.

342
00:15:06.090 --> 00:15:07.983
It doesn't sound like a domestic.

343
00:15:09.660 --> 00:15:11.500
It could be other things, but...

344
00:15:12.630 --> 00:15:15.140
<v ->Well as this court has said time and time again,</v>

345
00:15:15.140 --> 00:15:18.670
that same with now flight with Warren,

346
00:15:18.670 --> 00:15:20.580
certainly high crime area needs to be

347
00:15:20.580 --> 00:15:22.030
taken with extreme caution.
<v ->I'm not saying</v>

348
00:15:22.030 --> 00:15:23.280
high crime area.

349
00:15:23.280 --> 00:15:27.080
I'm saying an area which has a history of gang violence

350
00:15:27.080 --> 00:15:30.330
and a crime occurring in that context

351
00:15:30.330 --> 00:15:33.230
in a circumstance which is consistent with a gang shooting.

352
00:15:33.230 --> 00:15:35.480
That's different from saying it is simply

353
00:15:35.480 --> 00:15:37.360
a high crime area in general.

354
00:15:37.360 --> 00:15:38.380
<v ->I see my time's expired,</v>

355
00:15:38.380 --> 00:15:39.390
may I respond to that.
<v ->That all right,</v>

356
00:15:39.390 --> 00:15:40.223
you can answer.
<v ->'Cause this is</v>

357
00:15:40.223 --> 00:15:41.056
really important.

358
00:15:42.810 --> 00:15:44.960
First of all the suspects were fleeing

359
00:15:44.960 --> 00:15:48.820
in the opposite direction of Mr. Evelyn.

360
00:15:48.820 --> 00:15:50.180
So when you talk about

361
00:15:50.180 --> 00:15:51.433
individualize suspicion.
<v ->You say that,</v>

362
00:15:51.433 --> 00:15:53.890
but the judge, I shouldn't have.

363
00:15:53.890 --> 00:15:57.620
The judge made a finding that he credited the testimony

364
00:15:57.620 --> 00:15:59.891
in the entirety of both officers

365
00:15:59.891 --> 00:16:04.440
and they said, that they may have misheard it,

366
00:16:04.440 --> 00:16:08.070
but don't we need to take the fact that they

367
00:16:08.070 --> 00:16:11.020
honestly were under a misunderstanding

368
00:16:11.020 --> 00:16:12.230
as to where they had fled.

369
00:16:12.230 --> 00:16:16.970
So in their mind, the persons had fled in that direction.

370
00:16:16.970 --> 00:16:20.065
Don't we have to accept that that was what they had

371
00:16:20.065 --> 00:16:21.830
in their mind?

372
00:16:21.830 --> 00:16:26.830
<v ->Well, that's not the objective reality though.</v>

373
00:16:27.020 --> 00:16:28.940
I mean it certainly was in their subjective mind,

374
00:16:28.940 --> 00:16:30.620
but A, that wasn't the objective reality.

375
00:16:30.620 --> 00:16:34.380
But even if, let's say the objective fact,

376
00:16:34.380 --> 00:16:35.870
based on their understanding,

377
00:16:35.870 --> 00:16:39.430
is that they were fleeing away from Adams Street,

378
00:16:39.430 --> 00:16:42.050
if I commend to you the Google Maps

379
00:16:42.050 --> 00:16:43.846
that were submitted as suppress exhibits,

380
00:16:43.846 --> 00:16:48.360
there are so many directions you go, even that way.

381
00:16:48.360 --> 00:16:50.100
So many roads, there are houses,

382
00:16:50.100 --> 00:16:53.320
there's any number of cars these suspects

383
00:16:53.320 --> 00:16:54.580
could have gotten into.

384
00:16:54.580 --> 00:16:57.020
And what's remarkable about this case,

385
00:16:57.020 --> 00:16:58.980
you know when I was trying to distinguish this

386
00:16:58.980 --> 00:17:02.710
from other cases, Warren also,

387
00:17:02.710 --> 00:17:06.500
at least in Warren there was some kind of description.

388
00:17:06.500 --> 00:17:08.600
It was three black males.

389
00:17:08.600 --> 00:17:09.900
One had a red hoodie.

390
00:17:09.900 --> 00:17:11.680
Another had a black hoodie.

391
00:17:11.680 --> 00:17:12.610
This case is remarkable

392
00:17:12.610 --> 00:17:14.090
in there's nothing.
<v ->Well but that's relevant</v>

393
00:17:14.090 --> 00:17:17.693
if we accept the premise that opening the door

394
00:17:17.693 --> 00:17:19.563
starts the seizure.

395
00:17:20.830 --> 00:17:25.143
If a police officer just opens a door,

396
00:17:27.557 --> 00:17:31.230
what other factors go into that to make a seizure.

397
00:17:31.230 --> 00:17:33.340
I mean that can be the only factor.

398
00:17:33.340 --> 00:17:34.630
<v ->Can I add to that?</v>

399
00:17:34.630 --> 00:17:38.080
Doesn't Matta which is our last statement on this

400
00:17:38.080 --> 00:17:39.610
inconsistent with your argument

401
00:17:39.610 --> 00:17:41.513
that opening the door is enough?

402
00:17:42.370 --> 00:17:47.357
Matta, Matta, they're trailing this guy.

403
00:17:49.350 --> 00:17:51.880
They ask him, hey come over here for a second

404
00:17:51.880 --> 00:17:53.890
and they head towards him.

405
00:17:53.890 --> 00:17:57.296
That's not enough, right?

406
00:17:57.296 --> 00:17:59.555
<v ->I'm sorry may I answer Justice Cypher's question first</v>

407
00:17:59.555 --> 00:18:01.420
and then maybe you can remind me?

408
00:18:01.420 --> 00:18:02.960
<v ->No he'd prefer you answer his question,</v>

409
00:18:02.960 --> 00:18:04.500
but you go ahead.
<v ->Okay, okay.</v>

410
00:18:04.500 --> 00:18:05.860
<v ->It's okay when</v>

411
00:18:05.860 --> 00:18:07.179
she interrupts me.
<v ->But pre-Matta.</v>

412
00:18:07.179 --> 00:18:08.182
<v ->It's okay when she interrupts me,</v>

413
00:18:08.182 --> 00:18:10.195
she just doesn't want me to interrupt her.

414
00:18:10.195 --> 00:18:11.028
(justices laugh)

415
00:18:11.028 --> 00:18:13.440
<v ->So the general case law is,</v>

416
00:18:13.440 --> 00:18:15.960
and this is where Commonwealth versus Barrows come in.

417
00:18:15.960 --> 00:18:18.110
So it's not just, he didn't just sort of pull up

418
00:18:18.110 --> 00:18:18.943
and open the door, right?

419
00:18:18.943 --> 00:18:21.160
There was interaction before hand.

420
00:18:21.160 --> 00:18:22.995
And so what the court has said,

421
00:18:22.995 --> 00:18:25.430
and again I've looked at all the cases

422
00:18:25.430 --> 00:18:27.943
and pretty much all of them that I can find,

423
00:18:29.580 --> 00:18:32.050
the suspect, the individual is responding

424
00:18:32.050 --> 00:18:33.650
in an affirmative way.

425
00:18:33.650 --> 00:18:34.500
Hey, what's your name?

426
00:18:34.500 --> 00:18:35.660
My name is Mr. Daly.

427
00:18:35.660 --> 00:18:37.790
Maybe they are a little uncomfortable

428
00:18:37.790 --> 00:18:40.460
but they are consenting to this conversation.

429
00:18:40.460 --> 00:18:43.120
My client was not.

430
00:18:43.120 --> 00:18:46.130
And then I'm sorry, so Matta.

431
00:18:46.130 --> 00:18:46.963
Would you?

432
00:18:46.963 --> 00:18:51.963
<v ->I mean Matta is, hey come over here for a second.</v>

433
00:18:52.010 --> 00:18:53.040
<v ->Right.</v>
<v ->Two men get out</v>

434
00:18:53.040 --> 00:18:55.417
of their vehicles in unison.

435
00:18:55.417 --> 00:18:57.957
"And the defendant began walking away from the officer.

436
00:18:57.957 --> 00:18:59.747
"As the defendant did so, the officer said,

437
00:18:59.747 --> 00:19:02.437
"in substance, hey, come here for a second.

438
00:19:02.437 --> 00:19:05.157
"The officer and the defendant locked eyes

439
00:19:05.157 --> 00:19:07.750
"and then the defendant began running away."

440
00:19:07.750 --> 00:19:09.960
So we don't, we certainly don't find it

441
00:19:09.960 --> 00:19:11.803
before he runs in Matta.

442
00:19:12.720 --> 00:19:13.553
<v ->Oh well that's right,</v>

443
00:19:13.553 --> 00:19:17.090
but that was all the context that the court had.

444
00:19:17.090 --> 00:19:20.432
It was just that single or statement really,

445
00:19:20.432 --> 00:19:23.440
"come over here for a second."

446
00:19:23.440 --> 00:19:25.210
And it was for a second.

447
00:19:25.210 --> 00:19:27.488
It wasn't like, that was it.
<v ->But we have,</v>

448
00:19:27.488 --> 00:19:29.090
all that we have is, hey can I,

449
00:19:29.090 --> 00:19:30.130
what's the holler at you.

450
00:19:30.130 --> 00:19:31.197
I can't remember what he--
<v ->"Hey, hey my man,</v>

451
00:19:31.197 --> 00:19:32.307
"can I holler at ya."

452
00:19:33.430 --> 00:19:36.320
<v ->And how is that different from Matta</v>

453
00:19:36.320 --> 00:19:38.100
before the running.

454
00:19:38.100 --> 00:19:39.845
I mean I see where your point,

455
00:19:39.845 --> 00:19:41.770
although I don't necessarily agree

456
00:19:41.770 --> 00:19:43.010
that running is irrelevant,

457
00:19:43.010 --> 00:19:45.660
but I see your point once they start running after him.

458
00:19:45.660 --> 00:19:47.090
But I don't,

459
00:19:47.090 --> 00:19:49.050
'cause that to me under Matta is,

460
00:19:49.050 --> 00:19:50.550
seems like a show of authority.

461
00:19:50.550 --> 00:19:55.550
But I don't get how just opening the door is anything.

462
00:19:55.790 --> 00:19:58.030
<v ->Because the tell in this, is the officers,</v>

463
00:19:58.030 --> 00:20:00.470
both officers testified, he didn't wanna talk to us.

464
00:20:00.470 --> 00:20:01.990
We knew he didn't wanna talk to us.

465
00:20:01.990 --> 00:20:04.670
And we kept following him anyway.

466
00:20:04.670 --> 00:20:05.610
We kept--

467
00:20:05.610 --> 00:20:09.600
<v ->We have a bunch of cases where trailing has been okay,</v>

468
00:20:09.600 --> 00:20:12.160
right, lots and lots a cases.

469
00:20:12.160 --> 00:20:15.147
<v ->Well trailing, but again, this is trailing plus, right?</v>

470
00:20:15.147 --> 00:20:17.800
<v ->Not trailing plus until they start to run.</v>

471
00:20:17.800 --> 00:20:19.620
When they start to run after him I get it.

472
00:20:19.620 --> 00:20:21.170
But I don't see it before then.

473
00:20:23.140 --> 00:20:25.580
<v Justic Lowy>Can I ask one more question Chief.</v>

474
00:20:25.580 --> 00:20:27.320
<v ->I got one more too.</v>

475
00:20:27.320 --> 00:20:29.320
<v ->With respect to a big part of the case</v>

476
00:20:29.320 --> 00:20:31.663
had to do with the expert testimony.

477
00:20:31.663 --> 00:20:33.841
And I know you wanted to address that.

478
00:20:33.841 --> 00:20:36.193
I wanna give you that opportunity.

479
00:20:36.193 --> 00:20:37.730
<v ->I'm at the court's disposable.</v>

480
00:20:37.730 --> 00:20:42.730
<v ->So on the expert, the Judge Ricciuti below</v>

481
00:20:43.190 --> 00:20:44.450
allowed the expert to testify.

482
00:20:44.450 --> 00:20:45.750
<v ->Correct.</v>
<v ->And then made</v>

483
00:20:45.750 --> 00:20:46.940
three particular findings.

484
00:20:46.940 --> 00:20:49.138
And the expert is my memory is,

485
00:20:49.138 --> 00:20:53.081
testified as to the unreliability of blading

486
00:20:53.081 --> 00:20:56.110
and inobjective criteria that the police use.

487
00:20:56.110 --> 00:20:58.700
And also, he also expounded on...

488
00:20:58.700 --> 00:21:00.290
<v ->She.</v>
<v ->She, oh she, I'm sorry.</v>

489
00:21:00.290 --> 00:21:04.150
Yeah she had expounded on what we had written in Warren

490
00:21:04.150 --> 00:21:06.270
regarding racial profiling, right?

491
00:21:06.270 --> 00:21:08.930
But Judge Ricciuti listened to that testimony,

492
00:21:08.930 --> 00:21:12.010
then found it not credible for three reasons.

493
00:21:12.010 --> 00:21:15.220
Why should we disregard his findings?

494
00:21:15.220 --> 00:21:17.470
<v ->Well he found it not helpful,</v>

495
00:21:17.470 --> 00:21:20.510
not that it wasn't credible, just that it wasn't helpful.

496
00:21:20.510 --> 00:21:23.470
Well one is, so there seems to be

497
00:21:23.470 --> 00:21:26.280
a misunderstanding that the defendant is arguing

498
00:21:26.280 --> 00:21:27.660
that there's needs to be this,

499
00:21:27.660 --> 00:21:29.567
and that's his first point, that quote,

500
00:21:29.567 --> 00:21:31.307
"there's no requirements that conclusions drawn

501
00:21:31.307 --> 00:21:32.893
"in the real world by police officers

502
00:21:32.893 --> 00:21:34.877
"based on their training and experience

503
00:21:34.877 --> 00:21:37.750
"satisfies scientific standard of proof."

504
00:21:37.750 --> 00:21:38.583
I agree with that.

505
00:21:38.583 --> 00:21:42.380
It's just that this kind of testimony, these studies,

506
00:21:42.380 --> 00:21:44.940
should set off alarm bells about whether

507
00:21:44.940 --> 00:21:47.757
police officers, I'm sorry.

508
00:21:47.757 --> 00:21:50.173
<v ->But if he hears the description of the study</v>

509
00:21:50.173 --> 00:21:52.000
that was done at Iowa State I think it was,

510
00:21:52.000 --> 00:21:54.370
and then the people walking down the Quad

511
00:21:54.370 --> 00:21:55.610
and police officers and says,

512
00:21:55.610 --> 00:21:58.023
you know, that's a very small sampling.

513
00:21:59.030 --> 00:22:02.420
Our experience in the identification realm

514
00:22:02.420 --> 00:22:04.051
over the last 20 years has

515
00:22:04.051 --> 00:22:07.710
certainly upped the ante on the social science,

516
00:22:07.710 --> 00:22:11.550
but we're not really there on this kinda embryonic study.

517
00:22:11.550 --> 00:22:13.367
Isn't that what he's kinda saying?

518
00:22:14.821 --> 00:22:15.780
<v ->When does he say that?</v>

519
00:22:15.780 --> 00:22:18.090
Oh he says that the literature does not exist.

520
00:22:18.090 --> 00:22:21.320
But that really redounds to the defendant's benefit,

521
00:22:21.320 --> 00:22:23.340
because it's the Commonwealth

522
00:22:23.340 --> 00:22:25.710
who is the proponent of this testimony,

523
00:22:25.710 --> 00:22:28.060
this expert testimony by these police officers.

524
00:22:28.060 --> 00:22:31.420
They're using their specialized, their training experience,

525
00:22:31.420 --> 00:22:35.140
so it's really on them to show that their training

526
00:22:35.140 --> 00:22:38.280
and experience is based on some kind of objective criteria

527
00:22:38.280 --> 00:22:40.920
or at least some kind of makes sense.

528
00:22:40.920 --> 00:22:42.920
But all they have is a PowerPoint,

529
00:22:42.920 --> 00:22:45.540
and so what this study kind of brings out,

530
00:22:45.540 --> 00:22:48.900
is that whoa, maybe our assumptions aren't right.

531
00:22:48.900 --> 00:22:50.300
Our assumptions that police officers

532
00:22:50.300 --> 00:22:51.450
are better than lay people.

533
00:22:51.450 --> 00:22:55.270
<v ->But if the judge had said, I absolutely agree with that</v>

534
00:22:55.270 --> 00:23:00.270
and this expert is 100% right then the Commonwealth

535
00:23:01.220 --> 00:23:02.900
would be arguing something different,

536
00:23:02.900 --> 00:23:04.650
but that's not what happened here.

537
00:23:04.650 --> 00:23:07.800
So how do you get around the judge's factual findings

538
00:23:07.800 --> 00:23:09.740
after hearing all this evidence

539
00:23:09.740 --> 00:23:11.930
that this testimony wasn't helpful?

540
00:23:11.930 --> 00:23:13.462
Do you want us to say that

541
00:23:13.462 --> 00:23:14.993
it was a clearly erroneous finding?

542
00:23:15.880 --> 00:23:17.380
<v ->Well I'm saying, well...</v>

543
00:23:19.200 --> 00:23:22.600
The unhelpful, it struck me as more of a legal conclusion,

544
00:23:22.600 --> 00:23:25.090
so it seems like more of a either de novo

545
00:23:25.090 --> 00:23:26.283
or abuse of discretion.

546
00:23:27.230 --> 00:23:30.440
But it certainly is an abuse of discretion

547
00:23:30.440 --> 00:23:33.003
when he's not, or the court is not,

548
00:23:35.120 --> 00:23:36.930
is not only just setting it aside,

549
00:23:36.930 --> 00:23:39.840
but is not then turn to the Commonwealth basically

550
00:23:39.840 --> 00:23:42.600
and saying okay, maybe I don't find this

551
00:23:42.600 --> 00:23:47.600
all that definitive, but this does raise my alarm bells,

552
00:23:48.890 --> 00:23:50.030
my heckles if you will,

553
00:23:50.030 --> 00:23:53.969
about whether the Boston Police Department's training

554
00:23:53.969 --> 00:23:56.720
and experience is a really all that competent or reliable.

555
00:23:56.720 --> 00:23:59.370
And that should absolutely, that's always weighed

556
00:23:59.370 --> 00:24:02.067
in a reasonable suspicion analysis

557
00:24:02.067 --> 00:24:03.450
and he just didn't do that,

558
00:24:03.450 --> 00:24:04.870
so that would be my response to that.

559
00:24:04.870 --> 00:24:07.000
<v ->Chief can I?</v>
<v ->Sure, sure.</v>

560
00:24:07.000 --> 00:24:08.288
<v ->Thank you.</v>

561
00:24:08.288 --> 00:24:10.720
Miss Barnwell, before you sit down,

562
00:24:10.720 --> 00:24:12.200
I have a couple of questions

563
00:24:12.200 --> 00:24:15.310
that I expect Miss Campbell's gonna bring up

564
00:24:15.310 --> 00:24:17.750
and I just like to have you have an opportunity

565
00:24:17.750 --> 00:24:20.060
to respond to the inevitable questions.

566
00:24:20.060 --> 00:24:24.453
The first one is going back to Commonwealth versus Stout,

567
00:24:25.463 --> 00:24:29.350
and Powell and Franklin and the issues of what flight means.

568
00:24:29.350 --> 00:24:34.350
And the Commonwealth inevitably is going to say that

569
00:24:34.400 --> 00:24:39.400
we can consider the flight because it preceded the pursuit

570
00:24:39.510 --> 00:24:43.370
and Commonwealth versus Warren is an issue of weight

571
00:24:43.370 --> 00:24:48.370
and certainly the judge should take Warren into account

572
00:24:48.750 --> 00:24:53.360
and discount the flight because of Warren,

573
00:24:53.360 --> 00:24:57.550
but that none the less there is flight

574
00:24:57.550 --> 00:24:59.950
that gets built into the calculus

575
00:24:59.950 --> 00:25:02.060
or reasonable articulable suspicion

576
00:25:02.060 --> 00:25:06.200
if opening the door was not the moment of seizure.

577
00:25:06.200 --> 00:25:10.150
Could you respond to that argument

578
00:25:10.150 --> 00:25:11.500
that we'll inevitably hear?

579
00:25:12.370 --> 00:25:14.763
<v ->Well as this course recognized in Warren,</v>

580
00:25:16.410 --> 00:25:18.590
the case law preceding it,

581
00:25:18.590 --> 00:25:20.100
as your honor pointed out

582
00:25:20.100 --> 00:25:22.740
there are cases that essentially imply consciousness

583
00:25:22.740 --> 00:25:25.150
of guilt from flight.

584
00:25:25.150 --> 00:25:29.030
And Warren I think made two critical points

585
00:25:29.030 --> 00:25:32.280
about the quote factual irony in the case law.

586
00:25:32.280 --> 00:25:36.490
On the one hand, the court says, you can avoid the police.

587
00:25:36.490 --> 00:25:39.310
You don't have to engage with the police, that's fine.

588
00:25:39.310 --> 00:25:42.610
But on the other hand if you avoid the police,

589
00:25:42.610 --> 00:25:44.350
or you avoid them in certain ways,

590
00:25:44.350 --> 00:25:47.020
you're nervous, you don't look at them, you flee,

591
00:25:47.020 --> 00:25:49.270
then actually we're gonna hold that against you

592
00:25:49.270 --> 00:25:51.530
in the reasonable suspicion analysis.

593
00:25:51.530 --> 00:25:56.100
And so Warren says again, approach with extreme caution,

594
00:25:56.100 --> 00:25:57.960
we're eliminating it,

595
00:25:57.960 --> 00:25:59.940
but we don't want to essentially

596
00:25:59.940 --> 00:26:03.300
trap young black men in Roxbury, right?

597
00:26:03.300 --> 00:26:05.240
On the one hand I don't have to engage

598
00:26:05.240 --> 00:26:07.150
with this white Boston police officer,

599
00:26:07.150 --> 00:26:09.920
on the hand a court later on is gonna see me

600
00:26:09.920 --> 00:26:11.870
as a criminal or see me as suspicious

601
00:26:11.870 --> 00:26:14.096
because I didn't engage with the white

602
00:26:14.096 --> 00:26:15.439
Boston police officer.
<v ->So if I can just</v>

603
00:26:15.439 --> 00:26:16.489
sort of recapitulate,

604
00:26:18.490 --> 00:26:22.880
your argument is, well no our case law does allow

605
00:26:24.200 --> 00:26:28.040
the judge to consider the flight that preceded the pursuit,

606
00:26:28.040 --> 00:26:29.880
but considering these circumstances

607
00:26:29.880 --> 00:26:31.323
in Commonwealth versus Warren,

608
00:26:31.323 --> 00:26:33.370
it just doesn't add a lot.

609
00:26:33.370 --> 00:26:35.940
<v ->Exactly and again, and the second point of Warren</v>

610
00:26:35.940 --> 00:26:38.060
of course is, it's just as likely

611
00:26:38.060 --> 00:26:39.880
that this young black male

612
00:26:39.880 --> 00:26:42.460
is trying to avoid the recurring indignity

613
00:26:42.460 --> 00:26:43.630
of being racially profiled.

614
00:26:43.630 --> 00:26:45.865
<v ->Okay and then the second things is,</v>

615
00:26:45.865 --> 00:26:47.700
when you're being asked questions about

616
00:26:50.641 --> 00:26:52.960
what the, Mr. Evelyn was doing as he was fleeing

617
00:26:52.960 --> 00:26:56.487
at this point in time from the police

618
00:26:56.487 --> 00:26:59.499
and holding onto something.

619
00:26:59.499 --> 00:27:04.499
Of course if the seizure had already occurred,

620
00:27:05.530 --> 00:27:08.670
then we don't really take that into account.

621
00:27:08.670 --> 00:27:12.400
But if the seizure, if there's a seizure hadn't occurred,

622
00:27:12.400 --> 00:27:17.100
the judge's finding also was that he reached,

623
00:27:17.100 --> 00:27:21.320
tried to reach into his pocket and take something out,

624
00:27:21.320 --> 00:27:22.237
if you recall.

625
00:27:22.237 --> 00:27:24.587
"He tried to draw an item out of his pocket,

626
00:27:24.587 --> 00:27:26.257
"while he was still running."

627
00:27:27.457 --> 00:27:29.020
You remember that finding?

628
00:27:29.020 --> 00:27:30.020
<v ->I do.</v>

629
00:27:30.020 --> 00:27:32.563
That was in the fact finding.

630
00:27:34.340 --> 00:27:37.101
And frankly what confused me of that very point,

631
00:27:37.101 --> 00:27:39.220
the Commonwealth pointed out,

632
00:27:39.220 --> 00:27:40.970
there's one point when he says the seizure happened

633
00:27:40.970 --> 00:27:42.030
at the end of his run.

634
00:27:42.030 --> 00:27:44.377
Then there's like four, I'm sorry.

635
00:27:44.377 --> 00:27:45.541
(justice talking in the background)

636
00:27:45.541 --> 00:27:47.650
Oh I'm sorry, then like four pages later

637
00:27:47.650 --> 00:27:48.860
he doesn't even mention.

638
00:27:48.860 --> 00:27:51.527
I mean you would think that's an important fact.

639
00:27:51.527 --> 00:27:52.841
You know he's trying to draw something out.

640
00:27:52.841 --> 00:27:54.010
You know, he did the command.

641
00:27:54.010 --> 00:27:55.783
But he doesn't locate it there.

642
00:27:59.728 --> 00:28:03.530
If the seizure is even beyond the sort of awkward running

643
00:28:03.530 --> 00:28:05.977
and now we're in the space of

644
00:28:05.977 --> 00:28:07.140
he's trying to drawn an item out,

645
00:28:07.140 --> 00:28:09.667
I understand I would have a difficult,

646
00:28:09.667 --> 00:28:12.370
probably a difficult road, but I still would not concede it,

647
00:28:12.370 --> 00:28:15.250
because we still don't know what that item is.

648
00:28:15.250 --> 00:28:16.550
He doesn't see an outline of a gun,

649
00:28:16.550 --> 00:28:19.230
he doesn't see a holster, he doesn't see anything like that.

650
00:28:19.230 --> 00:28:21.123
It's kind of vague.

651
00:28:23.102 --> 00:28:23.980
<v ->Thank you.</v>
<v ->Thank you.</v>

652
00:28:23.980 --> 00:28:25.668
<v ->Now before you're gonna leave, one more question,</v>

653
00:28:25.668 --> 00:28:26.862
just to clarify.

654
00:28:26.862 --> 00:28:29.440
I understand, that's all right, I sure Ms. Bassill

655
00:28:29.440 --> 00:28:31.181
will give you extra pay for...

656
00:28:31.181 --> 00:28:32.730
(justices laugh)

657
00:28:32.730 --> 00:28:35.045
<v ->She's giving me coffee later, thank you.</v>

658
00:28:35.045 --> 00:28:39.040
(multiple people laugh)

659
00:28:39.040 --> 00:28:42.230
<v ->I understand the argument that we made in Warren</v>

660
00:28:42.230 --> 00:28:45.790
that when one evaluates the inference

661
00:28:45.790 --> 00:28:50.740
to be taken from flight or evasiveness

662
00:28:50.740 --> 00:28:54.760
that one can take race and let's say youth

663
00:28:54.760 --> 00:28:57.700
to that calculus to say that,

664
00:28:57.700 --> 00:28:59.870
we must recognize that there's a reason why

665
00:28:59.870 --> 00:29:03.410
black youth may run or be evasive for the police

666
00:29:03.410 --> 00:29:06.253
that may not be present for an old white man.

667
00:29:08.250 --> 00:29:09.730
Where I have some trouble though is

668
00:29:09.730 --> 00:29:13.153
are you asking us to say that in terms of the

669
00:29:14.850 --> 00:29:17.100
timing of the seizure,

670
00:29:17.100 --> 00:29:19.830
that the timing of the seizure differs

671
00:29:20.784 --> 00:29:22.140
between whether you are a black youth

672
00:29:22.140 --> 00:29:24.000
or an old white man?

673
00:29:24.000 --> 00:29:26.343
<v ->In this case, let me be clear, in this case,</v>

674
00:29:28.200 --> 00:29:30.410
Mr. Evelyn should prevail at the opening

675
00:29:30.410 --> 00:29:31.243
of the passenger door,

676
00:29:31.243 --> 00:29:34.730
whether or not the court takes into account his race and age

677
00:29:34.730 --> 00:29:36.710
but it certainly should matter.

678
00:29:36.710 --> 00:29:40.490
If it's a reality for young black males.

679
00:29:40.490 --> 00:29:43.160
So Warren is saying, this is the reality

680
00:29:43.160 --> 00:29:46.120
for young black males in Boston period.

681
00:29:46.120 --> 00:29:48.570
That reality is the same under the totality

682
00:29:48.570 --> 00:29:51.420
of the circumstances when we're talking about seizure

683
00:29:51.420 --> 00:29:53.680
or whether we're talking about behavior.

684
00:29:53.680 --> 00:29:54.783
<v ->Okay, but think of what that means.</v>

685
00:29:54.783 --> 00:29:57.810
That means that anytime a police officer

686
00:29:57.810 --> 00:30:01.850
wants to speak to a young black male,

687
00:30:01.850 --> 00:30:05.833
that according to your understanding that would be,

688
00:30:06.840 --> 00:30:08.460
would become essentially a seizure

689
00:30:08.460 --> 00:30:11.420
and you could not do it without reasonable suspicion.

690
00:30:11.420 --> 00:30:14.520
But if this same person were an older white person,

691
00:30:14.520 --> 00:30:16.623
you could have that questioning.

692
00:30:17.915 --> 00:30:19.860
Well in JDB versus North Carolina,

693
00:30:19.860 --> 00:30:21.080
the United States Supreme Court

694
00:30:21.080 --> 00:30:22.830
confronted that very question

695
00:30:24.063 --> 00:30:26.048
and the response is look

696
00:30:26.048 --> 00:30:28.630
it's not always gonna be dispositive.

697
00:30:28.630 --> 00:30:30.763
The individual's age, and in this case,

698
00:30:31.597 --> 00:30:32.900
the individual's race it's not always gonna be dispositive.

699
00:30:32.900 --> 00:30:36.810
In Matta, for example, it may not have turned anything,

700
00:30:36.810 --> 00:30:39.630
because there was again, no other intimidating context

701
00:30:39.630 --> 00:30:42.320
other than, "hey come here for a second."

702
00:30:42.320 --> 00:30:43.620
That was it.

703
00:30:43.620 --> 00:30:45.900
So it's not always gonna be dispositive,

704
00:30:45.900 --> 00:30:48.700
but there are important circumstances.

705
00:30:48.700 --> 00:30:50.900
This is a totality of the circumstances test.

706
00:30:50.900 --> 00:30:53.950
They should be part of the circumstances, absolutely.

707
00:30:53.950 --> 00:30:58.950
<v ->So the timing of the seizure depends on the race</v>

708
00:30:59.080 --> 00:31:01.943
and age of the individual who was being seized?

709
00:31:03.000 --> 00:31:04.330
<v ->Those are factors to be considered</v>

710
00:31:04.330 --> 00:31:05.720
along with everything else,

711
00:31:05.720 --> 00:31:07.562
along with everything else.

712
00:31:07.562 --> 00:31:08.889
<v Male Justice>The race of the police officer.</v>

713
00:31:08.889 --> 00:31:09.906
<v ->I'm sorry.</v>

714
00:31:09.906 --> 00:31:10.739
<v ->The race of the police officer?</v>

715
00:31:10.739 --> 00:31:11.790
That should also be considered, yes.

716
00:31:12.760 --> 00:31:16.100
<v ->So the same circumstances, same conduct,</v>

717
00:31:16.100 --> 00:31:18.270
different timing of the seizure

718
00:31:19.154 --> 00:31:21.410
depending on all of these issues of race and age?

719
00:31:21.410 --> 00:31:23.420
<v ->It could in a particular case.</v>

720
00:31:23.420 --> 00:31:26.240
Again, in this case, it doesn't really matter

721
00:31:26.240 --> 00:31:27.930
whether the court, I mean it does matter.

722
00:31:27.930 --> 00:31:30.170
Let me be clear, it does matter whether this court

723
00:31:30.170 --> 00:31:31.460
considers race and age,

724
00:31:31.460 --> 00:31:36.460
but the calculus should still be to Mr. Evelyn's benefit,

725
00:31:37.280 --> 00:31:39.360
that there's still a seizure when he opens the door.

726
00:31:39.360 --> 00:31:42.446
<v ->What's a police officer to do?</v>

727
00:31:42.446 --> 00:31:44.830
I mean it's hard enough now for them to understand

728
00:31:44.830 --> 00:31:48.070
when they need reasonable suspicion to stop somebody,

729
00:31:48.070 --> 00:31:51.220
as opposed to simply saying can I speak with you.

730
00:31:51.220 --> 00:31:55.920
But if you're right, then the officer is gonna have to

731
00:31:55.920 --> 00:32:00.700
look and evaluate the race and age of the person.

732
00:32:00.700 --> 00:32:04.740
And how's the officer supposed to know then

733
00:32:04.740 --> 00:32:06.920
whether or not the police officer

734
00:32:06.920 --> 00:32:10.790
can seek to question that person.

735
00:32:10.790 --> 00:32:15.490
Because it maybe a seizure if he's black and young,

736
00:32:15.490 --> 00:32:18.520
but not be a seizure if he's white and old.

737
00:32:18.520 --> 00:32:23.280
<v ->So certainly the court need not hold</v>

738
00:32:23.280 --> 00:32:25.480
that the police officers must be certain.

739
00:32:25.480 --> 00:32:29.089
The JDB versus North Carolina standard

740
00:32:29.089 --> 00:32:29.960
I think works really well in this context,

741
00:32:29.960 --> 00:32:31.970
which was what was reasonably apparent

742
00:32:31.970 --> 00:32:33.340
to an objective officer.

743
00:32:33.340 --> 00:32:36.710
And in this case, they both testified,

744
00:32:36.710 --> 00:32:39.990
we saw a young black male.

745
00:32:39.990 --> 00:32:41.560
He was tall.

746
00:32:41.560 --> 00:32:43.470
And you know, they know,

747
00:32:43.470 --> 00:32:46.252
they didn't even ask for his license

748
00:32:46.252 --> 00:32:48.290
for the firearm because he looked so young.

749
00:32:48.290 --> 00:32:50.500
They also know or should know

750
00:32:50.500 --> 00:32:54.470
that their department has this very, very troubled history

751
00:32:54.470 --> 00:32:57.260
of racially discriminatory stops.

752
00:32:57.260 --> 00:33:01.550
That's gonna create dynamic if they're in (mumbles)

753
00:33:01.550 --> 00:33:03.060
talking to an old white man.

754
00:33:03.060 --> 00:33:04.683
<v ->So if we have</v>

755
00:33:04.683 --> 00:33:08.200
a patrol car driven by two black police officers,

756
00:33:08.200 --> 00:33:11.030
you're tellin' us there's a different set of rules?

757
00:33:11.030 --> 00:33:13.260
<v ->No not necessarily--</v>
<v ->Well you just told us</v>

758
00:33:13.260 --> 00:33:17.272
that the race of a police officer matters,

759
00:33:17.272 --> 00:33:19.400
so we would have a different standard

760
00:33:19.400 --> 00:33:21.520
if two black police officers are involved here.

761
00:33:21.520 --> 00:33:25.020
<v ->What about if the defendants are Hispanic or Cambodian?</v>

762
00:33:25.020 --> 00:33:30.020
Or are we gonna have different rules for each nationality?

763
00:33:30.130 --> 00:33:32.020
<v ->Well again, it's what's reasonably apparent to</v>

764
00:33:32.020 --> 00:33:33.480
the police officer.

765
00:33:33.480 --> 00:33:34.700
I don't know the statistics.

766
00:33:34.700 --> 00:33:39.700
Do they have a history of racially discriminatory stops

767
00:33:40.060 --> 00:33:42.041
against--
<v ->But I'm just trying</v>

768
00:33:42.041 --> 00:33:44.403
to understand, are we gonna have some kinda different,

769
00:33:45.585 --> 00:33:47.159
as Justice Gaziano's saying,

770
00:33:47.159 --> 00:33:49.190
where if we have black cops and black defendants

771
00:33:49.190 --> 00:33:52.157
or white cops and Hispanic defendants.

772
00:33:52.157 --> 00:33:54.440
<v ->How about an undocumented person,</v>

773
00:33:54.440 --> 00:33:57.420
who escaped a totalitarian regime?

774
00:33:57.420 --> 00:33:59.954
<v ->Only I would say, only if the officer knows that,</v>

775
00:33:59.954 --> 00:34:02.600
or if that's reasonably apparent to the officer.

776
00:34:02.600 --> 00:34:05.110
If it's not reasonably apparent to the officer,

777
00:34:05.110 --> 00:34:06.780
then it's just not weighed

778
00:34:06.780 --> 00:34:10.070
is how I think the balance happens in JDB,

779
00:34:10.070 --> 00:34:12.278
which this court should apply.

780
00:34:12.278 --> 00:34:13.510
<v ->So what is the test for seizure?</v>

781
00:34:13.510 --> 00:34:16.653
When does it occur, just to sort of,

782
00:34:20.670 --> 00:34:23.290
not here, but in general, when does a seizure occur?

783
00:34:23.290 --> 00:34:26.833
Is it when a reasonable person feels unfree to leave.

784
00:34:27.710 --> 00:34:31.490
<v ->When a, so Matta has I suppose somewhat,</v>

785
00:34:31.490 --> 00:34:34.333
well Matta says it's not really changing anything,

786
00:34:34.333 --> 00:34:36.378
but yes I think the test is whether a reasonable person

787
00:34:36.378 --> 00:34:39.957
from the defendant's position,

788
00:34:39.957 --> 00:34:41.240
in this case he's a young black male,

789
00:34:41.240 --> 00:34:42.948
would feel free to leave.

790
00:34:42.948 --> 00:34:43.781
(multiple people speaking)

791
00:34:43.781 --> 00:34:46.342
<v ->That's not it, not whether they'd feel free to leave.</v>

792
00:34:46.342 --> 00:34:47.560
(multiple people speaking)

793
00:34:47.560 --> 00:34:48.900
Objectively communicated the officer

794
00:34:48.900 --> 00:34:50.150
would use his or her police power

795
00:34:50.150 --> 00:34:52.553
to coerce the person to stay.
<v ->I'm sorry what?</v>

796
00:34:53.429 --> 00:34:54.870
Could you repeat that?
<v ->Correct and so in this--</v>

797
00:34:54.870 --> 00:34:57.730
<v ->Yeah sure, whether or not the officer has through</v>

798
00:34:57.730 --> 00:34:59.993
words or conduct objectively communicated

799
00:34:59.993 --> 00:35:03.150
that the officer would use his or her police powers

800
00:35:03.150 --> 00:35:04.860
to coerce the person to stay.

801
00:35:04.860 --> 00:35:08.173
<v ->So that has no relationship to who the person is,</v>

802
00:35:10.499 --> 00:35:12.180
who's being--
<v ->So in this...</v>

803
00:35:14.356 --> 00:35:15.581
I mean the problem is, right, is that

804
00:35:15.581 --> 00:35:18.370
we often talk about this as a silent movie,

805
00:35:18.370 --> 00:35:20.210
and it's like watching this as a silent movie

806
00:35:20.210 --> 00:35:22.630
and then pretending that he's not young and black

807
00:35:22.630 --> 00:35:26.280
and pretending that the police officer's aren't white,

808
00:35:26.280 --> 00:35:28.860
and all of that, that that entails.

809
00:35:28.860 --> 00:35:31.060
Oh and that the film isn't filmed in Roxbury.

810
00:35:31.060 --> 00:35:33.423
We can just sort of have an abstract.

811
00:35:33.423 --> 00:35:35.030
I mean that doesn't make any sense.

812
00:35:35.030 --> 00:35:37.000
The totality of the circumstances

813
00:35:37.000 --> 00:35:38.460
should absolutely take that into account.

814
00:35:38.460 --> 00:35:41.173
And as to Matta's compelled to stay,

815
00:35:42.050 --> 00:35:46.860
here's the situation is that the officers ask,

816
00:35:46.860 --> 00:35:50.250
or sorry one officer keeps asking Mr. Evelyn questions.

817
00:35:50.250 --> 00:35:52.420
He does not wanna talk to them.

818
00:35:52.420 --> 00:35:55.280
Okay, this is what the officer objectively communicated,

819
00:35:55.280 --> 00:35:57.860
you don't wanna talk to us, you don't wanna talk to us,

820
00:35:57.860 --> 00:35:58.900
all right, we're getting out,

821
00:35:58.900 --> 00:36:00.950
we're gonna make you talk to us.

822
00:36:00.950 --> 00:36:02.847
<v ->Objectively, objectively.</v>
<v ->Compelled to stay.</v>

823
00:36:02.847 --> 00:36:05.212
<v ->I don't know what objectively means in this situation</v>

824
00:36:05.212 --> 00:36:06.850
and that's my problem.

825
00:36:06.850 --> 00:36:08.080
<v ->What are we talking about?</v>

826
00:36:08.080 --> 00:36:09.780
Objective from what point of view?

827
00:36:10.870 --> 00:36:14.390
<v ->Well I would submit it's the reasonable person's standard.</v>

828
00:36:14.390 --> 00:36:17.530
I have advocated for modifying Matta,

829
00:36:17.530 --> 00:36:20.608
not that it would have to reverse anything in Matta,

830
00:36:20.608 --> 00:36:21.441
but that it should be,

831
00:36:21.441 --> 00:36:23.850
really these two things are intertwined.

832
00:36:23.850 --> 00:36:26.350
What is the officer communicating

833
00:36:26.350 --> 00:36:28.590
and then how would a reasonable person perceive it.

834
00:36:28.590 --> 00:36:32.200
There's no way really to divorce those two things.

835
00:36:32.200 --> 00:36:35.992
And so, you know, and I gave the example of,

836
00:36:35.992 --> 00:36:39.215
you have sort of an easy example.

837
00:36:39.215 --> 00:36:42.140
A police officer goes and is talking to a person

838
00:36:42.140 --> 00:36:43.440
walking down the street.

839
00:36:43.440 --> 00:36:47.063
And officer goes, sees a woman in a wheelchair

840
00:36:47.063 --> 00:36:50.220
and starts talking to the woman in the wheelchair.

841
00:36:50.220 --> 00:36:51.270
I mean the woman in the wheelchair

842
00:36:51.270 --> 00:36:53.830
is gonna have a very different experience, right,

843
00:36:53.830 --> 00:36:55.320
than someone freely walking.

844
00:36:55.320 --> 00:36:57.054
<v ->But I mean that's the point.</v>

845
00:36:57.054 --> 00:36:57.887
That's the point.

846
00:36:57.887 --> 00:36:59.281
How would you judge it?

847
00:36:59.281 --> 00:37:00.520
From the point of view of the person in the wheelchair

848
00:37:00.520 --> 00:37:05.362
or the point of view of some reasonable person standard

849
00:37:05.362 --> 00:37:09.060
that we would presume would be the case for everyone,

850
00:37:09.060 --> 00:37:11.830
including the person in the wheelchair.

851
00:37:11.830 --> 00:37:13.700
<v ->Well I think it should be the reasonable person</v>

852
00:37:13.700 --> 00:37:17.418
from the standpoint of the woman in the wheelchair.

853
00:37:17.418 --> 00:37:19.010
<v ->But you just told me that it doesn't matter</v>

854
00:37:19.010 --> 00:37:23.520
if somebody is undocumented from a totalitarian regime

855
00:37:23.520 --> 00:37:26.960
and is gonna think, there's nothing but trouble.

856
00:37:26.960 --> 00:37:29.420
<v ->Oh I didn't say it doesn't matter.</v>

857
00:37:29.420 --> 00:37:31.280
What I'm saying is under Matta--

858
00:37:31.280 --> 00:37:33.970
<v ->No you said if the police officer doesn't know--</v>

859
00:37:33.970 --> 00:37:36.156
<v ->Oh.</v>
<v ->It doesn't matter.</v>

860
00:37:36.156 --> 00:37:36.989
<v ->That was your answer to the question.</v>

861
00:37:36.989 --> 00:37:41.000
I mean as far as from whose perspective.

862
00:37:41.000 --> 00:37:43.380
<v ->Well as far as when the seizure was.</v>

863
00:37:43.380 --> 00:37:44.900
If the officer doesn't know it

864
00:37:44.900 --> 00:37:46.600
or it's not reasonably apparent,

865
00:37:46.600 --> 00:37:49.400
in the case of the wheelchair, it's very obvious

866
00:37:49.400 --> 00:37:51.110
that the person's in the wheelchair.

867
00:37:51.110 --> 00:37:53.120
In our case, it's very obvious.

868
00:37:53.120 --> 00:37:56.410
He's young, he's black, they're in Roxbury,

869
00:37:56.410 --> 00:37:59.160
the Boston Police Department has this troubled history.

870
00:38:00.300 --> 00:38:02.220
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

871
00:38:03.131 --> 00:38:04.464
<v ->Miss Campbell.</v>

872
00:38:13.585 --> 00:38:14.418
<v ->Good morning and may it please the court,</v>

873
00:38:14.418 --> 00:38:16.190
Cailin Campbell on behalf of the Commonwealth.

874
00:38:16.190 --> 00:38:17.870
With me today is David Bradley

875
00:38:17.870 --> 00:38:20.210
who is this motion prosecutor in this case.

876
00:38:20.210 --> 00:38:23.496
We ask you to affirm the denial of the defendant's motion.

877
00:38:23.496 --> 00:38:28.496
<v ->Why shouldn't the age and race of Mr. Evenlyn here,</v>

878
00:38:31.420 --> 00:38:35.083
go into, as a matter of weight, similar to Warren,

879
00:38:36.236 --> 00:38:41.236
into how much his conduct in avoiding the police

880
00:38:41.670 --> 00:38:46.223
matters in calibrating reasonable articulable suspicion?

881
00:38:47.295 --> 00:38:50.540
Why shouldn't that be considered by the judge

882
00:38:50.540 --> 00:38:52.907
in his or her findings of facts

883
00:38:52.907 --> 00:38:55.557
in determining how much weight to give that behavior?

884
00:38:56.440 --> 00:39:00.010
<v ->So in so far as Warren recognizes the realities in Boston,</v>

885
00:39:00.010 --> 00:39:03.640
I say it could be, right, and it should be.

886
00:39:03.640 --> 00:39:06.650
I think it's important to clarify what Warren stands for

887
00:39:06.650 --> 00:39:08.190
and what it doesn't stand for.

888
00:39:08.190 --> 00:39:11.970
And I point the court, first of all just factually,

889
00:39:11.970 --> 00:39:14.250
it was 30 minutes from the report of the crime,

890
00:39:14.250 --> 00:39:15.760
two miles away.

891
00:39:15.760 --> 00:39:19.810
But I would point the court to page 538

892
00:39:19.810 --> 00:39:21.960
in which it says that evasive conduct,

893
00:39:21.960 --> 00:39:23.340
so it's not just limited to flight,

894
00:39:23.340 --> 00:39:26.207
it's evasive conduct, and I'm quoting,

895
00:39:26.207 --> 00:39:27.867
"is a factor properly considered

896
00:39:27.867 --> 00:39:30.270
"in the reasonable suspicion analysis."

897
00:39:30.270 --> 00:39:33.837
Jumping down it says, "evasive conduct in absence

898
00:39:33.837 --> 00:39:36.107
"of any other information is insufficient

899
00:39:36.107 --> 00:39:38.250
"to support reasonable suspicion."

900
00:39:38.250 --> 00:39:40.625
So it's you can't just point to the flight and say

901
00:39:40.625 --> 00:39:43.430
that's what supports the reasonable suspicion.

902
00:39:43.430 --> 00:39:47.170
And I think factually here you can distinguish Warren.

903
00:39:47.170 --> 00:39:51.220
Even if you were to place the stop as early as

904
00:39:51.220 --> 00:39:54.180
Officer Garney opening the door,

905
00:39:54.180 --> 00:39:56.420
there are still objective things

906
00:39:56.420 --> 00:39:58.830
that the officers--
<v ->Do you win if we do that?</v>

907
00:39:58.830 --> 00:40:02.200
<v ->Yes, yes, because you have,</v>

908
00:40:02.200 --> 00:40:05.130
I think it's important, thought dispositive as Depina says

909
00:40:05.130 --> 00:40:07.710
that they're investigating not only shooting,

910
00:40:07.710 --> 00:40:09.760
but a shooting in which an individual has been shot

911
00:40:09.760 --> 00:40:12.079
and is in life threatening condition.

912
00:40:12.079 --> 00:40:15.180
Not only that, the specific testimony

913
00:40:15.180 --> 00:40:17.450
from the officers which was credited and found

914
00:40:17.450 --> 00:40:18.960
by the motion judge,

915
00:40:18.960 --> 00:40:21.380
first appearing on page five of the opinion,

916
00:40:21.380 --> 00:40:25.230
is that Officer Abasciano had seen no pedestrians

917
00:40:25.230 --> 00:40:29.646
on Harrison Avenue and that he had seen no one on Melniacas.

918
00:40:29.646 --> 00:40:31.957
<v ->You're not asking us to overrule Warren or Meneus correct?</v>

919
00:40:31.957 --> 00:40:32.790
<v ->No.</v>

920
00:40:32.790 --> 00:40:36.140
<v ->Because what those cases do is describe the realities</v>

921
00:40:38.258 --> 00:40:39.830
of racial profiling,

922
00:40:39.830 --> 00:40:43.300
but they also talk about the Hobson's choice

923
00:40:43.300 --> 00:40:46.730
in that if someone is free to leave,

924
00:40:46.730 --> 00:40:48.660
they have to be free to leave.

925
00:40:48.660 --> 00:40:51.797
So you can't take that in part of the calculus

926
00:40:51.797 --> 00:40:55.100
for reasonable suspicion, correct?

927
00:40:55.100 --> 00:40:56.660
<v ->Correct, but that's not--</v>

928
00:40:56.660 --> 00:40:59.290
It's a hollow right if they do leave

929
00:40:59.290 --> 00:41:00.990
and you grab them and arrest them.

930
00:41:01.890 --> 00:41:03.350
<v ->Yes I can understand that argument.</v>

931
00:41:03.350 --> 00:41:04.860
I think here, that's why I argue,

932
00:41:04.860 --> 00:41:07.698
and I argue it in my brief the way that I do

933
00:41:07.698 --> 00:41:08.531
is even if you were to consider this

934
00:41:08.531 --> 00:41:09.364
at its earliest moment,

935
00:41:09.364 --> 00:41:11.510
there's reasonable suspicion at this moment.

936
00:41:11.510 --> 00:41:16.400
I think looking at the modest standard,

937
00:41:16.400 --> 00:41:18.630
it's sort of the juxtaposition between the two.

938
00:41:18.630 --> 00:41:19.840
And that's why I think it's important,

939
00:41:19.840 --> 00:41:22.940
even in Meneus they talk about how officers,

940
00:41:22.940 --> 00:41:26.245
especially when they're investigating violent crime,

941
00:41:26.245 --> 00:41:27.078
such as happened here,

942
00:41:27.078 --> 00:41:29.862
need to be able, that is also a fact.

943
00:41:29.862 --> 00:41:31.462
<v ->But in Meneus we had a police officer,</v>

944
00:41:31.462 --> 00:41:32.295
that was a shooting case,

945
00:41:32.295 --> 00:41:34.730
he goes up to a group of kids, talks to a bunch of 'em

946
00:41:34.730 --> 00:41:37.360
and then Mr. Meneus says I don't want any part of this,

947
00:41:37.360 --> 00:41:38.810
just starts to walk away.
<v ->Yes.</v>

948
00:41:38.810 --> 00:41:42.200
<v ->And we said, once the police officer chased after him,</v>

949
00:41:42.200 --> 00:41:44.061
he was seized.
<v ->Yes.</v>

950
00:41:44.061 --> 00:41:45.549
<v ->And we looked to see whether</v>

951
00:41:45.549 --> 00:41:46.710
there was reasonable suspicion, which there wasn't

952
00:41:46.710 --> 00:41:47.910
at that point, right?
<v ->Correct, correct.</v>

953
00:41:47.910 --> 00:41:50.790
<v ->So I know what you argue in your brief, but</v>

954
00:41:51.690 --> 00:41:56.000
are you saying that the judge was wrong in his

955
00:41:57.088 --> 00:41:59.920
seizure analysis as far as at the end of the event,

956
00:41:59.920 --> 00:42:01.500
almost at a Hodari D. point.

957
00:42:01.500 --> 00:42:05.320
When are you saying the seizure occurred?

958
00:42:05.320 --> 00:42:07.610
<v ->No, I think the judge is absolutely supported</v>

959
00:42:07.610 --> 00:42:09.690
based on the case law to find the seizure when he does.

960
00:42:09.690 --> 00:42:12.193
I understand for purposes of sort of,

961
00:42:12.193 --> 00:42:14.660
trying to figure this out in argument,

962
00:42:14.660 --> 00:42:18.580
placing it as early as when Officer Garney opens the door.

963
00:42:18.580 --> 00:42:20.310
But I think if you look at Matta

964
00:42:20.310 --> 00:42:22.920
and the standard articulated in Matta which is,

965
00:42:22.920 --> 00:42:25.520
the words or conduct objectively communicating

966
00:42:25.520 --> 00:42:28.890
that the officer would use his police power

967
00:42:28.890 --> 00:42:31.320
to coerce an individual to stay.

968
00:42:31.320 --> 00:42:33.880
You know Judge Ricciuti didn't have the benefit

969
00:42:33.880 --> 00:42:35.080
of that standard at the time

970
00:42:35.080 --> 00:42:36.880
that he made his factual findings.

971
00:42:36.880 --> 00:42:40.640
I don't think it changes the ultimate outcome in the case,

972
00:42:40.640 --> 00:42:43.300
but I also don't think it's fair to look at his analysis--

973
00:42:43.300 --> 00:42:45.810
<v ->But what inference can be drawn by the fact that</v>

974
00:42:48.344 --> 00:42:49.177
he says the holler thing,

975
00:42:49.177 --> 00:42:52.010
the defendant keeps walking straight ahead,

976
00:42:52.010 --> 00:42:53.700
doesn't want anything to do with the police,

977
00:42:53.700 --> 00:42:55.890
and then the door opens.

978
00:42:55.890 --> 00:42:59.730
And as Miss Barnwell argued, the only message

979
00:42:59.730 --> 00:43:01.460
that can be conveyed from that is,

980
00:43:01.460 --> 00:43:02.520
you ain't got no choice.

981
00:43:02.520 --> 00:43:05.290
<v ->And even if you were to construe the moment</v>

982
00:43:05.290 --> 00:43:07.130
of Constitutional seizure at that point,

983
00:43:07.130 --> 00:43:09.450
I think there are significant other facts

984
00:43:09.450 --> 00:43:11.464
that support reasonable suspicion.

985
00:43:11.464 --> 00:43:13.471
<v ->What are they?</v>
<v ->Sure I'll tell you.</v>

986
00:43:13.471 --> 00:43:15.460
As I just mentioned, it's the fact that

987
00:43:15.460 --> 00:43:16.610
there has just been a shooting,

988
00:43:16.610 --> 00:43:17.880
that there's been a victim shot.

989
00:43:17.880 --> 00:43:21.260
It's 13 minutes away and it's a half mile away.

990
00:43:21.260 --> 00:43:23.420
The specific testimony of the officers,

991
00:43:23.420 --> 00:43:24.570
which was found by the judge

992
00:43:24.570 --> 00:43:26.670
and this is on page five of his decision

993
00:43:26.670 --> 00:43:28.210
and page eight of his decision

994
00:43:28.210 --> 00:43:30.310
is that the defendant was the first person

995
00:43:30.310 --> 00:43:32.400
that they saw in the vicinity of this crime.

996
00:43:32.400 --> 00:43:34.790
<v ->They didn't have a description of anybody did they?</v>

997
00:43:34.790 --> 00:43:36.165
<v ->They didn't have a description of anybody, no.</v>

998
00:43:36.165 --> 00:43:37.900
<v ->Think it was more than one shooter?</v>

999
00:43:37.900 --> 00:43:38.950
<v ->Yes, there was a report</v>

1000
00:43:38.950 --> 00:43:40.840
of three individuals.
<v ->So, so,</v>

1001
00:43:40.840 --> 00:43:43.880
this sort of, you could look at it as just,

1002
00:43:43.880 --> 00:43:45.250
what basis would they have for stopping

1003
00:43:45.250 --> 00:43:46.600
this particular person?

1004
00:43:46.600 --> 00:43:48.220
<v ->Sure and if that was the only fact,</v>

1005
00:43:48.220 --> 00:43:49.950
I could understand it and I don't think

1006
00:43:49.950 --> 00:43:51.740
I'd be able to make the argument that I am now though.

1007
00:43:51.740 --> 00:43:54.440
<v ->What other facts though?</v>
<v ->Sure the other facts are</v>

1008
00:43:55.522 --> 00:43:57.410
that the officer, and this is credited testimony,

1009
00:43:57.410 --> 00:43:59.592
that the location of the shooting

1010
00:43:59.592 --> 00:44:01.270
suggested to the officer that it was an area

1011
00:44:01.270 --> 00:44:03.180
where an active gang feud was going on

1012
00:44:03.180 --> 00:44:04.948
and that's why he went,

1013
00:44:04.948 --> 00:44:07.080
in addition to the radio dispatch call,

1014
00:44:07.080 --> 00:44:09.780
but that's why he went in the direction that he did.

1015
00:44:09.780 --> 00:44:11.630
But even more so than that,

1016
00:44:11.630 --> 00:44:13.330
when they first see the defendant

1017
00:44:13.330 --> 00:44:14.750
and I think that this is important,

1018
00:44:14.750 --> 00:44:16.916
it's 13 minutes after the shooting,

1019
00:44:16.916 --> 00:44:18.997
they see his right hand,

1020
00:44:18.997 --> 00:44:20.780
and this is credited by the judge,

1021
00:44:20.780 --> 00:44:23.690
clutching an object in the defendants right pocket.

1022
00:44:23.690 --> 00:44:25.270
<v Female Justice>And they saw it from the beginning.</v>

1023
00:44:25.270 --> 00:44:27.051
<v ->What?</v>
<v ->They see this right</v>

1024
00:44:27.051 --> 00:44:27.884
from the beginning--
<v ->Right when they pull up.</v>

1025
00:44:27.884 --> 00:44:28.717
<v ->When they start to pick him out</v>

1026
00:44:28.717 --> 00:44:31.002
as somebody to talk to?
<v ->Correct.</v>

1027
00:44:31.002 --> 00:44:32.800
<v ->They've already seen that?</v>

1028
00:44:32.800 --> 00:44:33.840
<v ->Yes when they go.</v>

1029
00:44:33.840 --> 00:44:37.180
They see him when they pull up alongside the sidewalk,

1030
00:44:37.180 --> 00:44:39.630
the testimony is that they see that he has his right hand

1031
00:44:39.630 --> 00:44:42.280
in his right pocket, that he's clutching an object.

1032
00:44:42.280 --> 00:44:43.680
Not just clutching an object,

1033
00:44:43.680 --> 00:44:45.970
but the specific finding is clutching an object

1034
00:44:45.970 --> 00:44:49.230
that was consistent with the size of a firearm.

1035
00:44:49.230 --> 00:44:50.957
And the specific testimony was

1036
00:44:50.957 --> 00:44:53.900
"that it's consistent in size and scope of a firearm."

1037
00:44:53.900 --> 00:44:54.880
<v ->What does that mean exactly?</v>

1038
00:44:54.880 --> 00:44:58.250
I mean I'm walking to work today in winter coat

1039
00:44:58.250 --> 00:45:00.820
and I got my cell phone in my pocket.

1040
00:45:00.820 --> 00:45:02.420
Does that meet that description?

1041
00:45:03.280 --> 00:45:04.990
<v ->I would say it depends on how you're holing it.</v>

1042
00:45:04.990 --> 00:45:06.180
And again this is not the--

1043
00:45:06.180 --> 00:45:07.458
<v ->I got my wallet in my...</v>

1044
00:45:07.458 --> 00:45:10.250
It's winter right?
<v ->Absolutely.</v>

1045
00:45:10.250 --> 00:45:12.290
<v ->It's winter, he's in a coat</v>

1046
00:45:12.290 --> 00:45:14.163
and he's got something in his pocket.

1047
00:45:16.448 --> 00:45:17.490
I don't know how much that adds.

1048
00:45:17.490 --> 00:45:19.440
But, but no, I think that adds a lot,

1049
00:45:19.440 --> 00:45:22.870
because it informs the blading observation.

1050
00:45:22.870 --> 00:45:25.510
Because it's not just that, it's not just--

1051
00:45:25.510 --> 00:45:27.097
<v ->I get that blading is something different,</v>

1052
00:45:27.097 --> 00:45:30.120
but the object in the pocket in the winter,

1053
00:45:30.120 --> 00:45:32.440
I mean almost everyone here probably walked to work today

1054
00:45:32.440 --> 00:45:35.143
in a big coat with their hand in their pockets.

1055
00:45:36.370 --> 00:45:38.520
<v ->Absolutely but looking at that one,</v>

1056
00:45:38.520 --> 00:45:39.353
that doesn't mean

1057
00:45:39.353 --> 00:45:41.170
that you can't consider that factor, right?

1058
00:45:41.170 --> 00:45:43.020
Again if I only had that factor,

1059
00:45:43.020 --> 00:45:44.310
it would be a different argument.

1060
00:45:44.310 --> 00:45:45.250
But looking at this factor,

1061
00:45:45.250 --> 00:45:46.996
and I also think it's important

1062
00:45:46.996 --> 00:45:48.980
throughout the context of all this

1063
00:45:48.980 --> 00:45:51.147
and considering Dr. Sweet's testimony as well,

1064
00:45:51.147 --> 00:45:54.390
to remember that we're talking about reasonable suspicion.

1065
00:45:54.390 --> 00:45:56.440
So there's no requirement,

1066
00:45:56.440 --> 00:45:57.770
I mean even if you were to elevate it

1067
00:45:57.770 --> 00:46:01.304
to probable cause that the officer's observations be

1068
00:46:01.304 --> 00:46:05.100
actually accurate, there just has to be an objective

1069
00:46:05.100 --> 00:46:07.570
factual basis by which they make the observation

1070
00:46:07.570 --> 00:46:09.600
that they do that supports--

1071
00:46:09.600 --> 00:46:11.270
<v ->I should know this, but forgive me,</v>

1072
00:46:11.270 --> 00:46:14.560
did the blading occur before or after the door opens?

1073
00:46:14.560 --> 00:46:16.180
<v ->It happens before.</v>

1074
00:46:16.180 --> 00:46:20.830
And the observation is that they see the

1075
00:46:20.830 --> 00:46:22.710
hand in the pocket, clutching the item

1076
00:46:22.710 --> 00:46:25.010
which is consistent with the size of the firearm.

1077
00:46:25.010 --> 00:46:26.240
They then follow

1078
00:46:26.240 --> 00:46:28.760
and then that's when they notice the blading, which--

1079
00:46:28.760 --> 00:46:30.060
<v ->'Cause he can see them apparently,</v>

1080
00:46:30.060 --> 00:46:32.680
so now he blades his body to conceal the weapon.

1081
00:46:32.680 --> 00:46:33.840
<v ->Correct, correct.</v>

1082
00:46:33.840 --> 00:46:35.840
And I think it's not,

1083
00:46:35.840 --> 00:46:38.120
that's where the Amicus and My Sisters brief

1084
00:46:38.120 --> 00:46:39.849
kind of ignore.

1085
00:46:39.849 --> 00:46:42.640
I think you can't ignore the item in the pocket

1086
00:46:42.640 --> 00:46:45.910
and the blading and sort of the timeline of these events

1087
00:46:45.910 --> 00:46:47.130
as how they occur.

1088
00:46:47.130 --> 00:46:48.550
I also think it's significant

1089
00:46:48.550 --> 00:46:50.890
that this is not an instance.

1090
00:46:50.890 --> 00:46:53.850
They pull alongside him, they follow him.

1091
00:46:53.850 --> 00:46:54.790
They roll down the window.

1092
00:46:54.790 --> 00:46:56.000
They say "Can I holler at you?"

1093
00:46:56.000 --> 00:46:57.140
And he responds to them.

1094
00:46:57.140 --> 00:46:58.796
And he says, "for what?"

1095
00:46:58.796 --> 00:47:00.620
And they explain to him,

1096
00:47:00.620 --> 00:47:02.050
there was something that happened in the neighborhood.

1097
00:47:02.050 --> 00:47:04.030
We wanna see if you heard or say anything.

1098
00:47:04.030 --> 00:47:06.610
And the testimony was that he mumbled something

1099
00:47:06.610 --> 00:47:08.060
that they couldn't understand.

1100
00:47:08.060 --> 00:47:11.060
And it's that point that they decide to get out of the car.

1101
00:47:11.060 --> 00:47:14.670
So this seems different from, to me,

1102
00:47:14.670 --> 00:47:17.900
than someone who absolutely is not engaging with the police.

1103
00:47:17.900 --> 00:47:21.112
He does respond to the questions that they ask.

1104
00:47:21.112 --> 00:47:23.817
<v Justice Kafker>Yeah, but he doesn't want to.</v>

1105
00:47:23.817 --> 00:47:26.140
<v ->Then we get the Warren factors</v>

1106
00:47:26.140 --> 00:47:27.981
kick in at that point though.

1107
00:47:27.981 --> 00:47:31.630
The I don't want to engage, that triggers Warren.

1108
00:47:31.630 --> 00:47:33.480
<v ->It does, but I think it's different</v>

1109
00:47:33.480 --> 00:47:34.700
than sort of looking at a case

1110
00:47:34.700 --> 00:47:36.590
of someone who's actively rebuffing

1111
00:47:36.590 --> 00:47:38.420
any attempt for the police is talking to them

1112
00:47:38.420 --> 00:47:40.230
or trying to absolutely leave.

1113
00:47:40.230 --> 00:47:41.480
At the first question running away.

1114
00:47:41.480 --> 00:47:44.610
<v ->I guess when you say someone keeps their,</v>

1115
00:47:44.610 --> 00:47:46.560
you know the police make a big deal

1116
00:47:46.560 --> 00:47:49.250
that he locks eyes and he won't engage.

1117
00:47:49.250 --> 00:47:50.920
<v ->Sure.</v>
<v ->He gets his eyes fixed</v>

1118
00:47:50.920 --> 00:47:52.730
and they find that nefarious.

1119
00:47:52.730 --> 00:47:55.510
But that's also indicative of someone

1120
00:47:55.510 --> 00:47:57.280
who doesn't wanna talk to them.

1121
00:47:57.280 --> 00:48:00.440
<v ->Absolutely, and while if that was that factor alone,</v>

1122
00:48:00.440 --> 00:48:02.930
I couldn't be making the argument that I am.

1123
00:48:02.930 --> 00:48:04.200
It's not that factor alone.

1124
00:48:04.200 --> 00:48:06.840
It's the totality of all of the factors together.

1125
00:48:06.840 --> 00:48:11.390
And so I would suggest if you look at a case like DePiaza,

1126
00:48:11.390 --> 00:48:13.130
I mean this is so much more than DePiaza

1127
00:48:13.130 --> 00:48:15.670
because you have an actual, not just shots fired,

1128
00:48:15.670 --> 00:48:16.660
someone who's shot

1129
00:48:16.660 --> 00:48:20.460
and then objective criteria which they look at.

1130
00:48:20.460 --> 00:48:23.480
I will say it again, the right hand in the pocket,

1131
00:48:23.480 --> 00:48:25.420
clutching an item consistent with a firearm,

1132
00:48:25.420 --> 00:48:28.330
followed by the blading, and the evasive behavior,

1133
00:48:28.330 --> 00:48:30.240
which even if you open the door

1134
00:48:30.240 --> 00:48:31.710
that supports reasonable suspicion.

1135
00:48:31.710 --> 00:48:34.080
<v ->Can you address the judge's finding</v>

1136
00:48:34.080 --> 00:48:38.030
that opening of the door was appropriate from an officer's

1137
00:48:38.030 --> 00:48:39.920
safety perspective.
<v ->Sure.</v>

1138
00:48:39.920 --> 00:48:43.510
<v ->And then the judge further finds that Evelyn</v>

1139
00:48:43.510 --> 00:48:45.180
thus ran on his own,

1140
00:48:45.180 --> 00:48:47.980
not occasion by anything the police did.

1141
00:48:47.980 --> 00:48:50.180
That doesn't sound correct.

1142
00:48:50.180 --> 00:48:54.080
<v ->So there was testimony from Officer Abasciano</v>

1143
00:48:54.080 --> 00:48:55.040
which I keep on saying wrong,

1144
00:48:55.040 --> 00:48:59.150
but (laughs) that based on the observations they made,

1145
00:48:59.150 --> 00:49:02.240
and this again goes to the subjective intent of the officers

1146
00:49:02.240 --> 00:49:05.140
so I'm not sure how much it actually plays into the...

1147
00:49:05.140 --> 00:49:07.660
<v ->Objective.</v>
<v ->Objective criteria</v>

1148
00:49:07.660 --> 00:49:08.560
which are to be considered.

1149
00:49:08.560 --> 00:49:11.980
But to answer you question, there was direct testimony

1150
00:49:11.980 --> 00:49:14.310
from the officer that based on the observations

1151
00:49:14.310 --> 00:49:17.190
that they made of the hand in the pocket and the blading

1152
00:49:17.190 --> 00:49:19.230
in conjunction with you know the reason why

1153
00:49:19.230 --> 00:49:20.130
they were in the area,

1154
00:49:20.130 --> 00:49:22.050
they believed that he could have a firearm

1155
00:49:22.050 --> 00:49:24.290
and that the officers thought that

1156
00:49:24.290 --> 00:49:26.670
if he were inclined to pull the firearm out

1157
00:49:26.670 --> 00:49:29.790
and use it, they were in a bad tactical position,

1158
00:49:29.790 --> 00:49:32.690
so it would make more sense to get out of the car

1159
00:49:32.690 --> 00:49:34.540
for that reason.

1160
00:49:34.540 --> 00:49:38.580
<v ->So do you agree that if there had been</v>

1161
00:49:38.580 --> 00:49:39.590
no shooting that night,

1162
00:49:39.590 --> 00:49:41.170
if it was a quiet night,

1163
00:49:41.170 --> 00:49:43.040
that all the inferences which they drew

1164
00:49:43.040 --> 00:49:45.040
from his observation would not suffice

1165
00:49:45.040 --> 00:49:46.290
for reasonable suspicion?

1166
00:49:50.359 --> 00:49:52.673
<v ->That's a tough question. (laughs)</v>

1167
00:49:53.746 --> 00:49:55.976
<v ->That's why they pay you the big bucks.</v>

1168
00:49:55.976 --> 00:49:59.550
(multiple people laugh)

1169
00:49:59.550 --> 00:50:00.640
<v ->Correct, correct.</v>

1170
00:50:00.640 --> 00:50:02.387
I mean (sighs) it would depend.

1171
00:50:07.100 --> 00:50:11.930
If we have the same gang activity, recent shots fired.

1172
00:50:11.930 --> 00:50:13.130
<v ->I'm saying it's a quiet night.</v>

1173
00:50:13.130 --> 00:50:14.260
<v ->Quiet night.</v>

1174
00:50:14.260 --> 00:50:15.280
Then probably not.

1175
00:50:15.280 --> 00:50:16.113
Then probably not.

1176
00:50:16.113 --> 00:50:17.970
But here what you have is the reason why

1177
00:50:17.970 --> 00:50:22.250
they're in the area and the recency of the shots fired

1178
00:50:22.250 --> 00:50:24.395
and someone actually shot.

1179
00:50:24.395 --> 00:50:27.040
<v ->You also have El Dorado issues too.</v>

1180
00:50:27.040 --> 00:50:28.080
<v ->Correct, correct.</v>

1181
00:50:28.080 --> 00:50:30.640
Correct, I mean we don't need to reach that question,

1182
00:50:30.640 --> 00:50:32.410
obviously because we have the facts--

1183
00:50:32.410 --> 00:50:33.550
<v ->Well it bears on the weight</v>

1184
00:50:33.550 --> 00:50:36.082
that we are gonna be giving.

1185
00:50:36.082 --> 00:50:36.990
I mean it matters whether or not

1186
00:50:36.990 --> 00:50:38.872
we're gonna be saying that all these,

1187
00:50:38.872 --> 00:50:42.090
the blading and the evasiveness and the flight,

1188
00:50:42.090 --> 00:50:44.101
especially for a young black male

1189
00:50:44.101 --> 00:50:48.570
would suffice to enable a police officer to do a stop.

1190
00:50:48.570 --> 00:50:50.140
That's important.

1191
00:50:50.140 --> 00:50:52.071
<v ->It absolutely is important.</v>

1192
00:50:52.071 --> 00:50:53.770
<v ->And so that's why I'm asking you,</v>

1193
00:50:53.770 --> 00:50:56.320
whether or not you're saying on these facts

1194
00:50:56.320 --> 00:50:58.850
that would suffice, in the absence of their being

1195
00:50:58.850 --> 00:50:59.887
a nearby shooting.

1196
00:50:59.887 --> 00:51:01.587
<v ->No and I would say, I (mumbles),</v>

1197
00:51:02.830 --> 00:51:07.010
you know I, you almost can't divorce...

1198
00:51:07.010 --> 00:51:09.430
I guess I will say the critical fact in this instant

1199
00:51:09.430 --> 00:51:12.150
is that there was a shooting 13 minutes before,

1200
00:51:12.150 --> 00:51:13.720
a half mile away.

1201
00:51:13.720 --> 00:51:16.580
<v ->Let me follow up on on that.</v>

1202
00:51:16.580 --> 00:51:18.413
Everybody will get their chance.

1203
00:51:19.638 --> 00:51:21.160
(multiple people laugh)

1204
00:51:21.160 --> 00:51:24.100
Do you also agree with regard to Warren,

1205
00:51:24.100 --> 00:51:26.260
in terms of the inference,

1206
00:51:26.260 --> 00:51:28.290
the weight of the inference to be derived

1207
00:51:28.290 --> 00:51:30.631
from evasiveness and flight,

1208
00:51:30.631 --> 00:51:32.070
that it's appropriate for us to include,

1209
00:51:32.070 --> 00:51:36.200
not only race, but also youth?

1210
00:51:36.200 --> 00:51:40.460
That we should, that when somebody is a young person,

1211
00:51:40.460 --> 00:51:42.060
of arguably any race,

1212
00:51:42.060 --> 00:51:44.980
but certainly an African American,

1213
00:51:44.980 --> 00:51:48.060
that the weight to be given to evasiveness

1214
00:51:48.060 --> 00:51:51.783
and flight should be less than for an old white man?

1215
00:51:53.579 --> 00:51:55.935
<v ->And I guess my answer to that would be,</v>

1216
00:51:55.935 --> 00:51:58.900
it would depends the facts of the case.

1217
00:51:58.900 --> 00:52:02.550
So My Sister brought up JDB and the amicus

1218
00:52:02.550 --> 00:52:05.630
almost solely relied upon JDB to make this argument.

1219
00:52:05.630 --> 00:52:08.800
But I think the actual limitations

1220
00:52:08.800 --> 00:52:11.360
which are contained within JDB are important.

1221
00:52:11.360 --> 00:52:15.460
Because the first one is that age is to be considered,

1222
00:52:15.460 --> 00:52:17.620
so long the child's age is known

1223
00:52:17.620 --> 00:52:20.280
or would have been objectively apparent to the police.

1224
00:52:20.280 --> 00:52:22.330
And in that case it's not a question,

1225
00:52:22.330 --> 00:52:23.590
because it's a seventh grader

1226
00:52:23.590 --> 00:52:25.570
and they take him out of his seventh grade class.

1227
00:52:25.570 --> 00:52:26.873
He's 13 years old.

1228
00:52:27.890 --> 00:52:30.840
It gets difficult when you have here, I mean,

1229
00:52:30.840 --> 00:52:34.190
and even in JDB they say sometimes age would be

1230
00:52:34.190 --> 00:52:35.650
an insignificant factor

1231
00:52:35.650 --> 00:52:38.700
and they point to Yarborough v. Alvarado

1232
00:52:38.700 --> 00:52:40.393
in which there's a 17 year old.

1233
00:52:41.414 --> 00:52:44.051
And so what objectively appears to the officers,

1234
00:52:44.051 --> 00:52:47.070
I'd say that's murky,

1235
00:52:47.070 --> 00:52:49.370
that becomes murky when you have an instance

1236
00:52:49.370 --> 00:52:50.203
as you have here,

1237
00:52:50.203 --> 00:52:51.870
where you have a 17 year old

1238
00:52:51.870 --> 00:52:53.930
who appears is over six feet tall.

1239
00:52:53.930 --> 00:52:56.400
<v ->I thought you'd answered the same question</v>

1240
00:52:56.400 --> 00:53:00.523
that the chief just asked, when I asked it, yes.

1241
00:53:01.382 --> 00:53:05.640
I mean, when you're evaluating all of that behavior,

1242
00:53:05.640 --> 00:53:09.460
and how much weight it adds to the

1243
00:53:09.460 --> 00:53:12.393
reasonable articulable suspicion calculus,

1244
00:53:12.393 --> 00:53:17.393
that you do consider race and age as a matter of weight

1245
00:53:18.460 --> 00:53:20.397
as you would with Warren.

1246
00:53:20.397 --> 00:53:21.560
<v ->As a matter of weight.</v>

1247
00:53:21.560 --> 00:53:22.890
It becomes interesting, right, because.

1248
00:53:22.890 --> 00:53:25.280
I just wanna make sure that he's getting this,

1249
00:53:25.280 --> 00:53:26.430
we're getting the same answer,

1250
00:53:26.430 --> 00:53:28.147
'cause it's the same question.

1251
00:53:28.147 --> 00:53:30.540
<v ->And maybe I didn't understand it to be the same question.</v>

1252
00:53:30.540 --> 00:53:31.390
That's probably on me

1253
00:53:31.390 --> 00:53:33.140
and not on the way that the question was asked.

1254
00:53:33.140 --> 00:53:35.448
But you know in the considerations,

1255
00:53:35.448 --> 00:53:38.370
Justice Leng asked the question as to whose perspective

1256
00:53:38.370 --> 00:53:39.360
it's considered by.

1257
00:53:39.360 --> 00:53:42.610
Is the person who's stopped or is it the police officer

1258
00:53:42.610 --> 00:53:43.993
and their behavior?

1259
00:53:47.350 --> 00:53:49.400
And I think that's sort of the crux of it.

1260
00:53:49.400 --> 00:53:51.420
And when you think and you look at the case laws

1261
00:53:51.420 --> 00:53:54.120
as to the purpose of the exclusionary rule,

1262
00:53:54.120 --> 00:53:57.477
it is "to deter future unlawful police misconduct,

1263
00:53:57.477 --> 00:53:59.837
"thereby effectuating the guarantee of the Fourth Amendment

1264
00:53:59.837 --> 00:54:02.070
"against unreasonable searches and seizures."

1265
00:54:02.070 --> 00:54:04.900
So it is focused at the police conduct

1266
00:54:04.900 --> 00:54:07.460
and whether it's reasonable or unreasonable.

1267
00:54:07.460 --> 00:54:10.170
Sure that may be informed by the totality

1268
00:54:10.170 --> 00:54:14.830
of the circumstances and in actually it must be.

1269
00:54:14.830 --> 00:54:18.293
And Warren that recognizes sort of realities regarding race.

1270
00:54:19.880 --> 00:54:22.300
But you also have to consider what would be apparent

1271
00:54:22.300 --> 00:54:25.670
to a police officer when they're investigating a crime

1272
00:54:25.670 --> 00:54:26.770
and when they're investigating

1273
00:54:26.770 --> 00:54:29.400
a serious violent crime, such as what happened here.

1274
00:54:29.400 --> 00:54:30.900
And what you don't wanna happen,

1275
00:54:30.900 --> 00:54:33.500
and what is really the harm

1276
00:54:33.500 --> 00:54:35.463
in sort of expanding this too far.

1277
00:54:36.450 --> 00:54:38.840
Again I would point to JDB where

1278
00:54:40.470 --> 00:54:42.140
you know that the Supreme Court

1279
00:54:42.140 --> 00:54:43.497
and the Appeals Court,

1280
00:54:43.497 --> 00:54:47.234
and there's no case in this Court that I could find

1281
00:54:47.234 --> 00:54:50.730
sort of analyzing JDB and explaining it,

1282
00:54:50.730 --> 00:54:54.570
but it talks about too much individualization

1283
00:54:54.570 --> 00:54:56.990
and looking at the individual characteristics

1284
00:54:56.990 --> 00:54:58.130
of an individual.

1285
00:54:58.130 --> 00:54:59.470
In this context it's Miranda,

1286
00:54:59.470 --> 00:55:01.350
so it's for the purposes of custody.

1287
00:55:01.350 --> 00:55:02.373
But importantly,

1288
00:55:05.862 --> 00:55:07.460
the Court and the Supreme Court does so,

1289
00:55:07.460 --> 00:55:10.477
says "that standards should avoid burdening the police

1290
00:55:10.477 --> 00:55:13.077
"with the task of anticipating the idiosyncrasies

1291
00:55:13.077 --> 00:55:17.011
"of every individual, defining how those particular traits

1292
00:55:17.011 --> 00:55:19.411
"effect each person's subjective state of mind."

1293
00:55:20.330 --> 00:55:23.040
And that's where there has to be a balance

1294
00:55:23.040 --> 00:55:26.630
between investigating crime and a defendant's rights.

1295
00:55:26.630 --> 00:55:28.200
And we're not suggesting that there

1296
00:55:28.200 --> 00:55:31.050
shouldn't be that balance or that race or age

1297
00:55:31.050 --> 00:55:33.950
would never be considered in the totality of that balance,

1298
00:55:33.950 --> 00:55:36.400
it's just that it has to be a balance.

1299
00:55:36.400 --> 00:55:39.590
I'd say here, given all the factors

1300
00:55:39.590 --> 00:55:41.640
that I've pointed to before,

1301
00:55:41.640 --> 00:55:43.930
the fact that there was a shooting

1302
00:55:43.930 --> 00:55:47.460
close in temporal proximity and geogrphy,

1303
00:55:47.460 --> 00:55:49.400
based on the specific observations

1304
00:55:49.400 --> 00:55:50.830
that they made of this defendant,

1305
00:55:50.830 --> 00:55:55.630
even taking into account his youth and his race

1306
00:55:55.630 --> 00:55:58.750
and the history of Boston and policing,

1307
00:55:58.750 --> 00:55:59.950
which is recognized by Warren,

1308
00:55:59.950 --> 00:56:02.490
there still is reasonable suspicion

1309
00:56:02.490 --> 00:56:03.900
to support this stop.
<v ->That was what</v>

1310
00:56:03.900 --> 00:56:04.733
I was gonna ask you.

1311
00:56:04.733 --> 00:56:07.600
If you put aside the evasiveness and the flight,

1312
00:56:07.600 --> 00:56:09.680
do you still win?
<v ->Correct.</v>

1313
00:56:09.680 --> 00:56:12.210
<v ->And you're saying you do.</v>
<v ->Correct.</v>

1314
00:56:12.210 --> 00:56:14.430
<v ->Okay so we can take that out of the calculus completely</v>

1315
00:56:14.430 --> 00:56:15.310
and you still win in a court.

1316
00:56:15.310 --> 00:56:17.335
<v ->I don't think you should and I don't think Warren.</v>

1317
00:56:17.335 --> 00:56:18.168
<v ->I understand that</v>

1318
00:56:18.168 --> 00:56:19.360
but I'm saying that you're saying we could.

1319
00:56:19.360 --> 00:56:21.890
<v ->You could, yeah absolutely.</v>
<v ->And you would still win,</v>

1320
00:56:21.890 --> 00:56:23.390
so that doesn't matter.

1321
00:56:23.390 --> 00:56:24.740
<v ->Correct.</v>

1322
00:56:24.740 --> 00:56:27.910
I'm more forward looking in seeing how you sort of

1323
00:56:27.910 --> 00:56:30.560
engage in this calculus going forward on different facts

1324
00:56:30.560 --> 00:56:31.963
that aren't as strong as this.
<v ->I understand that.</v>

1325
00:56:31.963 --> 00:56:34.556
I'm just saying here.
<v ->But if he had...</v>

1326
00:56:34.556 --> 00:56:36.192
<v ->No, no I just wanted to make sure.</v>

1327
00:56:36.192 --> 00:56:38.273
<v ->But if he had just kept walking...</v>

1328
00:56:39.760 --> 00:56:42.600
I'm just trying to understand, if he'd kept walking,

1329
00:56:42.600 --> 00:56:45.133
and we take Warren into account.

1330
00:56:48.080 --> 00:56:50.510
I think it's a lot harder.

1331
00:56:50.510 --> 00:56:55.133
When he sprints, that seems to me significant.

1332
00:56:56.250 --> 00:56:58.360
But you don't seem to think you need that.

1333
00:56:58.360 --> 00:57:01.964
But you don't have a lot except for maybe blading

1334
00:57:01.964 --> 00:57:04.664
and I'm not sure what blading means.

1335
00:57:04.664 --> 00:57:07.770
<v ->See I disagree there with it a lot</v>

1336
00:57:07.770 --> 00:57:09.890
and I think you can't divorce it from the crime.

1337
00:57:09.890 --> 00:57:11.810
<v ->Right I understand this is a shooting.</v>

1338
00:57:11.810 --> 00:57:12.643
<v ->Absolutely.</v>

1339
00:57:14.780 --> 00:57:16.258
I understand your concern--

1340
00:57:16.258 --> 00:57:18.017
<v ->If this were, let me change the facts.</v>

1341
00:57:18.017 --> 00:57:21.923
It's a 75 year old man or woman walking down the street,

1342
00:57:23.120 --> 00:57:24.520
with his hand in his pocket.

1343
00:57:28.877 --> 00:57:31.077
Got a hand in his pocket, it's cold outside,

1344
00:57:32.110 --> 00:57:34.160
and he mumbles to the police,

1345
00:57:34.160 --> 00:57:36.317
or she mumbles to the police,

1346
00:57:36.317 --> 00:57:41.317
do you have enough to stop that person if he doesn't run?

1347
00:57:41.680 --> 00:57:42.750
She doesn't run?

1348
00:57:42.750 --> 00:57:44.550
<v ->It depends on what the testimony is</v>

1349
00:57:44.550 --> 00:57:46.410
as to the hand on the pocket, right?

1350
00:57:46.410 --> 00:57:48.980
<v ->Really, it's a 75 year old woman</v>

1351
00:57:48.980 --> 00:57:51.900
and you got enough to pull her over, come on.

1352
00:57:51.900 --> 00:57:55.160
<v ->No, but I think the facts here matter.</v>

1353
00:57:55.160 --> 00:57:56.750
And I'm not arguing sort of anytime

1354
00:57:56.750 --> 00:57:58.441
anyone has their hand in their pocket

1355
00:57:58.441 --> 00:58:00.060
walking down the street

1356
00:58:00.060 --> 00:58:02.610
that there's reasonable suspicion to stop or search them.

1357
00:58:02.610 --> 00:58:04.870
I definitely don't think that that's the case.

1358
00:58:04.870 --> 00:58:06.900
But I don't think that this case boils down

1359
00:58:06.900 --> 00:58:08.740
or distills to those facts,

1360
00:58:08.740 --> 00:58:10.563
especially in light of, you know,

1361
00:58:11.610 --> 00:58:13.390
I don't wanna be repetitive,

1362
00:58:13.390 --> 00:58:17.390
but the sort of, as the court recognized in both Meneus

1363
00:58:17.390 --> 00:58:18.740
and Depina that the crime under investigation

1364
00:58:18.740 --> 00:58:20.630
and the fact that it's a violent crime

1365
00:58:20.630 --> 00:58:22.850
and the fact that it's 13 minutes later

1366
00:58:22.850 --> 00:58:25.030
in close geographical proximity

1367
00:58:25.030 --> 00:58:27.460
with the observations that the police do make,

1368
00:58:27.460 --> 00:58:31.230
that is essentially and the only context in which

1369
00:58:31.230 --> 00:58:32.809
this case we consider.
(justice drowned out)

1370
00:58:32.809 --> 00:58:34.722
<v ->Blading them, it's better to say what happened,</v>

1371
00:58:34.722 --> 00:58:37.520
rather than use the word blading.

1372
00:58:37.520 --> 00:58:39.550
What happened, that's the problem,

1373
00:58:39.550 --> 00:58:40.680
it's a load term,

1374
00:58:40.680 --> 00:58:42.860
is that in that context,

1375
00:58:42.860 --> 00:58:47.270
he turns the right side of his body--

1376
00:58:47.270 --> 00:58:50.677
<v ->Yes.</v>
<v ->Away from where</v>

1377
00:58:50.677 --> 00:58:54.630
the police car is coming along next to him.

1378
00:58:54.630 --> 00:58:56.177
<v ->Absolutely and if you look at the testimony</v>

1379
00:58:56.177 --> 00:58:57.640
and the judge's factual findings

1380
00:58:57.640 --> 00:58:59.340
based on that testimony,

1381
00:58:59.340 --> 00:59:02.480
the officer says he's heard it referred to as blading,

1382
00:59:02.480 --> 00:59:04.500
but then he describes the specific observations

1383
00:59:04.500 --> 00:59:05.830
that he makes.
<v ->The word blading</v>

1384
00:59:05.830 --> 00:59:07.710
doesn't do anything for me.

1385
00:59:07.710 --> 00:59:11.200
It's what he actually, allegedly did.

1386
00:59:11.200 --> 00:59:13.930
<v ->And what did he allegedly do?</v>

1387
00:59:13.930 --> 00:59:14.763
Describe it.

1388
00:59:14.763 --> 00:59:15.690
What is he doing?

1389
00:59:15.690 --> 00:59:17.250
As he's walking he does what?

1390
00:59:17.250 --> 00:59:19.980
<v ->Sure as he's walking there's the hand in the pocket</v>

1391
00:59:19.980 --> 00:59:21.612
which we won't get into again.

1392
00:59:21.612 --> 00:59:23.470
(justices laughing)

1393
00:59:23.470 --> 00:59:25.280
And there is...

1394
00:59:26.670 --> 00:59:28.470
I wanna make sure I'm being precise.

1395
00:59:31.790 --> 00:59:34.560
His hands remain in his pockets.

1396
00:59:34.560 --> 00:59:38.177
The officer says that he knows it as blading,

1397
00:59:38.177 --> 00:59:40.067
"but that he turned the right side of his body

1398
00:59:40.067 --> 00:59:43.607
"unnaturally away from the police car

1399
00:59:43.607 --> 00:59:47.207
"to the left so that it was not facing

1400
00:59:47.207 --> 00:59:48.797
"the side of the police car."

1401
00:59:51.170 --> 00:59:53.830
<v ->Isn't the core issue here ultimately for us</v>

1402
00:59:53.830 --> 00:59:55.910
to decide whether or not the police officers

1403
00:59:55.910 --> 00:59:58.140
are obliged to let him run away,

1404
00:59:58.140 --> 00:59:59.650
under these circumstances.

1405
00:59:59.650 --> 01:00:01.150
<v ->Obliged to let him run away.</v>

1406
01:00:02.890 --> 01:00:04.640
<v ->'Cause if it turns out that we say</v>

1407
01:00:04.640 --> 01:00:07.165
there was not reasonable suspicion to stop them,

1408
01:00:07.165 --> 01:00:09.153
then they were obliged to let him run away.

1409
01:00:10.659 --> 01:00:12.273
<v ->Yes, yes.</v>
<v ->I'm not sure</v>

1410
01:00:12.273 --> 01:00:14.690
that you said that before though.

1411
01:00:14.690 --> 01:00:17.620
I need to get at where your seizure moment is.

1412
01:00:17.620 --> 01:00:21.240
Because you said that the seizure

1413
01:00:21.240 --> 01:00:26.240
was when the police basically take out the gun and say stop.

1414
01:00:26.430 --> 01:00:31.170
And okay and maybe that's it.

1415
01:00:31.170 --> 01:00:32.890
That's certainly a seizure.

1416
01:00:32.890 --> 01:00:35.100
I think it's earlier than that.

1417
01:00:39.160 --> 01:00:44.160
And that putting into account that our cases in Franklin,

1418
01:00:46.930 --> 01:00:50.320
they're not exactly clear on what pursuit means

1419
01:00:50.320 --> 01:00:54.450
for the purposes of Stout.
<v ->Correct.</v>

1420
01:00:54.450 --> 01:00:55.850
<v ->But putting that aside,</v>

1421
01:00:55.850 --> 01:00:59.323
in this context, considering everything that's happened,

1422
01:01:01.040 --> 01:01:04.030
if they had pursued him,

1423
01:01:04.030 --> 01:01:06.360
before he started to flee,

1424
01:01:06.360 --> 01:01:10.660
I'm not sure we could really count that.

1425
01:01:10.660 --> 01:01:15.600
But he takes off and then they pursue him.

1426
01:01:15.600 --> 01:01:19.643
And my question is, when they start to chase him,

1427
01:01:20.980 --> 01:01:24.200
under Stout, isn't that the seizure?

1428
01:01:24.200 --> 01:01:26.480
<v ->Well no and I think it's interesting too,</v>

1429
01:01:26.480 --> 01:01:29.960
looking at the new articulation of the under Matta

1430
01:01:29.960 --> 01:01:31.990
and the objective communication

1431
01:01:31.990 --> 01:01:34.850
as to whether he would be compelled to stop.

1432
01:01:34.850 --> 01:01:37.920
I would say that changes the analysis, correct?

1433
01:01:37.920 --> 01:01:40.410
Because if you look at a case like Messiah Franklin,

1434
01:01:40.410 --> 01:01:42.340
running after an already running person,

1435
01:01:42.340 --> 01:01:45.300
because there was no additional level of seizure,

1436
01:01:45.300 --> 01:01:46.600
that's how that came out.

1437
01:01:46.600 --> 01:01:48.916
It wasn't the same sort of standard that exists now,

1438
01:01:48.916 --> 01:01:50.570
objectively communicating.

1439
01:01:50.570 --> 01:01:52.740
I say objectively communicating

1440
01:01:52.740 --> 01:01:54.210
once you start running after somebody,

1441
01:01:54.210 --> 01:01:58.130
I would agree that, under Matta,

1442
01:01:58.130 --> 01:02:00.157
that probably is the moment of seizure.

1443
01:02:00.157 --> 01:02:00.990
(multiple people speaking)

1444
01:02:00.990 --> 01:02:02.040
<v ->Apply Matta now, don't we, to this case.</v>

1445
01:02:02.040 --> 01:02:03.300
I mean the judge didn't have the benefit of it--

1446
01:02:03.300 --> 01:02:05.403
<v ->The judge didn't.</v>
<v ->But we do.</v>

1447
01:02:05.403 --> 01:02:08.790
<v ->You do.</v>
<v ->So now that Matta exists</v>

1448
01:02:08.790 --> 01:02:10.420
and is our law--
<v ->Correct.</v>

1449
01:02:10.420 --> 01:02:13.130
<v ->When do you say the stop occurred?</v>

1450
01:02:13.130 --> 01:02:17.433
Upon the beginning of the sprint or at a later point?

1451
01:02:19.040 --> 01:02:21.780
<v ->No well under the Matta the focus would be</v>

1452
01:02:21.780 --> 01:02:24.700
on the officers objective communication

1453
01:02:24.700 --> 01:02:26.910
through either words or a physical act,

1454
01:02:26.910 --> 01:02:28.480
so I would say once Officer Garney

1455
01:02:28.480 --> 01:02:30.230
starts running after the defendant.

1456
01:02:31.700 --> 01:02:33.530
<v ->No please.</v>
<v ->So basically you say</v>

1457
01:02:33.530 --> 01:02:35.610
when the sprint began?
<v ->Yes.</v>

1458
01:02:35.610 --> 01:02:37.010
<v ->When he started to sprint?</v>
<v ->Yes.</v>

1459
01:02:37.010 --> 01:02:38.570
<v ->Not when he left the car.</v>

1460
01:02:38.570 --> 01:02:40.870
'Cause that would not be enough you're saying.

1461
01:02:42.120 --> 01:02:42.967
<v ->On these facts no.</v>

1462
01:02:42.967 --> 01:02:44.780
<v ->'Cause he didn't say anything.</v>

1463
01:02:44.780 --> 01:02:45.990
<v ->He doesn't say anything</v>

1464
01:02:45.990 --> 01:02:49.025
and given where the defendant's body is turned,

1465
01:02:49.025 --> 01:02:52.331
the sort of positioning of everybody involved.

1466
01:02:52.331 --> 01:02:53.164
<v ->And then then judge,</v>

1467
01:02:53.164 --> 01:02:57.530
so the judge may consider the flight

1468
01:02:57.530 --> 01:03:00.170
because the flight was before the pursuit.

1469
01:03:00.170 --> 01:03:03.550
But when we take into account how much the flight's worth,

1470
01:03:03.550 --> 01:03:07.508
we take it into account contemplating

1471
01:03:07.508 --> 01:03:08.341
Warren.
<v ->Warren.</v>

1472
01:03:08.341 --> 01:03:10.150
Correct, correct.
<v ->Yeah, all right.</v>

1473
01:03:10.150 --> 01:03:12.110
If I may 'cause I see that I'm over time,

1474
01:03:12.110 --> 01:03:14.330
just addressing the expert testimony,

1475
01:03:14.330 --> 01:03:16.013
just briefly.
<v ->Briefly.</v>

1476
01:03:17.659 --> 01:03:20.683
<v ->I think it's important to look at the judge's findings.</v>

1477
01:03:22.060 --> 01:03:24.140
He permitted this expert to testify

1478
01:03:24.140 --> 01:03:25.960
and he gave it the weight that he saw fit.

1479
01:03:25.960 --> 01:03:28.320
I think the critical finding is that

1480
01:03:29.270 --> 01:03:31.550
Dr. Sweet testified that there was no study

1481
01:03:31.550 --> 01:03:33.180
other than her own threat study

1482
01:03:33.180 --> 01:03:35.780
which researched the characteristics of armed gunman.

1483
01:03:35.780 --> 01:03:38.290
But when you look at her testimony and the study itself,

1484
01:03:38.290 --> 01:03:43.190
it explicitly stated that the findings could not be applied

1485
01:03:43.190 --> 01:03:45.850
to real life incidents in high crime urban environments

1486
01:03:45.850 --> 01:03:48.230
where the consequences of finding a weapon are high

1487
01:03:48.230 --> 01:03:51.070
and where police are trained in detecting such threats.

1488
01:03:51.070 --> 01:03:53.190
So I'd say her study by its own very terms

1489
01:03:53.190 --> 01:03:55.240
didn't apply to these circumstances

1490
01:03:55.240 --> 01:03:56.750
which were before the judge,

1491
01:03:56.750 --> 01:03:59.100
so that the weight that he chose to not give it

1492
01:03:59.100 --> 01:04:01.820
in this instance was entirely supported.

1493
01:04:01.820 --> 01:04:03.740
If the Court has no further questions,

1494
01:04:03.740 --> 01:04:04.620
the Commonwealth will rest

1495
01:04:04.620 --> 01:04:05.867
on its brief.
<v ->Okay thank you.</v>