-: SJC-13086.
Commonwealth v. Zahkuan J. Bailey-Sweeting.
-: Hear from attorney, Fronhofer.
-: Thank you, your honors.
Elaine Fronhofer for Mr. Zahkuan Bailey-Sweeting.
I know these facts are fairly simple in this case.
But I'd like to just hone in right away on a fact
that came to light or it came to my mind
when reading the Commonwealth's Brief.
As you know, Lisa Jackson pulled
into the parking lot of KFC restaurant's-
Kafker: Could you talk a little louder, sorry.
-: A few seconds later 3 New Bedford Gang Unit Detectives
pulled into the parking lot behind her
with their blue lights on.
Allegedly because she made an unsafe lane change.
Detective DaCunha stepped out either first
or simultaneously with Mr. Raekwan Paris.
And Mr. Paris stepped out and asked,
why he was being stopped.
A reasonable question, especially given the passengers
likely would not have known Ms. Jackson had cut someone off.
But particularly reasonable for Mr. Paris to ask,
given that all three officers testified
they had stopped this young man, numerous times.
Either for traffic stops or in the street inquiries or both.
And here's the really significant detail.
When Paris asked this question,
"Why are you stopping me now?"
The officers don't tell him why.
Instead, DaCunha just keeps ordering him.
"Get back in the car."
According to every single officer.
Paris just kept asking them,
"Why, why are you stopping me now?"
And instead of answering him,
telling him this is just a traffic stop.
DaCunha escorts Mr. Paris to the back of the car.
How infuriating this must've been for Mr. Paris.
They handcuffed this man, who was constantly
being harassed by the police.
And still just would not have the decency
to just tell him this is just a traffic stop.
But in it's brief, the Commonwealth argues
that Mr. Paris was quote,
"Derailing what he had been told was a traffic stop."
But in fact, the record shows he wasn't told that.
And that's kind of a simple important detail
in the context of why Mr. Paris was getting angry.
-: Does the judge make a finding on that issue?
I can't remember.
Does the judge make a finding?
One way or the other on whether Mr. Paris was informed?
-: He doesn't make a finding.
But the officer's testimony is clear
that he just keeps asking them.
Which would indicate he hasn't been told.
And so it's significant how dismissive
these gang unit detectives were to Mr. Paris's
perfectly reasonable request.
And in the context of what we know about how often,
they clearly know him very well.
He knows them very well.
And so it undermines the government's claim
that the police could infer that his quote,
"Uncooperative behavior."
Meant Mr. Bailey-Sweeting might be armed and dangerous.
The officers were correct to admit
that their assumptions about what Mr. Paris's behavior
could mean, was really nothing but a hunch.
But equally important Paris's behavior
is literally the only observation of any physical
or verbal behavior by anyone
that the government can point to as grounds for inferring.
Mr. Bailey-Sweeting a passenger sitting quietly in a car
stopped for a minor traffic infraction
that's armed and dangerous.
-: Let's go through all of the objective facts too.
Okay.
Just so we have the totality here.
So, we have three young men in the car.
What are their criminal backgrounds?
-: We don't know anything about Mr. Cortez.
As we know he doesn't have a criminal background.
Mr. Bailey-Sweeting 3 years prior, had a firearms offense.
And Mr. Paris who stepped out-
-: He was convicted?
I can't remember.
-: He was committed to DYS.
-: Juvenile offense, yeah.
-: And Mr. Paris a year and a half prior
had a firearms offense.
That was the extent of what we know.
-: So and the third person, there's a video of him with-
-: Oh yeah.
He's a rap musician.
The police had been told that, a month before
they had been told he had a video up on YouTube
in which he was displaying what they suspected
could be an authentic firearm.
But we don't know that that's a-
-: And the police are familiar with all
three of the gentlemen.
Is that right?
-: At least somebody there was told about the video.
All of them know Mr. Paris.
Not all of them knew Mr. Bailey-Sweeting.
I think two of them said,
"We just know he's been categorized as a gang member."
And so, back to the totality of your circumstances.
The other factor that, the appeals court relied on was that-
-: The gang evidence just go through the objective,
I think you're dividing between
sort of objective and hunches and stuff.
I'm just trying to understand,
what do we know objectively about their membership in gangs?
-: Well, that's a important question.
Because what we know objectively is that
the officer said, "We know he's a gang member."
"We know Paris is a Bloods gang member."
One of them said,
"We know Mr. Cortez is some gang member from Fall River."
Or something.
Not a named gang.
"And we know Mr. Bailey-Sweeting is a gang member."
The only one that we have anything more
than just, we know is Mr. Bailey-Sweeting.
And defense counsel elicited through DaCunha's testimony
about how he became quote "validated."
And so objectively we know that he was quote,
"validated" a gang member.
By just hitting this 10 point scale that the police create.
The New Bedford police created.
And the way he got validated, it was significant-
-: (mumbles) interested with three components to that.
There is, some hand signaling.
I didn't quite understand.
What is the-
-: Well, the hand signal isn't either, or.
A photo taken with a fellow gang member.
He had photo taken with a group of gang members.
And he was photographed wearing a red bandana.
That would get him "10 points."
He also allegedly, was photographed
or seen quote "throwing" unknown-
-: I thought he attested to being a gang member.
Is that not correct?
-: Not until after the stop.
So at the point of the stop,
what the police knew objectively at the time of the stop.
-: Before they pat frisk him, or after they pat frisk him?
-: They alleged that he admitted being a Bloods gang member
when he was being booked.
-: Being booked, not before the pat frisk?
-: Not before the pat frisk, definitely not.
So, I just want to say.
Taking all that as a given that
let's assume that the evidence that they are gang members
was actually reliable evidence
that you could count on to say, "Yes they are gang members."
For whatever that means.
Just having Mr. Paris, who has been harassed by the police.
Step out and ask, "Why are you stopping me now?"
The police refusing to answer his question.
And then he gets angry.
Clearly is not-
-: Can I ask one last factual question?
So the stop follows Ms. Jackson cutting off somebody.
[Fronhofer] Yes.
Is there a testimony about, is they're honking?
You say Mr. Paris doesn't understand
why they're being stopped.
I'm trying to understand what we know about
the cutting off in traffic.
Did the police observe it?
Describe what the testimony is about that.
-: Well, I guess I'll just say for the position
I would think is important.
Is that it's clear that there was no evidence
that they were trying to evade the police.
It was an unmarked car.
-: You say that Mr. Paris doesn't know
why they're being stopped.
And I'm just trying to-
-: I'm not saying he doesn't know why.
But I will say, that could really well be the reason.
Because if you're a passenger in a car,
and the driver makes a right to change lanes
cause they're trying to get to the restaurant.
You might not know that somebody is-
-: I'm just trying to get a sense of how dramatic
the incident was.
They're immediately pulled over after this-
Fronhofer: Unsafe lane change.
-: Unsafe lane change.
I'm just trying to understand,
you're telling me Mr. Paris doesn't know,
this is news to me.
So I'm like dwelling on what actually happened.
And so what he would be informed
of by the actual traffic incident.
-: Well, all I'm saying is that
an unsafe lane change by a driver
is not something a front seat passenger
would necessarily see.
Because it's something that the people behind you-
-: No, but I know.
But if someone's honking at you,
and screaming at you.
And giving you a nasty symbol.
You know what happened-
-: But there was none of that.
None of that, sorry.
I'm sorry, I could cut to that right away.
So I guess what my point is that
the appeals court and the Commonwealth
try to fill in the evidence.
So I'll just say clearly that Mr. Paris's behavior,
uncooperative behavior.
Could not possibly get you all the way
from, "He's behaving and uncooperatively."
"I think he's distracting us."
"I think Mr. Bailey-Sweeting has a gun on him."
"And he's ready to use it."
But what the appeals court does.
Is it fills in that enormous gap in the evidence
by saying, "Well these guys were gang members."
"And two of them had firearms offenses."
But that evidence merely explains
why these gang unit officers
might have been predisposed to speculate
that there was a gun in the car.
Or to have a hunch.
But that's not specific articulable facts-
-: Right.
But they do have, the criminal records is to me
very important fact.
Cause it's not a hunch.
You're not saying this person looks scary to me.
You know that they've got gun offenses.
That's an important fact, right?
It may not be enough.
But that's not just a hunch about guns.
That's a past with guns.
-: Well, I think the courts, our decisions say that.
A three-year-old offense is a pretty old offense
to be saying, "Well you had an offense three years ago."
So even if you, grant you that you had have this
sort of heightened concern.
You still don't have anything that ties this,
anything that's happening.
Any furtive movements?
Any suspicious behavior?
Any exchanging of glances?
That says, Mr. Bailey-Sweeting who's sitting
compliantly, quietly in a car.
This was not a stop because, they were shots fired,
gang dispute, drug deal.
This is just an unsafe lane change.
So, even people who have a criminal record
sometimes have an unsafe lane change.
And you have to have some evidence that gets you there.
And I think what's really striking about this case
is that the Commonwealth,
I'm sorry the appeals court and Commonwealth.
Nobody has been able to find a case
that comes remotely close to holding
that the evidence presented here supports that suspicion.
At the cases they cite Commonwealth versus DaSilva,
Commonwealth versus Elise.
Really underscore how much of an outlier this case is.
Again as I said, these gang unit detectives,
they were not in Ms. Jackson's car.
Because they were responding to a gang dispute
as in Commonwealth vs Elise.
Or report a possession of a gun and narcotics as in DaSilva.
And, in both Elise and DaSilva.
When the police arrived at the car
or DaSilva at the apartment.
The police are observing specific details
which corroborate their concern.
Movements, verbal responses and so on.
-: I haven't done the research you've undone.
But, we are really not going to find cases
where people are pulling someone over with drug offenses,
I mean, with gun offenses.
And, that hasn't provided the necessary support
for a pat-frisk.
I understand the law is evolving.
But are you really saying when we go back
and dig up sort of the, the bulk of these cases.
We're not going to find
any support for a pat frisk in those (mumbles).
-: I think the reason you're not going to your honor.
Well, first of all.
I haven't.
The Commonwealth hasn't.
The appeals court hasn't.
The suppression judge hasn't.
And the reason you can't find these cases
is because what's different here is there was nothing.
Mr. Bailey-Sweeting was just sitting in a car.
Compliantly, quietly.
And it's truly, you would need something that would suggest
that he's about to use a weapon.
That he might have a weapon on him.
That they have some connection to Mr. Paris.
I just want to say that this case marks
a significant erosion of the protection citizens
have had to (mumbles) dealings with the police.
But the second important flaw the appeals court
decision is erroneous.
Because even if we assume that the officers
testimony asserting that the passengers were gang members.
Reliably established that meant they were dangerous.
And likely to be armed and violent.
That's not what the government's evidence,
not at all what the government's evidence
actually established in this case.
And that's important because the appeals court
wrote that it rested its conclusion
that the pat frisk was constitutional.
On the fact that the police labeled Mr. Paris
and Mr. Bailey-Sweeting, Bloods gang members.
And really what the appeals court was saying there.
Is they rested its decision on everything
they decided or imagined that that label meant.
Guns, violence, loyalty to fellow members.
That's what really they're saying.
But we know from detective DaCunah's testimony
that the New Bedford police don't have to have
seen a citizen commit a crime, an act of violence,
and even an nefarious act affiliated with that gang.
To categorize that person.
Label them a gang member.
And we know that that actually,
they validated Mr. Bailey-Sweeting
as a gang member of the Bloods gang.
Never having seen him commit
a crime affiliated with that gang.
Do anything nefarious, anything violent.
And we have no idea why they labeled
Mr. Paris, a gang member.
And the government's failed, excuse me.
Here the government failed to present proof
that they reliably established threats, violence.
They just didn't present enough evidence.
The appeals court inappropriately filled in,
would imagine that label meant without actual proof.
And that is before you even consider the studies
and the data that show the entire,
this police gang categorization process is not tested,
incentivized to be overbroad.
And incredibly racially biased.
You'll see all the statistics in the amicus brief,
my brief on that about,
but I I believe it's some, a black resident
of New Bedford is 27 times more likely to be categorized
as a gang member than a white resident.
And that's the same everywhere you look at the studies.
Boston, Chicago, New York.
So the data really underscores
how unreliable gang categorization process is.
And yet despite the unreliability.
The appeals court decision rather than,
putting curbs on how this game categorization label is used,
actually expands it.
And so it really opens the gate to greatly expand it.
Expand its use.
And given what we know about who the police
have fixed that label to.
It further erodes the
Fourth Amendment Article 14 protections.
For the very people who are already over policed.
And who are already the victims of systemic racism.
I do want to address one other point
that the Commonwealth raises in their brief.
And that is that the officers were distracted,
and they had allegedly gang members in the car.
With two, with a firearm offenses.
And so they were entitled to be suspicious.
But there's three problems with that.
DaCunha testified that, definitely
at the suppression hearing,
the judge was trying to, I'm sorry.
The ADA was trying to build that case
that they were distracted.
But DaCunha testified that
he was actually trying to keep his eye in the back.
And then on cross examination, he was asked.
"Was Mr. Bailey-Sweeting doing anything?"
"Was Mr. Cortez doing anything suspicious?"
And he said, they were not.
He confirmed that Mr. Bailey-Sweeting
was just sitting there quietly.
But even if Mr. Paris's protest had, however briefly.
Distracted the officer's attention.
Really all we have then is the absence
of any evidence that Mr. Bailey-Sweeting
was sitting quietly.
We don't have any evidence that
he was making any furtive movements.
And most importantly-
-: Weren't making furtive movements,
would that be enough?
Given that he had a gun offense.
A three-year-old, I'm sorry.
Fronhofer: I couldn't here the beginning.
-: I'm just saying, if he had a furtive movement.
If there was any.
Would that have changed this.
A three-year-old gun conviction
and a furtive movement be enough?
And recent validation.
I know you question the validity of the validation.
But, would that be enough?
Or, what is enough?
Cause I'm trying to figure out where the line is.
-: That would definitely be a (mumbles) case.
Because at least then you'd have
some specific articulable fact that's particularized
to Mr. Bailey-Sweeting.
So that would move you-
-: So again, if Mr. Bailey-Sweeting
does no movement whatsoever, there's no grounds,
and it's not a rhetorical question.
It's a question.
There's no grounds to pat frisk.
Even if others in the car are engaging
in furtive movements or other things.
I'm just trying to get a sense of your rules here.
Cause we normally do this totality of circumstances.
And it takes into account all the different factors.
But, I'm trying to get a sense,
you say there's not enough.
But I'm trying to figure out
what would add to it.
And make it enough.
-: Yes, I would say that,
you would certainly need something that
as the court and Elise said.
There was movement in the car
exactly where the person
who they asked to get out of the car.
That was an exit order case
not a pat frisk case, was located.
And so, again this isn't the case here.
But I would say if, the driver was making furtive movements
that it would make sense to maybe given that.
But, actually I'm going to step back and say, no.
Here's the problem with this case.
Really, in my opinion.
The whole idea that the police could say,
"Mr. Paris is upset."
"He's behaving uncooperatively."
"He used to behave cooperatively."
When everything you're hearing,
shows exactly why he's being upset.
It's just really a stretch to say,
"Oh we think that must be criminal behavior."
"We're gonna get everybody out of the car
and pat frisk them."
I just want to point out that
the suppression hearing judge heard all this testimony
and he did not find that the police
were actually distracted.
What he said was that he found the police
believed Paris was trying to distract them.
I just want to point out your honors.
That I'm not arguing that police have no knowledge of gangs.
That gang evidence never has any relevance.
But I think the two things that you really have to have.
And that I think would be important to put forward.
Is that it has to be reliable.
Has to be shown to be reliable.
And it has to be relevant to the case
that you're dealing with.
And so in this case.
We know nothing about their officer's training
about gang units.
All we know is that their duty was to work
with the gangs, and know the gangs.
Whatever that means.
We know that you don't have to have committed any crime,
any act of violence to be validated a gang member.
We have no idea why they validated-
-: In your view, what is reliable gang validation?
What's required to reliably,
cause we obviously don't want gangs.
They're causing mayhem out there.
So, if someone is in a gang.
And it's a bad gang.
We obviously want to know that, right?
So what is a proper validation of gangs?
-: I would think that if you're going
to have somebody testify,
especially because it's such a loaded,
as you could see from the appeals court decision.
-: I understand mis-characterizing someone
as being in a gang is a terrible thing.
What I'm trying to figure out is.
When it's accurate, it's also concerning
a police officer dealing with an actual gang member,
who's armed is a scary thing.
So how do we decide
whether something is a properly validated gang in your view?
-: I'd say that, I want to just note that in the amicus brief
they make a point of saying it is analogous
to how this court has dealt with the label, high crime area.
-: I'm just trying to, cause there's always,
there are two issues.
How do you deal with,
help us evaluate what is good validation.
-: Okay, okay.
So I would say that, just using other validations.
Having the officers explain how they would have,
what their training is.
That they would know, be able to know that
somebody is a gang member.
Saying my duty aren't that.
Doesn't tell you anything about what they know.
Having the test be something that is a validated test.
I think it is an amicus brief
that they point out that they create,
it is like the self-created completely untested
not validated anywhere.
That okay, so that's, like with Mr. Bailey-Sweeting.
He would not have been based on those criteria.
A gang member under the Boston police criteria.
So that just tells you right there,
this is completely arbitrary.
It's really completely in the discretion of the police.
So something that has some soundness,
some company has been tested.
That establishes this is actually predicts
that somebody is in a gang.
That would be the second thing.
-: A good example of that would be?
It's always easy to sort of, what is the great line.
"I have you right a book so I can criticize it."
But I'm just trying to help us write the book.
-: In this kind of situation, which you're really
using these police officers for
when they say, "Oh, he's a gang member."
You're really using them as an expert.
And so in all your expert cases.
You want something that indicates like,
I have, so yeah.
You raised a good point justice Kafker.
-: You don't want us to do it poorly.
So, and you've put a lot of thought into it.
It would be helpful if you gave us some,
useful way of validating these.
As opposed to saying all this is poorly done.
But again, you're over.
And I've asked you plenty of questions.
-: And I understand the reason for raising it.
But she may not be the person who can answer that question.
And we may just have to see
if somebody comes up with something.
Can I ask a different question though?
Fronhofer: Yes.
-: You mentioned that, here we know why Paris was upset.
He felt like it was unjust.
He's always being stopped.
And, there was no reason here
that he may have known in his head.
So does that mean because you can,
because here there is a reason.
What if next case there is no reason.
Except somebody may be trying to distract the police
from the person who actually has the firearm.
Is the rule to be, as long as the defendant has acted with,
has not made any actions or moves to seem suspicious.
Then they shouldn't be pulled out and pat frisked.
-: I would say yes, your honor.
Otherwise you're in a situation where
literally doing, being compliant.
Subject to being pat frisked.
I mean it's kind of an absurd rule, to have otherwise.
And so it is possible that in a situation,
the hunch is correct.
But, the Fourth Amendment sometimes
has to let people who have contraband go.
Otherwise you are opening the "flood gates"
to innocent people.
Hundreds of innocent people, as happens.
Georges: Isn't that the federal rule?
-: Isn't, I'm sorry.
-: Isn't under the federal jurisprudence that
law enforcement can do just that.
-: That they can order somebody out of the car,
is that under the federal jurisdiction?
Yeah, but for no reason, right?
Just to stop you, they can order you out.
But not pat frisk.
The issue here was that Mr. Bailey-Sweeting
was Pat frisked.
And there's needs to be individualized,
specific articulable facts that raise a concern
about that person.
Given how intrusive that act is.
Georges Jr.: Okay.
Budd: Okay, thank you so much.
-: Thank you, your honors.
-: Okay, attorney Stern.
-: Good morning, your honors.
Shoshannah Stern for the Commonwealth.
Just to respond to a couple of factual points
that my sister made on page 15 of the Commonwealth's Brief.
Detective Kubic is talking about Paris,
getting out of the car.
Questioning the reason for the stop.
And says, one of the detectives informed him
that it was a traffic stop and to sit back in the vehicle
he didn't want to get back in.
That's the first transcript pages, 13 through 14.
So it is in the record
that he was told the reason for the stop early on.
The judge said he was told that repeatedly.
I don't know if it's in the record
that he was told repeatedly that it was a traffic stop
as opposed to repeatedly to get back in.
But that happened before all of them,
before he was brought
to the back of the car before anything else.
And just, with regard to the gang evidence in this case.
The basis for gang identifications that came in
was the basis that were asked about.
That essentially one defense counsel said,
detective Da Cunha was asked
what does it mean to be validated?
No one was asked, what is every reason
that you happen to think that the defendant
is a member of the Bloods.
They discussed the checklist.
No one asked why do you think Mr. Paris
is a member of the Bloods.
Man: Could you talk a little louder.
Budd: Can you put your microphone a little closer to you.
-: Sure.
Budd: I don't want to make you bend over.
I just wanted to see if we can get that.
-: Because I'm short,
this is always a little bit of an issue.
Did you hear what I said before?
Man: I think we heard it.
-: To the extent the defense counsel interrogated
the reasons for particular classifications
they are discussed in the record.
But no one asked again,
why do you think Mr. Paris is a member of the Bloods?
Why do you think pear Mr. Paris
is a member of the United Front Gang?
And I mean, there's some evidence in the record.
To the extent with Mr. Cortez, it may have been,
we don't know if there was anything else
besides Boston told us.
That might be the entirety of it.
But again, these officers all know all of these people.
Sometimes they know different things about the people.
And we're going with collective knowledge.
But to the extent that there were a rule,
I think that the Commonwealth has an affirmative burden
to put in the record, why we think that this person
is a current gang member.
I can't speak to that at all.
But, that would bring in potentially, I mean
maybe they would say,
"Yeah actually we found his name on a list, we don't know."
But if it's, here's our entire history with this person.
Here's everything we know.
I don't know bring that in as part of the Commonwealth case
so to speak would necessarily be of the benefit
to the average defendant without the discretion
of their attorney about whether they want
to investigate that-
-: But let's say none of that,
we're not talking about any of that.
Let's just say that we're just talking about
what was observed at that time.
And what was observed at that time was
whatever else anybody else might've been upset about
for the basis of the stop.
Or that they were told that Mr. Bailey-Sweeting
was doing none of that.
And so back to chief justice Budd's point.
I think we're all concerned with, where's the line.
And where is it localized to Mr. Bailey-Sweeting.
And what he was doing or not doing.
In terms of the justification for the pat frisk.
-: And I do think that is the central issue in this case.
And it isn't unusual fact pattern.
I mean, I did not find law in either direction.
But I'm not necessarily surprised that
there haven't been many cases in which you even
had a plausible fact pattern where you have the actions
of another person that might tell you something legitimate
and particularized about somebody
who doesn't seem to do anything.
That's not likely.
I think to happen all that often, but it happened here.
So here we are.
I think it's clear you can't just say,
one person suspicious.
So we search everybody in the car.
That does come up a lot.
But in terms of the particular situation.
If one accepts that the police had a basis to be concerned
that Paris was trying to distract
from something going on in the car.
And again, I think there was evidence that most of the time.
DaCunha said he was trying to look into the car
from the back.
But I mean, at least at one point.
But, there's no evidence that they were all able
to keep watch on the car all of that time.
So in a situation, which again
I don't know that would arise that often.
But, the motion judge and the appeals court et cetera.
Found happened here.
If there is reason to think that
the one person who is acting is doing so for a reason
in collaboration with someone in the car.
And there's reason to think that there's a firearm in play.
That would be a rare circumstance
in which you wouldn't necessarily have to,
the people in the car doing anything.
If you see the people in the car
and they're not doing anything.
Then that also is a different circumstance.
Because that would-
-: I think the defendant saying that
there's too much of a analytical gap
to get from Mr. Paris's behavior.
To, "Oh, this is a ploy."
As opposed to, Mr. Paris's behavior.
He's really upset.
And how do you figure out which one it is.
Go ahead, I'm sorry.
-: I mean, I think you can get beyond, he's just upset.
There's various discussion.
Could he or legitimately have been upset
leaving aside the fact that he was told
it was a traffic stop.
I think that the reasons for worrying
that he's distracting them as are on the record
or not based on what he's saying is.
Not just what he's saying.
I mean again, he's protesting.
He's continuing with the protest.
He's escalating the protest after he's been told
what the reason for the stop is.
He appears to be about to punch a cop.
That he's known for a while.
And I mean, maybe it's not.
But they had reason to think.
And they all knew him.
And they knew that this was not how he acted
at any other circumstances.
-: On the debate about whether or not
he was legitimately ticked off about being over policed.
Versus whether he was trying to distract the police.
The motion judge made a specific finding
that he was trying to distract the police.
Correct?
Stern: I believe so.
-: And this was a litigated below.
-: Yeah.
I mean, leaving aside the question of whether
he was over policed which isn't really explored
in the record.
There isn't a basis one way or another.
I think that you couldn't find error based on the idea that-
-: Either way these are issues
that were in front of the motion, judge.
-: Yeah.
And I mean, defense counsel didn't litigate them
in the way that is now argued below, possibly for reasons.
I mean, one of the arguments was Paris
has nothing to with that.
-: But I think it turns on what justice Georges indicated.
So if we accept what the motion, well we have to.
Unless it's clearly erroneous.
Motion judge finds it,
Paris is trying to distract the police.
We know that a pat frisk isn't transitive between people.
That's the federal rule, right?
So we have to have a reason to believe
that this defendant is armed and dangerous.
Stern: Yes.
-: That's really where the "rubber meets the road."
And it turns on whether or not your body inference
that he's armed and dangerous.
Because, his body is trying to distract the police.
And he's got prior gun cases.
-: I think that once you get beyond the disputes
and the facts based on what the motion judge found.
The inference is what it is.
And you buy it or you don't.
I sort of go into detail in my brief.
But, it's either you think it's a good inference
or you don't think it's a good inference.
Again, as I argued.
If he is trying to distract from something in the car.
It doesn't make sense for him to be distracting
from something that is just sitting there hidden.
-: And how do you make that leap though?
He could be trying to distract from something in the trunk.
He could be trying to distract from something
in the glove box.
He could be trying to distract from, who knows.
But that's the point.
-: Well, I mean, there's a whole range of possibilities.
Budd: That's the thing, right?
-: Yes.
I do argue that I think it is more likely,
if you're assuming that he has a plan
that makes some sort of sense.
That if he jumps out of the car and starts
trying to distract from something in the trunk.
He is drawing attention to the car and everything in it.
But, that's the argument.
Budd: I'm sorry, that he is drawing attention to the car.
-: Well, I mean, if it's a routine traffic stop.
Then if someone gets out and becomes
increasingly aggressive with the police.
It is not going to get less attention for the car.
-: So backfire, basically.
Stern: Sorry.
-: It backfired.
What he was trying to do is not a good idea at all.
-: One could conclude that a slightly better plan
might be something that the police should assume
maybe he has.
Budd: We're talking about assumptions.
-: It is a question of what's a reasonable inference.
In the appeals court disagreed amongst themselves
about several different things.
It's not clear to me from the case law,
whether a hunch is by definition
anything that's not reasonable suspicion.
Or whether there's space between a hunch
and reasonable suspicion.
They have a chain of logic here.
They're not just going completely
by the seat of their pants-
-: If you think about what, I guess both
justice George and justice Gaziano were saying.
Even if Paris is acting unusual
from the way he usually acts.
How do you get to the defendant?
-: So our argument essentially is that
if you buy the inference that he is trying
to distract from something in the car.
The question is what, then you look at who is in the car.
They know about their firearms histories.
And the gang memberships.
Budd: And they're sitting quietly.
Stern: To the extent that they've been observed.
Which is not complete.
-: But what they've seen is they're sitting quietly.
There's nothing the defendant could have done
at that point to avoid the pat frisk.
-: I think that there are situations in the law
where for various reasons that aren't the fault of a person.
You can end up getting frisked-
Budd: That's for sure.
-: You happen to match a very detailed description
of someone who just did something.
Like very detailed.
There are situations where you cannot craft a rule
so that it never results in a pat frisk
of somebody who is minding their own business.
You can try to keep it as narrow as possible
so that it only happens when lightning strikes
you out of the sky.
And that was just like an
unfortunate confluence of circumstances.
One other example.
If you're visiting somebody who has
an all persons present warrant out for the drug operation,
you don't know about.
I mean there's been police review of the warrant.
But you're just associating with the person.
You know a lot of facts.
You just don't know the relevant facts there.
As I argue in my brief, you can't necessarily craft a rule
that doesn't take into account.
There's no way that other things going on around you
no matter what they are, can get you in trouble.
Budd: No that's true.
-: Counsel is the fact that Mr. Bailey-Sweeting
had a prior gun offense.
Is that determinative of whether or not
it was reasonable to pat frisk him.
Let me ask it in another way.
Let's just say that there was no prior record, zero.
And so all you have was a finding by the motion judge
that the other gentleman was trying to distract them
from something.
So what's the plus factor that
gets added to Mr. Bailey-Sweeting?
Is it just that he had a prior gun offense?
-: I think that that is overwhelmingly
the single most important factor-
-: So let me follow up with that.
Someone else had asked you.
Well, is there ever going to be a time
where that's not going to be a factor?
Let's say it was 10 years ago
that this prior gun offense happened.
What is it just in and of itself about that
that gives you the plus factor to say,
"Okay now it's good."
Because if you say that.
If it's 10 years ago, 15 years ago, 20 years ago.
Who cares?
-: I think it would attenuate into the distance.
I don't know at what point.
I think that an armed robbery adjudication
from three years ago has not done that yet.
So I think that that is crucial.
For example, it has to be a firearms offense.
Your other criminal record.
Even if it's violent is not relevant here.
-: I forget on the facts.
But, wasn't it that they had other instances
of this group of young men who had
more recent activity with firearms.
-: Two of them had arrested him with a firearm in a car.
Gaziano: When was that?
-: That was in June, 2016.
It was about 18 months earlier.
He was out on bail.
He hadn't been tried yet for that offense.
-: Okay.
The other guys had more recent firearms.
And when was the video?
-: Carlos Cortez, New Bedford had
found out about it from Boston.
I think it was testified within a month.
The judge was very interested in sort
of how do you know it's a real gun.
And asked one of the officers-
Gaziano: That was within a month of this stop?
-: Yeah.
So one of the officers actually
put that as the initial reason
why they decided that they needed
to search the passengers.
It was that Carlos Cortez was in the car.
As you get a reducing percentage of the car,
being people with recent firearms offenses.
I'm not sure exactly what happens.
But I think that the overall dynamic here
was very likely important that
you have three out of the four people in the car
with all these things they know about them.
But all of them within the last three years,
having gun offenses of various degrees.
The defendants (mumbles) with the adjudication.
And again, armed robbery with a firearm.
Not just caught with one on him-
Kafker: I'm Just trying to understand,
I didn't mean to cut you off.
Gaziano: I'm done.
-: If the defendant here didn't have a gun offense,
I may be repeating justice Georges question.
But if he didn't have a gun offense.
They still can pat frisk him here?
-: There might be other circumstances that
could fill in for that.
I think on these facts, probably not.
-: Excuse me, the other guy who has the video.
No gun offenses, but a video.
Stern: There's a video with-
-: Was that improper to pat frisk him?
Cause he has no offenses.
-: There was the video within the month.
He was waving what looked like a real firearm.
Again, the judge sort of interrogated that.
Except it looked like a Glock.
They could see the slide, I think.
-: And I'm also trying to get a sense of
if there wasn't any gang evidence here.
Or was invalid.
The validity issue I'm still confused about.
But if we had just a prior offense.
A five-year-old gun offense.
But no current gang activity.
Can you pat frisk that person?
-: I mean the gang evidence is a plus factor
among all of the other evidence.
Once you're doing that analysis.
-: Are all of these necessary then?
Not only do you have a gang.
In order to justify this pat frisk, particularly
of the person who wasn't doing anything.
We need all of this combination.
That they had a gun events.
They're a current member of a gang.
Is that your view?
I'm just trying to get a sense,
your opposing counsel, I can't tell exactly
what would be enough.
But I can't tell sort of the same question from you.
Are all of these critical here.
Cause we don't obviously want someone
with a five-year-old gun offense
to always be pat frisked at every stop, right?
Stern: Yes.
-: The Commonwealth doesn't think that's appropriate, right?
-: No, your honor.
-: And I take it, given the problems
with validating gang evidence.
We don't want anyone who has any
of these gang affiliations to be pat frisked
every time there's a stop, right?
-: Yes.
And I think all three.
I mean here are all three officers agreed that,
three gang members in a car,
some of whom they've arrested recently
for gun offenses would not warrant anything
except the traffic stop, but for Paris's conduct.
So it has to be a situation-
-: So it's that hunch gets us.
It is a hunch.
The judge says, they believe this.
But they described what they're saying is a hunch, right?
-: Well, one of the officers after being encouraged
repeatedly by defense counsel, agreed
to a question where she characterized it as a hunch.
First time she said, "Well, it was a hunch."
Right?
And he said it was more of a fear.
And then there's one other time where he agrees
it's a hunch.
He can't stipulate that they had a hunch.
But I don't even know what quality of evidence
that is that he thought he had a hunch.
I mean, this court can determine it was a hunch.
But that's a different question.
I think the officers thought that they were
acting on reasonable suspicion, certainly.
Which isn't the standard either.
I think the problem with totality of the circumstance
is the good thing is it can get very specific circumstances.
But the hard thing is it's not easy to say here's the math
of exactly which total circumstances you would need.
In this case, I think probably you need all of them.
But I don't know in terms of making a rule for,
I mean, another case might have other
important differences that would factor in.
The nature of this is it's hard to have a bright line rule.
You can write a decision that will provide
clarity on what isn't on the test to be applied.
But it's always the nature of balancing factors tests.
Is that they're always going to be specific
to each particular case.
-: So in that factor analysis how should we
look at the validation of gang membership?
Got any guidance for us on that?
Was it good enough here?
Was it sort of undisputed here?
How do we deal with that?
If you have any help on that?
-: Again, it was mentioned and it was interrogated
somewhat by the defense what the basis was.
But it does not appear I think from the record
that their basis for thinking that
these people are gang members was specifically
because they'd done this checklist as opposed
to the totality of what they knew about them.
That they also ran through a checklist.
And used a shorthand.
Certainly, if you had a case where the only reason someone
was considered to be a gang member was
that they had this validation from-
-: Well, we have cases out there
where somebody gets put in a gang database
because they're friends with the wrong person.
And they got the picture taken, right?
-: I think it's an issue that would be in great subject
for an evidentiary hearing in a case where it was raised.
It's a question worth pursuing.
There's currently a lot of discussion going on
with the legislature and Boston City Government
and other things about ways to deal with this.
Whether the exclusionary rule, given that as you note,
some people are definitely really gang members.
And that has significance.
The question of whether an evidentiary rule in this case
such as (mumbles) proposed would be useful
for either officers to apply on the fly
or as a way to get at the problem of sloppy gang lists.
I think is questionable.
-: The issue of concern is that, is just by way of analogy
just saying high crime area just fits too many cases
into a situation where there's nothing specific
about the location.
Or specific about the circumstances.
And, so we have a concern that you can't put too much
into that factor, or there's going to be all sorts
of implications that are not good.
And so I think the defendant saying
with the validation that you just can't throw
around the term and necessarily mean figure
out how much it adds to tell the circumstances.
And I think that's just justice Kafker's point.
Which is, it seems important.
-: As I said, I think it's a conversation worth having.
I don't think that this case sort of presents
a basis where it was, I think there were probably reasons
that that wasn't dug into deeper at the hearing.
Again, these people mostly know each other.
But in the general issue, I think it is different
from the high crime area.
In the sense that you can be potentially mistakenly
on a gang list.
It's an issue cause they can both be used as proxies.
All sorts of people as is stated in the case law
live in high crime areas, minding their own business.
Some people might be accidentally on a gang list
but presumably the ones who are correctly identified or not.
I guess we could get into an argument
about whether gang membership is relevant to anything.
But I think that there is a case that correctly
identified gang membership is.
Whereas if you correctly identify somebody who's living
in a high crime area, you don't know anything about them.
They could be anybody doing anything.
They just happen to live there.
Whereas if you're correctly on a gang list.
I think it's justice Kafker was getting at.
There's the, what is the way to
be given legitimate gang evidence, whatever that is.
And our gang lists a way of actually ascertaining
who is actually a gang member.
Those are separate questions that have to be dealt
with on separate basis essentially that you can't, yeah.
-: Okay.
Thank you.
I appreciate it.
Stern: Thank you, your honors.