-: Good morning.
And if you could call the first case.
-: SJC-13103, Commonwealth v. Earl Garner.
-: General Marks.
-: May it please the court.
David Marks for the Commonwealth.
In Commonwealth v. Torres-Pagan,
this court clarified and reaffirmed
the requirement that in order to make a pat-frisk
for officer safety,
two prongs must be met.
Both that an officer have a reasonable suspicion
that the suspect is armed,
and that he have a reasonable suspicion
that the suspect presents a danger to the stopping officer.
-: Attorney Marks, before you get over here,
before you get involved into detail in your introduction,
can you address first the issue of the factual findings
by the judge and the argument that the Appeals Court
found facts and that's where they went wrong?
-: So it's a bit of an awkward question, Your Honor,
because I'm not here to defend the Appeals Courts opinion,
which I think in a couple of respects
may sort of assume what needs to be proved.
Justice Cypher: Okay.
-: Well then let's just do it in detail.
Judge McGuire says two or three steps back and
do we put blading into the factual predicate
in order to apply the Torres-Pagan.
And also we've got the fright or flight.
And do we put that into the factual predicate
considering Judge McGuire's testimony
that he's not crediting anything
about the defendant's thoughts?
-: Let me take those in order.
I think blading is a red herring in this case.
It's true that the officer used the word once.
I think all it meant in this instance was that
Mr. Garner was moving diagonally away from the car
and the officers.
I don't think it was invoked as a term of artwork
to suggest any evasive.
-: Well then do you concede that it doesn't add anything
to the equation because he was circled by police officers?
-: I don't think blading has anything
beyond the fact that it's a word
that describes this diagonal movement.
-: Well, thank you, Mr. Marks.
Let's just take one more step into it then
if we could please.
Do you also agree that his steps backwards don't add
anything to the factual predicate
since there's no part of his body
that he was trying to hide from the troopers?
Attorney Marks: Oh, no. I disagree. Strongly disagree.
-: All right, tell me.
-: Both of the testifying troopers testified that
the defendant, when he got out, continued to backwards
away from the car and the officers,
and they formed at that moment the very strong impression
that he was on the point of flight.
I think that his movement there is central to our case
that reasonable suspicion was made out here.
-: I get that.
Whether that's how it works out or not, I get that.
But I'm asking about moving backwards as it adds to
whether or not, you referenced Torres-Pagan,
whether or not he's armed.
You've got a conviction, six years old.
You're going to get to flight or fight or fight.
And then you have these steps backwards that you're making
a point that they go to a perhaps flight.
Maybe it does, but how does that add to whether he's armed?
-: Are you asking Your Honor,
whether the fact that he's moving backwards as opposed to
getting out and moving forward has significance?
-: I'm asking what the officer called blading,
I agree it's a red herring.
It's not blading anyway.
Whether his moving backwards adds anything
to whether or not he's armed.
-: I may not be understanding your question
because my answer would be the same.
That the movement backwards is what they understood
as a precursor to flight.
So the significance of that is that they were authorized
to detain him until the conclusion of the stop.
-: I understand the whole argument about the duration
that's in the Amicus brief and in your reply.
I'm evidently not asking the question well.
You have to be able to demonstrate reasonable suspicion
that he's armed.
Does them steps backwards add anything to that?
Attorney Marks: He's armed as opposed to dangerous?
-: That's what I'm asking. -: Okay, sorry.
I beg your pardon for being obtuse.
I think the answer to that is no.
They go to dangerous. They do not go to armed
Well, so there's this.
The fact that he's, but it's not really directly there.
The fact that he, so the officer's inference is
we arrive on the scene.
Here's a man we've known, Dunderdale has stopped him before.
No problem. Now he's exceedingly nervous.
So their minds, they're officers,
but it goes right to contraband.
What kind of contraband does this man carry?
Well, he's been twice convicted of carrying a firearm.
Justice Cypher: How long ago was that?
-: The most recent conviction was six years before the stop.
He served three years on that conviction
so he was released in 2014, the stop is in 2017.
But once he invites them to search the car,
the possibility that his distress is related to
his carrying contraband is now more reasonably limited
to his person than it is to anything related to the car
or other possible aspect.
So in an indirect way,
the movement away from the car sort of confirms that
if there's a problem here and the problem is
he's carrying a gun, then it's on his person.
It's not in the car.
Justice Budd: You also said that stepping back
meant dangerous as well?
-: Well, the argument is this.
If they're entitled to detain him at the scene,
and I contend that they are,
and he's now on the point of flight
and they believe him to be armed,
there is now some possibility there's going to be
a wrestling match with the man they think
may have a pistol concealed on his person.
That is not a situation the officers want to be in.
And they foreclose that possibility by grabbing him
in a pat-frisk before he fled or had an opportunity to flee.
-: So his offer to allow the officers to search the car
makes it reasonable to assume that he's armed?
Is that your argument? -: No!
It's simply eliminates.
I think the thought that he was armed occurred
to the officers almost immediately
given his past history and his now unexplained
extreme nervousness.
-: [Justice Wedlandt] Because six years ago,
he had a firearm offense?
-: Two. It's his a second offense.
-: [Justice Wedlandt] Yes. Six years ago though.
-: And the officer's, concerned as they reasonably were
for their safety.
the fact that it's six years ago
has some attenuating effect,
but not at the point where it's irrelevant to the
reasonable suspicion calculus.
-: Isn't the problem though...
Assuming for the sake of my question,
that everything you're saying about dangerous is correct.
It doesn't matter how far you are able to
address dangerousness if you can't show the firearm.
And we've got three things going on here.
I know you haven't even gotten to the second one yet.
You got an old conviction.
The second one is obviously even more than six years.
You've got the two or three steps backwards,
and you've got the fight or flight.
Giving you all the inferences that you want on dangerousness
how you getting to armed?
-: You're leaving out an essential part of this equation
from our point of view and that is his anomalous behavior.
-: Is it anomalous on the second time he was stopped,
he was nervous too?
-: No, on the second time he was stopped, he was angry.
(Justices chuckle)
And if he had that reaction,
I think we would have less to argue here,
but he's not angry, he's clearly.
-: [Justice Wedlandt] But we can't base everything
on his variable moods, can we?
-: Well, not everything,
but I'm not asking you to do that.
What I'm suggesting to you is,
and variable moods kind of trivializes what the officer's
we're looking at here.
They know him have been twice convicted for a gun offense.
Now they had had a previous, this Officer Dunderdale,
had had previous experiences with him
where everything was fine on a stop
and now suddenly it's not fine.
-: I think you're assuming that everything had been fine
in the prior four or three stops.
There was one time where he was angry.
And then there was a second time where the officer
tried to convert him into a CI
and now he's nervous or at least shaking his leg.
-: I think there's a difference between
on the first stop after his release from prison,
stopped about a week later according to the testimony,
and his initial reaction was anger, you're out to get me.
'Cause it was Dunderdale, the same person
who had stopped him for the offense that ultimately resulted
in his conviction and his going to prison.
But as Dunderdale relates, he arrested him,
and then the defendant's behavior changed
on the way to the station.
They had, what he describes as, a good conversation.
And then, so that's how that stop ended.
He ended up stopping him twice more.
Everything was fine.
Dunderdale's phrase is they had a good rapport,
but I take it all that means is they had
a good cordial, non-confrontational conversation.
In both of those instances, he's released without citation,
even though in one of them,
he was driving on a suspended license.
So the judge credited the testimony
of the defendant's fiance that in one of those stops,
Dunderdale asked for, if you hear anything,
could you let us know?
I don't know that somehow detracts from our contention
that these previous stops were suggested to
a kind of baseline of interaction with this man
that now we were seeing something very, very different.
The officers are seeing something very, very different.
And it was reasonable for them to be concerned
about why that was so.
It is not a great leap,
although there are certainly other explanations,
but it is not a great leap to draw the inference
that his evident distress was related to the fact
that he's now being stopped by officers
and he has contraband on this person.
And as I said, the contraband he's known to carry
is a firearm.
Your Honor.
-: So does it ever,
does it always work to the law enforcement's benefit
about the prior interactions with an individual
one way or the other?
Let me just change the circumstance for you.
Let's just say, for instance,
you were telling me that the prior instances
with the defendant, and we've had cases like this I believe,
where there was anger or there was nervousness,
or there was some other emotional response,
but this time there's nothing but
cooperation and compliance.
And now, in this calculus, the Commonwealth could argue,
"Well, Judge, these prior instances, he was angry.
He was belligerent. He was nervous.
but this time he was calm.".
So now law enforcement gets to use that.
Now the calmness, they get to use to say,
"Something's not right because previously he was upset
and he was angry.".
Is there ever a point where that's never going to be
something that law enforcement can always use
as a sword or a shield?
-: Yes. I think your example is a good one of where
it would be inappropriate for an officer
to draw an inference from a suspect's,
a detainee's calm demeanor.
Under the circumstances, even if there had been
a prior history, the fact that the interaction's
were moving in the direction of being less confrontational
is not a basis for a search or a concern about officers.
Justice Georges: Okay. Thank you.
-: The concern here really relates to the fact that,
and this is why I expended so much energy on this
in our brief and the reply brief,
the officers think it is very likely
this man is going to flee
and therefore it is very likely that if they allow that
there's going to be a wrestling match.
That is really bad if he has a gun on him.
-: Should we talk then, perhaps about the basis for that.
Because when you sit down,
we're going to hear that the factual finding
that anything the police officers speculated about,
the defendant's thoughts, isn't credited
and so what I would ask you is, first of all,
is there are enough to draw the inference fight or flight,
and is that inference being drawn
completely from observation and not from
what the defendant's thoughts might be?
-: Despite what the motion judge said,
my reading of this testimony is that the officers were
testifying to behavior that in their training and experience
precedes flight.
They were not speculating about what he was thinking.
They didn't care what he was thinking.
They only cared that they were seeing behavior
that in their experience, would lead to
him leaving the scene.
I contend that to the extent that the judge,
the motion judge discounted that entirely.
That was error.
-: How do we separate that, Mr. Marks?
Because Judge McGuire says to the extent that they
suppose something about his mental state,
I'm not going to credit it,
but physical observations are in play here, correct?
That's the ground rules we have?
-: If I understood your question,
I'm having trouble hearing you.
-: Judge McGuire, my memory is says in his decision
the extent the police speculate about his mental state,
that's out, but observations he credits, correct?
Attorney Marks: Right.
-: Okay. So those are our parameters.
-: And he goes on to essentially say, as to fight or flight,
they thought he was going to flee
so it doesn't matter in any event,
the basis for that is what I described above
and it adds nothing.
He gives it zero weight.
-: So that you got to my question.
So what I'm trying to ask you is,
isn't that a supposition about his mental state
that he's about to flee when his eyes dart
and he kind of walks backwards?
-: Your Honor, to the extent that is true,
it is absolutely essential that police officers do that.
-: I know, but I get that.
But the question I have is more basic.
Is your argument, and I get your argument
about the right to detain and have a wrestling match
and we should know whether or not
someone has a knife or a gun before we wrestle with them,
but is that finding foreclosed by McGuire's
disbelief or discrediting of the officers
take on the defendant's mental state?
-: I don't know whether I'm answering
your question correctly,
but I would say that he just entirely missed the point
in saying that the testimony related to
guessing what the defendant was thinking.
That isn't what they were about.
They're looking at behavior and recognizing it
as behavior that proceeds other behavior
that they would be concerned about.
That's all. There's no mind reading involved in that.
Justice Gaziano: Okay. Thank you.
-: Thank you very much.
-: Thank you.
Okay, Mr. Kelley.
-: Good morning.
May it please the court, Brian Kelley
on behalf of Mr. Garner.
-: Mr. Kelley, can you just address the last point I asked.
If we find that there was a proper evidence
that your client was about to flee,
do you believe that the police have a right
to pat for someone before they get into a wrestling match?
-: I think I should answer that question by saying,
I think the case law suggests no.
The answer's no,
because as I understood Judge McGuire's decision,
it was based on a finding that he didn't really believe
that there was an opportunity for him to flee.
But if you look at his findings of fact, Your Honor,
one of the first things he says about
this fight or flight question was
it doesn't add a lot to the analysis here.
One, because we're talking about potential flight
and then two, there were no real facts.
-: And I obviously need to qualify my question,
because if there's no hint at all at someone's armed,
then the pure, someone trying to flee
before the wrestling match, they don't have a right,
unless they're armed.
But here you're relying on Judge McGuire's finding, correct?
-: I am. And I think the other thing
I would say about that is
wouldn't that undercut the court's ruling on Torres-Pagan,
which is we need some reasonable suspicion to believe
the defendant is presently armed and dangerous.
-: Right. I mean, that would be part of the calculus
that they're going to get into this.
No, I get you Mr. Kelley.
-: I think if it were true that if we were having
a motion to suppress and the judge could just say,
"Well, I thought he was gonna leave.",
then I think it would undercut
this court's ruling on Torres-Pagan.
It would serve to undercut what I think was
the basis of Torres-Pagan which was going back to
the standard that was enunciated
during that particular case.
Justice Gaziano: Thank you, Mr. Kelley.
You answered my question.
-: Can I follow up one more question on that?
So the Commonwealth argues at one point
that the judge discredits their speculation
about what he's going to do,
but they seem to argue, the Commonwealth is arguing that,
and again, I think it's the same variation
of what Justice Gaziano is asking,
that that doesn't eliminate the officer's suspicions.
Meaning their comment that he's about to flee
has no independent significance,
except for that still preserves the officer's ability
to think he's about the flee.
Do you think the judge foreclosed that latter part?
-: I certainly wish that the comment about his thoughts
was a little more robust,
because I think it's so broad, right?
I mean, everything that he's thinking?
So that's a lot, right?
I mean, 'cause nervousness is what you're thinking.
Shaking is what you're thinking.
So it's an awfully broad.
I understand the question, but I think it forecloses
this notion that, I think my biggest thing about this is
we had a hearing, we're the middle of this courtroom,
I'm standing there and I'm walking through
with Trooper Dunderdale where he is in this street
where he's standing.
I'm using the photograph and can't see that on a transcript.
It's hard to recreate that,
and I think that's why we accord such deference
to lower courts because we're not there.
You're not there.
The Appellate Courts are not there.
-: Well, that's really a great point.
And it's difficult for us right now as well,
because we accept the subsidiary findings,
but we can grow our own overall conclusions from that.
But on the other hand, we accept
the judge's characterization and the evidence.
I'm also having a difficult time figuring out where
Judge McGuire's comments about the fight or flight
fit in to how we review the record to determine
what our factual predicate is to apply to Torres-Pagan.
-: I think the answer to that is
if you look a little bit at the transcript,
and I think the transcript is before the court,
you can see where we're having this discussion
about fight or flight.
I didn't honestly object to it because I just didn't see
any real basis for it.
And basically the testimony was,
"Well, I had a couple of courses on fight or flight,
how to recognize fight or flight.",
but what was the basis of that?
That he's nervous and then he looked over his shoulder?
Well, I think that was rebutted by the judge's findings
that Trooper Ledine was standing behind him
and said something to the effect of,
"Earl, why don't you come on over here?".
So the factual underpinning of fight or flight,
at least from the judge's perspective, was really not there.
And I think that's why, as much as he didn't say,
and I would have liked him to say,
I don't find this credible.
Instead, he just said it doesn't add to the analysis,
which I think is part and parcel to
I just don't think this is adding to the analysis here.
-: [Justice Wedlandt] He said he looked over his shoulder
and he was nervous, but what about the stepping back part?
-: And that was the other thing about the photograph
that I thought was important because the judge had,
I think that was in the footnote that he said
"He couldn't have gone very far.".
And so the testimony essentially is
Mr. Garner steps out of the vehicle and there's some huge,
I think confusing language about where he's standing.
But it's my understanding that Trooper Ledine's
standing behind him.
Trooper Dunderdale is to his left, the doors like here.
And so, as I understood Judge McGuire's findings was
he couldn't have backed up very far because
it's a dead end road,
he stops the vehicle in the middle of the road
and he's surrounded by three armed state police officers.
So that I think is really important from the perspective
of how he viewed that space and what we're talking about,
which I think is a really important fact in this case.
-: Well, that's I think one of the reasons you cite to
Commonwealth vs. Isaiah is because as I understand it,
we defer to the factual deduction of the judge.
And I also recognize more precision would have bee helpful,
but you're saying these are factual deductions
from the evidence, aren't you?
Attorney Kelley: Yes. Yes.
And I think in the cases where the court has a record,
let's say there's a statement or
the question is voluntariness.
You have that statement before you, you can listen to it
if it's audio and video recorded.
You don't have that here.
And so in those cases, I think the case law is...
There's not a ton of deference because the court
can listen to and listen to the responses
and make your own assessment.
You don't have that before you.
You have testimony, you have a photograph,
and there's testimony about where and then findings of fact,
which are traditionally accorded a lot of deference.
So that's what I'm really asking the court to do here
is to do the same thing
that this court has traditionally done,
which is the lower court heard the evidence.
It heard the officer's testimony.
It listened to the officer's testimony.
It assessed the credibility,
although he doesn't necessarily say in his findings of fact,
I don't find this credible,
but he weighs it in a way that I think is important
to give deference to.
And in that particular space where Mr. Garner is
and how he's acting,
those are all really important facts for the court
to assess as he's listening to the officers,
he's listening to the troopers.
And I think he does that in this particular case.
And as he puts those two things together,
that is what the Commonwealth is relying on, mostly,
is his prior conviction, which is six years old,
and then his marked nervousness.
We know that people don't always,
a lot of people are nervous for many reasons
when they're confronted with law enforcement questions.
and he's out of the vehicle.
-: Mr. Kelley, where does that square with
what the Appeals Court wrote in that the police
can consider odd behavior?
Does that make it odd behavior when someone acts differently
than they did in a prior stop,
or how do we take this odd behavior line in the case law?
-: I think there's a multitude of factors
that you could consider.
One, he's stopped,
there's three armed police officers around him.
He's an African-American man.
He's had four previous encounters with the same officer now.
-: But I guess the question I have is,
and I get your argument,
but what is odd behavior mean to you?
-: Is nervousness odd? Sure, I guess.
But I don't think it's odd
because a person's being stopped by the police.
-: I think everybody's, well, most people are nervous
when stopped by the police.
-: And I don't know.
I thought the Appeals Courts decision had really conflicted
with the judge's findings of fact.
And I'm not here to dispute what the Appeals Court did
so much as I want the court to uphold
what Judge McGuire did.
So I'm not, my argument here today is.
-: One last question about the Appeals Court decision,
Mr. Kelley.
Do you concede that the police had the right to detain?
I know that they didn't have a right,
in your position, to pat-frisk,
Do you concede they had a right to detain your client
until they finished the citation process?
-: So that particular argument, I think,
from my perspective, was waived
because it wasn't argued below.
But the question I think is how long can they,
I think what Your Honor is asking,
how long can they detain somebody?
-: Well, we know the answer to that from Codero
they have the right until they complete the process,
but do you concede they had right to detain him, at least?
-: I don't. And the reason I don't is because.
Justice Gaziano: You suppose they can just let him go?
So he can just beat feet and then they say, "Yeah."?
-: See if that was the thrust of the motion
and if that was the Commonwealth's argument,
I would've been able to ask questions about that, right?
And that wasn't really the thrust
of the particular motion we were doing.
They gave him a ticket, my understanding is
they gave him a warning.
-: But that's complete in the process.
I guess you don't want to answer my question.
I don't want to try to coerce you into a concession
you don't want to make.
-: It's not so much that, Your Honor.
It depends on the case, right?
If from my perspective going in,
and I think you've got this from the flavor of the hearing,
I thought it was pre-textual.
That was the argument we were making at the time.
Buckley was under advising.
And Judge McGuire issued an opinion based on the pat-frisk.
So from my perspective, I thought it was pre-textual.
My argument was it was pre-textual.
And that the whole reason that they were keeping him there
was to just root around.
And the problem with this idea that you can elongate a stop
and just hold somebody there to write the ticket at the end
is that it lends to this idea that they're just
elongating the stop to.
So I think if it was a true stop,
yes, the answer is correct.
Yes, they can do that.
But if it's for other reasons,
and that's why, and I'm not trying to avoid the question,
I'm just, it was not really the thrust
of that particular motion at the time.
Justice Gaziano: I get it. You've answered my questions.
-: Thank you.
-: I think with that, I have some more time,
but unless there's any other questions,
I'm just going to rest on the brief that we have.
-: Okay. Thank you.
-: Thank you.