Man: This is SJC-13170
in the matter of an impounded case.
-: Okay.
Attorney Jellison.
-: Good morning, Chief Justice Budd,
and associate justices.
And may it please the court, Eva Jellison
and on behalf of the appellant.
Too often in black communities and communities of color,
police officers fill in the gap between hunch
and reasonable suspicion with implicit bias,
meaning that they see danger in the typical
and common behaviors of black teenagers
when they wouldn't see that danger
if the teenager were white.
Here today, I'm asking this court to reaffirm
its reasonable suspicion jurisprudence.
The facts in this case have never been enough.
First, I'm encouraging you
to continue your careful evaluation of common human behavior
that does not reliably indicate criminal activity.
Second, I'm asking you to continue to give little weight
to the understandable reactions of people
and in particular black people to police officers.
And third, I'm asking you to factor in
the location of the stop
and criminal activity in that location
only when it bears direct connection
to the defendant at issue.
Turning to the facts here,
they fall short in comparison to previous cases.
Here, the juvenile walked away from police officers,
engaged in an episode
where she looked over her left shoulder
at those police officers while adjusting her waistband.
And then a bit later,
she also walked away from an area
where more police officers were present.
If we go ahead and compare that to cases
pre and post Warren, we see that that simply isn't enough.
-: Counsel, I don't mean to interrupt you,
but aren't you also asking us to disregard
what we said we would not do when Jones Pinel,
because the motion judge credited facts
and from those facts made inferences
that are not clearly erroneous.
So in order to do what you're asking us to do,
aren't we disregarding the facts that were found
and credited by the motion judge?
-: No, your honor.
So I specifically asked for two facts
to be found clearly erroneous.
One of them, the adjustment of the waistband.
I don't think matters very much,
I think that whether or not she just did her waistband,
we reached the same result.
So I'll rest on my brief on that.
But as to the other issue, the blading,
the judge made a clearly erroneous fact
for really two reasons.
One, the officer clearly testified
that what he meant by blading
was looking over the left shoulder
and I mean, I can just quote this.
What he said was, "As she's walking,
she turns to her left side,
looking back and forth at the officers several time,
back and forth while she's walking before the left turn,"
that was at transcript 58.
So that's what he means by blading.
And that's also the...
-: Counsel, can I ask you a question?
Does the fact that blading only entered into it
when the defense attorney brought it up in cross examination
bear on any of this?
-: I don't believe so because of this is a factual finding.
So, you know, the officer was testifying
as to what he observed.
Blading is an unhelpful loaded term
as Justice Louise observed several times.
-: Right, all I'm saying is that was not introduced
by the prosecution,
it was introduced by the defense attorney.
Do we just disregard that then?
What do we do with that?
-: The fact that it was introduced by the defense attorney,
I don't think matters
and I think it would matter more maybe if he just responded,
yes, we didn't have any other information,
but where officer Lopes specifically testified
as to what he meant and this court is looking at the facts,
what happened and then doing a Denovo legal analysis.
I don't see where it matters that defense counsel
brought that word up first.
You know, we look at what happened
and we look at if that's enough
to equal reasonable suspicion,
but I did wanna return to, Judge Wedlandt,
did you have a question?
-: You know, because there was a dumb demonstration
during the testimony of officer Lopes,
what do we do with that?
Because we obviously don't have a visual review of that.
So what do we do with that
in terms of the Jones' pronounced standard?
-: In terms of (mumbles)
So I would say that you can...
-: So I mean, deference that we owe to the findings
of the motion judge in light of the fact
that we can't re-see whatever he or she saw.
-: Right.
Absolutely.
And I think that Justice Wedlandt,
that goes more to the adjustment of the waistband.
And as I said, I really don't think it matters
if she adjusted her waistband, which is common
or moved her hand near her waist, which is common.
So I'll start with that.
But you can look at the entire facts
that were presented to the judge
and decide if there was a clearly erroneous fact
and going back to Jones Pinel,
the judge explicitly credited what officer Lopes said
and did.
So where officer Lopes said adjustment,
perhaps that was shorthand.
He then got up and demonstrated
a reaching toward his waistband area,
looking back over his shoulder.
And I'll say that the prosecutor is summarized that,
but at transcript 28, the court then says, yes,
I imagine that that means that she summarized it correctly.
But also looking into cross examination at 55,
the defense counsel asked,
all you did was saw her from behind
making a hand movement on her waist?
Yes.
So I think that the totality of those facts
would suggest that she made a hand movement near her waist.
Now, if there's a reasonably inference
that she also adjusted her waistband, like I said,
I'm fine with that.
I don't think that that changes the analysis in this case,
but it would like to go back to the blading
that Justice George was talking about
because I do think it's important.
And I just would ask the court
to consider what happened here.
And I think that officer Lopes described very clearly
what happened here
and that the term blading confused the analysis a bit,
but I think we know what happened from 60 feet away,
he sees this girl looking over her left shoulder.
And while she's doing that, she's adjusting her waistband.
And, you know, if you wanna call that blading,
that's what officer Lopes called it and that's fine.
But, you know, I don't think
that there's really a consistent definition of blading
as you look through the case law.
I think we should go with what the officer said he saw,
and that that term is just unhelpful in this case.
And it certainly wasn't a separate behavior,
he was describing one episode of behavior.
He then said that, yes,
that can be called blading.
And, you know, to me it seems that he thinks blading
means turning.
So that's how I would address that.
So I think it's clearly erroneous
to say that she both looked over her shoulder,
her left shoulder while adjusting her waistband
and that she did something else that we would call blading.
So I would just ask you to look at the episode of conduct
that we have here.
-: Would you say that the finding
would have been more accurate if the judge number one,
left out the word blading, didn't talk about that.
But two, had said, if the police officer testified instead,
it appeared to me based on that movement
that she was adjusting her waist,
because he did say he didn't see it exactly
when he testified.
-: And he was behind.
-: He was behind.
If the judge rephrased the finding to say,
is that really what it's coming down to?
Not that she was suggesting her waistband,
but it looked like she was adjusting her waistband?
-: Yeah.
So with respect to the waistband, yes.
With respect to the blading,
I think he could have adjusted the finding to say,
she was looking back and forth over her shoulder
and adjusting the waistband,
which officer Lopes termed blading.
I think that would have been a consistent fact,
finding a fact with the record.
And the second part of a blading is that, you know,
the motion judge also found that she was blading
so as to conceal something
and officer Lopes never said that,
you know, he said that she's turning to her left side,
essentially opening her body up, back toward the officers
that she's walking away from.
So there's no fact consistent with any concealing
and I think that that's why blading was an unhelpful term
because it was...
-: There was no fact, but isn't that a reasonable inference
from the fact that there was something going on
around the waistband,
I guess, is what I'm getting at,
where do you put that compartmentally?
Is that a finding of fact?
Or is that a reasonable inference?
Because if it's a reasonable inference,
why is that clearly erroneous?
And in light of the totality of the circumstances.
-: I don't think it is a reasonable inference.
She's looking back over her shoulder,
adjusting her waistband.
There was no testimony that she was hiding her side.
That's typically what happens here.
The officer defines blading as hiding her side.
And in this case, he said,
she's looking over her shoulder back and forth
while adjusting her waistband.
So I would just ask the court focus on what happened here
and that finding of two separate things
and concealing was clearly erroneous
and that there was no reasonable inference
that she was concealing anything.
So that what I would ask the court to do.
-: You want us to discount the grabbing of the waistband,
but we have that testimony.
We have to Tepeza
and I understand at Tepeza,
there was probably more favorable facts for the government,
but we also have the testimony of the police officer
that is consistent with a firearm as the ATF training has,
you know, possession of an unholstered firearm.
-: So in this court's case Mata at footnote eight,
I think is very, very helpful on this point.
So at footnote eight this court said...
-: I could finish my question before you answer it.
-: Oh, I'm so sorry, Justice Gaziano, please continue.
-: And it's probably gonna be the same answer, regardless,
but let me finish the question.
-: Please do.
-: Thank you.
When you preface your arguments, you said, you know,
the police are basically filling in gaps with implicit bias
here we have this ATF training.
Do you want us to throw that out?
What do we do with that?
-: No, I actually want you to do
exactly what you asked the police to do
in footnote eight in Mata.
So said, we note ordinarily when an officer relies
on his training and experience to draw an inference
or conclusion about an observation,
the officer must explain the specific training
and experience and how it correlates
with the observations made
and, you know, moving further, there's a long footnote,
that is very helpful.
Here the officer did not testify specifically
than in his training and experience
the adjustment of one's waistband in the way described
indicates that the person may be carrying a firearm.
And we have the same thing here.
If you look at transcript 16.
-: I thought the evidence was thinner
and moderate as far as it was just a training experience,
conclusory statement, and I may be wrong.
I'm sure the chief probably (indistinct)
but we have testimony at least a reference
to the ATF training and what came out of it.
-: Right.
-: But I mean,
I think that you still need to make a connection
to the behavior.
So, you know, officer Lopes testified
if you're carrying an illegal on your waistband,
you're touching it with your hands,
pulling it up and pulling to the side.
And if he had gone ahead and testified,
I saw her pulling something up
and pulling something to the side,
we'd have a different case,
but he testifies that she adjusted the waistband.
So he's not connecting that, you know,
in the same way or he's not connecting that directly
as I think that this footnote suggests that he should.
And also this behavior, you know, in Mata specifically,
the court held that the defendant's adjustment
of his waistband alone does not create reasonable suspicion
for a seizure because that behavior is to common.
In Tepeza, we have something
that's a little bit more idiosyncratic.
I think, you know, it's less common for someone
to be walking with a free arm swinging
and another arm pressed against their body.
That seems more indicative of firearm possession to me,
and at least less common.
Whereas this is something,
you know, more in the realm of something that people do,
people adjust their clothing as they are walking.
-: Right.
Let me ask you just one more question, if you would.
So here we have the three hour long, three hours ago,
we have a tip.
Not this person, the kids are out there.
Someone has a gun, it certainly wouldn't justify in
and of itself a reasonable suspicion,
but can the police use that as a factor in any way,
like we've said, you can kind of use high crime in the area.
You can kind of use walking away.
You can kind of use things,
but we ended up themselves justified.
Are we to take the three hour old tip
and just completely put it aside
or where does that weigh into our analysis?
-: I would ask that the court completely put it aside.
So the Commonwealth concedes
that at least three hour ago tip
really only connects the fact
that there were firearms incidences in the area.
So, you know, and then Evelyn, I think, you know,
that's what we had in Evelyn.
There was a police report,
it had several incident numbers
about things that were going on in the area.
There wasn't very much detail about that.
There also wasn't very much detail about this,
if you look at some of the Commonwealth's appendix,
this is an incredibly large area, you know,
there Officer Lopes connected the firearm incidences
specifically to the laundry room.
You know, he didn't testify that she's walking away
from the laundry room.
There was no direct connection between her
and this activity.
And in Evelyn,
this court held that there needed to be a direct connection
with the defendant.
And, you know, there's a different situation in that case
where there was a recent fatal shooting, 13 minutes ago,
half a mile away.
So put that aside, but a direct connection with my client
and you didn't have that.
You know, even if you look the tip itself
which was too vague to really indicate anything,
I think if you look at Monet, as it really was too vague,
but even if you look at it, she didn't fit that description.
She was in a moment...
-: I'm not suggesting in the least that that tip
would have satisfied anything.
-: Right.
I guess I'm saying that that would be a direct connection
between the activity being described and her,
if she were within maybe a group of children in the complex,
but she wasn't.
So there's no direct connection here.
-: So your position is put aside,
it doesn't factor in whatsoever.
-: As an Evelyn, put it aside.
It doesn't factor in whatsoever.
-: Okay.
-: And, you know, I see that my time is running down.
So I guess, you know, I really do.
I think Tepeza is a great case for me.
I think Mata is a good case for me
and each of those, and Evelyn,
there were far more indications of firearm activities.
So, you know, Officer Lopes see something
that gives him a hunch that she has this firearm
and he continues to investigate, follows her
and he sees nothing else.
In these other cases, the officers approached the person.
There was another indication of firearm activity
that happens in Mata.
They call out to the person.
There's another indication of firearm activity
like Tepeza, a heavy pocket.
The most significant detail for this court
was that after they saw this idiosyncratic,
straight arm walk, they also see a heavy pocket.
So this court has never said that these factors alone,
these details alone in combination
would equal reasonable suspicion
and they are simply too common even in combination,
if you have a person walking away from police officers
in their neighborhood, adjusting their pants,
this simply cannot be enough for a police officer
to then grab them.
-: Does it matter that the judge says
it's continuous adjustments of the waistband,
it's not just one lifting up of the pants.
Right?
Does does that matter?
-: I don't believe so, your honor.
And if you'll allow,
we'll get into the facts just a little bit.
He sees her doing this,
and that's why I call it an episode of behavior.
He sees her adjusting her waistband
and looking over her shoulder from 60 feet away.
After observing that he then gets out of his cruiser
and starts to follow her and he sees no more behavior.
So if it was continuous for an amount of time
between when he's observing it from 60 feet away
and getting out of the cruiser and that's continuous,
that that seems accurate to me,
but I don't think it changes the analysis.
-: Any other questions?
Oh, thank you.
Eva: Thank you.
-: Attorney Sherman.
-: Good morning.
And may it please the court Kathryn Sherman
on behalf of the Commonwealth.
In this case, as the juvenile erotically moved
through the apartment complex courtyard,
she was observed continuously and conspicuously
adjusting her waistband, looking over her shoulder
and turning her body to ensure her isolation.
All of these characteristics were witnessed
by the testifying officer, a trained experienced officer,
and to him, these behaviors were individualized, specific
and articulable facts
that indicated she was illegally carrying a firearm.
-: And Counsel, can I ask you a question?
About carrying the firearm and that is,
Are you relying on the waistband
to show the illegality of the possession of the firearm?
Because simply possessing a firearm legally
wouldn't be a problem, correct?
-: That is correct.
-: And you can't tell her age from just looking at her,
can you?
To know she's a minor who shouldn't have it.
-: But officer does not testify to recognizing her age.
However, he does testify to his experience
working with young people in the community.
So I don't think it's an unreasonable inference
to assume that he had an idea of her age,
but most importantly, in his testimony,
he does draw a very sharp distinction
between the way in which typically legal holstered firearms
are carried and the way that illegal firearms
are typically carried.
And he specifically references it being held in a waistband.
And the way that different secure checks are done
to guns being carried in a waistband
so that it doesn't drop.
And what he describes when giving his training
and his background in his personal experience
with holstered and unholstered weapons,
coincides precisely with what he sees this juvenile doing
to her waistband.
-: Can I follow up on a question that Justice Gaziano asked
attorney Jellison about the three hour old tip
and the fact that the tip was vague
and didn't relate directly to the defendant.
How much weight, if any,
should this be given to the analysis?
-: I think it should be given very little weight
and it holds very little,
important finding reasonable suspicion here.
I believe that tip just falls into the general category
or the general consideration that would be given
typical high crime area consideration.
I mean, I feel the testimony here...
-: Counsel, if that's accurate.
Let me just follow up on that.
If that's accurate,
then could not the police considered the crime statistics
in the city in general, or just that nationwide
there's an increase in gun violence?
Why should that have any weight at all?
Why is that not like general statistics in gun violence?
-: In this case, the testimony is much more specific
than general gun violence,
and it's truly more specific than a general high crime area
used in that term.
-: But it's old.
It's stale, we don't know who it's from.
There's no addition of reliability.
No, nothing.
How does this even get to be considered at all?
-: I think it's relevant and frankly,
the Commonwealth's position
is that it need not be considered at all,
but it's only relevant in so far as the court would consider
the shots fired the night before relevant
or the shots fired in the days leading up to it.
It's really just the awareness and the situational context
the officer is bringing to his reporting
to that apartment complex that day.
-: This case rarely turns on the ATF opinion,
is there a danger in that
that we basically say anything pursuant
to this ATF training equals reasonable suspicion?
-: His ATF training,
the two trainings that he did with the ATF
are only one part of what he describes as his training
and experience with firearms.
He describes those two courses,
or he explains that he's taken those two courses.
He then gives personal information about carrying a firearm,
his personal experience with that,
the difference between a holstered and unholstered weapon.
I think he blends that with his training
and he also explains his experience recovering firearms
during arrest off of people, off of people's body.
He says that he's made 40 gun arrest,
20 of which the guns were taken off people's,
I believe he says off the person.
So his specific background training
and experience goes beyond the ATF training.
-: Counsel, in order give that last point any credence,
don't we have to know what the denominator is?
That is how many patents risks were failures.
-: Here, there is no evidence of that in the record.
-: So given that we don't know that,
how do we know that the 40 resulting in firearms
isn't like a 1% situation, as opposed to, you know,
I don't know, at least half something?
Or 30%.
-: I'd argue that that isn't necessarily anything
the court needs to find.
-: Isn't it important to know how often John officer Lopes
is right in order for us to assess
whether the 40 arrests is relevant?
-: It's a challenging question to answer,
because I understand your point
that there is no known denominator.
However, the judge during the motion
was in a position to ask follow-up questions
about that point if he thought that that was of important
to his finding of facts and the reasonable inferences
to draw there from, and he did not,
and he credited the testimony in fall.
So I do recognize that it was not overly specific,
not overly detailed.
It's just one of many factors
explaining the lens through which he saw these behaviors.
-: Counsel, can I ask you about another factor?
Kathryn: Yes.
-: The first factor as I read the transcript
seem to be that these two individuals,
including the defendant broke off from another group.
And it was interesting
because as you read through the transcript,
initially opposite Lopes tries to testify
to what he thought was in their minds
when they saw the approaching six or seven officers,
and an objection was imposed that was sustained.
But then he was able to testify to his observations
about the officers, and then the two breaking off,
given what we've said in Warren,
how are we to put that in the calculus, right?
That all of the other things and all of the other answers
that you've given to some of the other justices questions,
including about the tip,
that it wasn't localized to this defendant,
what are we to make about the fact
that he sees these two folks just break away,
we don't know why,
and there could be all kinds of reasons
why they want no interaction with the police.
Why should that enter the calculus?
Or how should we use that in the calculus?
-: Sure.
And if I may clarify,
because I do think their record is a little bit confusing
with the way officer Lopes observed the juvenile
and her companion.
Exhibit one, and exhibit four of the motion
to suppress transcript or the motion to suppress
show his position on Lawn Street.
And he's Lawn Street perpendicular to Heath Street.
The group of officers are for lack of a better word
to the left down Heath street,
if you're looking at exhibit one,
that group of officers is going into the apartment complex
crossing Heath Street entering, as that's happening,
The officer sees the juvenile
and one companion coming down Heath Street from the right
into the direction of Lawn Street.
And as the group of officers are crossing Heath
further down from where the juvenile and her companion are,
they make that sharp turn into the courtyard
with the distance of a building between them
and the group of police officers.
So they make that first sharp turn into the courtyard area
in the courtyard, which is easier to see in exhibit four,
the aerial view of it,
they move down, they move through the courtyard,
take a left hand turn
which is the area to which the group of officers
were moving, and as the judge finds in his finding of fact,
upon seeing that group of officers
or realizing they were there,
the juvenile quickly turns back around
where she was intercepted by the officer.
So she is with one companion
at the time she moves into the courtyard.
All of that being said, the manner in which she is moving
to avoid contact with the police we can see
does not carry the day here.
That is not an overly important fact
in the totality of the circumstances
for reasonable suspicion.
It's hard to separate because her behavior
by moving so conspicuously into the courtyard
is what the testifying officer notices about her.
That's why his attention is drawn to her
because of that initial movement.
And beyond that, once she enters that courtyard,
it's her continuous ongoing grabbing of her waistband,
turning her body acting as if to conceal
looking back over her shoulder to ensure she's alone
that draws the officer's attention
and that forms of reasonable suspicion,
adding to that is the fact that when she and her companion
make that left-hand turn, it's only she that comes back.
She moves away from her companion.
And again, not that her motions,
her physical movements to avoid contact with the police
carry the day, but they're immeshed
in the conspicuousness of her actions
and what her actions indicate to the officer
about what is in her waistband,
why she's behaving that way, why she wants to be alone,
why she's moving so radically and so confusingly,
but not for what she is holding
and try not to drop in her waistband.
-: Well, Miss. Sherman, I think what's challenging
about this case is you seem to almost be describing
a probable cause situation.
And what I think what's difficult about this case
is if the police officers pull an individual over
and the individual is continuously
going through their waistband or turning to the side
where there's a shooting
and the police approached some people
and they continuously are reaching into their waistband
or continuously turning to the side,
or even periodically, the police are going to have concern.
And I think what's hard about this case is,
that's not this case.
This case is hours after information that doesn't add up
to very much, they are reaching out
and initiating contact with an individual,
not to deal with a constitutionally justified
stock of a motor vehicle or an investigation of a shooting,
not even an investigation that people might have firearms
because of how stale the issue is.
So it's dramatic to say somebody, you know,
continuously going to their waistband
and turning to the side, but it's sort of in a vacuum of,
you just have a bunch of people out and about
with no issue that led to a stop.
-: And in some ways,
the context that this is in,
it's actually strong for reasonable suspicion
because he has seen this person from a distance,
he's not initiating contact with he also,
just to clarify, he is watching her from a distance
as is made clear in the record.
She has no contact with, you know,
close contact with police officers until he stops her.
And he's not seeking someone matching her description.
There are none of those factors, but what there is,
is his attention being drawn to her
because of what all of her behaviors say to him
and what all of these taken in totality say to him,
and you bring up the probable cause standard
and what is before this officer,
him seeing somebody that he believes
to be carrying a firearm in her waistband
based on several specific and articulable facts,
what more would he need for reasonable suspicion
seeing the butt of the gun, seeing the shape of the gun?
-: What about Tepeza?
Is this case weaker that Tepeza?
-: I'm sorry, your honor.
Unfortunately, the facts escaped me off the top of my head.
-: Oh, Tepeza?
-: Yes.
-: Okay.
-: I apologize.
-: What's the closest case,
I understand Tepeza is not fresh in your head.
What is the closest case that supports your position,
in your view?
Cause Miss. Jellison distinguishes Mata and Tepeza.
What case do we look at and say, okay,
this combination of blading or movement to turn away
and continuously reaching into your waist is sufficient?
-: I think Evelyn is a strong case for that position.
Evelyn, the distinction that's very different
than the facts here is the fact that
it's in the recent aftermath of a shooting,
that said, the actions taken.
-: That's just as low as point
that we're doing this in a vacuum, which is different.
I mean, I get it.
If there's a report of a bunch of kids and a half hour ago
in front of the building playing with a firearm,
and then they arrived there
and see a bunch of kids together, that seems different,
but this is in a vacuum.
I'm just trying to get a sense.
Is there a case like this, you know,
just one of these normal street encounters
with the police and adults or kids that's like this?
-: And if I may just address that issue of the vacuum,
like you were saying, he's not arriving
and there is no factual connection between the phone call
and what he observes when he's there
in terms of a group of kids
indicating that they've have a firearm,
but it's one person indicating that she has a firearm
and he stops that one person,
not the person that she's with, just her.
And he stops just her because of the totality
of what she is doing.
-: Again, Sherman, I'm just looking for an example
of a case like this because I get it when we've got,
you know, sort of an APB, there's, you know,
shots fired or a firearm identified.
We've got to be protective, you know,
but this is a little different.
I'm just looking for a case
where the police are sort of wandering around a neighborhood
and this is kind of enough.
Is there anything like this out there?
-: I'd be happy to follow up with the court
in a 16L letter,
I just wanna emphasize for the risk of being repetitive,
that it is just the reasonable suspicion standard here.
That's what we're looking at.
It's lower than probable cause,
it's lower than (indistinct)
-: Sherman, if I could just interrupt you for a moment.
I think what we're trying to get at
is let's say there was no report of kids with a gun
and, you know, the police decide to go
to housing development area
and there's a rock there and they sit on the rock
and they just wait around
and start looking to see if anybody who notices them
is reaching into their waistband or turning to the side.
And they see somebody that does that.
And the question is, could that situation ever rise
to the level of reasonable articulable suspicion?
Because when you hear about continuously, you know,
going to the waistband and turning,
and you've got an Evelyn shooting situation,
or you have even a situation
with a civil motor vehicle infraction
and the police have to approach, you know,
three occupants at night.
Here, what we have is if you discount the firearm,
then what we have for an analogous situation is, you know,
it's lunchtime
and the police decide to get a particular housing area,
to hang out on a rock and have lunch and look around.
And then they see somebody going to his or her waist
and turning to the side.
And that's, I think what we're looking for,
if it's any case along those lines, perhaps there isn't.
-: And I will be happy to look into that for the court.