On Tuesday, September 20, the Massachusetts Supreme Judicial Court ruled that the act of fleeing from police is not enough for a police officer to view the person as suspicious, particularly if the person is a black man. In the Commonwealth v. Jimmy Warren opinion, the court wrote that “evasive conduct in the absence of any other information tending toward an individualized suspicion that the defendant was involved in the crime is insufficient to support reasonable suspicion.”

Background:  On December 18, 2011, after the report of a break-in, police approached Jimmy Warren and a friend in the vicinity of the crime.  There was little description provided to the officer, other than that the witness saw three men wearing dark clothing.  When the officer approached Warren and his friend, they fled.  

Warren was found later and searched, and the police recovered an unlicensed firearm nearby. He was then charged and later convicted of unlawful possession of a firearm.

The court ruled that his flight alone did not give the officer “reasonable suspicion for the investigatory stop of the defendant.”

From the opinion:

Although flight is relevant to the reasonable suspicion analysis in appropriate circumstances, we add two cautionary notes regarding the weight to be given this factor.

First, we perceive a factual irony in the consideration of flight as a factor in the reasonable suspicion calculus. Unless reasonable suspicion for a threshold inquiry already exists, our law guards a person’s freedom to speak or not to speak to a police officer. A person also may choose to walk away, avoiding altogether any contact with police.

Second, as set out by one of the dissenting Justices in the Appeals court opinion, where the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.

However, in such circumstances, flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.

The court cited a study by the Boston Police Department , which found that targets of field interrogation and observation were disproportionately young, black males, as well as an ACLU study on “stop and frisk.”

The court stated that young, black men may have a “reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.”

The court vacated the judgment of conviction and remanded the matter to the Boston Municipal Court for further proceedings consistent with this opinion.

Read the Boston Police Department’s data and the ACLU report cited in the opinion.

Jennifer Morinigo

The American Law Institute

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