Running From Police: Warranted, not Suspect

     BOSTON (CN) — Vacating a conviction as the product of an illegal stop, the highest court in Massachusetts ruled that a black man running from police is not by itself a suspicious activity, since he may simply be avoiding “the recurring indignity of being racially profiled.”
     Jimmy Warren had been convicted in Boston of unlawful possession of a firearm, but the court said Tuesday that police had no reason to stop the man.
     On the night of Warren’s arrest, Dec. 18, 2011, officers had received a call about three suspects who fled after breaking and entering a residence in Roxbury, making off with a computer, a backpack and hats.
     It was a cold night and there were few pedestrians as police canvassed the area for three black males in dark clothes and a red hoodie.
     One officer saw Warren walking with a friend near a park. Both men were black and wearing dark clothes. Though the officer rolled down the window of his patrol car and asked them to “wait a minute,” they jogged into the park.
     After another officer met them on the other side, yelling, “hey, fellas,” Warren took off. When police finally caught up with Warren in someone’s backyard, they found an unlicensed .22-caliber gun nearby.
     Warren was convicted in a bench trial after the trial court refused his motion to suppress the firearm.
     Reversing Tuesday, the Massachusetts Supreme Judicial Court cited “a recent Boston Police Department report documenting a pattern of racial profiling of black males in the city.”
     The 20-page ruling explains that black men in general may be running from police, not because they committed a crime, but because they are being disproportionately targeted.
     One report by the American Civil Liberties Union cited in the report notes that blacks make up 24 percent of the population in the area studied but comprised 63 percent of the people police stopped.
     “We are not persuaded that the information available to the police at the time of the seizure was sufficiently specific to establish reasonable suspicion that the defendant was connected to the breaking and entering under investigation,” Justice Geraldine Hines wrote for the court.
     To determine if police had a reasonable suspicion for stopping Warren, the justices looked at the description of suspects being sought, the possibility of the suspect running from police, and the proximity to the crime.
     In this case, Hines said, police had only a “very general description” of the suspects that completely lacked information on height, weight, hairstyles, skin tone or facial features.
     Hine called it impossible for police to distinguish the perpetrators from any other black male wearing dark clothes or a red hoodie.
     “It was simply not possible for the police reasonably and rationally to target the defendant or any other black male wearing dark clothing as a suspect in the crime,” the opinion states.
     Moreover the description the victim provided could be said to actually exclude Warren as a suspect. Not only was he one of two men, instead of three, but neither he nor his friend were wearing a red hoodie or carrying a backpack.
     As for running from police, Hines emphasized that this does not exclude him as a suspect, yet it does not necessarily indicate that he was involved in any criminal activity, either.
     The officer who told Warren to “wait a minute” claimed he merely wanted to do an FIO, short for field interrogation observation, to determine if he could be a possible suspect.
     But an FIO by definition, the ruling says, is “a consensual encounter between an individual and a police officer.”
     Warren thus has the freedom to choose if he wants to interact with the officer or not.
     “Where a suspect is under no obligation to respond to a police officer’s inquiry, we are of the view that flight to avoid that contact should be given little, if any, weight as a factor probative of reasonable suspicion,” Hines wrote. “Otherwise, our long-standing jurisprudence establishing the boundary between consensual and obligatory police encounters will be seriously undermined.”
     In conjunction with the Boston Police Department and the ACLU reports, the court found that black men not only have a right to run from police, they may also have reason to.
     The Boston Police Department’s own study found black men are 8 percent more likely to be stopped repeatedly.
     Indeed, Warren had been stopped by the responding officer previously, but the officer admitted that he did not recognize Warren, the court found.
     “Flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt,” Hines wrote. “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 finding in weighing flight as a factor in the reasonable suspicion calculus.”
     As far as how proximity affects reasonable suspicion, the court said Warren’s location also made him less of a suspect.
     The responding officer stopped Warren one mile from the crime scene and 25 minutes after the police were notified, according to the ruling. That officer admitted that the suspect would have reached that location “well before” police arrived, the ruling states.
     Furthermore, Warren was stopped on a street that was in the opposite direction from the criminals’ possible paths of flight. In the time allowed, Hines added, the perpetrators could have traveled two miles on foot, which comprises 12.57 square miles.
     Ultimately, “the investigation failed to transform the defendant from a random black male in dark clothing traveling on the streets of Roxbury on a cold December night into a suspect in the crime of breaking and entering,” the opinion concludes.
     Though heard by a seven-member court, three of the judges have since retired.

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