RUNNING FROM THE LAW DOESN’T MEAN YOU BROKE IT: COMMONWEALTH V. WARREN CONSIDERS RACE WHEN DETERMINING REASONABLE SUSPICION
By: Vanessa R. Colletti, Volume 101 Staff Member
Jimmy Warren is probably just grateful to be free; however, his case presents a greater opportunity for freedom for people of color everywhere. Commonwealth v. Warren is a notable case because it took into account a defendant’s race when evaluating a police officer’s reasonable suspicion calculus. Despite an eager and promising reaction from the media and some legal scholars, there has yet to be any similar jurisprudential effect.
On December 18, 2011, a call went out around 9:20 PM about a breaking and entering in progress in Boston, with suspects fleeing the scene. An officer went to the scene and spoke with the victims of the crime. The victim said he saw a total of three black males: one in a red hoodie, one in a black hoodie, and one in dark clothing. Because of the time of night and the angle of the window, the victim and the officer could not predict much about the direction the suspects may have gone. The officer broadcast the vague descriptions of the suspects, then “drove a four to five block radius around the house.” The officer did not see anyone until after 9:40 PM when he was headed back to the station. He called from his car to two black males in dark clothing, one of which was the defendant Jimmy Warren. The men “made eye contact with [the officer], turned around, and jogged down a path into the park.”
On the other side of the park, two new officers were ready to meet the two males. Neither Warren or his companion had anything in their hands or bulges in their clothing to suggest weapons. When the officers greeted the men, Warren ran back into the park and he was chased. The pursuing officer “observed . . . a motion . . . consistent with carrying a gun without a holster.” They engaged in a scuffle, but the officer was able to arrest and search Warren; however, he found no weapons or contraband on Warren’s person. A gun was found in the front yard of where the officer and Warren tussled, and the defendant confessed he had no license to carry one.
Consequently, Warren was tried and “convicted of unlawful possession of a firearm.” The lower court judge ruled that “the police had reasonable suspicion that the defendant was one of the perpetrators of the breaking and entering” from the original call from dispatch. The Massachusetts Supreme Judicial Court disagreed, and it vacated Warren’s conviction. The court went into an in-depth analysis why reasonable suspicion was never reached. Specifically, the court focused on the following: the description of the suspects, proximity, lack of other pedestrians, and flight.
The officers were working with a “vague description” and “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 court even goes as far to say, “If anything, the victim’s description tended to exclude the defendant as a suspect.” There were only two men, there was no one in a red hoodie, and no one was carrying a backpack.
There was only “mere conjecture” and “speculation” about which way the breaking and entering suspects went. Additionally, the geographical location the officer first found Warren and his companion should have been long passed by the actual perpetrators based on the amount of time that had passed. The fact Warren and his friend were the only ones out on the streets at that time was “of questionable value in the analysis given the lapse of time and the narrow geographical scope of the search for suspicious persons.”
Arguably most importantly, the court explored a suspect’s flight as being probative or not when trying to determine an officer’s reasonable suspicion. Flight should be given minimal weight if there are no other factors contributing to the reasonable suspicion calculus. The court also went a step further than any other had gone before and directed judges to observe “findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.” The court expanded and clarified
We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. 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 [field interrogation observation] 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.
This attention explicitly acknowledging the disparate treatment of people of color by members of law enforcement made many believe waves of changes were about to be made.
II. REACTIONS TO COMMONWEALTH V. WARREN
Though the case was decided in Massachusetts, national publications took notice. Scholars and journalists alike thought there could be dramatic change, but so far there has been minimal impact in the courts.
A. Media and Scholarly Review
Jimmy Warren’s case was decided almost five years after the actual breaking and entering incident. Though the court touched on four specific factors that ultimately failed to equate reasonable suspicion, the journalistic response focused almost exclusively on the court’s holding concerning flight. A lot of the media claimed that the Warren case determined that “[b]lack men who try to avoid an encounter with Boston police by fleeing may have a legitimate reason to do so—and should not be deemed suspicious.” Some even reached the conclusion that “[g]oing forward, evidence of flight by black males will carry almost no weight in the ‘reasonable suspicion’ analysis.” These are drastic predictions that seemed promising for people of color at least in Boston, but perhaps even on a more national scale.
At least one scholar has used the Warren case as a hopeful suggestion that supports a proper application of the Fourth Amendment to decrease legalized racial profiling. Continuing a hypothetical that reveals the mindset of the accused (Tanya) rather than the officer, he states, “[H]ow is she to exercise that freedom if the officer is following and questioning her? Moreover, will Tanya even know that she is ‘free to leave?’ At some point, Tanya is likely to simply ‘consent’ to whatever the officer requests . . . ostensibly of her own free will.” A different scholar refers to the Warren holding as “an indictment” of the racially disparate policing tactics in most urban centers. Again, publications focused most on the racial repercussions and opportunities of the case.
B. Subsequent Jurisprudence
At this time, the only case that has reached the Massachusetts Supreme Judicial Court aspiring to use the Warren case as support was distinguished without touching on race at all. The court pointed out that it “held that it was unreasonable to stop pedestrians twenty-five minutes after, and one mile away from, a breaking and entering where they did not match the description provided to police” in Warren. Conversely, the defendant’s reliance on that case was misplaced because the “vehicle was temporally and geographically closer to the crime and there was no description of the suspects.” One would not even be aware Warren had been racially cognizant based on the court’s only footnote-worthy distinction.
Though the Warren decision has the potential to create great change in how judges review cops’ reasonable suspicion, so far it has had a minimal impact on subsequent decisions. Perhaps there has simply been no opportunity for a defendant to utilize the new precedent (which arguably is a very good thing if that correlates to proper racial treatment). However, we should be conscious that courts can only do so much. It is one thing for courts to review law enforcement’s actions for racial bias, but it is quite another for officers to avoid those racial tendencies in the first place.
- Commonwealth v. Warren, 58 N.E.3d 333 (Mass. 2016). ↑
- Id. at 336. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 336–37. ↑
- Id. at 337. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 337–38. ↑
- Id. at 335. ↑
- Id. at 336. ↑
- Id. at 336, 343. ↑
- See id. at 338–43. ↑
- Id. at 338–39. ↑
- Id. at 339. ↑
- Id. ↑
- Id. The officer “had nothing more than a hunch.” Id. ↑
- Id. at 340. ↑
- Id. (“[W]here the timing and location of the stop lacked a rational relationship to each other, proximity lacks force as a factor in the reasonable suspicion calculus.”). ↑
- However, “another officer reported seeing a different young black male with a backpack in a nearby neighborhood.” Id. at 340 n.12. The Supreme Judicial Court was persuaded by the dissenter in the lower court that this finding also helped eliminate its value in the reasonable suspicion calculus. Id. (citing Commonwealth v. Warren, 31 N.E.3d 1171, 1182 (Mass. 2015) (Agnes, J., dissenting), vacated, 58 N.E.3d 333). ↑
- Id. at 341. ↑
- See id. at 341–42. ↑
- Id. at 341 (adding “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.” (citing Commonwealth v. Mercado, 663 N.E.2d 243, 246 (Mass. 1996))). ↑
- Id. at 342 (citing Commonwealth v. Warren, 31 N.E.3d 1171, 1186 n.18 (Mass. 2015) (Agnes, J., dissenting), vacated, 58 N.E.3d 333 (internal citation omitted)). ↑
- See id. at 337 n.5 (defining an FIO “as an interaction in which a police officer identifies an individual and finds out that person’s business for being in a particular area” and elaborating that “FIOs are deemed consensual encounters” (internal citations omitted)). ↑
- Id. at 342. ↑
- The case was decided September 20, 2016, while the incident occurred December 18, 2011. See id. at 333, 336. Notably, we are now living in what some have referred to as “post-Ferguson America,” and with a more public awareness of police brutality and racial disparities. Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125, 127 (2017). ↑
- See Warren, 58 N.E.3d at 338–43; supra Part I. ↑
- Zeninjor Enwemeka, Mass. High Court Says Black Men May Have Legitimate Reason To Flee Police, WBUR News (Sept. 20, 2016), http://www.wbur.org/news/2016/09/20/mass-high-court-black-men-may-have-legitimate-reason-to-flee-police; see also German Lopez, Massachusetts’s Highest Court: Black People May Flee from Police Due to Fear of Profiling, Vox (Sept. 22, 2016), http://www.vox.com/identities/2016/9/22/13006564/massachusetts-supreme-court-police (“[B]lack people may flee from the police due to fear of racial profiling.”); Alan Neuhauser & Steven Nelson, Black Men May Have Reason to Run from Police, Mass. High Court Finds, U.S. News & World Rep. (Sept. 21, 2016), https://www.usnews.com/news/articles/2016-09-21/black-men-may-have-reason-to-run-from-police-massachusetts-high-court-finds (“Citing disproportionate stops of black men by Boston police, the . . . court declared that black males may have a legitimate reason to flee from police officers.”). ↑
- David Rangaviz, Commonwealth v. Warren: SJC Issues Landmark Decision Recognizing the Disproportionate Impact of Police Stops on African-Americans in Boston, Bos. Law. Blog (Oct. 26, 2016), https://www.bostonlawyerblog.com/2016/10/26/commonwealth-v-warren-sjc-issues-landmark-decision-recognizing-disproportionate-impact-police-stops-african-americans-boston (“[E]ven more broadly, the Court has recognized that proof of systemic racial discrimination must inform search-and-seizure jurisprudence, thus tying constitutional law to the lived reality of those who experience the criminal justice system.”). ↑
- See Carbado, supra note 32, at 147. ↑
- Id. at 148. ↑
- andré douglas pond cummings, “Lord Forgive Me, but He Tried To Kill Me”: Proposing Solutions to the United States’ Most Vexing Racial Challenges, 23 Wash. & Lee J. Civ. Rts. & Soc. Just. 3, 18 (2016) (adding this is “a result of the War on Drugs”). ↑
- Commonwealth v. Mendez, 69 N.E.3d 968, 975 n.6 (Mass. 2017). ↑
- Id. (citing Commonwealth v. Warren, 58 N.E.3d 333, 339–40 (Mass. 2016)). ↑
- Id. ↑
- The Appeals Court of Massachusetts acknowledged the racially focused holding but distinguished it in a case occurring in a high crime area supported by specific defendant behavior. See Commonwealth v. Harrison, 91 Mass. App. Ct. 1109, slip op. at *2 (2017) (citing Commonwealth v. Warren, 475 Mass. 530, 538–39 (2016)) (“Unlike [Warren], where the court held that a black male’s flight from the police did not support a reasonable inference of consciousness of guilt, here it was the manner in which the defendant ran with one arm pinned against his waist that supported the suspicion that he was armed.”). ↑