A hunch and a hoodie not enough for police to stop a black man in Roxbury in a crime investigation, court rules

The Supreme Judicial Court today overturned a man's conviction for illegal gun possession in Roxbury because while police found him with a gun, they should never have stopped him in the first place - and that the fact that he tried to elude officers cannot be used against him because black men in Boston might have legitimate reasons to be wary of police.

The state's highest court ruled that with only a vague suspect description - which included the fact that the suspect and a companion were wearing dark hoodies - police had no probable cause to stop Jimmy Warren on Dec. 18, 2011. Without probable cause, the gun was not valid evidence - and because it was key to the prosecution's case against Warren, the case has to be dismissed, the court ruled.

According to the ruling, police investigating a break-in on Hutchings Street around 9:20 p.m. on Dec. 18, 2011, got a description from the victim of three black males, one in a red hoodie, two in dark clothing, who had taken, among other things, his backpack and computer. About 20 minutes later, the officer who responded spotted two guys near a basketball court in Malcolm X Park off Martin Luther King Boulevard.

He had a hunch they were involved in the robbery because they were wearing dark clothing and because nobody else was out on the cold night. But when he rolled down his window, yelled, "Hey guys, wait a minute," they began jogging into the park, away from him. He alerted other officers on his radio, and two of them found them coming out the park on the other side. This time, the two men split up and one, Warren, began running away. Police cornered him in a back yard on Wakullah Street - and found a gun in the front yard.

The problem, the justices ruled, is that a vague clothing description and a hunch are just not enough reason to stop or chase somebody. In his testimony, the officer said he initially planned to stop two two for a "field interrogation observation," which is supposed to be voluntary and usually results in the writing up of a report, not an arrest.

[B]ecause the victim had given a very general description of the perpetrator and his accomplices, the police did not know whom they were looking for that evening, except that the suspects were three black males: two black males wearing the ubiquitous and nondescriptive "dark clothing," and one black male wearing a "red hoodie." Lacking any information about facial features, hairstyles, skin tone, height, weight, or other physical characteristics, the victim's description "contribute[d] nothing to the officers' ability to distinguish the defendant from any other black male" wearing dark clothes and a "hoodie" in Roxbury. With only this vague description, 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. If anything, the victim's description tended to exclude the defendant as a suspect: he was one of two men, not three; he was not wearing a red "hoodie"; and, neither he nor his companion was carrying a backpack.

Based solely on this description, [the officer] had nothing more than a hunch that the defendant might have been involved in the crime. He acknowledged as much when he explained that the purpose of the stop was "to figure out who they were and where they were coming from and possibly do an FIO." As noted, an FIO is a consensual encounter between an individual and a police officer.

Therefore, the defendant was not a "suspect" subject to the intrusion of a threshold inquiry. Unless the police were able to fortify the bare-bones description of the perpetrators with other facts probative of reasonable suspicion, the defendant was entitled to proceed uninhibited as he walked through the streets of Roxbury that evening.

The court acknowledged the fact that the two men at first jogged away from police and then one ran away is suspicious and, when tied with other reasons for suspicion would add to the criteria proving "probable cause." But the court noted that, at least in Massachusetts, citizens have a right to walk away from police when not charged with anything. Equally important, the court said, black men in Boston might have legitimate reasons to try to stay away from police:

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. Otherwise, our long-standing jurisprudence establishing the boundary between consensual and obligatory police encounters will be seriously undermined. Thus, in the circumstances of this case, the flight from [the first officer] during the initial encounter added nothing to the reasonable suspicion calculus. 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. Warren, 87 Mass. App. Ct. at 495 n.18 (Agnes. J., dissenting), citing Boston Police Commissioner Announces Field Interrogation and Observation. According to the study, based on FIO data collected by the department, black men in the city of Boston were more likely to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. Black men were also disproportionally targeted for repeat police encounters. 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 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.