Commonwealth v. Evelyn, SJC-12808

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation485 Mass. 691,152 N.E.3d 108
Docket NumberSJC-12808
Decision Date17 September 2020

485 Mass. 691
152 N.E.3d 108

Tykorie EVELYN.


Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 7, 2020
Decided September 17, 2020

K. Hayne Barnwell, Boston, (Janice Bassil also present) for the defendant.

Cailin M. Campbell, Assistant District Attorney (David S. Bradley, Assistant District Attorney, also present) for the Commonwealth.

The following submitted briefs for amici curiae:

Katherine E. Burdick for Juvenile Law Center & others.

Jin Hee Lee & Ashok Chandran, of New York, & Katharine Naples-Mitchell for Charles Hamilton Houston Institute for Race and Justice & another.

Anthony Mirenda, Neil Austin, Rachel C. Hutchinson, & Ned Melanson, Boston, for Massachusetts Association of Criminal Defense Lawyers & others.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.1


485 Mass. 692
152 N.E.3d 113

Thirteen minutes after a shooting, and one half-mile away, two police officers encountered the defendant walking on the sidewalk. They drove slowly alongside him for approximately one hundred yards, while he repeatedly rebuffed their attempts to speak with him. When one of the officers started to get out of the cruiser, the defendant sprinted away. The officers gave chase, stopped the defendant, and arrested him. They found a firearm lying on the ground along the route on which he had run. The defendant subsequently was indicted on charges including murder in the first degree.

In a motion to suppress, the defendant argued that the officers stopped him without reasonable suspicion at the moment that one of the officers opened the door of the cruiser, and that all of the evidence subsequently obtained as a result of the stop must be suppressed. The defendant, who is Black, was seventeen years at the time of the stop. He argued, as he does before this court, that his race and age should form part of the totality of the circumstances relevant to a determination of when he was seized. The defendant contends that juveniles are more susceptible to police coercion, and therefore will be seized in circumstances where adults would not. He also maintains that, based on the history and present reality of policing and race, police communications directed at African-Americans will have greater coercive power than those directed at people of other races.

After his motion to suppress was denied, the defendant sought leave in the county court to pursue an interlocutory appeal. His petition was allowed, and his appeal was ordered to proceed in the Appeals Court; we then transferred the matter to this court on our own motion.

We conclude that the defendant indeed was seized when, after

485 Mass. 693

having trailed him

152 N.E.3d 114

for one hundred yards in a police cruiser and repeatedly having tried to converse with him, the officer in the front passenger's seat opened the door of the cruiser. On the record here, however, the judge did not abuse his discretion in relying on the officers' testimony about their experience with firearms, and in concluding that, in the circumstances, they had a reasonable, articulable suspicion of criminal activity. Accordingly, we affirm the denial of the motion to suppress. Going forward, however, the age of a juvenile suspect, if known to the officer or if objectively apparent to a reasonable officer, will be part of the totality of the circumstances relevant to whether the juvenile was seized under art. 14 of the Massachusetts Declaration of Rights.

With respect to the defendant's arguments on race, we have examined the continued relevance of our reasoning in Commonwealth v. Warren, 475 Mass. 530, 540, 58 N.E.3d 333 (2016), on the question of reasonable suspicion. In that case, we concluded that an innocent African-American man in an urban area might flee from police for fear of racial profiling, and therefore the weight of the inference properly given to flight should be less when the individual is African-American. See id. We conclude that this reasoning remains pertinent to the reasonable suspicion analysis, and should be extended to other types of nervous or evasive behavior in addition to flight.2

Background. We summarize the facts as found by the motion judge. See Commonwealth v. Phifer, 463 Mass. 790, 791, 979 N.E.2d 210 (2012).

Both of the arresting officers testified at the hearing on the motion to suppress. At the time of the hearing, Officer Joseph Abasciano had been a Boston police officer for eleven years, with gaps in service of several years due to military deployment and an injury. He had been trained regarding the use of firearms and the identification of concealed firearms by the Boston police department and the United States Marine Corps. Prior to the night of the shooting, he had participated in multiple arrests of suspects in

485 Mass. 694

possession of firearms.3

At the time of the hearing, Officer Brian Garney had been an officer for three years. He had been working patrol for about several months before the night of the shooting. At that point, he had never made an arrest, but had assisted with a few. He had been trained to identify concealed firearms, in part through a presentation at the police academy entitled "Characteristic of Armed Gunman Overview."

On the evening of January 9, 2017, Abasciano and Garney were on patrol in their marked cruiser; Abasciano was driving. At about 7:27 P.M. , they received a

152 N.E.3d 115

notification from "ShotSpotter," a system that identifies firearm discharges by sound and directs officers to the general location of the shots. The notification indicated that shots had been fired near Dearborn Street in the Roxbury section of Boston.

The officers also received a radio report that a person had been shot and was severely injured, and that three people had run from the area. No descriptions of the suspects were given. Unbeknownst to the officers, the victim died shortly thereafter. The report indicated that the men had run towards Adams Street, heading southeast on Eustis Street. The officers, however, mistakenly believed that the report stated that the suspects had run away from Adams Street. Accordingly, the officers headed to the northwest of the location of the shooting. Abasciano was aware that there had been a rivalry between gangs based near that location, and that one gang was based in the area to which they were driving. Garney testified that they drove in that direction because of ongoing, gang-related violence in the area.

The evening was cold, and the officers did not see any pedestrians. When they reached the corner of Melnea Cass Boulevard and Shawmut Avenue, thirteen minutes after the shooting, they saw the defendant walking on Dewitt Drive, one street away. He was approximately one-half mile from the reported location of the shooting.

The officers drove up to the defendant and saw that he appeared to be holding an object in his right jacket pocket that was consistent

485 Mass. 695

with the size of a firearm. The officers could see immediately that the defendant was African-American and was younger than twenty-one years old. Abasciano called out, "Hey, man, can I holler at you?" The defendant increased his pace and responded, "For what?" Abasciano said that something had happened in the area, and he wanted to know if the defendant had seen or heard anything. The officers could not hear the defendant's response, which Abasciano described as a mumble. They drove slowly alongside the defendant for approximately one hundred yards as he walked on the sidewalk. Throughout the exchange, the defendant did not make eye contact with the officers. At one point, he turned the right side of his body away from them, thereby blocking them from being able to see his right jacket pocket. To Abasciano the movement appeared unnatural. The defendant began looking around in various directions.

Garney got out of the cruiser, and the defendant began to run away. The officers gave chase; Garney was on foot and Abasciano remained in the cruiser. During the pursuit, the officers noticed the defendant running awkwardly with his hands in his pockets. Abasciano got out of the cruiser and saw the defendant starting to take an object out of his right pocket. Abasciano drew his weapon and ordered the defendant to stop, and the defendant stopped shortly thereafter. The officers recovered a firearm on the sidewalk where the defendant had been running.

Dr. Dawn Sweet, a professor at a large university, testified for the defense. Among other testimony, she described a recent study she had conducted, which was introduced in evidence, on visual detection of concealed weapons. See Sweet, Meissner, & Atkinson, Assessing Law Enforcement Performance in Behavior-Based Threat Detection Tasks Involving a Concealed Weapon or Device, 41 Law and Human Behavior 411 (2017) (threat study). In the threat study, participants, some of whom were carrying...

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