The Massachusetts Supreme Court will address the issue of when a seizure occurred in the case of Commonwealth v. Evelyn. The Evelyn case is SJC-12808 and was argued on January 7, 2020.
This case involved a young black man running from the police while the police were investigating a shooting in the Roxbury section of Boston. This decision will have important implication for how black males are treated by the police and what it means for the police to have reasonable suspicion.
Under the United States Constitution, the US Supreme Court has interpreted the 4thAmendment to find that if a defendant runs, there is not seizure until the defendant submits to the authority of the police. The United States Supreme Court announced this rule in the case of California v. Hodari D, 499 U.S. 621 (1991). In that case, the defendant fled and the United States Supreme Court held that he was not seized until the police physically stopped him. While running, the defendant threw cocaine from his pocket. If there was no reasonable suspicion prior to the flight, the evidence would have been suppressed, but since the court held that the defendant was not seized until he was stopped, the court declined to suppress the evidence. The Massachusetts SJC does not follow this rule as State Court are free to interpret their State Constitution different from how the US Supreme Court interprets the United States Constitution.
In Massachusetts, under Article 14 of the Declaration of Rights, the SJC has held that a seizure does not require that the defendant actually submit to the officer’s authority but that a seizure occurs when there is a show of authority that communicates to a reasonable defendant that they are not free to leave.
What happened in the Evelyn Case?
On January 9, 2017, two officers on a routine patrol in an area known for gang rivalries and violence were alerted to shots having been fired nearby. Turning off their lights and sirens, they begin patrolling housing developments that they knew to be primarily occupied by African Americans, in search of the shooter.
While patrolling one of these developments, the officers saw a tall, young, black male – later learned to be Tykorie Evelyn -walking by himself. They slowly followed Tykorie who was walking briskly with his hands in his jacket pockets. As he walked, the officers purported to observe an array of otherwise innocuous behaviors – such as refusing to look at them, turning his body away from the direction of their vehicle, and not audibly answering their questions – that they characterized as suspicious. When Tykorie did not stop to answer their questions, the officers exited the vehicle and Tykorie ran. The officers pursued him, drawing their guns and ordering him to the ground.
In analyzing the constitutionality of the officer’s seizure, the SJC will focus on when the seizure occurred. The Massachusetts Supreme Judicial Court has held that a seizure can occur without the defendant actually submitting to the officer’s authority.
The defendant further argued that the SJC should consider the age and race of the defendant in determining when a seizure occurred. In the Evelyn case, the defendant clearly indicated to the officers he did not want to speak to them; they continued to pursue him, which the defense would argue would indicate to a reasonable black male that he was not free to leave or ignore their commands. The defendant cited the SJC decision in Warren holding that the court should consider the realty of how Black men are treated by the police in analyzing Constitutional questions.
The defendant presented expert testimony indicating that the officer’s perception of the defendant as a threat was not based on any sound training. The trial judge rejected the expert testimony. On appeal, the defense is asking the SJC to find the testimony persuasive in evaluating the issue of whether the officer had reasonable suspicion based on the officer’s training and experience.
During the oral argument before the SJC, The Chief Justice said the Court can consider the gravity of the crime. This case there was a shooting, someone was down, and inferred it was gang related as there was a history of gang violence in the neighborhood. Three individuals were fleeing. Chief Justice Gant stated in his questions that the circumstances were consistent with a gang shooting. The suspects were fleeing in the opposite direction of the defendant.
The Justice discussed if the seizure occurred when the officer’s opened the door or when the defendant fled. Justice Kafka seems to indicate that opening the door would not be enough to create a seizure. The significance of when the seizure occurs is relevant to the time frame which the court evaluates the reasonable suspicion. If the defendant was seized when the door was open, then the flight is not part of the analysis in terms of reasonable suspicion.
The Evelyn case is one of two cases that deal with race and Constitutional issues. You can listen to the oral argument in Evelyn at the Suffolk University Law School Website.
The other is Commonwealth v. Long that deal with the issue of race based stops in violation of the Equal Protection Clause. You can read my Blog on the Long case here. These two cases will give the SJC an opportunity to further define the role of race in the Court’s analysis under the Declaration of Rights.
To learn more about current issues in criminal defense follow Attorney DelSignore on Facebook.