Commonwealth v. Sweeting-Bailey, a Backwards Step for Racial Justice
“This court is very concerned about the disparate impact automobile stops have on persons of color and the national statistics on the fatalities suffered by such communities at the hands of police officers,” wrote Justice Cypher in a fractured plurality opinion for the Supreme Judicial Court in Commonwealth v. Sweeting-Bailey last month. Despite this acknowledgment, the majority of the SJC justices agreed to grant police officers power to continue targeting communities of color and low-income neighborhoods as it confirms that police officers can consider subjective factors in deciding whether to search a passenger in a stopped car.
On a February evening at approximately 7 P.M., three detectives from the New Bedford police department’s gang unit observed a sedan making an improper lane change, prompting them to activate their lights and follow the vehicle. Once the vehicle stopped, but before the officers approached, Raekwan Paris, a passenger, got out of the vehicle. The detectives were familiar with Paris from previous encounters, including field interrogations and arrests for firearm offenses, and felt his complaints of harassment and refusal to return to his vehicle were “very uncharacteristic of him.” Ultimately, the officers handcuffed Paris and then pat-frisked him. The officers then issued an exit order and a pat-frisk for the rest of the passengers and the driver.
The other passengers in the car, including Sweeting-Bailey, were known to the officers as gang members with prior involvement with firearms. Specifically, Sweeting-Bailey had a three-year-old juvenile adjudication for an offense involving a firearm. When the officers pat-frisked Sweeting-Bailey, they found a firearm. Sweeting-Bailey filed a motion to suppress the firearm, alleging that his pat-frisk based on Paris’ actions was invalid. A pat-frisk is permissible only where an officer has reasonable suspicion that the stopped individual may be armed and dangerous; reasonable suspicion is justified where a reasonably prudent person in the officer’s same circumstances would be warranted in the belief that his or her safety or that of others was in danger. The police officers on the scene testified that they believed that Paris’ erratic behavior was intended to divert their attention from the vehicle and its contents. In his motion to suppress, Sweeting-Bailey argued that the officers’ beliefs were not based on a reasonable inference that danger was imminent. The judge in the Superior Court denied Sweeting-Bailey’s motion to suppress.
In deciding whether the police had valid grounds to conduct the pat-frisk, the Superior Court considered the passengers’ prior involvement with firearms, their known gang affiliations, and the high-crime area in which the traffic stop occurred. The Appeals Court affirmed the decision based on these factors. On the SJC’s review, Justice Cypher stated, “evidence of gang membership may be considered as a factor in the determination of reasonable suspicion, although, standing alone, it does not necessarily support a reasonable suspicion that a person may be armed and dangerous.” With respect to the Superior Court’s decision that police should consider whether the stop occurred in a high-crime area, Justice Cypher held that it should be given minimal weight, but weight nonetheless.
In this case, much of the Superior Court’s findings regarding the high-crime area related to the fact that Paris’s previous firearm arrest (not Sweeting-Bailey’s) took place approximately one-half mile away from the location of the stop in question. Furthermore, Justice Cypher’s opinion states: “Generally, the acts of a suspect’s companions are not enough to establish a reasonable suspicion without more, but they may be considered in assessing whether a reasonably prudent person would be warranted in concluding that a suspect may be armed and dangerous.” The SJC concluded that the passengers’ gang affiliations, combined with their previous involvement with firearms “are a factor that must be considered in the context of the totality of circumstances analysis,” and affirmed the Superior Court’s and the Appeals Court’s decisions.
In his concurrence, Justice Lowy brought attention to the issues of racial disparities in, and concerns about the unreliability of, gang databases. Ultimately, however, he agreed to affirm the Superior Court’s decision. Justice Lowy stated that the officers were entitled to rely on their training and familiarity with Paris in shaping their reasonable suspicion that he and the others in the car could be armed and dangerous. Justice Wendlandt’s concurrence also touched upon the existence of racial disparities in the criminal justice system, yet she took the position that the decision in Sweeting-Bailey would nevertheless “not allow officers to stop and pat-frisk drivers or passengers simply because they are Black or brown” and would not contribute to “systematic” racism. While Justice Lowy, Justice Cypher, and Justice Wendlandt all state that gang involvement or being in a high-crime area on its own is not sufficient to warrant reasonable suspicion but suggest that the two taken together is sufficient to justify a stop and frisk. What these Justices fail to realize, however, is that these factors commonly go hand in hand, and permission to stop and frisk anyone who has any gang involvement and happens to be in a high crime area will increase police encounters with people who are not engaged in any suspicious activity. To quote Justice Gaziano in his dissent, “[i]n neighborhoods where gangs are present, the risk of racial disparities in police stops is heightened by the increased numbers of encounters between police and residents, many of whom are law-abiding citizens, and all of whom are entitled to the same protections against unreasonable searches and seizures as those who live in other areas.”
Justice Gaziano and Justice Georges’ dissent highlighted the officers’ experiences and knowledge in a perspective in direct contrast with Justice Lowy’s views. Justice Gaziano stated “[a]n inference indeed may be objectively reasonable where it is based on an officer’s specialized training or personal experience . . . or is a matter of common sense, apparent to any lay person . . . . Here, however, whatever the officers speculated were Paris’s motives for his unusual and confrontational behavior on this occasion were subjective, and too speculative to permit a reasonable inference.” Additionally, Justice Gaziano held that “[e]ven assuming that the officers’ inferences were objectively reasonable, the court makes an unjustified leap from the supposition that Paris was attempting to distract the officers to the belief that the defendant was armed and dangerous must be particularized and individual.” Justice Gaziano stated that in certain circumstances, those in a vehicle together might reasonably be viewed as being engaged in collective action, but in this case, the officers were aware that three of the occupants of the vehicle belonged to three different gangs; there was no evidence of recent gang violence; and the officers were not investigating any gang-related activity when they stopped the vehicle. Moreover, Justice Gaziano stated that that the individuals in the car’s varied gang affiliations did not significantly support the supposition that the defendant or anyone else was armed and dangerous. In contrast to Justice Wendlandt, Justice Gaziano correctly noted that “[i]t is an unfortunate reality that gang membership may serve as a pretext for racial bias.”
In her dissent, Justice Budd vehemently stated that the controlling opinion “allows for an encroachment upon an individual’s right to be free from an unreasonable search and seizure provided for in both art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.” Justice Budd would have held that where what an officer infers merely has some conceivable connection to the facts before the officer, that inference is pure speculation rather than one based on training, experience, or commonsense judgment and cannot justify a pat-frisk. Citing to federal and prior SJC cases noting the racial disparities in the criminal justice system, Justice Budd commented that “[g]iven the well-documented history of the role that racial profiling plays in traffic stops throughout this country, a Black man’s expression of frustration is readily comprehensible.” In concluding her dissent, Justice Budd agreed with the Justice’s majority opinion that this decision will not expressly authorize officers to pat frisk a person simply because of their race. However, she additionally and powerfully stated “[t]he racial disparities in our criminal justice system are decreasingly the product of overt racism or facially discriminatory rules. These persistent disparities are, rather, more and more the product of neutral rules of deference that affirm the decisions of racially biased actors.” Furthermore, Justice Budd stated “[i]f we have any hope of mitigating racial disparities in our criminal justice system, it is imperative that we pay close attention to the effect that our law of search and seizure has on people of color.”
As the SJC has previously noted Black men in Massachusetts are disproportionately targeted by police and subjected to “the recurring indignity of being racially profiled.” As national events have shown, Black men are also more likely than White men to be killed at the hands of police. Decisions like Sweeting-Bailey expand the police’s discretion to engage in these racially-disparate searches, with serious negative impacts for communities of color in Massachusetts.