Matta’s New Test for When Police Officer Interactions Constitute Seizures: An Unrealistic and Disappointing Ruling
Last month, the Supreme Judicial Court issued Commonwealth v. Matta, a case that makes it easier for police to stop individuals – especially those in high crime neighborhoods – without any reasonable suspicion.
On the evening of November 5, 2015, an anonymous caller contacted police on two occasions and stated that they had seen someone put a gun under the front seat of black car with two male and two female occupants. The caller claimed that the car was parked in the city of Holyoke in an area described as “known for violent crime, drug sales, and shootings.” An officer who was dispatched to the scene saw a parked green car with only two passengers. The officer pulled up behind the green car and parked, without lights or a siren. As the officer exited his vehicle, he observed the defendant, who had been seated in the passenger seat, exit the car and adjust his waistband with both hands. The defendant then began walking toward nearby bushes away from the sidewalk. The officer called out to him, “Hey, come here for a second.” The defendant then made eye contact with the officer and started to run, holding onto his waistband as he ran. At this point the officer yelled at the defendant to stop and then ran after him. As the defendant was running, the officer observed him throw a plastic bag over a fence and onto a sidewalk. Several officers apprehended the defendant as he tried to climb the fence, and once they arrested him, the officers saw six wax baggies at his feet and found small wax baggies on the other side of the fence, totaling 129 baggies that were later determined to contain heroin.
The Commonwealth charged the defendant with possession of heroin with intent to distribute (second offense), G.L. c. 94C, § 32(b), and with committing that crime within 100 feet of a public park, G.L. c. 94C, § 32J. A petit jury convicted the defendant of both counts and he sought appellate review, which the SJC transferred to that court on its own motion.
Among the issues on appeal were: (1) when did the officer effect a seizure of the defendant?; and (2) did the officer have reasonable suspicion of criminal activity such that he could seize the defendant (leading to the discovery of the heroin)?
Article 14 of the Massachusetts Declaration of Rights requires that before an officer conducts an investigatory stop (i.e., a seizure), that officer must have reasonable suspicion that the person they are stopping is committing, has committed, or is about to commit a crime. Reasonable suspicion cannot be based on a hunch; it must be based on specific, articulable facts and reasonable inferences drawn from those facts.
The defendant argued that the officer “seized” him for purposes of Article 14 when the officer called out to him, “Hey, come here for a second.” He claimed that at the time of that seizure, the officer did not have enough information to form a reasonable suspicion of criminal activity, and therefore the subsequently seized evidence (the heroin) should have been suppressed. The Commonwealth argued that the officer did not seize the defendant until after the defendant started to run and the officer commanded him to stop. The SJC agreed with the Commonwealth. In so doing, the Court heightened the standard for when an encounter with a police officer is considered a seizure under Article 14.
The SJC, and federal courts, have long held that a seizure occurs when, in view of all the surrounding circumstances, a reasonable person would have believed that they were not free to leave. However, in Matta, the Court concluded that because people do not believe they are ever free to leave when approached by a police officer, a faithful application of this test would result in every police interaction being a seizure. In assessing whether to adhere to the standard from its previous cases, the Court surveyed federal law on the matter, finding that while federal courts used the “free to leave” language, in practice federal courts employ a standard focused on the show of authority of the officer. The SJC concluded that a more accurate test is whether, in view of the totality of the circumstances, an officer “engaged in some show of authority” that a reasonable person would believe commands compliance. The question, then, does not turn on whether a reasonable person believes they can leave—according to the Court a reasonable person never believes they can leave when approached by an officer—the correct inquiry is whether the officer exerted their police power to coerce that person to stay.
In disagreeing with the defendant that the seizure occurred when the officer commanded him to “come here for a second,” the Court stated, “we have never held that a direct command from a police officer to submit to his or her authority automatically effects a seizure.” Instead, the Court held that the focus is on whether a reasonable person would believe that command would be enforced by police power. The Court then held that the officer’s command (“Hey, come here for a second”) would not be “what a reasonable person would understand as a command that would be enforced by police power.” The Court concluded that the officer seized the defendant only when the defendant was running, the officer told him to “stop,” and started to chase him.
Having found that the seizure occurred after the officer’s command to the defendant to stop, the Court concluded that at that time the officer had sufficient information to form reasonable suspicion that the defendant was engaged in criminal activity.
At the time he yelled “stop,” the officer knew of the anonymous tip did not match the color of the defendant’s car or the occupants therein; was in an area supposedly known for violent crime, drug sales, and shootings; observed the defendant adjust his waistband as he exited the vehicle; observed the defendant walk towards bushes (rather than a pedestrian area); and then observed the defendant run away from him after his command to “come here for a second.”
The court recognized that nearly every factor the officer pointed to as justifying his reasonable suspicion to seize the defendant is, in fact, not a factor that courts recognize as justifying a seizure. For example, carrying a concealed weapon is not a crime in Massachusetts, and therefore the anonymous call that someone had a concealed firearm in car did not describe a crime in progress. The Court acknowledged that it is not uncommon for a person to adjust their waistband upon exiting a vehicle, but it nevertheless relied on the officer’s testimony that in his experience people who carry unlicensed firearms carry them in their waistband. (The Court did not seem to consider where people with licensed firearms carry their weapons.) The Court was clear that being in a “high crime” area or running from the officer alone are insufficient to warrant an investigatory stop, but then concluded that those factors that it has previously deemed insufficient to support reasonable suspicion “may be taken into account as a factor in the reasonable suspicion analysis.”
The Court described the question as “a close one” but concluded the circumstances in this case provided reasonable suspicion for the stop, explaining that “considered in isolation, none of the above factors would have been enough to create reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. However, taken together, the circumstances presented added up to reasonable suspicion for an investigatory stop.”
This ruling is unrealistic and perpetuates unequal policing practices.
If simply being in a “high crime” area can be a factor police use to justify seizures, we will continue to see over policing in already-marginalized neighborhoods. It is unrealistic for the Court to imply that people will be able to intuit a difference between police directives that will be enforced by police power, and those that will not, especially when the news is filled with stories of police officers enforcing commands and requests (even after compliance) with lethal police power. This holding also cannot be squared with the Court’s assertions that reasonable people believe they are never free to leave any police interaction—even without a direct command. Indeed, the fact that the officer commanded the defendant to stop and ran after him to apprehend him is proof that the officer’s initial direction that the defendant should “come here” would be, and was, enforced by police power. The defendant was in fact not free to leave after the officer told him to “come here for a second,” as he tried to do.
What continues to be troubling is that people (i.e., people of color) are penalized simply for living in so-called “high crime” areas and being suspicious of police, (rightfully, as the SJC indicated in another case), especially in areas where police have a history of racial profiling. Would the Court have ruled that the officer had reasonable suspicion to stop the defendant if this encounter occurred in Amherst and not Holyoke? This opinion suggests that people who live in high crime neighborhoods and have justifiable reasons for being apprehensive of police may in fact have fewer rights to be free from seizures because courts can consider both neighborhood and a defendant’s flight from police as factors in deciding if an officer had reasonable suspicion to seize the defendant.
Furthermore, a move to a police officer-centered standard (i.e., whether there was a “show of authority”) for determining whether there was a seizure will lead to more stops for insufficient or even discriminatory reasons. Police officers undoubtedly know (as the SJC held here) that their mere presence engenders apprehension—and a belief by the person stopped that they are not free to leave and must cooperate. After Matta, they now know that courts will not consider these stops as seizures, which may incentivize them to more frequently stop people when they have no legitimate reason to do so.