The recent decision by the Supreme Judicial Court (SJC) is offensive. It elevates one race African-Americans over all others when it comes to law enforcement. In doing this it sends a message to police officers they best leave their police skills at home when it comes to black crime. The case is Commonwealth v. Jimmy Warren. It is a simple, straight forward case where a police officer named Anjos was told three black men stole items from a home. One was wearing a “red hoodie.” Two of them were described as black men, one wearing “dark clothing” and one with a “black hoodie.”
It is a little after 9:30 at night on December 18. It is a cold night. The officer drives around the neighborhood. He sees no one is out on the street. Then he sees two black men walking down the street one wearing “dark clothing” and one with a “black hoodie.” They are about a mile away from the scene. It is twenty minutes after the break-in was reported. The SJC judge said he had no right to be suspicious of these men. He should have driven on past them.
Here is some of the reasoning of the SJC judge who wrote the opinion in which all the other justices joined. [T]he victim had given a very general description of the perpetrator and his accomplices , the police did not know who they were looking for that evening, except that the suspects were three black males: two black males wearing the ubiquitous and nondescriptive “dork clothing” and . . . “ (Strangely the SJC judge left out that one had a “black hoodie.”)
The SJC judge went on to say “the victims description “contribute[d] nothing to the officer’s ability to distinguish the defendant from any other black male wearing dark clothes and a “hoodie” in Roxbury.” Of course that is correct if you think the officer only saw one black man. But there were two who fit the description of one with and one without a hoodie.
The SJC judge notes that since one of the burglars was wearing a “red hoodie” that “tended to exclude” the defendant. She also notes neither one had a back pack. I’m not quite sure how if three people commit a crime and two of them don’t look like the third that “tends to exclude” the two. As for the backpack, can’t the police officer assume the third guy had that?
Then the SJC judge writes “there is no suggestion in the judge’s finding [referring to the lower court judge] that the defendant and his companion changed clothing or jettisoned the backpack.” Why would that even cross the judge’s mind. The two men seen by the police officer fit the description of the suspects who ran away. Is she suggesting that at the time of the burglary the men involved had the time and ability to change their clothes so the police had no right to suspect people who were wearing similar clothing as the burglars?
The SJC judge went on to write that these two men were “entitled to proceed uninhibited as [they] walked through the streets of Roxbury that evening” unless the police could come up with other reasons to justify the stop. She writes as if no burglary had occurred and Officer Anjos was not investigating it. It is as if out of the blue he just willy-nilly stopped the two black men. She disregards his use of their appearance as a reason because there may have been two other black men similarly dressed somewhere else.
The SJC judge continues that under the law “proximity of the stop to the time and location of the crime is relevant” when considering suspicion. But she then extends the time by five minutes (25%) to twenty-five minutes. Immediately after saying it is relevant she eliminates proximity as being helpful. First, she said the flight path the defendant took was unknown. She now talks about the time as being thirty minutes (33% expansion). She says within that time the felons could have gone anywhere within a “two mile radius of the crime scene” noting “the suspects could have been anywhere within twelve square miles of the crime.” What nonsense. They could have also run around the corner jumped into a car and been anywhere within 100 square miles of the crime or could be a street away hiding in an alley.
If being one mile away from the crime scene cannot be considered as located proximately to it because there are hundreds of other locations where a person could have been then the idea of proximity buttressing a suspicion goes out the window. Why should the police officer try to look around the neighborhood to see if he can find someone who fits the description if it does not help? If it is reported a man in a red shirt and blue pants robbed a store and a man wearing a red shirt and blue pants is seen walking a mile away twenty minutes after the robbery under this decision the police officer cannot be suspicious of him because there might be other men so clad somewhere else.
The judge doesn’t stop there. She writes that the officer saw no other persons out on the street is of no value given the lapse of time and “narrow geographic scope of the search” because the “lapse of time between the report and the canvassing suggests that the perpetrators could have fled the immediate area before Anjos began his search.” Can you figure out what that means? The police officer sees only two people in the neighborhood that fit the description but he is supposed to ignore them because they could have been somewhere else. How does the ability to flee relate to no other people being in the neighborhood? Does it mean because the felons could flee the neighborhood so could everyone else? Should Officer Anjos have driven to other neighborhoods to look for them? Or, should he have done it to see if other people were out?
Now get this, the SJC judge writes: “the defendant’s presence on the street, some distance away from the crime, within a time frame inconsistent with having recently fled the scene,“is hardly relevant to the officer’s suspicion. Figure that out! Is the law now that if a suspect could have fled farther from a crime scene then no one closer to it can be a suspect? None of this takes into account a felon hiding in the neighborhood before going on to make his escape.
It gets worse which I will point out on Monday.