SJC Allows Pat Frisk Based on Conduct of Different Passenger
In Commonwealth v. Sweeting-Bailey, No. SJC-13086 (Dec. 22, 2021), a sharply divided Supreme Judicial Court affirmed the denial of a defendant’s motion to suppress the fruits of a pat frisk conducted after a fellow passenger challenged officers during a routine traffic stop. Dissenters argued that the decision will worsen the racially disparate impacts of automobile stops on persons of color that the court recognized in Commonwealth v. Long, 485 Mass. 711 (2020).
To begin with, the SJC has increasingly recognized the racially discriminatory impact of facially neutral criminal laws on persons of color. In Commonwealth v. Long, the SJC held that a defendant seeking to suppress evidence based on the claim that a traffic stop violated equal protection bears the burden of establishing a reasonable inference that the stop was motivated by race or another protected class. Id. at 713. If the defendant identifies specific facts from the totality of the circumstances warranting a reasonable inference that the stop was racially motivated, the burden then shifts to the Commonwealth to rebut that inference. Id. In doing so the SJC explicitly recognized that racially disparate enforcement of traffic laws has caused great harm in communities of color. See id. at 716-18; see also Commonwealth v. Evelyn, 485 Mass. 691, 700 (2020) (noting “African-Americans continue to be targeted disproportionately” for stops, frisks, and searches by Boston police).
During a routine traffic stop the front seat passenger, Raekwan Paris, got out of the vehicle and angrily confronted police officers about the reason for the stop. The officers knew Paris to be cooperative and polite during previous police encounters. Officers also knew Paris had a pending firearm charge. Paris refused to get back in the car when ordered to do so and police described him as taking “a bladed stance” and that he had “a closed clenched fist.” See slip op. at 5. After Paris was handcuffed and pat frisked, police ordered the remaining occupants of the car to exit and conducted a pat frisk of all three. The three occupants were also known to police. One occupant had posted a photo of a firearm to social media with the month before. Bailey-Sweeting had a three-year-old juvenile adjudication for a firearm offense. Police believed that three of the men, including Bailey-Sweeting, were linked to various gangs.
Bailey-Sweeting (who is misidentified in the indictment as Sweeting-Bailey) entered a conditional guilty plea to charges of possession of a firearm without a license and possession of a large capacity feeding device. On appeal the SJC affirmed the Superior Court's order denying the defendant’s motion to suppress.
The court found that “the officers had reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous.” See id. at 3. Those facts included Paris’s uncharacteristic behavior during the traffic stop, which officers interpreted as an effort to divert attention away from the contents of the vehicle, that three passengers had previous firearms involvement and gang affiliations, and that the stop occurred in a high crime area. Although the court conceded that each of these factors on their own would be insufficient to justify the pat frisk of Bailey-Sweeting, the court found that the totality of the circumstances justified the frisk.
Justices Lowy and Wendlandt concurred. Justice Lowy emphasized that concerns about the effect of traffic stops on persons of color are serious, but concluded on the facts here that it was reasonable for police to infer that Paris was attempting to divert attention from the car. Justice Wendlandt wrote separately to emphasize that Bailey- Sweeting did not challenge the traffic stop or exit order and that, in his view, the court’s decision did not rest on racial stereotypes or contribute to systemic racism.
Chief Justice Budd wrote a powerful dissent arguing that a pat frisk of all the car’s occupants after one – a Black man – accused police of harassment violated Bailey- Sweeting’s right to be free from unreasonable search and seizure under Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment of the United States Constitution. Police identified no training or experience that would support the reasonableness of inferring from Paris’s behavior that there was a weapon in the vehicle. To the contrary, Paris had been polite during a previous encounter when he was found to be in possession of a firearm. As a matter of common sense the most straightforward explanation of Paris’s conduct is that, as he said then, he was frustrated because he believed the police were harassing him. The occupants’ history of firearms possession and gang affiliation and the location of the stop were also insufficient to support an inference that Paris was trying to distract police from a weapon inside the vehicle. The Chief Justice concluded that uncritical deference to officers’ stated suspicions “provides the space into which seeps the damaging influence of racial bias.” See slip op. at 17 (Budd, C.J., dissenting).
Justice Gaziano also dissented, arguing that the court’s decision was based on subjective, speculative beliefs rather than the standard of a reasonable police officer. He further disagreed with the court that Paris’s actions could support reasonable suspicion that Bailey-Sweeting was armed and dangerous with no indicia that they were acting jointly.
The effect of Sweeting-Bailey may be limited considering the court’s concession that the case is close and the reasonable suspicion analysis fact specific. But the case illustrates the barriers defendants face in challenging officer’s use of facially neutral factors that disproportionately impact overpoliced communities.