NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC 11956

                    COMMONWEALTH   vs.   JIMMY WARREN.



         Suffolk.     February 9, 2016. - September 20, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.1


Firearms. Practice, Criminal, Motion to suppress.
     Constitutional Law, Search and seizure, Reasonable
     suspicion. Search and Seizure, Reasonable suspicion.



     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on December 19, 2011.

     After transfer to the Central Division, a pretrial motion
to suppress evidence was heard by Tracy-Lee Lyons, J., and the
case was heard by Annette Forde, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Nelson P. Lovins for the defendant.
     Michael Glennon, Assistant District Attorney, for the
Commonwealth.




     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2


     HINES, J.   After a jury-waived trial in the Boston

Municipal Court, the defendant, Jimmy Warren, was convicted of

unlawful possession of a firearm, G. L. c. 269, § 10 (a).2    The

complaint arose from the discovery of a firearm after an

investigatory stop of the defendant in connection with a

breaking and entering that had occurred in a nearby home

approximately thirty minutes earlier.   Prior to trial, the

defendant filed a motion to suppress the firearm and statements

made after his arrest, arguing that police lacked reasonable

suspicion for the stop.   The judge who heard the motion denied

it, ruling that, at the time of the stop, the police had

reasonable suspicion that the defendant was one of the

perpetrators of the breaking and entering.   The defendant

appealed, claiming error in the denial of the motion to

suppress.3   The Appeals Court affirmed, Commonwealth v. Warren,

87 Mass. App. Ct. 476, 477 (2015).   We allowed the defendant's

application for further appellate review and conclude that

because the police lacked reasonable suspicion for the




     2
       The trial judge allowed the defendant's motion for a
required finding of not guilty on a trespass charge, G. L.
c. 266, § 120.
     3
       Given our conclusion, we need not address the defendant's
argument about the sufficiency of the evidence supporting his
conviction.
                                                                    3


investigatory stop, the denial of the motion to suppress was

error.   Therefore, we vacate the conviction.

     Background.     We summarize the facts as found by the judge

at the hearing on the motion to suppress, supplemented by

evidence in the record that is uncontroverted and that was

implicitly credited by the judge.     Commonwealth v. Melo, 472

Mass. 278, 286 (2015).     On December 18, 2011, Boston police

Officer Luis Anjos was patrolling the Roxbury section of Boston

in a marked police cruiser when, at 9:20 P.M., he received a

radio call alerting him to a breaking and entering in progress

on Hutchings Street, where the suspects were fleeing the scene.

The dispatcher gave several possible paths of flight from

Hutchings Street, one toward Seaver Street and the other toward

Jackson Square, locations that are in the opposite direction

from one another.4

     Anjos went to the scene and spoke to the victims, a teenage

male and his foster mother.     The male reported that as he was

leaving the bathroom in the residence, his foster mother said

that she heard people in his bedroom.     The victim opened his

     4
       The record contains a map of the area in question,
providing geographical context for our review of the judge's
ruling that the police had reasonable suspicion for the seizure
of the defendant. We may take judicial notice of the location.
See Commonwealth v. Augustine, 472 Mass. 448, 457 n.14 (2015),
citing Federal Nat'l Mtge. Ass'n v. Therrien, 42 Mass. App. Ct.
523, 525 (1997) ("facts that are verifiably true, such as
geographic locations, are susceptible to judicial notice").
                                                                      4


bedroom door and saw a black male wearing a "red hoodie" (hooded

sweatshirt) jump out of the window.     When the victim looked out

the window he saw two other black males, one wearing a "black

hoodie," and the other wearing "dark clothing."     When the victim

checked his belongings, he noticed that his backpack, a

computer, and five baseball hats were missing.     The victim saw

the three males run down Hutchings Street, but he could only

guess which direction they took thereafter.    Anjos peered out

the window but could only see twelve to fifteen yards up the

street to the intersection of Hutchings and Harold Streets.

After speaking to the victims for approximately eight to twelve

minutes, Anjos left the scene and broadcast the descriptions of

the suspects.

    For the next fifteen minutes or so, Anjos drove a four to

five block radius around the house, searching for persons

fitting the suspects' descriptions.     Because of the cold

temperature that night, Anjos did not come across any

pedestrians as he searched the area.     At around 9:40 P.M., Anjos

headed back toward the police station.     While on Martin Luther

King Boulevard, he saw two black males, both wearing dark

clothing, walking by some basketball courts near a park.      One

male wore a dark-colored "hoodie."     Neither of the two carried a

backpack.   Anjos did not recognize either of the males, one of
                                                                      5


whom was the defendant, as a person he had encountered

previously in the course of his duties as a police officer.

     When Anjos spotted the defendant and his companion, he had

a hunch that they might have been involved in the breaking and

entering.   He based his hunch on the time of night, the

proximity to the breaking and entering, and the fit of the males

to the "general description" provided by the victim.     He decided

"to figure out who they were and where they were coming from and

possibly do [a field interrogation observation (FIO)]."5    He

rolled down the passenger's side window of the cruiser and

"yelled out," "Hey guys, wait a minute."   The two men made eye

contact with Anjos, turned around, and jogged down a path into

the park.

     After the two men jogged away, Anjos remained in the police

cruiser and radioed dispatch that three men6 fitting the

descriptions provided by the victim were traveling through the

park toward Dale Street.   Boston police Officers Christopher R.


     5
       "A 'field interrogation observation' (FIO) has been
described as an interaction in which a police officer identifies
an individual and finds out that person's business for being in
a particular area." Commonwealth v. Lyles, 453 Mass. 811, 813
n.6 (2009). FIOs are deemed consensual encounters because the
individual approached remains free to terminate the conversation
at will. See id. at 815, and cases cited.
     6
       During cross-examination, Officer Anjos admitted that he
observed only two males.
                                                                    6


Carr and David Santosuosso, who had heard the original broadcast

of the breaking and entering, were very near Dale Street and

headed in that direction.   Arriving quickly, Carr and

Santosuosso observed two males matching Anjos's description

walking out of the park toward Dale Street.   Carr parked the

cruiser on Dale Street and both officers approached the

defendant and his companion as they left the park.   The

defendant and his companion walked with their hands out of their

pockets.   Carr saw no bulges in their clothing suggesting the

presence of weapons or contraband.

     Carr was closer to the two males, approximately fifteen

yards away.   When he uttered the words, "Hey fellas," the

defendant turned and ran up a hill back into the park.     His

companion stood still.   Carr ordered the defendant to stop

running.   After the command to stop, Carr observed the defendant

clutching the right side of his pants, a motion Carr described

as consistent with carrying a gun without a holster.7

     Ignoring the command to stop, the defendant continued to

run and eventually turned onto Wakullah Street.   Carr lost sight


     7
       The Commonwealth persists in claiming that the police
observed the defendant clutching the right side of his pants
before the command to stop. As did the Appeals Court, see
Commonwealth v. Warren, 87 Mass. App. Ct. 476, 479 n.7 (2015),
we reject this view of the facts where the judge explicitly
found that "[t]his observation was after a verbal command to
stop."
                                                                     7


of the defendant for a few seconds before catching up with him

in the rear yard of a house on Wakullah Street.   Carr drew his

firearm, pointed it at the defendant, and yelled several verbal

commands for the defendant to show his hands and to "get down,

get down, get down."   The defendant moved slowly, conduct that

Carr interpreted as an intention not to comply with his

commands.   After a brief struggle, Carr arrested and searched

the defendant but found no contraband on his person.    Minutes

after the arrest, police recovered a Walther .22 caliber firearm

inside the front yard fence of the Wakullah Street house.     When

asked if he had a license to carry a firearm, the defendant

replied that he did not.

     Discussion.   The defendant challenges the judge's denial of

the motion to suppress, claiming error in the judge's ruling

that at the time of the stop on Dale Street, the police had a

sufficient factual basis for reasonable suspicion that the

defendant had committed the breaking and entering.8    In sum, he

argues that the police pursued him with the intent of


     8
       Although the defendant argues in his brief that a stop
occurred "when Officer[s] Anjos and Carr approached the
defendant . . . with the intent of questioning the defendant,"
we assume that this was a typographical error because it is
undisputed that Anjos never left his vehicle. Rather, it was
Officers Santosuosso and Carr who approached the defendant and
his companion as they exited the park. Therefore, we do not
address whether the first encounter, when Anjos called out to
the defendant from his cruiser, was an investigatory stop.
                                                                    8


questioning him, while lacking any basis for doing so.

Accordingly, he claims that any behavior observed during the

pursuit and any contraband found thereafter must be suppressed.

    1.   Standard of review.   "In reviewing a ruling on a motion

to suppress evidence, we accept the judge's subsidiary findings

of fact absent clear error and leave to the judge the

responsibility of determining the weight and credibility to be

given oral testimony presented at the motion hearing" (citation

omitted).   Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).

However, "[w]e review independently the application of

constitutional principles to the facts found."   Id.    We apply

these principles in deciding whether the seizure was justified

by reasonable suspicion that the defendant had committed the

breaking and entering on Hutchings Street.   Commonwealth v.

Scott, 440 Mass. 642, 646 (2004).

    2.   Reasonable suspicion.   The judge ruled, and the

Commonwealth concedes, that the seizure occurred when Officer

Carr ordered the defendant to stop running and pursued him onto

Wakullah Street.   If a seizure occurs, "we ask whether the stop

was based on an officer's reasonable suspicion that the person

was committing, had committed, or was about to commit a crime."

Commonwealth v. Martin, 467 Mass. 291, 303 (2014).     "That

suspicion must be grounded in 'specific, articulable facts and

reasonable inferences [drawn] therefrom' rather than on a
                                                                   9


hunch."   Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007),

quoting Scott, 440 Mass. at 646.   The essence of the reasonable

suspicion inquiry is whether the police have an individualized

suspicion that the person seized is the perpetrator of the

suspected crime.   Commonwealth v. Depina, 456 Mass. 238, 243

(2010) (stop is lawful only if "information on which the

dispatch was based had sufficient indicia of reliability, and .

. . the description of the suspect conveyed by the dispatch had

sufficient particularity that it was reasonable for the police

to suspect a person matching that description").

     According to the judge's ruling, the following information

established reasonable suspicion for the investigatory stop:

the defendant and his companion "matched" the description of two

of the three individuals being sought by the police; they were

stopped in close proximity in location (one mile) and time

(approximately twenty-five minutes) to the crime; they were the

only persons observed on the street on a cold winter night as

police canvassed the area; and they evaded contact with the

police, first when both men jogged away into the park, and later

when the defendant fled from Carr after being approached on the

other side of the park.9


     9
       The judge also cited her finding that the police observed
the defendant engaging in behavior suggestive of the presence of
a firearm. That finding must be discounted in the reasonable
                                                                   10


    We review the judge's findings as a whole, bearing in mind

that "a combination of factors that are each innocent of

themselves may, when taken together, amount to the requisite

reasonable belief" that a person has, is, or will commit a

particular crime.   Commonwealth v. Feyenord, 445 Mass. 72, 77

(2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth

v. Fraser, 410 Mass. 541, 545 (1991).    We are not persuaded that

the information available to the police at the time of the

seizure was sufficiently specific to establish reasonable

suspicion that the defendant was connected to the breaking and

entering under investigation.

    a.   The description of the suspects.    First, and perhaps

most important, because the victim had given a very general

description of the perpetrator and his accomplices, the police

did not know whom they were looking for that evening, except

that the suspects were three black males:    two black males

wearing the ubiquitous and nondescriptive "dark clothing," and

one black male wearing a "red hoodie."   Lacking any information

about facial features, hairstyles, skin tone, height, weight, or

other physical characteristics, the victim's description

"contribute[d] nothing to the officers' ability to distinguish



suspicion analysis, however, as the judge explicitly found that
this conduct occurred after the police commanded the defendant
to stop.
                                                                    11


the defendant from any other black male" wearing dark clothes

and a "hoodie" in Roxbury.   Commonwealth v. Cheek, 413 Mass.

492, 496 (1992) (insufficient detail in generalized description

of suspect to justify stop where defendant was observed walking

on street approximately one-half mile from scene of reported

stabbing, without indication he was fleeing crime scene or had

engaged in criminal activity).

     With only this vague description, it was simply not

possible for the police reasonably and rationally to target the

defendant or any other black male wearing dark clothing as a

suspect in the crime.   If anything, the victim's description

tended to exclude the defendant as a suspect:     he was one of two

men, not three; he was not wearing a red "hoodie"; and, neither

he nor his companion was carrying a backpack.10    Based solely on

this description, Anjos had nothing more than a hunch that the

defendant might have been involved in the crime.    He

acknowledged as much when he explained that the purpose of the

stop was "to figure out who they were and where they were coming

from and possibly do an FIO."    As noted, an FIO is a consensual

encounter between an individual and a police officer.

Therefore, the defendant was not a "suspect" subject to the


     10
       There is no suggestion in the judge's findings that the
defendant and his companion changed clothing or jettisoned the
backpack before being stopped by the police.
                                                                  12


intrusion of a threshold inquiry.   Unless the police were able

to fortify the bare-bones description of the perpetrators with

other facts probative of reasonable suspicion, the defendant was

entitled to proceed uninhibited as he walked through the streets

of Roxbury that evening.

    b.   Proximity.   We agree with the motion judge that

proximity of the stop to the time and location of the crime is a

relevant factor in the reasonable suspicion analysis.

Commonwealth v. Foster, 48 Mass. App. Ct. 671, 672-673, 676

(2000) (reasonable suspicion established where police observed

persons matching physical description on same street and headed

in same direction as indicated by informant).   Proximity is

accorded greater probative value in the reasonable suspicion

calculus when the distance is short and the timing is close.

See Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 555 n.8

(2002), and cases cited.   Here, the defendant was stopped one

mile from the scene of the crime approximately twenty-five

minutes after the victim's telephone call to the police.

Several considerations, however, weigh against proximity as a

factor supporting an individualized suspicion of the defendant

as a suspect in the breaking and entering.

    The location and timing of the stop were no more than

random occurrences and not probative of individualized suspicion

where the direction of the perpetrator's path of flight was mere
                                                                   13


conjecture.    Although the police appropriately began their

investigation with the information available to them, this lack

of detail made it less likely that a sighting of potential

suspects could be elevated beyond the level of a hunch or

speculation.   As noted by the dissenting Justices in the Appeals

Court opinion, given the nearly thirty-minute time period

between the breaking and entering and the stop on Dale Street,

the suspects could have traveled on foot within a two mile

radius of the crime scene, a substantial geographic area

comprising 12.57 square miles.11    Warren, 87 Mass. App. Ct. at

499 n. 1 (Rubin, J., dissenting).    See id. at 488-489 (Agnes,

J., dissenting).    Other than the victim's report that the

perpetrators fled toward Harold Street, the responding officers

had nothing more than the information in the dispatch suggesting

that the perpetrators could have fled toward Seaver Street or

Walnut Avenue.    Depending on the direction taken, these paths of

flight would lead to different Boston neighborhoods, Dorchester

or Jamaica Plain, in different areas of the city.

     In addition, Anjos testified to two important geographical

facts that undermine the proximity factor.    He acknowledged that

     11
       Because the map of the area is part of the record, we are
persuaded by the observation of a dissenting Justice in the
Appeals Court opinion that the suspects could have been anywhere
within twelve square miles of the crime scene by the time of the
encounter with Anjos. See Warren, 87 Mass. App. Ct. at 499 n.1
(Rubin, J., dissenting).
                                                                    14


Dale Street is in the opposite direction from where either of

the reported paths of flight might lead.    And, most important,

Anjos also stated that if the perpetrators had headed in the

direction of Dale Street, they likely would have reached that

location well before his first encounter with the defendant and

his companion.   Thus, where the timing and location of the stop

lacked a rational relationship to each other, proximity lacks

force as a factor in the reasonable suspicion calculus.

     c.   Lack of other pedestrians.   The judge considered in her

analysis that the defendant and his companion were the only

people observed on the street as Anjos canvassed the four to

five block radius of the Hutchings Street address, traveling "up

and down Harold Street, Walnut Avenue and Holworthy Street"

before turning onto Martin Luther King Boulevard to return to

the station.12   This factor also is of questionable value in the

analysis given the lapse of time and the narrow geographical

scope of the search for suspicious persons.    Anjos spoke to the

victim for approximately fifteen minutes and thereafter

     12
       One of the police officers testified during the motion to
suppress hearing that another officer reported seeing a
different young black male with a backpack in a nearby
neighborhood. Thus, we agree with one of the dissenting
Justices in the Appeals Court opinion that if the judge credited
this testimony, the fact that Anjos saw no other pedestrians on
the street that night was not a factor supporting reasonable
suspicion that the defendant was involved in the breaking and
entering. See Warren, 87 Mass. App. Ct. at 489-490 (Agnes, J.,
dissenting).
                                                                  15


canvassed only four to five blocks surrounding the location of

the breaking and entering.    The lapse of time between the

victim's report and the canvassing suggests that the

perpetrators could have fled the immediate area before Anjos

began his search.   Thus, 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

revelatory of an individualized suspicion of the defendant as

the perpetrator of the crime.

    d.   Flight.    We recognize that the defendant's evasive

conduct during his successive encounters with police is a factor

properly considered in the reasonable suspicion analysis.

Commonwealth v. Stoute, 422 Mass. 782, 791 (1996) (failure to

stop combined with accelerated pace contributed to officer's

reasonable suspicion).    But evasive conduct in the absence of

any other information tending toward an individualized suspicion

that the defendant was involved in the crime is insufficient to

support reasonable suspicion.    Commonwealth v. Mercado, 422

Mass. 367, 371 (1996) ("Neither evasive behavior, proximity to a

crime scene, nor matching a general description is alone

sufficient to support . . . reasonable suspicion"); Commonwealth

v. Thibeau, 384 Mass. 762, 764 (1981) (quick maneuver to avoid

contact with police insufficient to establish reasonable

suspicion).   "Were the rule otherwise, the police could turn a
                                                                   16


hunch into a reasonable suspicion by inducing the [flight]

justifying the suspicion."   Stoute, supra at 789, quoting

Thibeau, supra.   Although flight is relevant to the reasonable

suspicion analysis in appropriate circumstances, we add two

cautionary notes regarding the weight to be given this factor.

    First, we perceive a factual irony in the consideration of

flight as a factor in the reasonable suspicion calculus.

Unless reasonable suspicion for a threshold inquiry already

exists, our law guards a person's freedom to speak or not to

speak to a police officer.   A person also may choose to walk

away, avoiding altogether any contact with police.     Commonwealth

v. Barros, 435 Mass. 171, 178 (2001) (breaking eye contact and

refusing to answer officer's initial questions did not provide

reasonable suspicion for detention or seizure as "[i]t was the

defendant's right to ignore the officer").   Yet, because flight

is viewed as inculpatory, we have endorsed it as a factor in the

reasonable suspicion analysis.   See Commonwealth v. Sykes, 449

Mass. 308, 315 (2007) (defendant's abandonment of bicycle in

"effort to dodge further contact with the police was

significant" in determining reasonable suspicion); Commonwealth

v. Grandison, 433 Mass. 135, 139-140 (2001) (attempt to avoid

contact with police may be considered with other factors in

establishing reasonable suspicion).   Where a suspect is under no

obligation to respond to a police officer's inquiry, we are of
                                                                  17


the view that flight to avoid that contact should be given

little, if any, weight as a factor probative of reasonable

suspicion.   Otherwise, our long-standing jurisprudence

establishing the boundary between consensual and obligatory

police encounters will be seriously undermined.    Thus, in the

circumstances of this case, the flight from Anjos during the

initial encounter added nothing to the reasonable suspicion

calculus.

     Second, as set out by one of the dissenting Justices in the

Appeals court opinion, where the suspect is a black male stopped

by the police on the streets of Boston, the analysis of flight

as a factor in the reasonable suspicion calculus cannot be

divorced from the findings in a recent Boston Police Department

(department) report documenting a pattern of racial profiling of

black males in the city of Boston. Warren, 87 Mass. App. Ct. at

495 n.18 (Agnes. J., dissenting), citing Boston Police

Commissioner Announces Field Interrogation and Observation (FIO)

Study Results, http://bpdnews.com/news/2014/10/8/boston-police-

commissioner-announces-field-interrogation-and-observation-fio-

study-results [https://perma.cc/H9RJ-RHNB].13     According to the


     13
       See also Warren, 87 Mass. App. Ct. at 495 n.18 (Agnes, J.,
dissenting), citing American Civil Liberties Union, Stop and
Frisk Report Summary, https://www.aclum.org/sites/all/files/
images/education/stopandfrisk/stop_and_frisk_summary.pdf
[https://perma.cc/7APK-8MG9] ("[sixty-three per cent] of Boston
                                                                  18


study, based on FIO data collected by the department,14 black men

in the city of Boston were more likely to be targeted for

police-civilian encounters such as stops, frisks, searches,

observations, and interrogations.15   Black men were also

disproportionally targeted for repeat police encounters.16    We do

not eliminate flight as a factor in the reasonable suspicion

analysis whenever a black male is the subject of an

investigatory stop.   However, in such circumstances, flight is

not necessarily probative of a suspect's state of mind or



police-civilian encounters from 2007-2010 targeted blacks, even
though blacks made up less than [twenty-five per cent] of the
city's population").
     14
       The study by the Boston Police Department (department)
reviewed all field interrogation and observation (FIO) reports,
approximately 205,000 in total, submitted by Boston police
officers from 2007 through 2010. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes, J., dissenting).
     15
       "[T]he targets of FIO reports were disproportionately
male, young, and Black. For those 204,739 FIO reports, the
subjects were 89.0 percent male, 54.7 percent ages 24 or
younger, and 63.3 percent Black." Final Report, An Analysis of
Race and Ethnicity Patterns in Boston Police Department Field
Interrogation, Observation, Frisk, and/or Search Reports, at 2
(June 15, 2015).
     16
       The department's study revealed that five per cent of the
individuals repeatedly stopped or observed accounted for more
than forty per cent of the total interrogations and observations
conducted by the police department. Warren, 87 Mass. App. Ct.
at 495 n.18 (Agnes, J., dissenting), quoting Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/
10/8/boston-police-commissioner-announces-field-interrogation-
and-observation-fio-study-results [https://perma.cc/H9RJ-RHNB].
                                                                   19


consciousness of guilt.   Rather, the finding that black males in

Boston are disproportionately and repeatedly targeted for FIO

encounters suggests a reason for flight totally unrelated to

consciousness of guilt.   Such an individual, when approached by

the police, might just as easily be motivated by the desire to

avoid the recurring indignity of being racially profiled as by

the desire to hide criminal activity.    Given this reality for

black males in the city of Boston, a judge should, in

appropriate cases, consider the report's findings in weighing

flight as a factor in the reasonable suspicion calculus.

    Here, we conclude that the police had far too little

information to support an individualized suspicion that the

defendant had committed the breaking and entering.    As noted,

the police were handicapped from the start with only a vague

description of the perpetrators.   Until the point when Carr

seized the defendant, the investigation failed to transform the

defendant from a random black male in dark clothing traveling

the streets of Roxbury on a cold December night into a suspect

in the crime of breaking and entering.    Viewing the relevant

factors in totality, we cannot say that the whole is greater

than the sum of its parts.

    Conclusion.    For the reasons stated above, the police

lacked reasonable suspicion for the investigatory stop of the

defendant.   Therefore, we vacate the judgment of conviction and
                                                              20


remand the matter to the Boston Municipal Court for further

proceedings consistent with this opinion.

                                   So ordered.
