Commonwealth v. Byron Palmer

APPEALS COURT

COMMONWEALTH vs. BYRON PALMER

Docket:

24-P-365

Dates:

February 3, 2025 – September 19, 2025

Present:

All the Justices[1]

County:

Suffolk

Keywords:

Robbery. Controlled Substances. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure. Search and Seizure, Pursuit, Reasonable suspicion.

Indictments found and returned in the

Superior Court Department on November 23, 2021.

A pretrial motion to suppress evidence

was heard by Michael P. Doolin, J., a motion for reconsideration was considered

by him, and the cases were tried before James F. Lang, J.

Craig E. Collins for the defendant.

Henry Drembus (Ian MacLean, Assistant

District Attorney, also present) for the Commonwealth.

HERSHFANG, J. The defendant, Byron Palmer, was arrested

outside an apartment complex in the Jamaica Plain section of Boston after

fleeing from approaching police officers who sought to question him about an

earlier robbery and shooting in the same location. A judge of the Superior Court denied a motion

to suppress in which the defendant maintained that the officers lacked

reasonable suspicion to question him.

After a jury trial, the defendant was convicted of possession of cocaine

with the intent to distribute, G. L. c. 94C, § 32A (c). On appeal, the defendant challenges only the

denial of the motion to suppress.

Resolving this appeal requires that we

determine first the moment of seizure and then whether the police had

reasonable suspicion to seize the defendant at that moment. See Commonwealth v. Barros, 435 Mass. 171,

173, 176 (2001). As reflected in this

opinion and the concurring and dissenting opinions that follow, eighteen

Justices[2] are of the view that, at the latest, the defendant was seized the

moment he turned to flee and was pursued by the police -- before he began to

empty his pockets. These eighteen

Justices join part 1 of the discussion, which is therefore a majority opinion

of the court. Six Justices[3] are of the

view that the defendant was not seized until the police either physically

detained him or blocked his path and would affirm the motion judge's view that

the cocaine and other items were discarded before this happened.

On the question of reasonable suspicion,

thirteen Justices[4] are of the view that, assuming that the seizure occurred

no later than when the police began to pursue the defendant, there was

reasonable suspicion to believe that he had committed a crime and, therefore,

to seize him. Twelve of these Justices[5]

join part 2 of the discussion, which is therefore a plurality opinion. Eleven Justices[6] are of the view that the

police did not have reasonable suspicion to seize the defendant at the time of

the seizure. Accordingly, a majority of

the court is of the view that the motion to suppress was properly denied, and

the judgment of conviction should be affirmed.

Background.

We recite the facts found by the motion judge after an evidentiary

hearing on the defendant's motion to suppress, supplemented with

"uncontroverted and undisputed facts from the record that have been

credited by the motion judge."

Commonwealth v. Privette, 491 Mass. 501 , 504 (2023).

On January 2, 2021, a cell phone

salesperson went to meet a female customer at an apartment complex in the

Jamaica Plain section of Boston. The

salesperson was robbed of two cell phones and, when he went outside the

building to attempt to get his stolen phones back, the robber fired a gun at

him. The victim enlisted the help of a

nearby police officer. The victim

described the robber as a man, six feet, one inch tall, wearing black clothing

and a camouflage mask. He further

described the robber as speaking with a southern accent. The victim led the officer (who testified at

the hearing, and whose testimony the judge credited) to the area behind the

building where he said the shooting had occurred. The officer found a single shell casing and

called the detective unit of the Boston police department.

Detective Allison Eng was assigned to the

case. (At the time of her testimony, Eng

was a sergeant, but we refer to her by the role she had at the relevant time.) Eng also testified and was credited by the

motion judge. Eng reached out to Boston

Housing Authority Police Sergeant Shannon O'Donnell for help in getting

interior and exterior video recordings from the time of the robbery (January 2

videos). O'Donnell was "a police

officer inside the [apartment complex]" who was "responsible for

taking care of and monitoring the cameras throughout the [complex]."

O'Donnell provided the January 2 videos,

which Eng watched "multiple times."

From the time stamps on the videos and by identifying the victim and the

customer he was meeting in the exterior videos, Eng identified the suspected

robber on both interior and exterior videos.

Eng described the suspect as "fitting the description

. . . [d]ark clothing, hood up," seen entering the building

"directly before" he was seen on the interior videos. After some minutes passed, the victim and the

customer entered the building. The

customer was carrying a large, brown, "Louis Vuitton"-type shoulder

bag. Approximately three minutes later,

the suspect ran from the building, "carrying what look[ed] to be the large

purse that the woman with the victim . . . was originally

carrying." The customer followed

within a second, without her purse.

From watching the suspect on the interior

videos, Eng derived a "[p]retty good clothing description, and a general

subject description. He was wearing a

face mask at the time, but he had some pretty distinct features in addition to

the clothing." He wore a

"pretty distinct coat," a "heavy black jacket on the bottom,

kind of two-toned gray on the top"; the suspect's shoes were

"distinct sneakers" with "a metallic kind of reflective

. . . kind of tape going around them." Eng described the suspect as having a

"long dreadlock" hairstyle and being "dark skin

complected." The suspect's hat

"was a black and white checker hat with a large round logo on the front

and a metallic tag, I guess on the brim of the hat that comes when you purchase

the hat." O'Donnell told Eng that

she "ha[d] a pretty good knowledge of the residents" and "was

surprised that she . . . didn't recognize the suspect."

On January 6, four days after the robbery,

O'Donnell reached out to another detective because she had reviewed video

footage from the day after the robbery (January 3 video) and seen someone who

"fit the description of the suspect from the incident." That detective forwarded a still image from

the video to Detective Eng with the notation, "this is guy who did robbery

has jacket and sneakers on next day," adding, "[S]hannon [O'Donnell]

says [this] is the guy. I don't know

what her basis is." In addition to

viewing this still image, Eng watched the January 3 video, which showed "a

person fitting the same description of the suspect in the . . . same

hallway" without a face mask. From

viewing the still image, Eng believed it was the same person because the person

in the hallway on January 3 was wearing the same jacket and sneakers that the

suspected robber had worn on January 2 and had "the same hairstyle, same

complexion" and "fit the genera[l] size" of the suspect.

On the morning of January 14, twelve days

after the robbery, O'Donnell placed a telephone call to another detective to

say she was "watching the videos in real time" and saw "this

suspect who we believed to be the person responsible for the robbery" at

the apartment complex.[7] O'Donnell also

sent a "still shot" from that video footage depicting the suspect,

noting, "Your guy is back."

The motion judge found that O'Donnell "observed the same suspect in

the parking lot."

Eng spoke to O'Donnell by telephone. O'Donnell "was watching the cameras and

observed the suspect to be out in the parking lot." O'Donnell identified the person on the live

video feed as "the person who was involved in the robbery." "Based on the conversation [she] had

with [Sergeant] O'Donnell" and because, in the still image from the video

footage Eng could "clearly see . . . the hat and the hairstyle

of the suspect," Eng believed that she had "[r]easonable suspicion to

respond and attempt to identify that individual." She and two other plainclothes detectives

went to the apartment complex. Because

the robbery had involved a firearm, Eng also "had an additional unit

respond," consisting of four armed, uniformed officers. Those officers, including Officer Alex Rosa,

arrived in a police wagon, which they parked in the parking lot. The detectives explained that they wanted to

question the suspect and asked the uniformed officers to stand by "just in

case if he tried to flee."

Eng and the two other detectives approached

the defendant in the parking lot. The

four uniformed officers approached from another direction, "not directly

with" the detectives, but within the detectives' view. When Eng saw the defendant in the parking lot,

she "believed [him] to be the person responsible for the

robbery." One of the detectives

called out to the defendant to get his attention. Eng testified that the detectives were

"just trying to make casual conversation" and "just trying to

get his name and information based on . . . him possibly being a

suspect from the robbery."

The defendant immediately started to run

away across the parking lot. Rosa and

the other uniformed officers immediately ran after him. As Rosa gave chase, the defendant "tossed

items out of his pocket." Rosa saw

"individual monetary bills that were swirling in the air." Eng saw the defendant discarding plastic bags

of what she believed to be drugs. The

defendant stopped running after a few seconds, put his hands up, and was

quickly arrested. The police recovered

money and drugs from the ground where the defendant had been running.

The motion judge denied the defendant's

motion to suppress. Prior to trial, the

Commonwealth nol prossed an indictment for armed robbery. The defendant was tried before a different

judge and jury in the Superior Court on charges of attempted assault and

battery by means of a firearm, carrying a loaded firearm, unlawful possession

of a firearm and ammunition, and possession of cocaine with the intent to

distribute. The jury acquitted the

defendant of all charges except the drug charge.

Discussion. The defendant maintains that his motion to

suppress should have been allowed because he was seized the moment the officers

approached him and, at that point in time, the officers lacked reasonable

suspicion to justify an investigative stop.

The Commonwealth maintains that no stop occurred until the police

apprehended the defendant, after the pursuit.

The motion judge agreed with the Commonwealth and opined that the

defendant's flight, coupled with "the combination of all the other

evidence . . . identifying the defendant with distinctive details and

demonstrating his criminality was sufficient to establish reasonable suspicion." Ultimately, however, the judge's

determination of reasonable suspicion was irrelevant because he concluded that

the money and drugs discarded by the defendant "were abandoned and

therefore their subsequent recovery by the police did not constitute a

search."

"When reviewing the disposition of a

motion to suppress, we accept the motion judge's subsidiary findings absent

clear error, and 'make an independent determination whether the judge properly

applied constitutional principles to the facts as found.'" Commonwealth v. Robinson-Van Rader, 492 Mass.

1 , 9 (2023), quoting Commonwealth v. Lyles, 453 Mass. 811, 814 (2009).

Article 14 of the Massachusetts

Declaration of Rights provides that "[e]very subject has a right to be

secure from all unreasonable searches, and seizures, of his person, his houses,

his papers, and all his possessions."

An investigatory stop or "seizure" by police is justified

under art. 14 if the police have reasonable suspicion to believe at the time of

the stop "that the person has committed, is committing, or is about to

commit a crime." Robinson-Van

Rader, 492 Mass. at 8, quoting Commonwealth v. Costa, 448 Mass. 510, 514

(2007). Thus, we must determine when the

stop occurred before determining whether the police had reasonable suspicion

for the stop. See Barros, 435 Mass. at

173 (determining precise moment of seizure "critical" to resolving

motion to suppress). The timing of the

stop is critical here because if the defendant dropped the drugs on the ground

after an unjustified stop, the drugs would be the fruit of an unconstitutional

seizure under art. 14. See Commonwealth

v. Rodriguez, 456 Mass. 578, 587 (2010), and cases cited therein. But "[i]f he dropped the drugs before he

was stopped, then the drugs could not be the fruit of the seizure." Id.

1.

When did the stop occur?

"[N]ot every encounter between a law enforcement official and a

member of the public constitutes [a seizure]." Commonwealth v. Franklin, 456 Mass. 818, 820

(2010), quoting Commonwealth v. Lopez, 451 Mass. 608, 611 (2008). To decide whether a person has been

"seized" in the constitutional sense, "we look at the totality

of the circumstances to determine whether a member of law enforcement has

'engaged in some show of authority' that a reasonable person would consider

coercive; that is, behavior 'which could be expected to command compliance,

beyond simply identifying [himself or herself] as police.'" Commonwealth v. Matta, 483 Mass. 357 , 362

(2019), quoting Commonwealth v. Sanchez, 403 Mass. 640, 644 (1988). "[T]he inquiry must be whether, in the

circumstances, a reasonable person would believe that an officer would compel

him or her to stay." Matta, supra

at 363.

In the absence of intimidating

circumstances, when a police officer approaches someone and attempts to get the

person's attention, asks to speak with the person, or engages in casual

conversation, the interaction is not a seizure in the constitutional

sense. See Lopez, 451 Mass. at 610-614

(collecting cases in which circumstances of police officers approaching

suspects and asking questions held not to be sufficiently intimidating that

reasonable person in suspect's position would have felt compelled to stop and

speak with officers). However, the

"threatening presence of several officers" may amount to a show of

authority inconsistent with casual conversation. United States v. Mendenhall, 446 U.S. 544,

554 (1980) (opinion of Stewart, J.). See

Commonwealth v. Pimentel, 27 Mass. App. Ct. 557, 560 (1989). For example, in Commonwealth v. Grinkley, 44

Mass. App. Ct. 62, 74 (1997), we held that "several police officers' show

of authority in advancing on [a group of youths], shouting and waving at them

to stop" effected a seizure. In

Pimentel, supra at 561 , we observed that "the number of officers involved

in an encounter could be great enough that their mere presence might reasonably

be viewed as threatening," but we did not think that the presence of three

officers in that case was "impressive or overwhelming." By contrast, in Commonwealth v. Depina, 456

Mass. 238, 242 (2010), three armed officers wearing "Gang Unit"

shirts converging on the defendant and saying "come over here" was

held to constitute a seizure.

Because the defendant did not discard the

drugs until after he began to run and was immediately pursued, we need not

decide whether the circumstances before that moment -- the approach of three

plainclothes officers wearing visible badges and asking to speak to the

defendant, while four armed, uniformed police officers approached from another

direction, with a police wagon parked nearby -- could reasonably be viewed as a

sufficiently intimidating show of authority that a reasonable person in the

defendant's position would have believed that the officers intended to use

their police power to compel him to stay and answer their questions. It became apparent the moment the defendant

turned to flee and several officers immediately chased after him that he would

be compelled to stay. "Pursuit that

appears designed to effect a stop is no less intrusive than a stop

itself. . . . [A] stop

starts when pursuit begins."

Barros, 435 Mass. at 175 , quoting Commonwealth v. Thibeau, 384 Mass.

762, 764 (1981). See Commonwealth v.

Stoute, 422 Mass. 782, 789 (1996) (holding that under art. 14 "a pursuit,

which, objectively considered, indicates to a person that he would not be free

to leave the area . . . without first responding to a police

officer's inquiry, is the functional equivalent of a seizure").

This is not a case in which the police

merely followed the defendant to maintain visual surveillance. See Franklin, 456 Mass. at 822-823 , and cases

cited therein. The officers were already

approaching the defendant on foot, and their immediate pursuit of the defendant

after he started to flee -- which he was free to do if their approach was truly

an overture for a consensual encounter, see Commonwealth v. Warren, 475 Mass.

530, 538-539 (2016) -‑ would have made it clear to the defendant, if it was not

already, that the officers intended to prevent him from leaving the parking

lot. Contrast Franklin, supra at 823 (no

seizure where defendant began running before officers got out of their vehicle

and ran after him, with no evidence that they "exercised any show of

authority" or "block[ed] or impede[d] his path"). The fact that he immediately surrendered

himself seconds later, after his ineffectual attempt to distance himself from

evidence of drug dealing, further demonstrates that he felt compelled to stay

and answer questions. See Grinkley, 44

Mass. App. Ct. at 74 (youths' submission to officers' show of authority

supported conclusion that no reasonable person would have felt free to

leave). Thus, at the latest, the

defendant was seized the moment he turned to flee and was pursued -- before he

began to empty his pockets.

2.

Did the police have reasonable suspicion to believe that the defendant

committed the robbery? We next ask

whether, at the time of the seizure, the officers "had reasonable

suspicion to believe that the defendant was committing, had committed, or was

about to commit a crime" (quotation omitted). Matta, 483 Mass. at 365, quoting Commonwealth

v. Martin, 467 Mass. 291, 303 (2014).

"Reasonable suspicion must be based on specific and articulable

facts and reasonable inferences therefrom, in light of the officer's

experience" (quotation and citation omitted). Robinson-Van Rader, 492 Mass. at 8. "The facts and inferences underlying the

officer's suspicion must be viewed as a whole when assessing the reasonableness

of his [or her] acts." Matta, supra,

quoting Commonwealth v. Sykes, 449 Mass. 308, 314 (2007). "Reasonable suspicion requires less than

probable cause to arrest but must be based on more than just a

hunch." Commonwealth v. Henley, 488

Mass. 95 , 102 (2021).

In making this assessment, we trace the

line from the robbery to the moment of the defendant's seizure, asking

"whether, when viewed objectively, there were specific articulable facts

and inferences that linked the defendant back to the point of origin of the

commission of the crime[]" twelve days earlier. Commonwealth v. Doocey, 56 Mass. App. Ct.

550, 554 (2002).[8]

The victim described the robbery suspect

by his height, dark clothing, face mask, and southern accent. Based on this initial description, combined

with the time stamps on the January 2 videos and the people and interactions

depicted in them, including the flight of the robbery suspect with what

appeared to be the customer's brown bag, the officers identified the masked

robbery suspect in those videos. That

is, from this point on, they knew the person they were looking for was the man

in the January 2 videos, although they did not know his name. From the videos the officers observed

additional details about the suspect's appearance -- dark skin, dreadlocks, a

black and white checkered hat with a logo on the front, and distinctive jacket

and shoes. Thus, after O'Donnell and Eng

reviewed the January 2 videos, they had identified the robbery suspect, as the

motion judge correctly concluded.

The January 3 video from the apartment

complex showed "the same suspect," as the motion judge found,

including the man's bare face. O'Donnell

reviewed the January 3 video and recognized the suspect, seen in a hall with

other young adults as the "guy who did [the] robbery," noting in a

message to Eng that the suspect was wearing the same distinctive jacket and

sneakers as during the robbery. While

the January 3 video was not admitted at the suppression hearing, Eng watched

it. Also, from the still image sent by

O'Donnell, Eng recognized the robbery suspect seen in the prior day's videos,

noting that he was wearing the same jacket and sneakers on January 3 that he

had worn on January 2 and had the same hairstyle, complexion, and general

size. While the timing is not

"close" as in Warren or Robinson-Van Rader, the robbery suspect's

appearance in the same location, one day after the robbery, adds to the

reasonable suspicion calculus. See

Robinson-Van Rader, 492 Mass. at 13; Warren, 475 Mass. at 536 . Equally -- or perhaps more -- importantly,

the January 3 video afforded O'Donnell and Eng another opportunity to observe

the suspect, this time with a bare face, adding to their knowledge of what he

looked like. See Commonwealth v. Odware,

429 Mass. 231, 236 (1999) (identification more reliable where witness "saw

the defendant multiple times").

This brings us to the day of the arrest,

January 14. By the day of the arrest,

Eng and O'Donnell had seen multiple images, both still and video, of the

suspect. They were not attempting to

identify someone from a description alone.

See Commonwealth v. Charley, 91 Mass. App. Ct. 223 , 227 (2017)

(reasonable suspicion calculus included officer's observation of suspect in

person and on surveillance video footage).

Cf. Depina, 456 Mass. at 243 ("When police officers on the street

stop a defendant in reliance on a police dispatch alone . . ."

[emphasis added]). They were looking for

a person whom they had observed and studied at length on video recordings. O'Donnell was monitoring a live video feed and

again saw the robbery suspect. When she

saw him, she called the Boston police detectives and sent a text message

saying, "Your guy is back," to which she attached an image of the

suspect. The image, combined with

O'Donnell's identification, was "particular enough to support

. . . reasonable suspicion that the defendant had committed a

crime." Henley, 488 Mass. at

103. Eng went to the apartment complex

"[b]ased on the conversation [she] had with Officer O'Donnell and you can

clearly see in that still photo the hat and the hairstyle of the suspect. And . . . it was the same

location . . . ."

This evidence supported the motion judge's findings that on the day of

the arrest O'Donnell "observed the [robbery] suspect in the parking

lot," and the defendant "had the same hat, complexion and hair

style" as the suspect.

"'In reviewing a ruling on a motion

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

clear error,' and we defer to the judge's determination of the weight and credibility

to be given to oral testimony presented at a motion hearing." Commonwealth v. Hoose, 467 Mass. 395, 399

(2014), quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001). Given the motion judge's finding that

O'Donnell observed the same suspect on the day of the arrest whom she had seen

on two earlier occasions while investigating the robbery, O'Donnell had

reasonable suspicion to approach and stop the defendant. Therefore, the Boston police officers working

with her were permitted to do the same.

See Privette, 491 Mass. at 514-516.

We would reach the same conclusion if we

considered what O'Donnell said to Eng using the framework applied to tips. We would consider whether "the

information on which the dispatch was based had sufficient indicia of

reliability," and whether "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." Depina, 456 Mass. at 243 . "Where, as here, the required standard

is reasonable suspicion rather than probable cause 'a less rigorous showing in

each of these areas is permissible.'"

Commonwealth v. Westgate, 101 Mass. App. Ct. 548, 551 (2022), quoting

Commonwealth v. Lopes, 455 Mass. 147, 156 (2009).

"Particularity" is addressed

above. Evaluating indicia of reliability

involves considering "the basis of knowledge of the source of the

information" and "the underlying circumstances demonstrating that the

source of the information was credible or the information reliable"

(citation omitted). Westgate, 101 Mass.

App. Ct. at 551 . "Information

related by a reliable person can be sufficient to establish a reasonable suspicion." Commonwealth v. Wren, 391 Mass. 705, 707

(1984).

The basis of O'Donnell's knowledge was her

prior review of the video footage and prior identifications of the

defendant. She knew who she was looking

for. As a fellow law enforcement officer

working in conjunction with Eng, her veracity was not in question.[9] Eng knew that O'Donnell's "knowledge was

based on personal observation, and [she] had reason to trust [her]

veracity." Wren, 391 Mass. at

707 . And, importantly, when Eng saw the

defendant in the parking lot, she identified him as the robbery suspect.

To the extent Eng also believed the

defendant was the robbery suspect because the description (the defendant's

size, hat, complexion, and hairstyle) matched the suspect she had observed in

the video footage and still photographs, that corroborated the identification. This evidence amply supported the motion

judge's findings that on the day of the arrest O'Donnell "observed the

[robbery] suspect in the parking lot," and the defendant "had the

same hat, complexion and hair style" as the suspect.

Finally, the fact that the defendant took

off running when approached by detectives adds to the reasonable suspicion

calculus. See, e.g., Stoute, 422 Mass.

at 791 ; Commonwealth v. Mercado, 422 Mass. 367, 368, 371 (1996). While there are many legitimate reasons a

person may choose not to engage with police, we need not completely ignore the

defendant's sudden flight in the face of police inquiry. See Wren, 391 Mass. at 708 n.2. Because it "would have been poor police

work indeed" for the officers not to investigate further after O'Donnell

reported that the robbery suspect was "back," Terry v. Ohio, 392 U.S.

1, 23 (1968), and because there was reasonable suspicion to believe the

defendant was the robbery suspect, we affirm.

Judgment

affirmed.

DITKOFF, J. (concurring, with whom Meade,

Neyman, Singh, Englander, and Hodgens, JJ., join). I concur because it is settled law that

police officers do not seize a running defendant merely by running after that

defendant.[1] One does not need police

authority to follow someone, even someone who is running. Instead, a seizure occurs when pursuit is

accompanied by a command to stop or by other actions communicating the use of

police authority to require the defendant to stop.

Under art. 14 of the Massachusetts

Declaration of Rights,[2] a seizure occurs when "an officer has, through

words or conduct, objectively communicated that the officer would use his or

her police power to coerce that person to stay." Commonwealth v. Matta, 483 Mass. 357 , 362

(2019). Usually this is accomplished through

the classic, "Stop, police" in conjunction with a chase. See id. at 365 ("The defendant was

seized . . . once the officer ordered him to stop, and then chased

him"); Commonwealth v. Jones-Pannell, 472 Mass. 429, 433 (2015) (seizure

at "loud command to '[w]ait,'" followed by pursuit); Commonwealth v.

Quezada, 67 Mass. App. Ct. 693, 696 (2006), S.C., 450 Mass. 1030 (2008)

("a seizure occurred when [the officer] chased the defendant and yelled

'stop'"); Commonwealth v. Dasilva, 66 Mass. App. Ct. 556 , 558 n.4 (2006)

("the defendant was seized when [the officer] first began pursuing him and

ordered him to stop").

Both we and the Supreme Judicial Court

have rejected the notion that pursuit without a command to stop constitutes a

seizure. In Commonwealth v. Franklin,

456 Mass. 818, 819 (2010), the defendant ran when he saw the police vehicle

approaching. As soon as the defendant

started running, "three of the officers got out of the car, with two of

them running after the defendant."

Id. In the absence of a command

to stop, running after the defendant was not a seizure. See id. at 823 ("the [motion] judge's

conclusion that the defendant was seized when the police left their vehicle and

began to run after him was incorrect").

Rather, the moment of seizure was when "the police grabbed the

defendant as he was climbing the fence."

Id.

Similarly, in Commonwealth v. Powell, 459

Mass. 572, 575 (2011), cert. denied, 565 U.S. 1262 (2012), the defendant began

running after the officers drove "very slowly" down the street with

the windows down. The defendant ran, and

an officer alighted from his vehicle and followed the running defendant. Id. at 575-576. The Supreme Judicial Court held that this was

not a seizure. See id. at 578. As the court explained, "[w]hen [the

officer] began following the defendant on foot, he had not exercised any show

of authority or commanded the defendant to stop; and the officers had not

blocked or impeded the defendant's path."

Id. Rather, the moment of seizure

occurred when the officer drew his weapon and instructed the defendant to drop

his weapon. Id. Accord Commonwealth v. Isaiah I., 450

Mass. 818, 820, 822 (2008) (no seizure where juvenile "'quickly' walked

into the store" and officer "'quickly' followed the juvenile down an

aisle").

Our case law is in accord.[3] As we have stated, "merely running after

a running person, without more, does not effect a seizure in the constitutional

sense." Commonwealth v.

Shane S., 92 Mass. App. Ct. 314 , 321 (2017), quoting Commonwealth v.

Perry, 62 Mass. App. Ct. 500, 502 (2004).

In Shane S., supra at 316, an officer said to the juvenile and his

companion, "Hey, guys, can I talk to you for a sec?" When the officer asked the companion his name

and began to take out his cell phone, the juvenile ran, and the officer ran

after him. Id. We held that the officer did not seize the

juvenile as "[t]here is no evidence in the record that [the officer]

called out to the juvenile to stop" or that "the juvenile looked back

at [the officer]." Id. at 318, 319.

In Perry, 62 Mass. App. Ct. at 501 , the

defendant ran away after seeing the officer, and the officer "broadcast

the defendant's description and ran after the defendant." We rejected the motion judge's conclusion

that this constituted a seizure. Id. at

503 . As we explained, the officer

"made no show of authority, or attempt to stop or restrain the defendant's

movement, when he ran after him."

Id. at 502 . Accordingly,

"[w]e conclude[d] that the police did not seize the defendant until [the officer]

directed the defendant to stop."

Id. at 503 .

Here, there was no evidence that any

officer told the defendant to stop. To

the contrary, Detective Allison Eng testified, "We did not demand he

stop" and that no officer at any point told him to stop. "The motion judge made no finding that

the defendant was even aware that [the officer] was running behind him, and

there is no evidence in the record to indicate such an awareness." Perry, 62 Mass. App. Ct. at 502 . In short, nothing justifies the conclusion

that the officers seized the defendant merely by running after him.

To be sure, a seizure occurred at some

point. The officers eventually

physically detained the defendant, and the body camera footage reveals that the

uniformed officers at some point blocked the defendant's path. Compare Commonwealth v. Edwards, 476 Mass.

341, 345 (2017) (seizure occurs when police vehicle blocks defendant's

vehicle's egress), with Commonwealth v. Karen K., 491 Mass. 165 , 174 n.5

(2023) (not deciding whether seizure occurred when officer on foot blocked

juvenile's path).

The motion judge appeared to find that the

defendant discarded the drugs and money before he was seized, and the testimony

of the officers supported such a finding.

Detective Eng testified that "[i]mmediately upon fleeing on foot he

began discarding drugs from his pockets," and one of the uniformed

officers testified that "[w]hat caught my eye was like individual monetary

bills that were swirling in the air."

Although one could view the body camera footage as suggesting that the

defendant discarded the money after the uniformed officers moved to block his

path, that footage is inconclusive and is not enough to establish clear error

in the motion judge's findings. See

Karen K., 491 Mass. at 170, quoting Commonwealth v. Carr, 458 Mass. 295,

303 (2010) ("Where there are two permissible views of the evidence,

[however,] the factfinder's choice between them cannot be clearly

erroneous").

Because the defendant discarded the drugs

before being seized, there is no basis for suppressing the drugs. See Commonwealth v. Lopez, 451 Mass. 608, 614

(2008). Moreover, once the defendant

discarded drugs in plain view of the police officers, they unquestionably had

reasonable suspicion to seize him. See

Commonwealth v. Evans, 87 Mass. App. Ct. 687, 689 (2015). Accord Franklin, 456 Mass. at 823; Perry, 62

Mass. App. Ct. at 503-504 . Accordingly,

the motion judge properly denied the motion to suppress.

I respectfully concur in affirming the

judgment.

MASSING, J. (dissenting in part, with whom

Rubin, Henry, Desmond, Sacks, Shin, D'Angelo, Smyth, Toone, Tan, and Wood, JJ.,

join). When a defendant files a motion

to suppress alleging that the police unconstitutionally exercised their

coercive powers to detain him for the purposes of investigating a crime, it is

critical not only for the public's confidence in the legitimacy of law

enforcement, but also for the integrity of our criminal justice system, that

prosecutors and the police come to court prepared to supply evidence of the

specific, articulable facts that the police possessed and relied on to justify

the seizure. "We do not blindly

accept officers' reliance on information obtained through police channels; the

government must substantiate the basis of the information." United States v. Alvarez, 40 F.4th 339, 352

(5th Cir. 2022). The evidence adduced at

the suppression hearing showed that the police stopped the defendant based on

nothing more than his skin color, hairstyle, and hat -- descriptive features

that could fit any number of young men in the area where the stop occurred and

did not rise to the level of reasonable suspicion that the defendant was the

same man seen on video surveillance footage almost two weeks before. Because the Commonwealth failed to produce

evidence demonstrating that the officers' decision was based on anything more,

and because in my view the majority draws unwarranted inferences to compensate

for this absence of proof, I respectfully dissent from part 2 of the plurality's

opinion.

As we must accept the motion judge's

subsidiary findings of fact, unless clearly erroneous, and then "make an

independent determination whether the judge properly applied constitutional

principles to the facts as found," Commonwealth v. Robinson-Van Rader, 492

Mass. 1 , 9 (2023), quoting Commonwealth v. Lyles, 453 Mass. 811, 814 (2009), I

begin with the motion judge's brief written findings.

On January 2, 2021, after the victim

"described his assailant as a man, 6'1" tall, wearing black clothing,

a camouflage mask and who spoke with a southern accent," Boston Police

Detective Allison Eng and Boston Housing Authority Police Sergeant Shannon

O'Donnell reviewed surveillance footage from the Mildred C. Hailey Apartment

complex[1] and determined "that the suspect was a dark-skinned male with

dreadlocks, a coat, sneakers, and a hat with a logo on the front." On surveillance footage from the next day,

January 3, "the same suspect was seen without a mask and was wearing a

distinctive chain around his neck."

On January 14, O'Donnell "observed the same suspect in the parking

lot" while monitoring the live feed from the apartment complex's

surveillance cameras. When Eng arrived

on the scene, she saw the defendant.

"Eng believed that this individual was the suspect from the robbery

and surveillance footage." He

"had the same hat, complexion and hairstyle as the suspect observed

earlier."

Because O'Donnell did not testify at the

hearing on the motion to suppress, the finding that O'Donnell "observed

the same suspect in the parking lot" was based on Eng's testimony and one

exhibit -- a text message that O'Donnell sent to Eng stating, "Your guy is

back," along with a still image from the surveillance cameras. Eng testified that she decided to return to

the apartment complex to investigate "[b]ased on the conversation [she]

had with Officer O'Donnell and you can clearly see in that still photo the hat

and the hairstyle of the suspect."

Nowhere in her testimony did Eng describe O'Donnell's basis for her

belief that the defendant in the parking lot was the suspect from the January 2

and 3 video footage. Nor did the motion

judge make any findings concerning the basis of O'Donnell's belief -- he merely

repeated Eng's testimony that O'Donnell told Eng that she "observed the

same suspect." And the judge made

no finding that the defendant's hat and hairstyle were "clearly

visible," or visible at all, in the still image from the video footage. Such a finding would have been clearly

erroneous. See Commonwealth v. Yusuf,

488 Mass. 379 , 385 (2021) (appellate court in same position as motion judge to

review documentary evidence such as video recording).

According to the motion judge's findings,

Eng decided to stop and question the defendant based on his "hat,

complexion and hairstyle" -- and O'Donnell's word. The defendant was not wearing the same coat

or sneakers that the suspect had been wearing on January 2 and 3. The officers did not see the distinctive

chain from January 3, nor did they hear a southern accent. Eng did not testify, and the judge did not

find, that she recognized the defendant based on the suspect's facial features

that she had observed while studying the January 2 video footage (in which, of

course, the suspect was masked) or from viewing the January 3 footage. Although Eng made a brief, vague reference to

the defendant's "size" during her testimony, she did not state, nor

did the judge find, that the defendant's height, weight, or build were similar

to that of the suspect. The judge

concluded that reasonable suspicion was established based on the defendant's

flight in combination with "all the other evidence set forth above

identifying the defendant with distinctive details," but it is our duty to

make an independent determination whether these details were sufficiently

distinctive to satisfy the constitutional standard.

The constitutional issues here are

"whether, when viewed objectively, there were specific articulable facts

and inferences that linked the defendant back to the point of origin of the

commission of the crimes" twelve days earlier, Commonwealth v. Doocey, 56

Mass. App. Ct. 550, 554 (2002), and whether the description of the suspect

"had sufficient particularity that it was reasonable for the police to

suspect a person matching that description," Commonwealth v. Depina, 456

Mass. 238, 243 (2010). "To make an

investigatory stop based solely on a physical description, the description need

not be so particularized as to fit only a single person, but it cannot be so

general that it would include a large number of people in the area where the

stop occurs." Id. at 245-246 . See Commonwealth v. Privette, 491 Mass. 501 ,

519 (2023) ("We have cautioned that a match between a defendant's

appearance and a general description alone does not amount to reasonable

suspicion, particularly if that general description could fit a large number of

people in the area where the stop occurred"). A description of a Black male wearing dark

clothing and a red "hoodie" (hooded sweatshirt) in the Roxbury neighborhood

of Boston is not sufficient. See

Commonwealth v. Warren, 475 Mass. 530, 535-536 (2016). Nor is a description of "a young Black

man in a black hooded sweatshirt and blue jeans." Commonwealth v. D.M., 100 Mass. App. Ct. 211,

216 (2021). Likewise, "the

description of the suspect as a 'black male with a black 3/4 length goose[-down

jacket]'" was insufficient to provide reasonable suspicion because it

"could have fit a large number of men who reside in the Grove Hall section

of Roxbury, a predominantly black neighborhood of the city." Commonwealth v. Cheek, 413 Mass. 492, 496

(1992).

The description of the suspect in this

case as "a dark-skinned male" did not distinguish him from many Black

men, or dark-skinned Latino men for that matter, who might be found in the

neighborhood of the Hailey apartment complex in the Jamaica Plain section of

Boston.[2] The suspect's hairstyle,

which Eng described as "long dreadlock" based on the January 2

surveillance footage, likewise was not a distinguishing characteristic. See Commonwealth v. Davis, 487 Mass. 448 , 469

(2021), S.C., 491 Mass. 1011 (2023) ("All one can see is that the shooter

is a Black man with long hair in braids or dreadlocks that extend down to his

midback. As amici point out, braided

hairstyles are not uncommon among Black people" [footnote omitted]).[3] And while a suspect's hat might be helpful to

identify him in a showup identification procedure conducted promptly after a

crime, see Commonwealth v. Meas, 467 Mass. 434, 443 , cert. denied, 574 U.S. 858

(2014), the police could not reasonably identify the generally described

robbery suspect, twelve days later, by his black and white checkered baseball

hat with an unidentified logo and metallic tag.[4] Hats "are easily worn, taken off,

changed, or discarded." Privette,

491 Mass. at 520. Indeed, the suspect as

seen on the surveillance footage on January 2 was wearing a different hat from

the suspect as seen on the January 3 footage.

As to the fact that the defendant fled

immediately after seven police officers converged on him,[5] it was not a

reasonable inference that he fled because he thought the officers suspected him

of the robbery and shooting incident twelve days earlier. In other words, his flight did not

demonstrate consciousness of guilt related to the suspected crime and,

therefore, did not contribute to the officers' reasonable suspicion that the

defendant had committed that crime.

"[E]vasive 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." Warren, 475 Mass. at 538 . See id. at 539-540 (given documented pattern

that Black men in Boston are disproportionately subjects of police-civilian

encounters, evidence of flight carries diminished probative value).

As discussed above, Eng's testimony did

not suggest that she recognized the defendant in the parking lot based on

features of the suspect she had observed in the surveillance video footage,

other than the hat, hairstyle, and skin color.

Which brings us to Eng's reliance on O'Donnell's belief that the

defendant, observed by O'Donnell while watching live surveillance feed, was the

same person as the suspect. Because

O'Donnell did not testify, and Eng's testimony relayed only O'Donnell's belief,

but not the basis for that belief, the record is devoid of evidence supporting

O'Donnell's representation to Eng that she observed "the same

suspect" in the parking lot.

Although the collective knowledge doctrine was not raised at the

suppression hearing or in the parties' briefs on appeal, I do not doubt that

Eng and O'Donnell's working relationship was sufficient to establish

"horizontal collective knowledge," such that O'Donnell's knowledge

can be aggregated with Eng's for the purpose of determining reasonable

suspicion. See Privette, 491 Mass. at

513-514. The collective knowledge

doctrine, however, does not relieve the Commonwealth of its burden to produce

evidence of the specific, articulable facts known to O'Donnell that could be

added to Eng's knowledge. For example,

in Privette, the court concluded that the knowledge of one officer involved in

an armed robbery investigation could be imputed to the arresting officer, but

in defending the motion to suppress, both officers testified. See id. at 504, 518-519. Likewise, an officer from one police

department may stop a named suspect based on a bulletin issued by another

department, but to defend the stop in a suppression hearing, the government

must present evidence of the specific and articulable facts underlying the

bulletin that provided reasonable suspicion to stop the suspect. See United States v. Hensley, 469 U.S. 221,

232-235 (1985). See also Cheek, 413

Mass. at 494-495 ("Where the police rely on a police radio call to conduct

an investigatory stop, under both Federal and State law, the Commonwealth must

present evidence at the hearing on the motion to suppress on the factual basis

for the police radio call in order to establish its indicia of reliability").

It was the Commonwealth's responsibility

to substantiate the basis for stopping the defendant; it is not the

responsibility of an appellate court to compensate the deficiencies in the

Commonwealth's proof. In my view, the

plurality errs by accepting Eng's reliance on O'Donnell's conclusion that the

defendant was the same person as the suspect she viewed on the video footage,

without any evidence of the specific, articulable factors that led O'Donnell to

that conclusion. "A court may not

simply rely on a police officer's conclusory assertions in deciding whether a

search or seizure was justified under the Fourth Amendment, but rather must

evaluate the facts underlying those assertions" (citation omitted). Milline v. United States, 856 A.2d 616, 619

(D.C. 2004). "[T]o do so the

[court] must be 'apprised of sufficient facts to enable [it] to evaluate the

nature and reliability of that information.'" Id., quoting In re T.L.L., 729 A.2d 334 , 341

(D.C. 1999). While it may have been

"poor police work indeed" for Eng not to follow up on O'Donnell's

lead, see ante at , without evidence

of the facts underlying that lead, we are left with a seizure based only on

skin color, a common hairstyle, and a hat.

For the sake of completeness, other

factors that sometimes figure into the reasonable suspicion calculus, such as

"temporal and physical proximity," Privette, 491 Mass. at 519, can be

ruled out. "Proximity is accorded

greater probative value in the reasonable suspicion calculus when the distance

is short and the timing is close."

Warren, 475 Mass. at 536 . Thus,

where a defendant was found in the reported path of flight from the robbery

scene seven minutes after the robbery was reported, "the timing and the

location of the stop in relation to the armed robbery . . . weigh[ed]

in favor of a finding of reasonable suspicion." Privette, supra at 520. Accord Doocey, 56 Mass. App. Ct. at 558

(general description enhanced by defendant's close physical proximity to crime

scene, within moments of shots having been fired, where "defendant was the

only person present in the very narrow zone where the suspect was seen headed

and would probably be found").

Here, although the defendant was present near the crime scene, his

presence did not contribute to reasonable suspicion that he had committed a

crime twelve days earlier.

Finally, as to "[t]he gravity of the

crime and the present danger of the circumstances," Depina, 456 Mass. at

247 , although the police were investigating a robbery and the discharge of a

gun, nothing in the circumstances of the gathering in the parking lot twelve

days later suggested that a potentially violent crime was in progress, that the

defendant was armed, or that any other threat of danger to the community was

afoot. Compare Doocey, 56 Mass. App. Ct.

at 557 (where possession of gun "presents an imminent threat because of

shots just fired, or likely to be fired . . . there is an edge added

to the [reasonable suspicion] calculus"), with D.M., 100 Mass. App. Ct. at

218-219 (reasonable suspicion not enhanced where defendant's conduct did not

suggest he was concealing gun).

Because the Commonwealth failed to

demonstrate that the police had reasonable suspicion to stop the defendant, the

defendant's motion to suppress should have been allowed, and his judgment of

conviction should be vacated.

SHIN, J. (dissenting in part, with whom

Rubin, Massing, Henry, Desmond, Sacks, D'Angelo, Smyth, Toone, Tan, and Wood,

JJ., join). I join Justice Massing's

dissenting opinion in full. I write

separately to underscore that the problem here lies not with the officers who

made the stop but with the prosecution's failure, in response to the

defendant's motion to suppress, to substantiate the basis of Sergeant Shannon

O'Donnell's information that the defendant was the suspected robber, which was

the underpinning of the stop. Thus, the

notion that it would have been "poor police work" for the officers

not to investigate the defendant based on O'Donnell's report only serves to

obscure the real issue in the case.

It is settled law that officers may

conduct a stop based on information possessed by another officer so long as

their reliance on that information is objectively reasonable. See United States v. Hensley, 469 U.S. 221,

232-233 (1985); Commonwealth v. Privette, 491 Mass. 501 , 508-509 (2023). "Variously called the 'collective

knowledge' or 'fellow officer' rule, this doctrine recognizes the practical

reality that 'effective law enforcement cannot be conducted unless police

officers can act on directions and information transmitted by one officer to

another.'" United States v. Lyons,

687 F.3d 754, 766 (6th Cir. 2012), quoting Hensley, supra at 231 . In this case I accept that it was objectively

reasonable for Detective Allison Eng and the other seizing officers to credit

the information provided by O'Donnell that the defendant was the robbery

suspect. I therefore further accept that

the seizing officers were entitled to rely on that information in making the stop.

It is equally settled law, however, that

once a defendant is then charged and moves to suppress evidence obtained from

the stop, the government must prove not just objectively reasonable reliance by

the seizing officers, but also that the information underlying the stop was

based on reasonable suspicion that the defendant committed a crime. See Hensley, 469 U.S. at 232 ; Commonwealth v.

Cheek, 413 Mass. 492, 494-495 (1992).

See also Lyons, 687 F.3d at 766 (principles governing collective

knowledge apply "[w]hether [information is] conveyed by police bulletin or

dispatch, direct communication or indirect communication"). This rule does not hinder the officers'

ability to make the stop but, once the matter is in court, puts the burden on

the prosecution to "substantiate the basis of the [underlying]

information" when faced with a motion to suppress. United States v. Alvarez, 40 F.4th 339, 352

(5th Cir. 2022). Were the rule

otherwise, it "could enable an officer to 'bring about a lawful stop by

the simple expedient of passing [information] on to another

officer.'" Jenkins v. United

States, 152 A.3d 585 , 590 (D.C. 2017), quoting 4 W.R. LeFave, Search and

Seizure § 9.5(j) (5th ed. 2012). To

illustrate, had O'Donnell made the stop herself, the Commonwealth would of

course need to prove she had reasonable suspicion that the defendant was the

suspect she saw in the video footage from eleven and twelve days earlier and

could not rely merely on her say-so that the "guy" came

"back." That O'Donnell instead

communicated her suspicion to another officer does not lower the Commonwealth's

burden. See Commonwealth v. Keene, 89

Mass. App. Ct. 902, 903-904 (2016) (although Boston police stopped defendant in

reasonable reliance on radio report from Stoughton police describing car

occupied by armed and dangerous suspects, stop violated Fourth Amendment

because Stoughton police lacked reasonable suspicion that defendant or other

occupant committed shooting).

At the suppression hearing, the

Commonwealth offered three pieces of evidence relevant to O'Donnell's suspicion

that the defendant was the robber:

(1) the January 2 video footage, which showed the suspect

wearing a mask, a coat and shoes with distinct markings, and a black and white

checkered hat; (2) a screenshot from the January 3 video footage (but

not the video itself), which showed an unmasked man wearing a similar coat and

shoes but a different hat; and (3) a screenshot from the January 14

video footage (but not the video itself), which showed the defendant in profile

-- his facial features and shoes not visible -- wearing a similar hat to the

one in the January 2 video footage, but a different coat. None of this evidence adds to the information

already known to Eng, as she had watched the January 2 video footage and seen

the screenshots from January 3 and 14 before making the stop. Consequently, there is no basis in the record

to conclude that O'Donnell had any additional knowledge supporting reasonable

suspicion that could be imputed to Eng or, alternatively, that could be pooled

with Eng's existing knowledge to meet the reasonable suspicion threshold. See Privette, 491 Mass. at 514-515. And indeed, the Commonwealth never even

raised such a claim, either to the judge or on appeal.

Thus, in the end, this case comes down to

the question whether Eng herself had reasonable suspicion that the defendant

was the robber. See Lyons, 687 F.3d at

766 ("if an investigating officer lacked sufficient information to satisfy

the reasonable suspicion requirement, and the [responding officer's] subsequent

observations did not produce reasonable suspicion, then the stop violates the

Fourth Amendment" [quotation and citation omitted]). That question in turn comes down to whether

the Commonwealth proved that the defendant's hairstyle and the hat he was

wearing were distinctive enough to distinguish him from other dark-skinned men

in the neighborhood given the twelve-day lapse in time between the reported

robbery and the stop. For the reasons

well stated by Justice Massing, the Commonwealth did not meet that burden, and

so the motion to suppress should have been allowed.

footnotes

[1] This case

initially was heard by a panel comprised of Justices Massing, Hershfang, and

Tan. After circulation of a majority and

dissenting opinion to the other justices of the Appeals Court, the justices

decided to all participate in deciding the case after reviewing the briefs and

record and listening to the recording of the oral argument. See G. L. c. 211A, § 11. Justice Allen did not participate in the

deliberation on this case.

[2] Chief Justice

Blake and Justices Vuono, Rubin, Massing, Henry, Desmond, Sacks, Shin, Hand,

Grant, Walsh, Hershfang, Brennan, D'Angelo, Smyth, Toone, Tan, and Wood.

[3] Justices

Meade, Neyman, Ditkoff, Singh, Englander, and Hodgens.

[4] Chief Justice

Blake and Justices Vuono, Meade, Neyman, Ditkoff, Singh, Englander, Hand,

Grant, Walsh, Hershfang, Brennan, and Hodgens.

[5] All except

for Justice Ditkoff.

[6] Justices

Rubin, Massing, Henry, Desmond, Sacks, Shin, D'Angelo, Smyth, Toone, Tan, and

Wood.

[7] O'Donnell

"believed that he was involved in drug transactions"; for reasons

discussed below, this suspicion plays no role in our analysis.

[8] The Commonwealth

wisely did not argue that O'Donnell's observations of the defendant's purported

involvement in drug transactions, standing alone, provided reasonable suspicion

to stop the defendant. "It is not

necessary in cases such as this that the police officer observe an exchange of

items or actually see drugs or cash, but it is necessary that the observations

by the police occur in a factual context that points to criminal

activity." Commonwealth v. Kearse,

97 Mass. App. Ct. 297 , 302 (2020). The

Commonwealth's presentation at the suppression hearing was inadequate to

provide specific, articulable facts to justify stopping the defendant for

buying or selling drugs. See

Commonwealth v. Lyons, 409 Mass. 16, 19 (1990).

[9] O'Donnell

also sent a text message to Eng on January 14 stating, "Your guy is

back" and attached a "still shot" of the suspect. Although the still photograph did not show

the person's face, there was no dispute that the man depicted in that still

photograph and on the video feed from January 14 was the same person police

approached and ultimately arrested -- that is, the defendant.

footnotes for concurring

[1] Furthermore,

I concur because I agree with the majority that, even if the seizure occurred

at the moment that the police officers began running after the defendant, the

police had reasonable suspicion to stop the defendant at that point.

[2] Under the

Fourth Amendment to the United States Constitution, a seizure does not occur

until a person acquiesces to a show of authority or is physically seized. California v. Hodari D., 499 U.S. 621,

624-626 (1991). As the United States

Supreme Court explained, "[s]treet pursuits always place the public at

some risk, and compliance with police orders to stop should therefore be

encouraged." Id. at 627 .

[3] I acknowledge

that there are cases, issued before Matta and Franklin clarified the law, that

state that mere pursuit constitutes a seizure.

See, e.g., Commonwealth v. Sykes, 449 Mass. 308, 314 (2007);

Commonwealth v. Webster, 75 Mass. App. Ct. 247, 253 (2009).

footnotes for dissenting

[1] The officers

referred to the apartment complex as the "Bromley Heath Projects" at

the suppression hearing, but it has been renamed for longtime tenant

organization executive director and civil rights activist Mildred C.

Hailey. See Commonwealth v.

Karen K., 99 Mass. App. Ct. 216 , 217 n.2 (2021), S.C., 491 Mass. 165

(2023).

[2] I have

reviewed the surveillance video footage and photographs in evidence. The suspect appears to be a dark-skinned

Black man in some images, and he appears to be a medium- or light-skinned Black

man in others. Indeed, I question

whether the suspect seen on January 2 is the same person seen on January 3 -‑

there is little resemblance, other than the jacket and sneakers, and the fact

that both men are Black. The suspect was

wearing a different hat on January 3, as Eng acknowledged in her

testimony. I concede, however, that the

motion judge's finding that the suspect in the video footage on January 2 was

"the same suspect" as the man in the video footage on January 3 is

not clearly erroneous.

[3] Moreover,

based on the evidence in the record, it is a mystery how Eng could discern the

defendant's hairstyle on January 14. In

the screenshot that O'Donnell sent Eng that day, and in the body camera footage

of the pursuit and arrest, the defendant's hair is hidden by his hat and the

raised hood of his jacket.

[4] Eng testified

that "it's common for people to keep [the metallic tag] on the hat even

after they purchase it and wear it with the reflective logo on the brim of the

hat." Only after the defendant was

arrested did the officers learn that the hat had the logo of the Brooklyn Nets

basketball team.

[5] I join in

part 1 of the majority's opinion.

Speaking for myself and some, but not all, of the Justices joining in

this dissent, I would go further and hold that the approach from one direction

of three plainclothes detectives, recognizable as such, with four uniformed

officers approaching from the other direction, and with a police wagon visibly

parked in the middle of the parking lot, was a sufficient show of force to

amount to a stop. Considering the

approach of the seven officers to be the seizure, the defendant's flight should

not be considered at all. In any event,

his flight adds nothing significant to the reasonable suspicion calculus.