When people hear that I am a criminal defense attorney, they often have questions for me.  Whether or not to take a breath test if arrested for OUI is a common question.  Another one, alas, is how I can represent “those people.”  The first question is tough to answer; the second question is easy.  But another common question that I get is whether a person must consent to speak with the police if requested to do so.

Generally speaking, a citizen has no duty to speak to the police, and may simply “keep walking” when the police ask to speak with them.  However, it is settled law that “flight” or evasive conduct by an individual is one factor that may be considered by the police in forming “reasonable suspicion” that a crime has been committed, is being committed, or is about to be committed by that individual.  If the police have such reasonable suspicion, then they may legally stop (seize) a person for investigatory purposes.  This is often referred to as a “Terry stop,” after the U.S. Supreme Court case of Terry v. Ohio (1968).  But how much weight should be given to the fact that a person refuses to stop and speak to the police when asked to do so?

In the much talked about recent case of Commonwealth v. Warren (2016), the Supreme Judicial Court of Massachusetts considered this issue, and reaffirmed the principle that “[a] person . . . may choose to walk away, avoiding altogether any contact with police.”  Moreover, the Court seemingly expanded on this principle by adding that “[u]nless 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.”  Yet, the Court also recognized that, pursuant to Massachusetts case law, “flight is relevant to the reasonable suspicion analysis in appropriate circumstances[.]”

These are somewhat contradictory pronouncements, which are reconciled to a degree by the Court’s holding that “[w]here a suspect is under no obligation to respond to a police officer’s inquiry, . . . flight to avoid that contact should be given little, if any, weight as a factor probative of reasonable suspicion.”

In the part of the decision that received most of the media attention, the SJC referenced “the findings in a recent Boston Police Department . . . report documenting a pattern of racial profiling of black males in the city of Boston.”  According to the study, 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.  In light of this reality, and recognizing that black men in Boston, 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,” the SJC held that “a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.”

The case would seem to suggest that if there are no other factors giving rise to reasonable suspicion, then flight (or refusal to stop and speak with the police) alone probably does not give rise to reasonable suspicion. But if there are other factors, e.g., matching a physical description of the perpetrator, being near the scene of the crime, being there near the time when the crime was committed, etc., then flight will be viewed as a factor in the reasonable suspicion calculus.  And if you are a black male in Boston, flight alone is highly unlikely to support a finding of reasonable suspicion that would justify a stop, i.e., a seizure, by the police.

Attorney Kevin D. Quinlan

The Law Offices of Kevin D. Quinlan

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384



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