Many cities across the country use unreliable measures to justify racially motivated, unconstitutional, stops and searches disguised as a traffic stop. In Commonwealth v. Bailey-Sweeting, the Supreme Judicial Court has the opportunity to make one of these incidents right.

Despite the Black population of New Bedford making up just 7% of the city’s population, Black people accounted for 46% of those subjected to police field incidents since 2020. New Bedford has cracked down on suspected gang activity in recent years, and the racial disparities appear here as well. Nearly 1 in 10 Black males living in New Bedford are labeled as verified gang members by the city.

What happened in the Bailey-Sweeting case?

On February 26th, 2018, New Bedford Police Detective Kubik and his partners had been assigned to the gang unit for two years. Kubik and his partners were riding in an unmarked police car when they observed a vehicle in front of them change lanes suddenly, causing another vehicle to slam on its brakes. Kubik and his team pulled over this vehicle for an unsafe lane change. Bailey-Sweeting was the backseat passenger in the vehicle. All four passengers of the vehicle were pulled out of the vehicle and subjected to a patfrisk. Nothing about this stop suggested that Bailey-Sweeting was armed and dangerous; it was a routine traffic stop. He complied and did nothing to raise suspicion. Bailey-Sweeting complied, and police found a firearm in his waistband.

In order to constitutionally conduct a patfrisk, an officer must have reasonable suspicion that an individual is both armed and dangerous, based on specific articulable facts. However, this was not the case in Bailey-Sweeting. From the officer’s own account, Bailey-Sweeting was sitting quietly in the car. He did exactly what was expected of him; he sat quietly and obeyed orders. Nonetheless, he was patfrisked based not on his own actions but the actions of the front seat passenger, Mr. Raekwan Paris.

Paris had previously been involved in an incident where a firearm was pointed at people from a vehicle. Paris was subsequently charged and convicted for having a firearm in his car. The prior firearm incident led the police to label Paris as a member of the United Front gang.

All of the officers had numerous encounters with Paris previously and profiled the entire car based on Paris’s reputation. In fact, although police were familiar with Paris, they pulled him out of the car on this particular occasion because he was uncharacteristically hostile and combative with officers. All three officers admitted that, but for the conduct of  Paris, they would not have ordered anyone else out of the car. However, a patfrisk of one person cannot be upheld based entirely on suspicion about another.

Lower court’s findings

Bailey-Sweeting filed a motion to dismiss, and the lower court denied this motion based on various factors. These included fact that this stop happened when it was dark out and in a high-crime area. Mr. Paris’s unusual behavior was also a factor, as police believed that he was hiding something. Additionally, police knew that the other backseat passenger, Carlos Cortes, had posted a rap music video with a firearm. Police were also aware that Bailey-Sweeting was involved in gang activity, and he had been charged as a juvenile for possession of a firearm. However, what the judge did not find – and what is key to a search – is that the officers had a reasonable belief that Bailey-Sweeting was armed and dangerous. This is the standard for a patfrisk, and the evidence does not show that this was the case. All other surrounding circumstances are irrelevant if the officers did not reasonably conclude that Bailey-Sweeting was armed and dangerous. The officers used stereotypes, past experience, and Mr. Paris’s uncharacteristic behavior to justify the patfrisk, but these factors alone are not sufficient to stop and search a person who is sitting quietly in the backseat of a vehicle.

Further, the heavy reliance on gang affiliation is inappropriate. Data from the New Bedford police department strongly suggest that the gang categorization process is highly discretionary, arbitrary, and heavily influenced by race. There was no evidence that Mr. Paris ever committed acts of violence or crimes as a gang affiliate, and certainly not with Baily-Sweeting. There was e was no evidence that Bailey-Sweeting had ever committed any crime, violent or otherwise, in conjunction with that gang. The only evidence that police had for labeling him as a gang member were photos where Baily-Sweeting was wearing a red bandana and demonstrating hand gestures.  As for Cortes, there was no evidence he ever committed any acts of violence or that he ever committed a crime. The evidence for any gang affiliation among these men was minuscule; however, the lower court relied on this “evidence” heavily.

Hopefully, the Supreme Judicial Court will reverse this case based on the insufficient evidence presented to justify a patfrisk. Subjecting a person to a patfrisk without evidence is unconstitutional. The Constitution requires objective evidentiary justification, none of which was found here.

For more information on cases pending before the Massachusetts Supreme Judicial Court, follow Attorney DelSignore on Facebook.