BPD detectives did nothing wrong when they boarded a T bus in Mattapan in search of a stabbing and robbery suspect, court rules

The Massachusetts Appeals Court today cleared the way for a Mattapan man to face trial on charges he stabbed a woman in the leg and stole her purse in 2018, ruling that his arrest not long after by two Boston detectives who spotted the bus he was riding up Blue Hill Avenue was constitutional.

Detectives had swarmed Mattapan in September, 2018 after a series of knifepoint, nighttime robberies of women by a slight, Black guy. Two detectives were heading south on Blue Hill Avenue just after a new report of an armed robbery - in which the victim was stabbed - when they spotted a T bus stop near the Mattapan library on its way north. According to the court's summary of the case:

Earlier, in a video recorded immediately after a previous robbery, the detectives had seen the suspect trying to board a bus near the library. When they saw the bus, the detectives made a U-turn and "fell in" behind it; however, they did not turn on their unmarked vehicle's lights or sirens.The bus then pulled over at the bus stop at the intersection of Blue Hill Avenue and Morton Street. As the detectives passed it, Fogarty [one of the detectives] observed three individuals on board. One was a woman; one was a man, facing out into the street and he appeared to be approximately six feet,three inches or taller. The third individual was a Black male with a gray hood pulled over his head, sitting about three rows from the back of the bus. Fogarty testified that the individual generally matched the description of the suspect. "He matched the age description, as well as the complexion. He had a hood over his head, and he had the same physical stature. So, you know, that [five feet, seven inches, five feet, eight inches], slight build that we had seen in all the surveillance videos." Fogarty told Seoane [the other detective],"We have to look at him."

The second detective pulled up ahead of the bus, got out, joined his partner and, as soon as the man in the back of the bus took down his hood, realized he was the man in surveillance photos. After asking him if he had a knife - he did - the detectives asked him off the street and escorted him across the street - neither had handcuffs - to the B-3 police station for questioning.

Browning's lawyer argued the case should be dismissed because the detectives had no reason to "seize" the bus and then escort Browning off when they did, because as they were headed south on Blue Hill Avenue, there was no particular reason to know that a suspect in the armed robbery and stabbing was on it. And if the "seizure" was improper under the state's version of the Fourth Amendment, then all the evidence that resulted from it - in particular victim identifications of Browning from photo arrays - were illegal as well.

But the court ruled the bus had not, in fact, been "seized." The detectives never turned on their blue lights while following the bus, boarded it at a stop where passengers were waiting to get on and didn't prevent the bus driver from continuing on his route, the court said.

First, the officers did not in fact stop the bus. They were traveling in an unmarked vehicle,and they did not activate lights or sirens or otherwise indicate that the bus driver should pull over. Rather, the bus pulled into a designated bus stop as part of its scheduled route. Furthermore, there was no testimony, and the motion judge did not find, that the officers ever blocked the bus or otherwise prevented it from leaving.The record is clear that the officers briefly stopped near the front driver's side of the bus to let Fogarty out of the unmarked vehicle. Seoane then pulled a few "spots"ahead of the bus to park. ...

Second, the defendant was not seized in the constitutional sense after the detectives boarded the bus because the detectives did not "objectively communicate[]" their intention to "use ...police power to coerce [the defendant] to stay" on the bus. Matta, 483 Mass. at 362.

The court acknowledged that arrests that stem from encounters on a bus present possibly trickier issues than a similar encounter on the street, because a person on a bus may not feel as free to simply walk away, as is his right before he is formally detained, but said that the two detectives at that point did have probable cause to ask Browning to get off the bus:

At that point, it is clear that the officers had probable cause to arrest him. The motion judge so found,and the defendant does not argue otherwise. A robbery had taken place nearby, a very short time earlier; Seoane recognized the defendant from a video taken in the vicinity of an earlier, similar robbery; the defendant matched the physical description given of the robber in several prior incidents; and his backpack and sneakers matched those described in prior robberies and depicted on the surveillance videos. Finally, the defendant was leaving the area of the robbery on a bus, as the robbery suspect had attempted to do at least one time before.

Innocent, etc.