Massachusetts State House.
Boston Bar Journal

Commonwealth v. Sweeting-Bailey

August 04, 2022
| Summer 2022 Vol. 66 #3

By:  Rebecca Kiley

In Commonwealth v. Sweeting-Bailey, 488 Mass. 741 (2021), a fractured Supreme Judicial Court considered whether the patfrisk of a passenger of a car, following a “routine” traffic stop, could be justified not by his behavior, which by all accounts was perfectly compliant, but by the conduct of another passenger. In a total of five opinions, four justices concluded that it could; the chief justice and two others dissented. Criticism of the majority opinion was unusual and intense, with several retired judges—including two former SJC justices—calling the decision a retreat from the Court’s commitment to combating racism in our criminal legal system.


Zahkuan Bailey-Sweeting[1] was one of four people riding in a car stopped by New Bedford police for an improper lane change. Another passenger, Raekwan Paris got out and “angrily” confronted officers about the reason for the stop, suggesting it was harassment. Officers knew Paris from prior encounters, and testified that his demeanor was a departure from his previously calm and cordial conduct. After a ninety-second interaction during which Paris refused to get back in the car, police handcuffed and pat frisked him (finding no weapons), then ordered the remaining occupants out of the car and pat frisked them as well. A gun was found in Bailey-Sweeting’s waistband. After a judge of the Bristol County Superior Court denied his motion to suppress, Bailey-Sweeting entered a conditional guilty plea on two firearms charges. His case reached the SJC on further appellate review, after an expanded panel of the Appeals Court affirmed the order denying the motion to suppress on a 3-2 vote.

The Opinion

Justice Cypher delivered the majority opinion of the Court. Acknowledging that the case was “close,” the majority relied on four factors to conclude that there was a reasonable suspicion that Bailey-Sweeting was armed and dangerous.

First, and most critically, the majority agreed with the motion judge’s conclusion that officers could reasonably infer, based on his “erratic, uncharacteristic behavior,” that Paris was attempting to create a diversion to re-direct attention away from the car. Id. at 748-50, 755. The Court distinguished its recent conclusion in Commonwealth v. Torres-Pagan, 484 Mass. 34, 40 (2020) that “surprising behavior” does not supply reasonable suspicion that a person is armed and dangerous, on the basis that “Paris’s behavior was not just surprising, it was aggressive.” Id. at 750 n. 8.

Three other factors were given less weight but considered in the majority’s calculus. First, the three male passengers in the car had “prior involvement with firearms.” Id. at 755. The Court acknowledged that Bailey-Sweeting’s three-year-old juvenile gun adjudication was “relatively remote in time” but concluded that it was relevant because “it involve[d] an offense close to the conduct at issue.” Id. at 752.

Next, the Court considered testimony that the three men in the car were known to the police as members of three different gangs, though it cautioned that such evidence is less meaningful where, as here, there was no evidence of gang-related violence or other crime and no link between gang activity and Paris’s purported efforts to distract the officers. Id. Finally, the Court relied on evidence “that the stop occurred in a high crime area”— which the Court did not detail, other than to note that Paris’s prior gun arrest took place a half-mile away—but noted that this factor “contributes minimally.” Id. at 752-53.

Concurrence by Justice Lowy

Justice Lowy concurred to record his agreement with the dissenters regarding the important issues of racial disparities in traffic stops and gang databases, and to emphasize that his disagreement with the dissents centered on “whether the inference that Raekwan Paris was attempting to divert attention from the car was reasonable.” Id. at 756 (Lowy, J., concurring). His concurrence collects several federal cases supporting the idea that one passenger’s behavior may reflect on another’s, and that the officers “were entitled to rely on their training and familiarity with Paris in drawing” an adverse inference against Bailey-Sweeting based on Paris’s behavior. Id. at 756-57.

Concurrence by Justice Wendlandt

Justice Wendlandt also began her concurrence with an acknowledgment of the “stark and unacceptable” racial disparities in “who is stopped, who is pat frisked, and who is incarcerated.” Id. at 758 (Wendlandt, J., concurring). She asserted, however, that the Court’s opinion “neither solves systemic racism nor contributes to it,” emphasizing that “the defendant does not contend that the traffic stop at issue was motivated by racial profiling or discrimination.” Id. at 758. She then summarized the evidence in the case, crediting the officers’ belief that Paris was not “protesting continued harassment at the hands of police . . . [but] actively creating a distraction from the vehicle.” 759. She concluded that, together, additional evidence of gang affiliation and “high-crime area”—“while seemingly innocuous in isolation”—warranted a reasonable suspicion that Bailey-Sweeting was armed and dangerous. Id. at 760-61.

Dissent by Chief Justice Budd

Chief Justice Budd dissented from the majority opinion, on two primary, interrelated grounds: (1) that no reasonable inference that Bailey-Sweeting was armed and dangerous could be drawn from Paris’s conduct; and (2) that the Court’s deference to police on that issue “provides the space into which seeps the damaging influence of racial bias.” Id. at 770 (Budd, C.J., dissenting).

Focusing on the inferences left implicit in the majority opinion, Chief Justice Budd observed that police first inferred that Paris’ conduct was an attempt to distract them, next that he sought to do so because there was contraband in the vehicle, then that the contraband was a weapon, and finally that the weapon might be on the defendant. Id. at 763. This chain of inferences, she concluded, was both “grounded in pure speculation,” id, and “unlike any that we have previously accepted as objectively reasonable support for an officer’s suspicion that a suspect is armed.” Id. at 768. She emphasized that no officer testified to any training that informed the inference. Id. at 763. And she reasoned that past experience with Paris could not provide a basis for the inferences, as he had been cooperative and cordial even on the occasion on which police had recovered a firearm. Id. at 763-64.

Chief Justice Budd disagreed with the majority that common sense permitted an inference that Paris’s conduct was a ruse, citing “the alternative, straightforward explanation that Paris contemporaneously provided for this behavior: his belief that the police were harassing him and that the stop was unfair.” Id. at 764. That belief, in Chief Justice Budd’s view, is “readily comprehensible” in view of well-documented racial disparities in traffic stops. Id. “To conclude that the commonsense judgment here was that Paris was feigning frustration at being stopped as a tactical maneuver to distract the officers from hidden contraband is to not only ignore the reality of race-based policing, but also perpetuate it.” Id. at 764-65.

Chief Justice Budd concluded her dissent by “emphasiz[ing] the adverse implications of today’s decision for communities of color.” Id. at 769. She noted that people of color are disproportionately likely to be searched by police, primarily because of “neutral rules of deference that affirm the decision of racially biased actors.” Id. at 770. She warned that by making it easier for police to act on “ungrounded intuitions that people are dangerous,” the majority opinion “increases the risk that people of color will be subjected disproportionately to unjustified patfrisks.” Id.

Dissent by J. Gaziano

Justice Gaziano also dissented, joined by Justice Georges. His primary criticism was that the majority opinion was contrary to the constitutional requirement of “particularized and individual” suspicion. Id. at 771 (Gaziano, J., dissenting). Like Chief Justice Budd, he regarded the inference that Paris was trying to distract police from the car as a mere hunch, and wrote that even if credited, “the court makes an unjustified leap from [that inference] to the belief that the defendant was armed and dangerous.” Id. at 772-73. Given the requirement of “particularized and individual” suspicion, Justice Gaziano focused on Bailey-Sweeting’s “own actions,” none of which “gave rise to a reasonable suspicion that he was armed and dangerous.” Like the driver and the other rear seat passenger, he obeyed instructions, was quiet and polite, and made no movement suggesting he was in possession of a firearm. Id. at 776.

Justice Gaziano regarded the gang evidence in this case as minimally relevant, considering the absence of evidence (a fact conceded by the majority) of recent gang violence, investigation of gang related crime, or any link between Paris’ purported attempt to distract officers and gang activity. Id. at 777-78. Echoing the concern of Chief Justice Budd for the majority’s “disregard[] [for] the adverse impact its decision will have on individuals and communities of color,” he also highlighted the “unfortunate reality that gang membership may serve as a pretext for racial bias.” Id. at 778. In Justice Gaziano’s view, once Paris was handcuffed, the officers should have “return[ed] to the purpose of the traffic stop –the abrupt lane change – and proceed[ed] accordingly.” Id.


The majority opinion drew highly unusual criticism. A group of retired Black state court judges, including former SJC Justice Geraldine Hines, wrote publicly to decry the Court’s decision as “stunningly oblivious to the necessary and proper role of our courts in mitigating the undue influence of race in our criminal jurisprudence.” Dortch-Okara, et al., Massachusetts Lawyers Weekly (Jan. 24, 2022). A second retired SJC justice, Barbara Lenk, specifically quoted that language in her own public letter questioning whether the Court was living up to the commitment it made to racial justice in a landmark June 2020 letter to the bar and judiciary. Lenk, Massachusetts Lawyers Weekly (Feb. 7, 2022). Deborah Ramirez, wife of the late Chief Justice Ralph Gants and a law professor at Northeastern, published an opinion piece about the decision—coauthored by Harvard professor Sandra Susan Smith—under the headline “SJC takes big step backward on racial justice: Decision improperly expands police discretion in traffic stops.” Commonwealth Magazine (Feb. 12, 2022). And the Boston Globe’s editorial board cautioned the Court that “[o]ne hunch proven right should not open the floodgates for police encounters based on racial bias.” Boston Globe (Jan. 3, 2022).


How broad the sweep of the Sweeting-Bailey case will be remains to be seen. The majority took pains to note that the opinion “does not stand for the proposition that every occupant of a vehicle may be pat frisked after a legal exit order based only on the conduct of a companion,” and implied that the patfrisk of the driver, unknown to police, would not have survived constitutional scrutiny. Sweeting-Bailey, 488 Mass. at 755 & n.10. But Chief Justice Budd warned that the decision would “greatly . . . expand[] the circumstances in which officers may conduct a patfrisk.” Id. at 769 (Budd, C.J., dissenting).

One thing is certain: the Court will see continued challenges to the use of gang database evidence to establish reasonable suspicion. In particular, the reliability of such evidence, paid relatively little attention in this case, is likely to be further litigated, especially in light of a First Circuit opinion issued just weeks after Sweeting-Bailey which held that the Boston Police “gang assessment database” is so flawed that it did not provide “reasonable, substantial, and probative evidence of gang membership or association” on which an immigration judge could properly rely to deny an asylum claim. Diaz Ortiz v. Garland, 23 F.4th 1, 22 (1st Cir. 2022) (citations omitted).

Rebecca Kiley is the Attorney-in-Charge of the Public Defender Division Appeals Unit of the Committee for Public Counsel Services.  CPCS signed on to an amicus brief filed with the Supreme Judicial Court on behalf of Mr. Bailey-Sweeting.

[1] As is its custom, the SJC captioned the case in accordance with the way the defendant’s name appears in the indictments against him. Id. at 741 n.1. This article uses his correct name, which is Zahkuan Bailey-Sweeting.

Rebecca Kiley is the Attorney-in-Charge of the Public Defender Division Appeals Unit of the Committee for Public Counsel Services.  CPCS signed on to an amicus brief filed with the Supreme Judicial Court on behalf of Mr. Bailey-Sweeting.