Whack-A-Mole Reasonable Suspicion

Given we know that young Black men are disproportionately surveilled, stopped, questioned, and searched by police, why do courts permit continued use of ambiguous and racialized descriptions of behavior to support the reasonable suspicion required for a stop or frisk? Because a court’s reasonable suspicion calculus often relies exclusively on one officer’s description of behavior, every phrase explaining how a person’s body position, movement, or behavior justified the police’s intervention is meaningful.

This Article examines police officers’ and deferential courts’ emerging reliance on the term “blading” or “blading away,” as a behavior supporting the reasonable suspicion constitutionally required for a stop and search. After conducting a comprehensive analysis of the term’s usage in state and federal courts over the past five years, the Article groups three contradictory categories of meaning. “Blading” describes the position made as a person walks away from, but turns to look at, an officer; but also, any body position generating suspicion that a person is carrying a concealed weapon; but also, a body position indicating that an individual is threatening or poised to attack an officer. The vague term “has become both unwieldy, lacking precision or a single definition, and tinged with loaded connotations.”[A1] “Blading” is racially applied, employed by police to boost their observations about movements with technical expertise and justify the warrantless stop or search being challenged.

The problematic use of “blading” to support reasonable suspicion emerges following sustained criticism of other nebulous terms, particularly “furtive movements,” “nervousness,” and “high-crime area.” This pattern illustrates the police’s evasion of scrutiny through their adoption of new tropes. Like the game of whack-a-mole,[A2] when one term used to find reasonable suspicion is sufficiently criticized, another appears, posing the same problems. I argue that impossibly vague terms like “blading” must be interrogated by judges each time the term is used. And because the reasonable suspicion doctrine shows an inexorable adaptability to preserve judicial deference to police testimony, replicate existing biases, and evade criticism, it must be radically reimagined.

Table of Contents Show

Introduction

Bryan Johnson’s “blading” was grounded in the arresting officer’s testimony that the way Mr. Johnson leaned into his center console to retrieve documents was not the way a driver “typically” would.[1] Relying on that testimony, the trial court concluded that during this traffic stop, a reasonable officer could interpret Mr. Johnson’s motion as an effort to conceal a weapon and conclude that Mr. Johnson was “armed and dangerous.”[2] The North Carolina Supreme Court deferred to this finding.[3]

Justice Anita Earls, in her vigorous dissent, identified the problem with relying on “blading”:

The sole question before this Court is whether, under “the totality of circumstances as viewed from the standpoint of an objectively reasonable police officer,” it would be reasonable for an officer “to believe that he [was] dealing with an armed and dangerous individual” after initiating a traffic stop of Bryan Xavier Johnson . . . [T]he majority converts a jumble of subjective, innocuous, or irrelevant facts into indicia of dangerousness. The result is a decision inconsistent with the Fourth Amendment and which fails to consider the racial dynamics underlying reasonable suspicion determinations.[4]

As is common in cases citing “blading,”[5] Mr. Johnson’s alleged “blading” was listed alongside factors that were independently insufficient to establish reasonable suspicion, required by the Fourth Amendment,[6] that he was armed and dangerous.[7] Aside from Mr. Johnson “blading his body” as he accessed the center console, the court found it was late at night, in a high-crime area, Mr. Johnson appeared “very nervous,” and had a criminal record, which was pulled after the traffic stop.[8]

Since the Supreme Court held, over twenty years ago, that presence in a high-crime area “is not enough to support a reasonable, particularized suspicion,”[9] lower courts have struggled to determine what is enough when added to that factor. To be sure, Mr. Johnson’s presence in a high-crime area at night was not particularized: it did not distinguish him from any other driver in that location. Justice Earl echoed scholars’ concern that relying on a person’s presence in a high-crime neighborhood late at night, are two factors over which Mr. Johnson had very little control. And permitting generalized factors in a reasonable suspicion analysis undermines the requirement of particularized reasonable suspicion, while subjecting racial minorities, particularly Black men, to invasive, unconstitutional searches.[10]

Having discounted Mr. Johnson’s presence in a high-crime area late at night, Justice Earls criticized the remaining factor: Mr. Johnson’s alleged “blading.”[11] She confirmed that Mr. Johnson’s body motion when retrieving paperwork from the center console was not inherently suspicious, and that labeling it “blading” to signal the officer’s existing suspicions about Mr. Johnson was problematic in two ways. First, it was unremarkable that Mr. Johnson—a large man—needed to lift his shoulders and reach across his seated body to access the console.[12] Second, to the extent “blading” describes a physical movement intended to conceal something from an officer’s view, the presence of a second officer standing at the passenger side window undermines this notion.[13] Mr. Johnson’s movements, therefore, could not have been concealing something from the officers. Johnson exemplifies why courts should interrogate an officer’s interpretation of a body movement, that is not independently suspicious, when finding reasonable suspicion. Since many innocuous movements could be interpreted as suspicious or ordinary, they provide little particularized suspicion to the reasonable suspicion calculus required for the police intervention.

Since Terry[14] created the standard, courts have allowed law enforcement’s identification of vague physical behaviors including “shifty,” “fidgety,” “furtive movements,” and nervousness, such as flight from police, as evidence of suspiciousness and dangerousness supporting reasonable suspicion.[15] As the Seventh Circuit acknowledged, “[w]hether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you.”[16] Meanwhile, in the intervening decades, an abundance of research confirms the false association between Blackness and criminality, which profoundly affects the policing of Black men.[17]

Recently, largely because of this research, courts have begun acknowledging that behaviors traditionally thought to contribute to reasonable suspicion are instead understandable responses to police encounters. For example, the Massachusetts Supreme Judicial Court (SJC) recognized that racialized experiences of policing affect an individual’s response to police presence, and thus nervous behavior should not be used to bolster reasonable suspicion for a stop.[18] The SJC reasoned in Commonwealth v. Warren that a Black man fleeing police “is not necessarily probative of . . . consciousness of guilt,” and that “flight to avoid [police] contact should be given little, if any, weight” towards establishing reasonable suspicion.[19] The SJC has applied “the reasoning of Warren . . . to other types of nervous or evasive behavior in addition to flight,” acknowledging that “the fear of [a police] encounter might lead an African-American male to be nervous or evasive in his dealings with police officers.”[20]

Nevertheless, amidst this acknowledgment, and in the context of growing scrutiny over the familiar police tropes of “furtive movements” and “high-crime area,” a new term has emerged: “blading.”[21] It is vague, dangerously loaded, and subject to inconsistent and contradictory meanings. Compounding its problematic vagueness, “blading” is often cited alongside other troubling descriptors, such as the generalized “high-crime area.”[22] Accordingly, when “blading” is used, it provides a false veil of expertise that effectively minimizes Terry’s requirement for individualized suspicion; “blading” becomes an “automatic[] trigger[] [for] a stop and an inquiry.”[23] Finally, because it lacks a standardized meaning, “blading” is more susceptible to racialized application. Thus, even as other nebulous and racialized terms have started to disappear, blading has emerged in their stead. This continual death and rebirth of problematic terms illustrate the challenge in confronting adaptable police testimony.

This Article posits the concept of “whack-a-mole reasonable suspicion”: a pattern whereby courts rely on a factor; police increasingly cite that factor as support for their interventions; scholars, and then some courts, recognize the factor’s problematic features; its usage slowly wanes; and another term takes its place. In whack-a-mole reasonable suspicion, “blading” or “blading away” has further eroded the particularity required for a stop or frisk, enabling ratification of racially motivated pretextual stops and limiting Fourth Amendment protections for marginalized, overpoliced groups. Police invocation of “blading” replicates the use of overbroad language encompassing potentially harmless conduct. And as was the case with “furtive movements,” “nervousness,” and “high crime areas,” an officer’s ambiguous language results in judicial deference to highly subjective and racially manipulable terms-of-art.

I have argued that race is appropriately considered in a court’s determination of when, under the totality of circumstances, a person has been seized,[24] and that Fourth Amendment seizure analysis is conceptionally similar to other criminal procedure determinations where race is permissibly considered.[25] Building upon those efforts, this Article conducts a nationwide review of judicial reliance on “blading” as a factor contributing to reasonable suspicion and categorizes its uses into a framework for analysis. Massachusetts, previously at the forefront of acknowledging that nervous or evasive behavior during police interactions is disproportionately attributed to young men of color, has backslid on this score, and its reliance on “blading” has become prevalent, unwieldy, and “tinged with loaded connotations.”[26]

The emergence of “blading” demonstrates the fierce adaptability of police testimony in response to criticism, and the repeated judicial deference in reasonable suspicion determinations. Without vigorous reimagination, whack-a-mole reasonable suspicion will never provide sufficient constitutional protection, particularly to young, BIPOC males in highly policed communities.

This article proceeds in four parts. Part I frames the critique of “blading” within important categories of scholarship: (1) social science-based scholarship critiquing reliance on racialized behaviors and body movements to bolster reasonable suspicion; (2) assessing judicial deference to police as experts; and (3) calls for transformative change, including the reduction or elimination of police as providers of public safety altogether. This context sets up the theory of whack-a-mole reasonable suspicion: defined by judicial creation, increased police reliance upon, and then subsequent scrutiny of, terms deemed relevant to reasonable suspicion.

In Part II, I closely analyze judicial reliance on “blading” to support reasonable suspicion for police interventions by studying the term’s usage in state and federal courts over the past five years, categorizing the term into its most frequently given definitions. While these courts use “blading” or “blading away” in contradictory ways, its use consistently commands judicial deference and reduces the government’s burden to provide individualized, articulable facts supporting the police intervention.[27]

Part III explores how the emergence of “blading” in Massachusetts is particularly illustrative: despite the SJC’s critical reckoning of racial disparities in policing and its impact on the behaviors of those who are most policed, reliance on “blading” has blossomed in Massachusetts. Moreover, it demonstrates the failure of the SJC to recognize, adapt, and strike down each new ‘mole.’

And in Part IV, I highlight outlier courts expressing skepticism about “blading,” and consider what “blading” tells us about policing tropes and whether whack-a-mole is a tolerable system of reform. If not, this story of police adaptability to evade scrutiny over subjective and racialized terms suggests that the doctrine must be radically reimagined to provide adequate Fourth Amendment protection. This final section explores short-term and bigger picture solutions.

I. The Concept of Whack-A-Mole Reasonable Suspicion

Whack-a-mole reasonable suspicion connotes a problematic adaptability of police testimony to judicial scrutiny through the use of new terms and tropes to support reasonable suspicion justifying a stop, search, or frisk. Like prior “moles,” “blading” and “blading away” emerge as terms supporting reasonable suspicion in the wake of criticism for other nebulous, racially applied factors.

The legal scaffolding governing investigative stops, searches, and patfrisks is widely known. The Fourth Amendment requires that, before conducting a stop, police officers have “reasonable suspicion” that an individual is committing or about to commit a crime.[28] Reasonable suspicion must constitute more than a “mere ‘hunch’” and be grounded in specific and articulable facts.[29] Further, reasonable suspicion “is dependent upon both the content of information possessed by police and its degree of reliability.”[30] A pat down for weapons (otherwise known as a “frisk”) requires even more—reasonable suspicion that the individual is engaged in a crime and poses a danger to officers, often because of suspicion the individual has a weapon.[31]

Yet, since establishing that “reasonable suspicion” is required for an investigative stop,[32] the Court has seldom indicated what meets this standard.[33] The government bears the burden to provide “specific and articulable” facts, “particularized to the individual,” to show the reasonable suspicion required.[34] In the absence of significant guidance, state and federal courts wrestle with what physical behaviors, observed and interpreted by a police officer, support the reasonable suspicion required for a stop or patfrisk.[35]

In particular, courts differ on how much suspicious—but lawful—conduct is constitutionally sufficient to support reasonable suspicion.[36] For example, the Fifth Circuit recently found that police had reasonable suspicion to detain an individual where the officer observed him lawfully sitting for 10-15 seconds in the front seat of his car, which was parked in the lot of an open convenience store in a high crime area.[37] Conversely, several other federal circuits and state supreme courts found that an individual’s lawful conduct in a high-crime area, on its own, did not constitute reasonable suspicion for a stop. The Eighth Circuit recognized that a defendant “clutching the outside of his hoodie pocket” was consistent with “firearm-carrying clues,” but concluded it was not dispositive because “nearly every person has, at one time or another, walked in public using one hand to ‘clutch’ a perishable or valuable or fragile item being lawfully carried in a . . . pocket.”[38]

A.     Substantial Research Since Terry Confirms Racially Disparate Policing and Its Impact on Those Highly Policed

Any discussion about racialized policing must acknowledge that the Court has interpreted the Fourth Amendment in a manner that gives police wide discretion to employ a racialized selection process. For example, it has permitted police reliance on a person’s “apparent Mexican ancestry” for supplying reasonable suspicion that the occupant of a car was undocumented and supporting prolonging the stop to call ICE.[39] Most notoriously, the Court rendered consideration of an officer’s subjective motivations constitutionally irrelevant, condoning pretextual traffic stops in Whren v. United States.[40] Although the Court stated that racially discriminatory policing could implicate the Equal Protection Clause,[41] the practical effect of Whren is that police can stop people for ubiquitous traffic infractions to actually investigate other crimes.[42]

Since Terry, as the Court has stayed largely silent about how to quantify within the reasonable suspicion calculus conduct that is fully consistent with lawful behavior but subjectively suspicious to an officer, significant social science confirms racially disparate policing with respect to police surveillance, stops, and use of force. Black Americans are disproportionately stopped, searched, arrested, and subjected to the use of force by police.[43] A recent study showed police suspicions of weapon possession very frequently correspond to a person’s race as opposed to their specific conduct.[44]

The empirical evidence abounds. Studies also demonstrate that interacting with law enforcement is more dangerous for Black men than for other demographic groups, even if those Black men have not committed a crime.[45] A 2019 study concluded that police use lethal violence more frequently in areas with higher African-American and Latinx populations.[46] Upon analyzing 990 shooting incidents from the Washington Post’s National Police Shooting Database, another study concluded that—even after controlling for variables like age, mental illness, crime severity, and jurisdiction size—Black individuals were more than twice as likely as white individuals to have been unarmed when killed by police.[47] And in 2018, another study concluded that relative to their white peers, Black Americans are more often stopped by police, subjected to the use of force, and viewed by officers as posing a safety threat.[48]

Certainly, in the past decade, the impact of race on police encounters has been widely acknowledged. “It seems as if the news has a daily accounting of the tragic consequences that can result if a minority citizen should in fact make any indication that he or she will not cooperate” with the police.[49] The president of a leading association of police chiefs explained that the “dark side of our shared history has created a multigenerational—almost inherited—mistrust between many communities of color and their law enforcement agencies.”[50] While “anyone’s dignity can be violated” by an unconstitutional search, “it is no secret that people of color are disproportionate victims of this type of scrutiny.”[51]

Nonetheless, disproportionate violence against Black Americans in police encounters persists.[52] A recent study of police-civilian encounters indicates that officers aimed or shot a gun at Black individuals at eight times the rate of white individuals, and threatened force or engaged in physical contact against Black individuals at four times the rate of white individuals.[53] In 1994, a Massachusetts court explained that “historically, . . . [B]lacks who have walked, run or raced away from inquisitive police officers have ended up beaten and battered and sometimes dead.”[54] As a direct result of this reality, “Black people often tread more carefully around law enforcement,”[55] reasonably believing based on “pervasive” and “persuasive” evidence, that “contact with the police can itself be dangerous.”[56]

Amidst accumulating data reflecting the reality of racialized policing, some “factors” that have been traditionally relied upon to find reasonable suspicion for a Terry stop, such as a person’s “furtive movements,” nervousness, flight from police, and presence in a “high-crime” area, are being critically examined by advocates and courts. While these “factors” are still used to support reasonable suspicion for police intervention, evidence suggests they are increasingly disfavored by courts.

B.     “Furtive Movements”— An Example of Reliance Followed by Skepticism

When evaluating whether police have reasonable suspicion to stop someone, the Court has explained that an officer should consider relevant objective facts about a person and their behavior and make reasonable inferences and judgments from those facts.[57] “Furtive movements” is one phrase that has been considered relevant, but independently insufficient to support reasonable suspicion.[58]

Even though various behaviors have innocuous, non-criminal explanations and, on their own, are insufficient to support reasonable suspicion, the Court rejects a “divide-and-conquer” analysis of factors.[59] Instead, lower courts must determine whether the factors, taken as a whole, establish the standard.[60] This formula is problematic. As one state supreme court justice stated drily: “[a]dding up eight innocuous observations–eight zeros–does not produce a sum of suspicion.”[61] Johnson illustrates how (1) one officer’s interpretation of a physical movement as suspicious, followed by (2) their own or the trial court’s subsequent “blading” labeling and (3) ensuing deference afforded during appellate review, results in arbitrary interpretation of an ambiguous physical behavior.[62] This is a process that is easily compounded by racial bias.[63] “Blading” is a non-contributor, and it should not be added to other “zeros” to satisfy the Fourth Amendment’s requirement of particularized suspicion. Indeed, “[f]acts which individually do not contribute to reasonable suspicion in isolation should not be accorded outsized significance merely because they appear alongside other facts which also do not contribute to reasonable suspicion.”[64]

Since the 1990s, scholars have consistently criticized police officers’ invocation of “furtive movements,” insisting the phrase is racially applied, reflective of implicit bias, and cannot meaningfully contribute to reasonable suspicion.[65] In their well-known 2015 study, Professors Jeffrey Fagan and Amanda Geller examined evidence from 4.4 million Terry stops in New York City.[66] They concluded that certain patterns observed by police evolve into a short list of “codified stop rationales,” or “scripts of suspicion, and that these patterns are specific to [a] suspect[’s] race and neighborhood.”[67] In their research, police cited “furtive movements,” which includes giving evasive responses to a police officer’s question, or changing directions at the sight of police, in more than half the stops.[68] Fagan and Geller conclude that over time, there is persistent desensitization to these “scripts” and their interpretation, enabling officers to repeat scripts conforming to perceived suspicions when conducting patrols.[69] In this way, “furtive movements” is a factor that became meaningless as an actual basis for particularized suspicion.

Professor Fagan’s research undermining “furtive movements” as a predictor of criminal activity was central to the Floyd litigation, where federal district court Judge Scheindlin decided that NYPD’s stop and frisk program was systematically violating the Fourth and Fourteenth Amendments of New Yorkers.[70] The Floyd litigation illustrated two key arguments. First, it demonstrated the term’s significant breadth and vagueness. The court detailed various physical movements that constituted furtive gestures, including “looking over [one’s] shoulder and jaywalking,” and held that such alleged behavior, “in combination with the generic description of young black male does not establish the requisite individualized suspicion that [petitioner] was engaged in criminal activity.”[71] At trial, two police officers testified to contradictory understandings of the term “furtive movements.” One explained that “furtive movement is a very broad concept,” and could include a person “changing direction,” “walking in a certain way,” “[a]cting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth constantly,” “looking over their shoulder,” “adjusting their hip or their belt,” “moving in and out of a car too quickly,” “[t]urning a part of their body away from you,” “[g]rabbing at a certain pocket or something at their waist,” “getting a little nervous, maybe shaking,” and “stutter[ing].”[72] Another officer explained that a furtive movement is “usually” someone “hanging out in front of [a] building, sitting on the benches or something like that” and then making a “quick movement,” such as “bending down and quickly standing back up,” “going inside the lobby . . . and then quickly coming back out,” or “all of a sudden becom[ing] very nervous, very aware.”[73]

Second, Floyd explained that “furtive movements” and “high-crime areas,” cited in over half of Terry stops, were poor predictors of criminal activity.[74] Indeed, “stops were 22% more likely to result in arrest if ‘High Crime Area’ was not checked [in post-arrest forms], and 18% more likely to result in arrest if ‘Furtive Movements’ was not checked.”[75] Data later confirmed that the NYPD voluntarily reduced its Terry stops by nearly 60% in 2013, and the city acted in response to curtail the stop and frisk policy, while providing legislative oversight and accountability.[76]

Since Floyd, scholars have built upon Fagan’s research, explaining that like references to a person’s “furtive movements,” other vague factors are racially applied to mirror a subjective, racially biased belief that someone’s movements were suspicious.[77] For example, Professor Fareed Nassor Hayat recently explained that racially biased police estimations of gang involvement lead to a disproportionate number of young Black and Latinx men being charged with gang related crimes compared to their White counterparts.[78] Hayat describes the “racialized gang myth,” wherein police are afforded discretion to define gangs and identify their members.[79] In doing so, police have inconsistent definitions, and rely on many non-criminal behaviors—including how an individual looks, how an individual acts, and what they wear—to decipher gang membership.[80] As with “furtive movements,” “[b]iased perceptions of criminality begets disproportionate estimations of Black and Latino gang involvement.”[81] Citing some of these issues with racialized gang identification, the First Circuit recently condemned reliance on alleged gang affiliation.[82]

I believe that as a result of scholarly and judicial attacks on the use of “furtive movements” as support for reasonable suspicion for police intrusions, use of the fraught term has waned.[83] Yet even while terms such as “furtive movements” are used less frequently by police and courts to describe the behaviors of Black men in particular, other ambiguous terms such as “blading” emerge in their stead.

C.    Mounting Critique of “Nervousness” and Flight from Police as Support for Reasonable Suspicion

As with reliance on “furtive movements,” judicial reliance on a person’s “nervous behavior” or their flight from police to support reasonable suspicion for police interventions has been subject to increasing critique. Courts have typically considered a person’s nervousness in police interactions to be relevant, but on its own insufficient, to establish the requisite reasonable suspicion.[84] As with “furtive movements,” an observation of another’s “nervousness” is highly subjective.

Over the past quarter century, research confirms the false association between Blackness and criminality profoundly affecting policing.[85] Empirical evidence demonstrates that interacting with law enforcement is more dangerous for Black men than for other demographic groups.[86] Because young Black males (among other groups vulnerable to police intervention and violence) have legitimate reasons to avoid interaction with police, scholars posit that nervousness and lack of engagement with officers, sometimes labeled “avoiding eye contact,” should not substantially contribute to a finding of reasonable suspicion.[87]

In fact, research suggests nervousness can be attributed to other psychological and sociological factors. Researchers Claude Steele and Joshua Aronson confirmed that an individual’s performance can be affected by the awareness that their behavior is viewed through the lens of racial stereotypes.[88] This research on “stereotype threats” applies in the context of policing. When an individual believes that a police encounter presents the possibility to confirm a negative stereotype about their identity group, “stereotype threat” interferes with their typical behavior. Given the increased police surveillance of young Black males and the documented stereotype of criminality, the combination can cause young Black males to freeze, look nervous, or avoid making eye contact during the encounter.[89] Indeed, subjects of stop-and-frisk policing report increased anxiety.[90] It is therefore understandable that generations of Black parents have taught their children to avoid or be deferential toward police for “fear of how an officer with a gun will react to them.”[91]

Others have explained why the stress of a police interaction is reasonably likely to cause young Black males to exhibit “avoidance strategies.”[92] Professor L. Song Richardson’s study described a cycle where stereotype bias likely causes police officers to act more aggressively around racial minorities, leading young Black males in the study to behave in an evasive nervous manner, which then confirmed the officers’ implicit biases.[93] This social science research challenges judicial reliance on a young Black male’s lack of eye contact, or non-responsiveness, in support of reasonable suspicion.

Additional empirical data confirms that Black Americans are more suspicious of police, and thus nervous in their presence. Black Americans are more likely to perceive police force as excessive, fear police will perceive them as criminal and treat them unjustly, and view police principally as a source of control and not protection.[94] Some courts acknowledge that in interracial interactions, Black Americans are less likely to make direct eye contact with police officers.[95]

Despite the growing research showing that nervousness is a reasonable, rational response around police officers, especially for people who are routinely policed, courts continue to cite a person’s “avoid[ing] eye contact with [the officer], appear[ing] extremely nervous” and shaking hands as providing the articulable facts required for reasonable suspicion.[96]

Nevertheless, some courts have responded differently. Several courts have explicitly acknowledged that general “nervousness” when interacting with a police officer and “shifty eyes” are more readily used in describing young BIPOC men, and that these behaviors are often rational responses to a police encounter. The First, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits have each held that general nervousness, regardless of an individual’s race, is “of limited value in assessing reasonable suspicion” and/or is so common that it alone cannot justify a Terry stop.[97]

Massachusetts had been at the forefront of acknowledging this paradox. Since at least 2009, the SJC recognized that an individual’s nervous or evasive conduct, in the absence of any other information generating individualized suspicion that the person was involved in a crime, was insufficient to support reasonable suspicion.[98] One appellate court explained that “nervous or anxious behavior in combination with factors that add nothing to the equation will not support reasonable suspicion that an officer’s safety may be compromised.”[99]

In 2016, the SJC acknowledged that because of persistent racial profiling, Black males have legitimate reasons to avoid police interactions, and therefore flight from police should not contribute to reasonable suspicion.[100] In Warren, the SJC focused on a Boston Police Department report that concluded Black men were more likely to experience repeated police encounters.[101] Based on this empirical evidence, the SJC explained that there may be “a reason for flight totally unrelated to the consciousness of guilt.” It reasoned that Black men fleeing from police “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled.”[102] Warren held that a Black male’s flight from police should be given “little, if any, weight as a factor probative of reasonable suspicion.”[103] Scholars lauded Massachusetts as the first state supreme court to recognize the effect of racialized policing on the behavior of those being policed.[104]

In 2020 and again this year, the court addressed the racialized impact of policing by issuing decisions expanding protections against racial profiling. In Evelyn, the court noted that the “long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.”[105] Because racialized policing would likely inform how Black Americans, and other racial minorities, interpret police encounters, Evelyn expanded “the reasoning of Warren . . . to other types of nervous or evasive behavior in addition to flight.”[106] Fear of a police encounter may lead Black males in particular to be nervous with police officers, and “the weight of the defendant’s nervous and evasive behavior” should be significantly discounted in assessing whether police had reasonable suspicion for a stop.[107]

Similarly, South Carolina’s supreme court has devalued the relevance of an individual’s “perceived nervousness” in support of reasonable suspicion. In State v. Moore, the court recognized that “[g]eneral nervousness will almost invariably be present in a traffic stop,” and cautioned against officers citing multiple aspects of nervousness as if they were separate factors, reasoning that “like many appellate courts, [this court has] become weary with the many creative ways law enforcement attempts to parlay the single element of nervousness into a myriad of factors supporting reasonable suspicion.”[108]

Most recently, the Maryland Supreme Court acknowledged that “people, particularly young African American men, may flee police for innocent reasons.”[109] Although holding in that particular instance that Mr. Washington’s flight from police in a high-crime area supported reasonable suspicion for the police intervention, the court held that a trial court should consider whether a young Black man has innocent reasons to avoid police interactions. Maryland is thus among the few states to respond to persistent critiques of relying on a person’s nervous behaviors, such as flight, to support reasonable suspicion for the police intervention.

D.    Interrogating Outsized Reliance on “High-Crime Areas”

Scholars have consistently criticized outsized police reliance on “high-crime areas” to support findings of reasonable suspicion. As discussed, Professor Fagan’s research showed that police invoked “high-crime area” to justify 55% of Terry stops in New York between 2004 and 2012, and that term was often used to justify the officer’s stop in the absence of individualized suspicion.[110] More recent observers have denounced the practice of “hot-spot policing,” a technique of police patrolling and stopping suspects exclusively in “high-crime” areas.[111] If “high-crime” areas are not predictive and dictated by inherent racial bias, the resulting “hot spot” policing will simply lead to racially disparate police contact.

Professor Ana Lvovsky has urged a reexamination of judicial reliance on police expertise in various contexts, including trial settings.[112] Lvovsky’s work confirms the police’s tendency to claim expertise to “exact uncritical deference from judges, often despite the meager nexus between those claims and the legal questions at issue.”[113] As Lvovsky notices, courts embrace police expertise when analyzing the constitutionality of searches and seizures, following the Supreme Court’s repeated assumption that an experienced police officer “views the facts through the lens of his police experience and expertise.”[114] Other scholars have decried the extreme deference to police expertise as an abdication of judicial authority.[115] Pivoting from traditional critiques of judicial deference to police expertise, Lvovsky questions whether police expertise, if and where it exists, would actually improve the officer’s testimony.[116]

Scholars emphasizing the racial impact of deference to police expertise seek increased judicial skepticism over police claims that their expertise informed the intervention.[117] For example, the problems of ubiquitous reliance on “high-crime neighborhood” to support reasonable suspicion are amplified by the fact that police are neither expert nor reliable identifiers of such areas.[118] Wardlow did not specify what constitutes a “high-crime area,” and research indicates that reliance on purported high-crime areas turns on subjective beliefs of individual officers, informed by their own biases.[119] Articulating similar skepticism about “blading” would be appropriate at the very moment that the term is introduced.

This sustained scholarly assault on citing “high-crime” areas to bolster findings of reasonable suspicion has been received by many courts. The First, Fourth, Eighth, and Tenth Circuits have declined to find that potentially suspicious, but widely shared conduct in a “high-crime area” gives rise to reasonable suspicion for a Terry stop.[120] For example, the First Circuit has articulated three factors to help trial courts assess whether areas are actually “high-crime” and their relation to reasonable suspicion for a stop. A trial court should consider: (1) “the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case”; (2) the “limited geographic boundaries of the area”; and (3) the “temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue.”[121]

A few state courts have followed. The Kansas Supreme Court rejected a finding of reasonable suspicion where lower courts seemed to inappropriately rely on a defendant “appear[ing] startled” when approached by an officer in a high-crime area.[122] In Sizer, the Maryland Supreme Court expressed skepticism that officers naming an area “high crime” was related to the suspected criminal conduct of the individual stopped, requiring more specificity to establish reasonable suspicion.[123] Applying questions provided by the First Circuit, one judge explained that even if the area were high-crime, without an identified nexus between the area’s crime and the defendant’s activity arousing officers’ suspicion, the “high crime area” label was not significant to the reasonable suspicion analysis.[124] Also this year, a District of Columbia Court of Appeals concluded that an officer’s testimony about a high-crime area did not add to the analysis because there was no testimony with respect to the area’s exact boundaries and no details regarding the nature of alleged drug activity or how guns had been detected.[125]

That several federal and state courts have begun to interrogate police reliance on the “high-crime” descriptor as support for reasonable suspicion for interventions lends supports to the theory of whack-a-mole reasonable suspicion. Just like police citing to a person’s general nervousness and “furtive gestures” seems to have waned, there appears to be increased judicial skepticism about “high-crime” areas. As this Article shows, “blading” emerges as a nebulous descriptor that supplants terms like furtiveness or high-crime area when justifying police behavior. Understanding and ultimately stopping this cycle warrants interrogating policing practices as they currently exist.

E.     Emerging Reckoning that Only Radical Change Will Make Policing Compatible with Racial Justice or Public Safety

In examining this patterned rise and fall of problematic police tropes for Fourth Amendment reasonable suspicion, it must be acknowledged that the myriad of violent and public episodes of police brutality over the last decade have altered how the public and legal scholars perceive the potential for police reform.

Since the 2014 public uprisings in Ferguson following the shooting of Michael Brown, and the 2015 unrest in Baltimore following the killing of Freddie Gray, powerful public movements have been calling for radical challenges to our current system of police control.[126] There is significantly increased public awareness and mobilization about racialized surveillance; policing, the racially disparate, excessive use of force; and the extent of qualified immunity afforded to police officers.[127] At the same time, legal scholars urge more realistic recognition of the history of policing in the U.S. and its racist origins.[128] For example, Brandon Hasbrouck sheds critical light on the ways that policing developed in the U.S. as a means to enforce slavery, arguing that even in states where the practice of slavery had been abolished, it served as a tool to maintain a racial caste system.[129] Understanding the racialized origins of policing is foundational, leading many to question the viability of police reform as opposed to abolition.

As Jocelyn Simonson cogently explains, the fervent protests and community organization following the murder of George Floyd in 2020 intensified already existing calls for total transformation of the police.[130] Simonson argues that, with respect to policing in general, “there is tentative agreement from many corners that large-scale transformation is necessary and possible.”[131] She deftly summarized some of the lenses through which leading scholars come to their shared conclusion: police reform will never be sufficient. For example, Paul Butler, Bennet Capers and Tracey Meares have each called for consideration of police reform as a “Third Reconstruction,” seeking, in light of the history of racist policing, to reimagine the framework by which the state provides security.[132] In urging a complete overhaul of the police system, Monica Bell emphasizes the subordinating effects of racial segregation.[133] Shaun Ossei-Owusu argues that eliminating police “quotas could be an interim step toward a world with a smaller police imprint.”[134] And Professor Amna Akbar has called for the reduction or elimination of the police force entirely.[135]

To be clear, most of the public supports the conclusion that police forces serve a necessary safety function in our current society.[136] But the barrage of audiovisual evidence of racialized police violence has weakened that conclusion, and important legal scholars continue to posit radically different alternatives.

As discussed earlier, whack-a-mole reasonable suspicion is the pattern whereby courts rely on a particular factor, such as “furtive gestures,” “nervousness,” or “high-crime area.” Law enforcement then increasingly cites that factor as ex-post facto support for their challenged intervention. Scholars expound on the problematic, racially applied features of that factor. At least some courts respond to the critique and the term’s usage partially wanes. Scholars and activists emphasize the need for disruptive changes that undermine the entire criminal legal system, as opposed to investing in marginal improvements. Yet even within this broader goal, examining the theory of whack-a-mole reasonable suspicion, illustrated by this cycle of law enforcement tropes, remains relevant for strategic intervention. Disrupting whack-a-mole reasonable suspicion is not antithetical to abolitionist aims.

II. The Emergence of Blading As the New Mole in Reasonable Suspicion

The new mole, “blading,” or “blading away” has emerged within this framework of increasing skepticism over police reliance on potentially innocuous behaviors to support reasonable suspicion, and critique police expertise in identifying criminal conduct. Examining the ambiguous and contradictory meanings of “blading” begs two critical questions. First, does the term itself work separate and apart from police officers using case specific behavioral descriptions? If so, then demanding officers use more precise language in their testimony would erase that extra suspicion the term provides. But if “blading” only marginally increases suspicion beyond the suspicion that would be generated by officers properly describing a suspect’s physical behaviors, then the second question we must ask is whether whack-a-mole reasonable suspicion is a tolerable system of reform or if, instead, the entire standard needs to be reimagined.

For a court hearing the term for the first time, “blading” connotes danger and violence, conjuring the image of a knife or razor blade. The term is vague because it is given inconsistent and relatively contradictory meanings by police officers and the courts relying on it to affirm the constitutionality of interventions. Professor Joel Johnson’s recent work, describing types of indeterminacy to illuminate constitutional vagueness analysis, is relevant.[137] A term is ambiguous when it has several uses, such that it is open to a few discrete meanings.[138] A term, like “reasonable suspicion,” is “contestable” when it embodies a normative standard and there is disagreement about the content of that standard.[139] A term is vague when there are difficult cases where the word may or may not apply. Thus, “blading” is likely “qualitatively vague,” a complex situation where the term has many “independent conditions of application, some but not all of which need to be satisfied.”[140] In this scenario, behavior that is categorized as “blading” relates to other behaviors that are similarly labeled, through a network of crisscrossing and overlapping elements.

For this paper, I reviewed state and federal cases using “blading” to justify a police intervention over the past five years. Because challenges to reasonable suspicion arise solely in cases where drugs or weapons are found by police, and without data on when contraband is not found, this method suffers from selection bias.[141] Exploring the case law reveals the following: (1) “blading” is racially applied, almost exclusively to BIPOC individuals; (2) when “blading” is used, it relieves the government of its constitutional burden to provide particularized suspicion; (3) reliance on “blading” shows the adaptability of police tropes in the wake of other terms becoming disfavored for reasonable suspicion analysis.

A.     Courts Nationwide Rely on Blading in Contradictory Ways

Having reviewed courts’ reliance on an individual’s alleged “blading” or “blading away,” I grouped the use of “blading” into three buckets of meaning. The first category, “blading” as evasion, includes courts using “blading” to mean turning one’s body to provide a thinner profile, or moving away from police, to support an officer’s existing belief that the person is concealing something. In the second category, “blading” refers to carrying a concealed firearm, and the actual position described varies greatly. The third category uses “blading” or “blading away” to describe an aggressive or potentially threatening body position. This third definition contradicts the first two: taking an agitated, oppositional stance towards a police officer is almost the opposite of concealing, evading, or seeking to escape an officer’s attention.

Compounding this problematic vagueness of “blading” is that when mentioned by a police officer and/or found by a trial judge, the term effectively reduces the constitutional requirement of particularized suspicion. In turn, the individual’s Fourth Amendment protection against unreasonable search and seizure becomes even more susceptible to an officer’s subjective biases.

1.     “Blading” as evasion of police

Police and courts often use “blading” and “blading away” to describe a body position that supports a police officer’s existing belief that the person is trying to conceal something. These cases frequently describe “blading” as turning one’s body from officers to make a thinner profile, like a blade, or to shield a portion of the body.

As discussed, the North Carolina Supreme Court concluded that officers reasonably believed Mr. Johnson was armed and dangerous based on five factors, highlighting that he was “blading his body” as he accessed the center console of his car during a traffic stop.[142] Emphasizing that the trial court is tasked with evaluating witness credibility, the majority determined that “Officer Whitley’s testimony about defendant’s nervousness, “blading of his body” and the “late hour of the traffic stop constituted circumstances which provided reasonable suspicion for the Terry search to be conducted.”[143] “Blading” in Johnson describes the otherwise innocuous movement of leaning into the center console to retrieve a car registration, and cloaks Mr. Johnson’s physical movement with suspicion. The North Carolina Supreme Court seemingly defines “blading” as changing one’s profile towards an officer in a way that the officer finds to be suspicious or concealing.[144]

Similarly, the Sixth Circuit used “blading away” to describe an individual who “was not standing face-to-face with the officer and had his body turned to the side at an angle of some 10 to 15 degrees.”[145] Citing other cases where police officers testified to a person “blading,” the court explained why this body position was suspicious, reasoning “that positioning (of an angled body) can add to the reasonable suspicion that the suspect might have a weapon.”[146] There, Mr. Fraught challenged the district court’s finding that he had been “blading away” from the officer, offering his own cell phone video, which he alleged contradicted the officer’s testimony. Mr. Fraught did not challenge “blading” as an inappropriate contribution to reasonable suspicion. The appellate court dismissed this challenge, explaining that the cell phone video was unclear and did not permit it to discredit the police officer’s testimony under the deferential “clear-error” standard.[147]

The Wisconsin Court of Appeals also cited an officer’s definition of “blading” as turning one’s body to create a thinner profile and potentially evade police.[148] Mr. Wren was a passenger in a parked car, and when the officers drove by, they observed him “giv[ing] the ‘oh no’ look when he saw the squad passing them.”[149] Mr. Wren and the driver exited the car, and they observed that the driver, Mr. Walker, “appeared to be nervous” and “began to blade his body away from the officer” at a suspicious angle.[150] Here, it was the driver’s “blading” that added to the officer’s reasonable suspicion for stopping the passenger. For the Wisconsin court, “this conduct, along with rational inferences that can be made about this conduct, was sufficient for the officers to reasonably suspect that a crime had been committed.”[151]

For these courts, an individual’s turn of the body is labeled as “blading” or “blading away,” and meaningfully contributes to the reasonable suspicion calculus. But using the phrase in this manner appears to be substituting a term to confirm an officer’s preexisting suspicion about a person’s conduct and does not add particularized suspicion.

At the same time, officers, and then courts, use “blading” to describe a person’s evasive movement while walking away from law enforcement and suspected of concealing something. For example, having learned during a traffic stop that driver Mr. Belin had several firearm charges, Officer Christopher Grover ordered him to exit his car.[152] As Belin walked toward him, Grover testified that “Mr. Belin put his hands in his pockets and that he was ‘blading’ his right side further away from [Grover].”[153] The district court cited this testimony regarding Belin’s body position, and that he “put his hands in his pockets” and acted “increasingly nervous” as support for reasonable suspicion required for a pat frisk.[154]

In Commonwealth v. Thomas, a motion judge in Massachusetts similarly explained that as a defendant stepped out of a truck, he “bladed” his body away from police officers.[155] Later, the appellate court did not correct this definition of “blading,” but determined that defendant only “bladed” his body after the officer’s pat frisk had begun.[156]

Similarly, one Sixth Circuit panel used “blading” to describe an individual’s motion when leaving his car. It explained that Mr. Pitts “exited his car quickly and was “‘blading”—touching or looking at the area where his weapon was on his body to make sure it was there—as he exited his car.”[157] This behavior, sometimes known as an “assurance check,”[158] utilizes “blading” to describe a person’s general concealment from law enforcement and support an officer’s existing suspicion that an individual was carrying a weapon.

Prior to Johnson, one North Carolina appellate court identified “blading” as contributing to reasonable suspicion.[159] In Malachi, the Charlotte-Mecklenburg Police Department received an anonymous call after midnight. The caller informed the dispatcher that an African American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants.[160] Two officers drove to the gas station in marked cars.[161] Officer Clark testified that when he got out of his car, Mr. Malachi looked directly at him, “bladed, turned his body away, [and] started to walk away.”[162] In Malachi, “blading away” is used as a synonym for turning away from the police officer to walk away.[163] The act of turning one’s body does alter the officer’s viewpoint of the defendant’s body such that it may hide from view some parts of the body, but the act of turning and thereby shifting the officer’s ability to view the body is a necessary change incidental to the movement of walking away.

Mr. Malachi insisted in court that the anonymous tip—which did not report illegal conduct—did not provide constitutionally required reasonable suspicion for a stop and frisk.[164] Indeed, the officers lawfully stopped and frisked Mr. Malachi only if they possessed reasonable suspicion that he had been involved in criminal activity at the time of the stop and that he was armed and dangerous.[165] The court concluded that police had more than the anonymous tip, in particular they could rely on Officer Clark’s testimony that when he arrived at the gas station, Mr. Malachi “turned his body in such a way as to prevent the officer from observing a weapon.”[166] The officer testified that based on his training, this “kind of turn was known as ‘blading,’” because when “you have a gun on your hip you tend to blade it away from an individual.”[167]

Within the state of North Carolina, “blading” carries alternative ambiguous meanings. As in Malachi, it can mean turning and walking away from police officers in a manner that suggests weapon concealment, or, as in Johnson, it can mean reaching across your body and changing your profile shown to officers.[168] These different, ambiguous meanings of blading within one state mirrors the overall mess of different and contradictory meanings of the term across the country.

2.     “Blading” to conceal a gun

Many courts employ “blading” exclusively to describe a person who police believe is concealing a firearm. In a recent study of behavioral indicators of concealed firearms for a police periodical, Meehan, Strange, and Garinther defined “blading” as “orienting the body based on the presence of a potential threat.”[169] The study states that the position, known as “blading” or “blading away,” can be intended for the purpose of shielding or concealing a gun from visual detection, or the position can be used to facilitate drawing the weapon.[170] This research suggests that while some police officers can identify physical behaviors that they deem threatening, they describe these behaviors with varying terms.[171]

An unpublished Fourth Circuit opinion in 2012, which seems to be the first federal circuit court’s use of “blading” in support of reasonable suspicion, defined it to mean a body position hiding a gun.[172] Mr. Ward argued that he was seized without reasonable suspicion, in violation of the Fourth Amendment, when several police officers drove an unmarked pickup truck into the curb beside him and asked whether he was carrying a gun.[173] The court disagreed, finding that at that moment, the three police officers were seated in the truck, did not brandish weapons, and merely asked Mr. Ward a question in a conversational tone.[174] Thus, Ward was not seized and remained “free to leave or otherwise terminate the encounter.”[175] By the time police seized Mr. Ward—when police grabbed him by the sweatshirt and tackled him—the court concluded that his seizure was supported by reasonable suspicion. The court based its finding of reasonable suspicion on five factors: (1) his presence in a high crime area with recent history of violent murders; (2) his nervousness; (3) the late hour; (4) “Ward’s ‘blading’ behavior”; and (5) his unprovoked flight.[176]

In Ward, the Fourth Circuit cited “blading” without explicitly defining the term, and the term is used alongside other phrases that have been discredited as primary bases for reasonable suspicion. Although presence in a high crime area and being outside at nighttime are relevant within the totality of circumstances, they are contextual factors applying to all individuals present in an area at a time. Even the Supreme Court cautioned against heavy reliance on an individual’s presence in a high crime area as a basis for reasonable suspicion.[177]

In 2021, one Sixth Circuit panel similarly relied on a defendant’s “bladed position” as a vague behavior description to support the belief that he was carrying a concealed firearm.[178] The Court held that the officer had reasonable suspicion to justify a Terry stop because when Mr. Lewis was seized, he was walking in an alley in a high-crime area that people regularly use to avoid police detection.[179] Second, the officer saw Mr. Lewis brush a small object from behind his ear and onto the ground, a behavior the officer explained was commonly used to discard drugs upon seeing police.[180] Third, Mr. Lewis was evasive upon being asked by police for his name.[181] Fourth, the court found that a few factors indicated that Mr. Lewis might have been armed, including patting his right hip, a noticeable bulge in his right hip waistband, and that Mr. Lewis was “standing in a bladed position” with his right hip angled away from him.[182] The officer testified that this position was a “common stance for people to use who are carrying guns.”[183] Because Mr. Lewis was in a high-crime area and his behavior was “evasive and consistent with a person carrying a weapon and concealing drug evidence,” the Sixth Circuit held that the officer had reasonable suspicion for a stop.[184]

In both Ward and Lewis, the defendant’s alleged “blading” is used to support the inference that they were carrying a concealed firearm. This is a different use, of course, than moving one’s body to conceal something suspected to be illegal. Again, these courts employ the loaded and vague term “blading” to signify an existing suspicion that a defendant is armed.

Similarly in Mackell, upon hearing a radio report that a group of youths was preparing to fight and firearms may be involved, Corporal Austin Gentry arrived at the scene and spoke to William Mackell.[185] Gentry testified: “[a]s I approached [Mackell] I basically was trying to inquire if they had heard of anybody that were trying to fight . . . if they’d seen or heard anything basically out of the ordinary.”[186] Mackell initially spoke with Gentry, but then he began “to backpedal a little bit . . . [w]alking backwards. Like, still facing me, however with that [bladed] stance that I described earlier.”[187] Gentry stated that Mr. Mackell “started to walk back and [bladed] his body further, giving [him] the notion that he was possibly armed.”[188] Upon finding that the police had reasonable suspicion that Mr. Mackell was armed, the Maryland appellate court relied on Gentry’s testimony that Mr. Mackell’s “act,” of “walk[ing] backwards and ‘blad[ing]’ his body” justified the officer’s suspicion that he was armed, and noted that “[a] court must give due deference to a law enforcement officer’s experience and specialized training.”[189]

In 2019, the Delaware Supreme Court also defined “blading” to describe a retreating movement. The court relied largely on a defendant’s alleged “canting” and “blading motion” in a high-crime area to reverse the lower court’s conclusion that police officers lacked reasonable suspicion for a Terry stop.[190] In Murray, Officer Rosario and three others were conducting a “proactive mobile patrol” in a high-crime area when they observed the defendant walking towards his car.[191] According to the officer, Mr. Murray was “swinging his left arm naturally while holding his right arm close to his body, behavior which [the officer] explained was consistent with an armed individual.”[192] After about 20 seconds of this behavior, Mr. Murray realized that he was being followed by police. He positioned himself behind his companion and began “‘turning and blading’ the right side of his body, the side that he had his arm pinned against, away from Officer Rosario.”[193] At the suppression hearing, Officer Rosario testified that “turning and blading” is an “unnatural movement,” characteristic of someone “who’s placing the side that the gun [is] on in a position where the police or the public can’t see it.”[194]

Upon concluding that Officer Rosario lacked reasonable suspicion for the stop, the trial court dismissed other factors cited by the government to support the officer’s alleged reasonable suspicion, including the “high crime neighborhood,” defendant’s “stutter step,” and his “looking around” as the officer was getting out of the car.[195] The court reasoned that the state’s argument for reasonable suspicion ultimately rested on Mr. Murray’s swinging one arm while holding another close to his body, and “his ‘blading’ or moving his body sideways when he and his walking partner stopped.”[196] Following the government’s appeal, the Delaware Supreme Court reversed, concluding that a “fair reading of the officer’s testimony creates an inference that the occurrence of unusual canting and blading movements had risen to such a level that these movements are discussed in officer training as being indicators that a person is carrying a concealed weapon.”[197] Moreover the state supreme court interpreted the fact that Officer Rosario focused on Mr. Murray, as opposed to his companion who was walking normally, as evidence supporting reasonable suspicion.[198]

The dissenting state justice disagreed with the outsized deference afforded to Officer Rosario’s inference from Mr. Murray’s movements that he was illegally carrying a weapon.[199] “[W]here, as here, the officer’s testimony is vague and fails to inspire confidence,” it was not an abuse of discretion for the trial court to not give the testimony much weight.[200] Second, Justice Traynor explained that the court determined Mr. Murray was free to leave when Officer Rosario observed his “blading,” defined as walking or turning away from the officer.[201] But if Mr. Murray was indeed free to leave and ignore the police officers’ presence, why can his “blading away” from the officer be used against him to support a finding of reasonable suspicion? In Murray, the trial court defined “blading” as the defendant moving his body sideways, and then the state supreme court added a layer of intent to conceal a weapon. In this context, “blading away” is employed to describe a person walking away from law enforcement with the intention to conceal one side of their body.

As the Delaware Supreme Court did in Murray, the Pennsylvania Supreme Court defined blading to describe a body movement used to conceal a portion of one’s body, but added that this term specifically refers to concealing one’s waistband from the officer’s view.[202] In 2019, the Pennsylvania Supreme Court addressed whether police officers had a sufficient basis to suspect that Mr. Bozeman was armed to frisk him during a traffic stop. The state argued at least four indicia of suspicious conduct justified the Terry frisk: Mr. Bozeman’s “(1) furtive movement when he parked the car; (2) immediate exit from the car before the officers approached; (3) excessive nervousness; and (4) deliberate “blading” of his body away from the officer’s view.”[203] Upon review of the decision by the trial court that the officer lacked reasonable suspicion, the appellate court concluded that the trial court did not given sufficient credence to Officer Opalski’s testimony that the blading movement Mr. Bozeman used to conceal his waistband was “‘consistent with other gun arrests’ he had made.”[204] In Bozeman, a blading movement means a specific body movement to conceal a firearm in someone’s waistband. This definition seems more specific than the description of merely walking away from law enforcement with the intention of concealing one portion of your body by clarifying which portion of the body is being hidden.

Putting aside the problem that “blading” is defined in conflicting ways, if it designates a behavior connoting to a police officer that a person is concealing a firearm, it would need predictive value to be a valid basis of reasonable suspicion. But there is very limited research available on the predictive validity of the term “blading” when it is used to mean hiding that one is carrying a gun. Two law enforcement consultants and a psychologist have written about the behavioral indicators of concealed and unholstered firearms carrying in a few publications, where they refer to this behavior as “blading.”[205] Relatedly, a 2015 military report cites “blading” as being built upon a theory of “Just Doesn’t Look Right” (JDLR), an ambiguous behavior code.[206] However, the SJC cited a study concluding that “police officers performed no better than did [] college students” in predicting which individuals were carrying concealed firearms.[207]

3.     “Blading” as an aggressive oppositional pose

Finally, a group of courts employed “blading” to describe an aggressive, threatening position angled towards law enforcement. This definition seems to contradict its use in other contexts to describe retreat, evasion, or concealment from law enforcement. For example, while outside of the reasonable suspicion context, the Tenth Circuit recently described a bladed stance as evidencing aggression rather than evasion. It described an already detained individual as taking a “bladed stance” by “standing with [one’s] feet angled out at [ninety] degrees.”[208]

Courts readily employ “blading” to connote a threatening stance justifying police intervention. For example, the Alaska Supreme Court defined “blading” to describe an inferred threat of violence—the opposite of retreat—without explanation.[209] In Wagar, the court focused on the permissible scope of the officer’s frisk, but also addressed reasonable suspicion. After receiving a tip, two police officers arrived at a parking lot as Mr. Wagar and his companion were getting out of a truck. When Mr. Wagar put his hands into his pockets, Officer Hsieh told him not to.[210] Officer Hsieh further testified that Mr. Wagar then turned away from him, “blading,” which he described as “kind of a danger sign that a person may be attempting to hide something or . . . positioning their body in some type of fighting posture.”[211] A combination of Mr. Wagar’s hands in his pockets and “blading” made Officer Hsieh feel “potentially . . . at risk.”[212] For the Alaska Supreme Court, “blading” describes a person who is: (1) walking away from a police officer; (2) potentially concealing at least some portion of his body and maybe a weapon; and (3) also positioned in a “fighting posture.”

More recently, the SJC has imbued “blading”—by the driver of the car and not the defendant passenger—with an implied potential threat or aggression. The court explained that “[a]s Paris [the driver] became more agitated, officers noticed that he took ‘a bladed stance,’ and appeared to be preparing ‘to attack [Fortes],’ whom he had known for years and with whom he had a good rapport.”[213] Officers observed that Paris had a “closed, clenched fist.[214]

A decision in the Middle District of Tennessee in 2021 used “blading” in a largely different manner to describe an individual’s increasing agitation and potential threat.[215] There, the officer testified that as he approached the defendant, the defendant was “very agitated” and “blading away” from a different officer.[216] The officer explained that he already believed the defendant was armed because of his suspected involvement in a drug transaction, and that the defendant’s “agitation and blading heightened [sic] this belief.”[217]

Similarly, appellate courts in New York and Illinois cited an individual’s “bladed stance” to describe behavior indicating aggression towards police. In People v. Medina, after the defendant got out of his car following a traffic stop and consent search, he was “‘blading himself away from [the trooper]’ — defined as standing in an ‘aggressive’ or ‘fighting’ stance with one foot in front of the other.”[218] Yet, upon concluding that officers had reasonable suspicion to patfrisk Mr. Medina, the appellate court cited the visible bulge in his waistband and his position shielding a portion of his body from the trooper’s view, but not the blading which had been used to describe Mr. Medina’s aggressive stance.[219]

Although incidental to the issue of prosecutorial misconduct, People v. Ammons uses “blading” to signal aggression towards law enforcement as opposed to retreat or hiding from law enforcement.[220] There, the defendant contested the prosecutor’s problematic description of Mr. Ammons’s conduct in resisting arrest, where the prosecutor described his “blade stance” as a potential safety threat for the arresting police officer.[221]

It defies reason that a person can be retreating from a police officer and repeatedly looking back over their shoulder while also maintaining a fighting stance that supports the inference that they may physically attack the officer. Yet these are examples of the contradictory ways that courts used “blading” in support of finding reasonable suspicion required by the Fourth Amendment.

III. Courts Have Not Discerned the New Mole

This emergence of “blading” in support of reasonable suspicion is deeply problematic. If “blading” describes any physical position meant to conceal a part of one’s body from detection, the cases above demonstrate how the term is used to describe individuals who are sitting, standing, and walking away without intent to obscure anything. And if “blading” describes a movement or body position connoting an officer’s perception of a defendant’s concealment of a weapon, at least one study suggests that police officers are no better than an average person at detecting whether a person is carrying a weapon.[222] This study found no significant difference between officers and lay people at determining which individuals in a series of videos were carrying concealed weapons, and no association between an officer’s experience and their ability to make the same determination.[223] And when “blading” is used to describe an aggressive stance where the individual is suspected of posing a threat to an officer, it has a different meaning entirely. These contradictory definitions, even within one jurisdiction, reveal that “blading” lacks meaning.

Second, the cases show that when “blading” is cited by an officer and adopted by a court, the term becomes cloaked with the perception of technocratic authority and deferred to by the court as justifying the intervention. The vagueness of an alleged “term of art” like blading distorts the constitutional requirement of particularized suspicion.[224]

Third, “blading” has a racial dimension that cannot be ignored. In the cases surveyed, it is applied almost exclusively to young BIPOC males. Given the robust body of social science confirming pervasive anti-Black bias in policing,[225] ambiguous descriptions of behavior are problematic because studies show that police officers “are more likely to attribute the ambiguous behaviors of nonwhites to criminality and the identical behaviors of whites to external factors.”[226] Because data suggests that ambiguous behaviors will be interpreted in racially disproportionate ways that replicate existing biases, we must scrutinize the judicial adoption of facially neutral terms that serve to perpetuate racial bias.

This part explores how the emergence of “blading” in Massachusetts is particularly illustrative of whack-a-mole reasonable suspicion. Despite the state’s reckoning with racialized policing and its impact on individuals and communities, reliance on “blading” flourished in the Commonwealth until the SJC recently recognized its problematic effects.

A.     Massachusetts Recognizes That Racial Disparities in Policing Affect the Behavior of the Policed

Massachusetts courts have been at the forefront of acknowledging an important paradox: nervous or evasive behavior during police interactions is disproportionately attributed to young people of color, but this behavior is itself the result of racialized policing.[227] For example, the SJC held that two potentially innocuous behaviors—flight and nervousness—are to be afforded minimal weight in the establishment of reasonable suspicion.[228]

In Massachusetts, as in most states and under federal law, an officer’s suspicion “must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom rather than on a hunch.’”[229] And a police officer may only physically search an individual’s body for weapons when they have reasonable suspicion that the stopped individual may be armed and dangerous.[230] Massachusetts long recognized that a person’s general nervous or evasive conduct, in the absence of any other information generating individualized suspicion that the person was involved in a crime, is insufficient to support an officer’s claim of reasonable suspicion.[231] In 2009, the SJC held that a defendant being in a “high crime area” should not be used to justify a stop or frisk without an articulation of specific facts demonstrating the reasonableness of the intrusion of a Terry stop.[232] The court recognized the perniciousness of “high crime area” when relied upon to support reasonable suspicion, given most areas labeled “high crime” are home to communities of color and being in a high crime area is not particularized—it attaches equally to every individual living, working, or visiting in the area.[233]

Then, in Warren, the SJC famously acknowledged that because of persistent racial profiling, Black men have legitimate reasons for wanting to avoid police interaction. Dismissing flight as “a factor in the reasonable suspicion calculus,” the court reasoned that Black men fleeing the police may have “a reason for flight totally unrelated to the consciousness of guilt,” and “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled.”[234] In 2020, the SJC reiterated the disproportionate impact of policing on Black men when it expanded protections against racial profiling during police stops.[235]

The SJC acknowledged that a young Black man is likely to feel seized in situations where other individuals may not.[236] It recognized the federal circuit split over whether the relevance of race in relevant Fourth Amendment seizure analysis.[237] Some courts explicitly held that a defendant’s race is relevant; others have indicated that race is relevant, but relied upon factors other than race to find an unconstitutional seizure;[238] and others reason that attitudes towards police are not universal enough among racial groups to be considered in seizure analysis at all.[239] Two state supreme courts explicitly held that race should be considered in the totality of circumstances of the seizure analysis.[240] While Massachusetts’ courts declined to explicitly hold that race informs when a petitioner was “seized” by police,[241] “[t]he problem of racial discrimination in the criminal justice system has not escaped the attention of [Massachusetts’s] court[s].”[242] Relying on empirical evidence of disparate policing in communities of color, the SJC repeatedly held that race affects application of criminal procedure standards and concluded that neither flight nor nervousness contribute to a finding of reasonable suspicion.[243]

B.     Massachusetts Courts Rely on “Blading” until the SJC Urges Retiring the Term

Because the SJC understands the severe problem of racialized policing and the resulting behavior of those who are particularly highly policed, the prevalence of the vague and racially applied term “blading” in cases finding reasonable suspicion is particularly unsettling.

In January 2023, the SJC upheld a police officer’s reliance on a juvenile’s alleged “blading” to justify police intervention. [244] However, at the same time, the court recognized that it had been applying different definitions to the term and suggested it be retired.[245] Karen K. concluded precisely what I argue here—that “blading has become both unwieldy, lacking precision or a single definition, and tinged with loaded connotations.”[246] The SJC’s reliance on “blading” to support reasonable suspicion in this particular instance while simultaneously acknowledging the nebulousness of the term generally illustrates powerful judicial deference to police testimony characterizing whack-a-mole reasonable suspicion.

In 2016, the SJC first cited “blading” to mean a body movement supporting an inference that an individual was armed, and relied on the term to find reasonable suspicion.[247] At a hearing on the defendant’s motion to suppress evidence, the police officer testified that Mr. Resende “had his right hand in his pocket but was holding it close to his body at the waistband area, and that [he] ‘bladed away’ from him.”[248] Upon being asked what that term meant, the officer described “blading away” as “the action of creating a thin profile of oneself with respect to another viewpoint, effectively hiding one side of the body from the other person’s view.”[249] Affirming the officer’s reasonable suspicion to believe Mr. Resende was carrying a gun, the SJC relied upon three factors from the officer’s testimony: (1) that the defendant was holding his hand near his waistband, (2) that the defendant was “blading” away from him; and (3) that the defendant was making motions with his hand that were consistent with weapon retention checks.[250]

After Resende, some Massachusetts courts used “blading” and “blading away” to describe a position supporting an officer’s preexisting belief that the person is carrying a concealed firearm. The term then morphs from describing a movement to make a thinner profile to any body movement that connotes concealment of a firearm. For example, in Hem, a few police officers approached the defendant in a “conversational tone,” asking him if he “had a minute.”[251] These officers later testified that although they knew the defendant to be “very laid back,” he became “nervous” and his “nervous behavior [then] became a little more noticeable.”[252] Specifically, the officer testified that two of Mr. Hem’s behaviors supported an inference that he was carrying a firearm in his waistband: (1) “the ‘blading’ movement” and (2) repeatedly pulling up his pants in an “assurance check.”[253] Relying on this officer’s testimony, a panel of the appellate court confirmed that police had sufficient cause to believe Mr. Hem was carrying a concealed firearm.[254]

Similarly, in Garcia, the appellate court relied largely on the officer’s testimony that defendant’s conduct in looking over his shoulder and “blading” supported reasonable suspicion.[255] Instead of citing Resende, Garcia again cited the officer’s own definition of blading at the hearing, and his inference from the behavior was that the defendant was carrying a concealed firearm.[256] The court explained that Mr. Garcia “repeatedly looked over his shoulder and when approached by police turned his body at least slightly so that the side on which he might have been holding a gun was away from the police officers.”[257] The officers testified, based on their training and experience, that this movement was called “blading” and may imply an individual was hiding a weapon held on that side of the body from them.[258] Because Garcia was decided before Warren, the defendant’s flight was also recorded as evidence of guilt contributing to reasonable suspicion.[259] In addition to his flight, “the suspicious way the defendant held his waistband, the location in which he was walking, and his turning away from the police when they approached him were sufficiently suspicious that, when combined with his flight, they provided the police with the reasonable suspicion necessary, based on articulable facts that a crime was afoot, to allow the stop of the defendant.”[260]

As in Hem and Garcia, a three-judge panel in Garner at first credited a state trooper’s testimony that defendant was “blading,” or “blading away” in a way that was indistinguishable from stating that the trooper suspected Mr. Garner was armed.[261] There, the state trooper testified that Mr. Garner “‘bladed’ his body as he stepped from the car, evincing an attempt to shield the firearm in his waistband from the troopers’ view.”[262] The court cited Resende as support for the proposition that blading means “hiding one side of the body from the other person’s view,”[263] but the body position the trooper described is the opposite of that case. Indeed, Mr. Garner stepped out of his car with his back to the state trooper, backing away to allow him to search his car.[264] But if “blading” means making one’s profile thinner to conceal something, as it is defined in Resende, this is difficult to accomplish while exiting a car. In addition, the trooper did not see Mr. Garner making any waistband adjustment, pressing his hand against his body, any visible bulge suggesting a weapon, or other indicia supporting an inference that he was carrying a firearm.[265]

After further review, the SJC disagreed, affirming the trial court’s holding that Mr. Garner’s reactions to the traffic stop did not justify the ensuing patfrisk.[266] The court reiterated that a patfrisk is a “serious intrusion on the sanctity of the person” and is permissible only where an officer has “reasonable suspicion” based on specific articulable facts, “that the suspect is [both] armed and dangerous.”[267] The court rejected the state’s argument that Mr. Garner’s behavior during the traffic stop was so suspicious as to connote a reasonable inference that he was armed, or in “fight or flight” mode. Although the trooper mentioned Mr. Garner “blading away” as he exited the car, the trial judge made no finding that during the traffic stop, Mr. Garner bladed, made any furtive gestures, or indicated that he was armed. The inference that Mr. Garner was going to run away after he consented to the search of his car was likewise unsupported; “[g]iven the narrowness of the area between the vehicle and the edge of the street, the defendant could not have moved very far,” and he “could not have taken more than two or three steps, at most.”[268] Relying on the trial judge’s findings after the suppression hearing, the SJC concluded that Mr. Garner’s behavior during the traffic stop did not generate reasonable suspicion that he was armed and dangerous, and did not justify the patfrisk.

But Garner did not resolve the conflicting definitions of “blading” that were applied since Resende. For example, another 2019 decision exemplifies how “blading” is used as a synonym for “concealing” in support of reasonable suspicion, but without defining the actual movement.[269] In Mason, the primary question on appeal was deciding at what precise moment Mr. Mason was seized by police.[270] Mr. Mason insisted that he was seized without reasonable suspicion as soon as he began to run down the stairs of the apartment with the police in pursuit, but the appellate court held instead that he was not seized until the police physically restrained him after he dropped his bag and was trying to leave the building.[271] In upholding the finding of reasonable suspicion, the appellate court relied on three findings: (1) Mason’s “abrupt change in demeanor when the police identified themselves;” (2) “his ‘blading’ of his body in a manner that made the trained officer suspect him of attempting to conceal a firearm in the bag under his arm”; and (3) his “sudden flight” when police officers asked his name.[272] Here, again, “blading” is undefined. Mr. Mason argued that what the trial court called “blading” was the only way he could walk or run down a flight of stairs. Nevertheless, the appellate court credited the officer’s testimony (based on his training and experience) “that he viewed the turning motion as just such an attempt.”[273] The officer’s testimony and the inference that Mr. Mason was attempting to conceal a weapon (as opposed to going down the stairs or avoiding a law enforcement encounter) are pivotal to the court affirming the finding of reasonable suspicion.

In 2021, Sweeting-Bailey, described “blading” as aggressive and threatening behavior towards a police officer (as in the third category of “blading” definitions described above).[274] There, a fractured SJC affirmed the constitutionality of a patfrisk of the passenger of a car that had been stopped for a minor traffic violation, based on police testimony of the driver’s “erratic, uncharacteristic behavior,” including his “bladed stance.”[275] Having been pulled over for an improper lane change, the driver, Mr. Raekwan Paris paced back and forth with flailing arms, clenched his fists, and accused officers of harassment.[276] At the suppression hearing, Officer Fortes testified that Mr. Paris “took ‘a bladed stance’ and that he was unsure if Paris was “getting ready . . . to attack him.”[277] The SJC used “bladed stance” to mean a person’s potential threat or aggression:

Paris appeared to become angrier in time, and as a result, the officers were focused entirely on him, unable to attend to the vehicle or the other occupants in the vehicle. As Paris became more agitated, officers noticed that he took ‘a bladed stance,’ and appeared to be preparing ‘to attack [Fortes],’ whom he had known for years and with whom he had a good rapport. Officers also observed that Paris had a ‘closed, clenched fist.’[278]

The SJC deferred to the officer’s inference from Mr. Paris’s behavior—that he was intending to distract the officers from the car and potentially contraband in the car—and found that it was objectively reasonable. But the dissenting justices argued that this inference “was grounded in pure speculation rather than the officers’ training, experience, or commonsense judgment,” and was thus not reasonable.[279] To the contrary, it seems unreasonable to interpret Mr. Paris’s frustration as a ruse to avoid searching the car, especially given the alternative, his contemporaneously given explanation: his beliefs that the police were harassing him and that the stop was unfair.[280]

Chief Justice Budd reasoned that people of color are disproportionately likely to be searched by police, largely due to “neutral rules of deference that affirm the decision of racially biased actors.”[281] Indeed, this uncritical deference to an officer’s suspicions of dangerousness is permitting racialized interpretation of behaviors. “Creating greater space for officers to act on their ungrounded intuitions that people are dangerous increases the risk that people of color will be subjected disproportionately to unjustified patfrisks.”[282] Other dissenting justices warned that Sweeting-Bailey would erode the constitutionally required floor of particularized suspicion.[283]

The following year “blading” was used to describe a juvenile’s position as she walked away but kept looking back over her shoulder and adjusting her waistband. In Karen K., members of the BPD were dispatched to a housing complex hours after a concerned citizen informed them that a group of kids were hanging around and one had displayed a firearm. One officer observed Karen K. trying to avoid a group of seven other officers, and later testified that she kept looking back over her shoulder and adjusting her waistband, asserting that she had “bladed” her body “so as to conceal something on her person.”[284] When asked what he meant by “blading,” that officer explained: “[a]s she’s walking, she turns to her left side and looking back at the officer several times, back and forth while she’s walking on that pathway before she taking [sic] a left turn.”[285]

Karen K. argued that because the officers lacked reasonable suspicion that she was committing a crime or that she was armed and dangerous, they violated the state constitution in stopping her.[286] Both the motion judge and the majority of the Appeals Court concluded that these were body motions “designed to conceal something from the police.”[287] Yet, the dissenting appellate judge concluded that this position is inevitable based on simple body mechanics: when someone walks away and looks back over her shoulder while walking, a behavior illustrating that she is understandably nervous about approaching officers, her body will automatically turn each time she looks back.[288] Also, the police officer did not explicitly testify that he believed Karen K. was concealing a weapon, but the trial court, because the term “blading” was employed, inferred the concealment of a weapon.[289]

On review, Karen K. presented the first opportunity for the SJC to directly evaluate the reliance on “blading” as support for reasonable suspicion.[290] It had an opportunity to discredit “blading,” and perhaps urge lower courts to show that vague behavioral observations have strong race-based foundations. Instead, the SJC acquiesced in the disproportionate stopping and frisking of young people of color by upholding the reliance for the intrusion on “blading.” It agreed that adjusting a waistband and “blading” gave the police reasonable suspicion.[291]

However, the SJC simultaneously acknowledged the problematic nature of this “mole,” acknowledging that over the last two years it had accepted the term “blading” to mean different things. It concluded in Sweeting-Bailey that a “bladed stance” suggested imminent physical attack,[292] but in Karen K., it accepted a definition of “blading” as an attempt “to conceal something on [petitioner’s] person.”[293]

Indeed, “blading” has been defined in contradictory ways since Resende, where “blading” was defined as a body position intended to conceal by “creating a thin profile of oneself with respect to another viewpoint, effectively hiding one side of the body from the other person’s view.”[294] In both Garner and Karen K., “blading” was described as a physical movement where the alteration to one’s profile, seen by officers, is the consequence of the movement itself—leaning over to retrieve car documents or walking away from officers and turning around.[295] In other cases “blading” has been employed to describe suspicion of an individual concealing a weapon. And then in Sweeting-Bailey, having a “bladed stance” suddenly described a threatening pose, used to support an inference that the driver was poised to hit a police officer.[296]

Despite these evidently contrary definitions, the term seems technical to the trier of fact, is consistently deferred to as support for reasonable suspicion, and usurps the police officer’s constitutional requirement to provide individualized facts supporting reasonable suspicion. Additionally, most cases where “blading” is cited in the record as a factor contributing to the officer’s suspicion involve a minority defendant, thus undermining the SJC’s sensitivity to racialized policing.[297] Nevertheless, the SJC recognized that “blading” is ambiguous and should therefore be retired as a basis of reasonable suspicion:

We note, however, that the word “blading” has become both unwieldy, lacking precision or a single definition, and tinged with loaded connotations. . . . Observations that a person appeared to be concealing one side of his or her body or seemed ready to fight can be relayed more clearly by a straightforward description of the behavior. Henceforth, judges should instruct witnesses simply to describe the behavior they observed in as much detail as possible, rather than merely labeling that behavior “blading.”[298]

In her concurrence, Chief Justice Budd insists that Karen K. does not lower the constitutional threshold for warrantless stops, reiterating that reasonable suspicion cannot be based in ordinary, innocuous behavior.[299] But the SJC’s reliance on “blading” and other behaviors consistent with fear-based nervousness around police to ratify a stop and patfrisk suggests otherwise.

IV. Viability of Whack-A-Mole Reasonable Suspicion

Amidst the disturbing reliance on “blading” to support reasonable suspicion, some courts have expressed skepticism. Even when not directly interrogating the term itself, these courts question the extreme deference to a police officer’s interpretation of contextually appropriate and not inherently suspicious movements as support for the Fourth Amendment’s reasonable suspicion requirement. It bears repeating here that precedent evolves solely from the police interventions where contraband was found, criminal charges were filed, and the stop or search was challenged. If courts find officers’ ex post facto explanations for their intervention dubious when they have found illegal contraband, imagine examining the justifications for interventions where even that confirmation bias was removed.

A.     Courts Skeptical of the Term “Blading”

The following courts are skeptical of using a vague term to bolster reasonable suspicion for police intervention.

The Wisconsin Court of Appeals directly criticized using “blading” to describe walking away from officers with a suspicious connotation, given the reality that walking away from a person definitionally requires turning one’s body.[300] The court explained: “[c]alling a movement that would accompany any walking away ‘blading’ adds nothing to the calculus but a false patina of objectivity.”[301]

In Pugh, the crooked way that Mr. Pugh walked away from a police officer during a consensual encounter did not give rise to reasonable suspicion of criminal activity necessary for a stop.[302] Two officers on regular patrol saw Mr. Pugh and began asking him questions about his car parked near a “no parking” sign and an alleged “drug house” next door.[303] Mr. Pugh began to walk away, and the officers subsequently grabbed him, asked him if he had anything illegal on his person, and he admitted that he was carrying a gun.[304] The officer testified at the suppression hearing that as Mr. Pugh walked away, he had “body language that was concerning. . . . He bladed himself with his right side further away from us.”[305] The officer explained that this “blading” was significant because when an individual is concealing a firearm, it creates a bulge, and individuals “commonly turn that side of their body away to keep that bulge out of view from law enforcement.”[306] While “blading” in this manner, Mr. Pugh also started walking backwards away from the officers.[307] Here, the officers refer to “blading” as a body position intended to conceal part of one’s body, consistent with their opinion of how people stand to hide a gun.

Upon review, the court emphasized that this interaction began as a consensual encounter. Just as the officers, who at the outset suspected Mr. Pugh of having parked illegally at most, were free to ask him questions without any level of suspicion, he was free to walk away.[308] Next, the court dismissed reliance on the high-crime area moniker. Third, the court critically examined the testimony that Mr. Pugh “bladed” as he backed away from the officers,[309] asking how if anyone walk away from another without turning their body to some degree. Since Pugh was decided, a few courts have cited it for support upon discounting vague allegations of “blading.”[310]

Similarly, a federal district court judge questioned the government’s reliance on “blading” where the defendant’s body position, upon review of the contemporaneous video footage, was also consistent with an individual who was diagonally crossing a street.[311] As in other cases, the first issue in Hood was determining the precise moment that Mr. Hood was seized such that a “reasonable person in view of all of the circumstances surrounding the incident . . . would have believed that he was not free to leave.”[312] The court concluded that he was seized when, upon being approached by two officers late at night, one officer told him to “hold on a sec.” In support of its insistence that it had reasonable suspicion for a stop before that precise moment, the government argued that “the defendant was walking around in a high crime area, blading his body away from the view of officers, while putting his hands up unsolicited.”[313] After reviewing the officer’s body-worn camera footage, the court disagreed. When Mr. Hood was stopped, he did not appear to be blading his body away, and instead, “the positioning of his body seems consistent with an individual who was crossing a street at a diagonal from north to south.”[314] In Hood, the district judge declined to permit the invocation of “blading” to add suspicion or concealment to a body position that is also susceptible to a non-criminal explanation. In so doing, the court neutralized the loaded term.

In 2021, another district court judge minimized each behavior in the government’s list of the defendant’s innocuous but potentially suspicious behaviors allegedly supporting reasonable suspicion for a stop.[315] In Dixon, three police officers observed the defendant walking in the park with a cross-body bag that appeared to contain a heavy object and proceeded to detain and search him. First, the judge dismissed any reliance on defendant’s “blading” without additional articulable suspicion, and then methodically explained why other furtive behaviors, to which officers testified, must be discounted because they also have innocuous explanations. At the suppression hearing, three officers testified that when Mr. Dixon noticed the officers, he grasped the bag to his body and repeatedly looked at the passing patrol car.[316] The court cited a 1999 unpublished case discounting “blading:” “[i]n the absence of other circumstances that render the defendant suspect to some degree, mere ‘blading’ is insufficient to support a stop. It is not sufficiently indicative of criminal activity, and it is readily consistent with innocent explanations.”[317] Next, the court dismissed Mr. Dixon’s repeated looks at the passing patrol car, explaining that any innocent pedestrian, realizing that he is slowly being followed by a police vehicle for a few minutes, would look over their shoulder at the officer following him. And calling such behavior suspicious is just inconsistent with “commonsense judgments about human behavior.”[318] Similarly, that Mr. Dixon seemed to be nervously clutching a heavy object is not relevant where, even in a high crime neighborhood, an individual may behave similarly with a heavy valuable object that was not a weapon.[319] Finally, the court noted that, based on the officers’ testimony, they had a limited close distance view of the bag, and could not have objectively made out the shape or size of the alleged large object within that bag. Upon review, the court concluded that although it was a “close call,” the police officers did not have reasonable suspicion to stop Mr. Dixon. “[T]o hold otherwise would be to eviscerate any objective criteria from the concept of ‘reasonable suspicion’ and replace it with an entirely subjective standard predicated entirely upon conclusions of the individual officer.”[320]

A New York appellate panel also interrogated police reliance on blading. In People v. Williams, officers on routine patrol stopped a vehicle after observing that the driver was not wearing a seat belt.[321] A backseat passenger, Joshua Williams, “appeared nervous and turned his body toward his waistband, blocking the officers’ view of his hands.”[322] Once officers discovered that none of the car occupants had a valid driver’s license, they were all asked to exit the car.[323] At that point, the officer testified that Mr. Williams “bladed away” from officers while “reach[ing] for his waistband.”[324] Upon review, the New York appellate division disagreed, reasoning that “[d]efendant’s nervousness, use of a bottle cap, and ‘blading’ do not provide additional specific circumstances indicating that defendant was engaged in criminal activity.”[325] Acknowledging that defendant’s “pattern of behavior, viewed as a whole, was suspicious,” the Williams panel appropriately interrogated the officer’s reliance on blading and concluded that there was simply insufficient articulate suspicion “of criminal conduct to justify the pursuit.”[326]

These outlier courts have begun to critically examine police reliance on “blading” to support reasonable suspicion. Although this is mildly encouraging, the story of whack-a-mole reasonable suspicion suggests that the cycle will continue, eroding the particularity required for police intervention and ratifying racially motivated stops and searches.

B.     Potential Solutions to the Ubiquitous Use of “Blading” to Support Reasonable Suspicion

Having analyzed reliance on “blading” to support reasonable suspicion over the past five years, this paper makes three findings and accepts unfortunate realities. First, the terms “blading” and “blading away” have no real meaning. If these terms ever had one meaning, the cases reveal that “blading” is used to describe three categories of contradictory body positions and movement. Second, when “blading” is used, it commands deference and tends to minimize the constitutional burden of particularized suspicion for a police intervention. Because “blading” seems to function as a proxy for an officer’s existing suspicions about a person’s criminality, using this nebulous term is highly susceptible to implicit biases and racialized application. For these two reasons, “blading” cannot be relied upon to support judicial findings of reasonable suspicion. Permitting continued judicial reliance on “blading” will further erode the articulable suspicion required for warrantless stops and searches. Third, “blading” has emerged in the wake of criticism of other vague and racialized terms—furtive movements, high-crime area, nervousness. This pattern suggests an inexorable adaptability of police tropes to sustain reasonable suspicion for an intervention: a whack-a-mole reasonable suspicion.

“Blading” is a vague term, applied by police to boost their observations about movements with a cloak of expertise and justify the warrantless stop or search that has been challenged. The SJC’s reliance on “blading” in Evelyn is illustrative.[327] First, the motion judge adopted the officer’s testimony that 17-year-old Tykorie Evelyn adopted a “bladed stance” when talking to police.[328] When asked, the officer explained that this meant Mr. Evelyn turned his body away from the officers.[329] But the motion judge later added an implication of criminality, defining the term as “to turn one’s body so that one side, usually the side where contraband is kept, is further away from an authority figure” and to turn “[one’s] body away to conceal a side of [the] body.”[330] This interpretation of “blading” is not an articulable fact—it is an inference, not based on expertise, inserting suspicious motive to an otherwise innocuous gesture. By deferring to police use of “blading” as a proxy for existing suspicions, courts entrench the term, enabling unconstitutional intrusions.

Interrogating a police officer’s reason for conducting a stop or search is an ex-post evaluation of whether that action was justified by reasonable suspicion. This determination is susceptible to explicit and implicit racial bias. In fact, the resulting body of legal precedent created to parse reasonable suspicion is further influenced by confirmation bias (a judge evaluating the police intervention is necessarily before a defendant who was criminally charged) and selection bias (the only cases creating and developing the law emerge from instances where the police intervention led to contraband or criminal activity). The immediate, short-term solution to the emergence of “blading” (or the next amorphous “mole”) is to interrogate this term when it is cited as support for reasonable suspicion. One state justice endorsed this approach: “[i]t’s better to say what happened rather than to use the word blading . . . that’s the problem, it’s a loaded term.”[331]

Presented with whack-a-mole reasonable suspicion, judges should question the seemingly facially race-neutral reasoning of actors such as police officers, particularly when that reasoning consistently leads to unjust results. Scholars have made a similar recommendation with respect to “high-crime” areas, asking advocates and judges to interrogate and demand more specificity, immediately as it is used to justify a police intervention.[332] Similarly, when ambiguous terms like “blading” are first used by an officer or prosecutor to justify a stop or frisk, trial judges can request clear behavioral descriptions instead. When the term seems ambiguous, courts can require the prosecution to show that vague behavioral observations have strong non-race-based foundations. And appellate courts, reviewing these “moles” may urge lower courts to question police officers on the predictive values of specific terms.

Other potential solutions include requiring validation of factors cited to support reasonable suspicion—stopping new racialized moles as they sprout. When evaluating an officer’s decision to intervene, advocates and trial court judges should seek evidence that factors were predictive of criminality before permitting their use to justify the Fourth Amendment intervention. This proposal begs an important question about the role of criminal defense advocates in the system of whack-a-mole reasonable suspicion. In important new scholarship, Professor Daniel Harawa explores how advocates in several foundational Fourth Amendment cases avoided litigating about racial bias despite it being clearly part of the challenged police action.[333] Although defendants were Black, and racialized policing clearly affected the interventions being challenged, advocates did not raise race in these cases. Thus, Harawa posits, counsel also bears responsibility for the erasure of race from the resulting criminal procedure doctrine.[334] Blading, like other racialized police tropes, must be challenged immediately upon being used.

The interrogation of racialized “moles” would include: (1) discovery requests for officers’ history of stops and searches over a period of time; (2) the jurisdiction’s reliance on the cited “factor” for reasonable suspicion, and evidence of who it has been used to describe (the race, age, and gender of the individual suspects); and (3) motions to refuse consideration of factors that have not been shown to validate criminal suspicion. In other words, before courts can defer to the alleged police expertise of suspicious behavior, advocates should demand evidence that the term is predictive. As Harawa’s scholarship suggests, there is a role for criminal defense advocates in preventing courts’ reliance on vague, racially applied factors to support reasonable suspicion.

These potential solutions could incorporate the technology of body-worn cameras (BWC), where particular departments ask officers to record the top three reasons they are approaching an individual. In almost every one of the cases described in this article, officers were not responding to emergent, dangerous, or violent situations. They developed suspicion at a slow enough pace to require recording into a BWC of this nature. Even if such recording were occasionally impossible, in all the encounters cited in this article there would have been ample time for an officer to state a few words into a BWC.

Conclusion

There is significant scholarly agreement that the Court has interpreted the Fourth Amendment in a way that permits racialized policing to flourish. Devon Carbado has powerfully interrogated the role of race in the Fourth Amendment, criticizing the Court’s “racial allocation of burdens and benefits of the Fourth Amendment” and arguing that the laws’ purported colorblindness is decidedly discriminatory.[335]

When applying Terry and interpreting Wardlow, courts of first impression must be cognizant of racialized policing and the resulting impact on the behavior of those groups who are consistently overly policed. The emergence of “blading” exemplifies the phenomenon of whack-a-mole reasonable suspicion, revealing the standard’s disturbing adaptability in the persistent environment of judicial deference to police. But if, as I suggest here, the doctrine of whack-a-mole reasonable suspicion is relentlessly adaptive to police descriptions, such that “furtive movements” of the 1990’s is replaced with “blading” in 2020’s, and a new term emerges in the coming years, a more comprehensive solution is needed. Such whack-a-mole reasonable suspicion is incapable of providing the constitutional protection envisioned in Terry, and, as it is currently deployed in the courts, is doomed to racialized application, thereby continuing to erode the constitutional protection afforded to BIPOC individuals during police interactions.

And if this whack-a-mole reasonable suspicion is a failure, such that Terry’s requirement of particularized suspicion for a constitutional police intervention persists only as a racialized legal fiction, this doctrine must be reimagined. The reasonable suspicion calculus must be replaced with one that does not rest upon police tropes embedded with implicit bias, and instead offers specific and concrete basis for each level of intervention. The real work will be creating that new Fourth Amendment.

Copyright © 2024 Aliza Hochman Bloom, Assistant Professor of Law, Northeastern University School of Law. For helpful feedback and conversations, I thank Donald Dripps, Brenner Fissell, Michael Gentithes, Brandon Hasbrouck, Fareed Nassor Hayat, Joel Johnson, Ben Levin, Kay Levine, Anna Lvovsky, Maria Ponomarenko, Benjamin Levin, Tracey Maclin, Rachel Moran, Jamelia Morgan, Justin Murray, Lynn S. Muster, Jacob Schuman, Nirej Sekhon, Omavi Shukur, Christopher Slobogin, David Siegel, Seth Stoughton and participants at the 2022 ABA Criminal Justice Section Workshop, 2022 CrimFest Workshop, 2022 Decarceration Law Professors’ Workshop, and the 2022 Yale Law School Justice Collaboratory Policing Clinic. I am especially indebted to Justice Geraldine Hines and Judge Barbara Dortch-Okara for inviting me to speak at the Justice Harry J. Elam Judicial Conference: our discussions inspired this project. I am likewise extremely grateful to Krithi Basu and the student editors of the California Law Review for their excellent editing.

[A1].     Commonwealth v. Karen K., 491 Mass. 165, 173 (2023) (upholding the police officer’s reliance on a juvenile’s “blading” to affirm a frisk, while simultaneously suggesting that “blading” be retired as a basis of suspicion).

           [A2].     “Whack-a-mole,” inspired by an arcade game, depicts a situation characterized by a series of repetitious and futile tasks, where the successful completion of one just yields another popping up elsewhere.

           [1].     State v. Johnson, 861 S.E.2d 474, 492 (N.C. 2021).

           [2].     State v. Johnson, 837 S.E.2d 169, 177 (N.C. Ct. App. 2019) (referring to the trial court’s conclusion that, at the time of the search, reasonable suspicion existed that Mr. Johnson was armed and dangerous).

           [3].     Johnson, 861 S.E.2d at 484.

           [4].     Id. at 488 (Earls, J., dissenting) (internal citations omitted).

           [5].     See infra, Section II.

           [6].     The Fourth Amendment provides that: “The right of the people to be secure in               their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV; see also Terry v. Ohio, 392 U.S. 1, 27 (1968) (establishing the reasonable suspicion standard for an investigatory stop).

           [7].     This is a typical standard for a weapons pat down, adopted from Terry v. Ohio. For Fourth Amendment purposes, traffic stops are considered “seizures” and reviewed under Terry’s investigative detention framework.

           [8].     Johnson, 861 S.E.2d. at 488 (Earls, J., dissenting).

           [9].     Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

         [10].     See Johnson, 861 S.E.2d at 489 (Earls, J., dissenting) (citing United States v. Wright, 485 F.3d 45, 53–54 (1st Cir. 2007) (holding that in order for a defendant’s location in a “high crime area” to contribute to reasonable suspicion, the government must prove a nexus between the type of crime prevalent in the area and that suspected of the defendant) and United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (“[L]abeling an area ‘high-crime’ raises special concerns of racial, ethnic, and socioeconomic profiling.”)).

         [11].     Id. at 492–93 (Earls, J., dissenting). Brandon Hasbrouck highlighted Justice Earls in Movement Judges, noting her recognition that “injecting race into a case is not always improper and sometimes absolutely essential to reach a just outcome.” Brandon Hasbrouck, Movement Judges, 97 N.Y.U. L. Rev. 631, 688 (2022) (discussing State v. Copley, 839 S.E.2d 726, 734 (N.C. 2020)).

         [12].     Id. at 492 (Earls, J., dissenting).

         [13].     Id. at 488 (Earls, J., dissenting).

         [14].     See generally Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may conduct investigative stops when they have “reasonable suspicion” that a crime has occurred or is ongoing).

         [15].     For example, one police officer testified in the Floyd litigation challenging New York City police use of stop and frisk that “furtive movement is a very broad concept,” and could include a person “changing direction,” “walking in a certain way,” “[a]cting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth constantly,” “looking over their shoulder,” “adjusting their hip or their belt,” “moving in and out of a car too quickly,” “[t]urning a part of their body away from you,” “[g]rabbing at a certain pocket or something at their waist,” “getting a little nervous, maybe shaking,” and “stutter[ing].” Floyd v. City of New York, 959 F. Supp. 2d 540, 561 (S.D.N.Y. 2013) (citing 4/18 Trial Transcript (“Tr.”) at 4047–49).

         [16].     United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005).

         [17].     See generally I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653 (2018) (describing the Supreme Court’s dominant message in criminal procedure cases that a “good citizen” willingly cedes their constitutional protections to aid the state); I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1 (2011) (noting that the Court rarely acknowledges race in its criminal procedure decisions); Elizabeth A. Gaynes, The Urban Criminal Justice System: Where Young + Black + Male = Probable Cause, 20 Fordham Urb. L.J. 621 (1993) (explaining how the criminal justice system disproportionately targets African American young men); Elizabeth Hinton, From the War on Poverty to The War on Crime: The Making of Mass Incarceration in America (2016) (tracing the rise of mass incarceration from the social welfare programs during President Johnson’s “Great Society”); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2019) (excavating the contributory role of social science to the myth of Black criminality). This Article focuses on racialized policing and its documented effect on Black men, although there are countless ways in which policing disproportionately affects other racial and ethnic minorities, as well as various marginalized and vulnerable populations. I note where the social science or empirical work I have cited was conducted on Black, Indigenous, people of color (BIPOC) communities, as opposed to Black men.

         [18].     “[N]ervous or anxious behavior in combination with factors that add nothing to the equation will not support a reasonable suspicion that an officer’s safety may be compromised.” Commonwealth v. Brown, 915 N.E.2d 252, 257 (Mass. App. Ct. 2009).

         [19].     58 N.E.3d 333, 341 (Mass. 2016) (concluding that police had too little information to support an individualized suspicion required for the investigatory stop).

         [20].     Commonwealth v. Evelyn, 152 N.E.3d 108, 125–26 (Mass. 2020).

         [21].     See Commonwealth v. Karen K., 164 N.E.3d 933, 938 n.10, 940, 951 (Mass. App. Ct. 2021) (affirming the trial judge’s finding that the defendant “bladed her body in an effort to conceal something from the police” supported the finding that she was illegally carrying a firearm), affirmed in Commonwealth. v. Karen K., 199 N.E.3d 860 (Mass. 2023).

         [22].     See, e.g., State v. Johnson, 861 S.E.2d 474, 480 (N.C. 2021) (the officer’s suspicion during a traffic stop that defendant was armed and dangerous was reasonable, and therefore he could remove defendant from the car and conduct a warrantless search of the car’s passenger compartment); United States v. Ward, 482 F. App’x. 771, 773 (4th Cir. 2012) (defendant’s seizure was supported by reasonable suspicion he was carrying a weapon); United States v. Lewis, 843 F. App’x 683, 690–91 (6th Cir. 2021) (by the time defendant was seized within the meaning of the Fourth Amendment, officers had the requisite reasonable suspicion).

         [23].     Commonwealth v. Nestor N., 852 N.E.2d 1132, 1137 (Mass. App. Ct. 2006) (Brown, J., concurring); see Seth Stoughton, Evidentiary Rulings as Police Reform, 69 U. Miami L. Rev. 429, 445–454 (2015) (explaining why there is substantial uncertainty as to whether courts should consider police testimony to be expert testimony).

         [24].     Aliza Hochman Bloom, Long Overdue: Confronting Race in the Fourth Amendment’s Free to Leave Analysis, 65 How. L.J. 1 (2021).

         [25].     Aliza Hochman Bloom, Objective Enough: Race is Relevant to the Reasonable Person in Criminal Procedure, 19 Stan. J. C.R. & C.L. 1, 42–48 (2023) (arguing that race is relevant to the determinations of when someone is seized within the meaning of the Fourth Amendment, when they have voluntarily consented to a search, and when they are in custody for the purposes of Miranda).

         [26].     Commonwealth v. Karen K., 199 N.E.3d 860, 869 (Mass. 2023).

         [27].     See Brief of The Charles Hamilton Houston Institute of Race & Justice, et. al. as Amici Curiae supporting Defendant, Commonwealth v. Earl Garner, No. SJC-13103, at 26–27.

         [28].     Terry v. Ohio, 392 U.S. 1, 27 (1968). Courts also allow Terry frisks on lawfully detained individuals without suspicion of criminal activity, such as a traffic stop based on probable cause of an infraction like speeding.

         [29].     Navarette v. California, 572 U.S. 393, 397 (2014).

         [30].     Alabama v. White, 496 U.S. 325, 330 (1990).

         [31].     Arizona v. Johnson, 555 U.S. 323, 326–27 (2009).

         [32].     Terry, 392 U.S. at 27.

         [33].     Seth W. Stoughton, Kyle McLean, Justin Nix & Geoffrey Alpert, Policing Suspicion: Qualified Immunity and “Clearly Established” Standards of Proof, 112 J. Crim. L. & Criminology 37, 46–48 (2022) (describing how the Court has acknowledged the difficulty of defining reasonable suspicion and rejected attempts to define it as a probability).

         [34].     Kansas v. Glover, 140 S. Ct. 1183, 1190 (2020); see also Ornelas v. United States, 517 U.S. 690, 696 (1996) (confirming that independent appellate review of a lower court’s finding of reasonable suspicion or probable cause is warranted).

         [35].     See Aliza Hochman Bloom, When Too Many People Can be Stopped: The Erosion of Reasonable Suspicion Required for a Terry Stop, 9 Ala. C. R. & C. L. L. Rev. 257, 261 (2018).

         [36].     See Ryburn v. Huff, 565 U.S. 477, 476 (2012) (suggesting that police are aware of “many circumstances in which lawful conduct may portend imminent violence”).

         [37].     United States v. Flowers, 6 F.4th 651, 656 (5th Cir. 2021), cert. denied, 142 S.Ct. 2707 (2022). Mr. Flowers insisted that sitting for 10–15 seconds in a parked car outside a convenience store in a high crime area did not constitute the particularized suspicion required by Terry. A divided Fifth Circuit disagreed, concluding that two men seen “dawdling in a Cadillac parked out of view from inside the convenience store” in a high crime neighborhood supported the officer’s reasonable suspicion for a search. Id. at 657.

         [38].     United States v. Jones, 606 F.3d 964, 967 (8th Cir. 2010); see also United States v. Hernandez, 847 F.3d 1257, 1268 (10th Cir. 2017) (quoting United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)) (finding no reasonable suspicion, in part because “if black clothing were sufficient to confer reasonable suspicion, it could subject the ambling public . . . to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power”).

         [39].     United States v. Brignoni-Ponce, 422 U.S. 873, 884–87 (1975).

         [40].     517 U.S. 806, 813 (1996) (holding that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”).

         [41].     Id.

         [42].     See Devon Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 129, 152 (2017) (describing “de facto legalization” of racial profiling through cases via cases “in which Fourth Amendment law turns a blind eye to racial profiling or makes it easy for the police to get away with the practice”). A few jurisdictions impose more rigorous restrictions on pretextual stops. For example, Massachusetts revised the standard for establishing an equal protection claim under the state constitution, Commonwealth v. Long, 485 Mass. 711, 724–25 (2020), and extended that procedural change to pedestrian stops. Commonwealth v. Robinson-Van Rader, 492 Mass. 1 (2023).

         [43].     See Justin Nix, Bradley A. Campbell, Edward H. Byers, & Geoffrey P. Alpert, A Bird’s Eye View of Civilians Killed by Police in 2015, 16 Criminology & Pub. Pol’y 309, 325–26, 328–29 (2017); Radley Balko, There’s Overwhelming Evidence that the Criminal Justice System is Racist. Here’s the Proof., Wash. Post (June 10, 2020), https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/ [https://perma.cc/2MF5-4Y2E].

         [44].     Jeffrey A. Fagan, No Runs, Few Hits, and Many Errors: Street Stops, Bias, and Proactive Policing, 68 UCLA L. Rev. 1584, 1649–50 (2022); Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the New York City Police Department’s “Stop-and-Frisk” Policy in the Context of Claims of Racial Bias, 102 J. Am. Stat. Ass’n 813, 820, 822 (2007).

         [45].     Balko, supra note 45; Emma Pierson, Camelia Simoiu, Jan Overgoor, Sam Corbett-Davies, Daniel Jenson, Amy Shoemaker, Vignesh Ramachandran, Phoebe Barghouty, Cheryl Phillips, Ravi Shroff & Sharad Goel, A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736, 737 (2020) (collecting traffic stop data); Nix et al., supra note 45, at 325–26, 328–29; see generally Michelle Alexander, The New Jim Crow (2010) (arguing that mass incarceration is an extremely well-coordinated means of racial control); Muhammad, supra note 19).

         [46].     Ronald Helms & S.E. Costanza, Contextualizing Race: A Conceptual and Empirical Study of Fatal Interactions with Police Across US Counties, 18 J. Ethnicity Crim. Just. 43 (2020).

         [47].     Nix et al., supra note 45, at 325–26, 328–29 (2017). Additional research shows officers are more likely to overestimate threats faced during fatal shootings of civilians of color. Id. at 329.

         [48].     Rory Kramer & Brianna Remster, Stop, Frisk, and Assault? Racial Disparities in Police Use of Force During Investigatory Stops, 52 Law & Soc’y Rev. 960, 987 (2018). This data showed that Black civilians were more likely than White civilians to experience lethal force even when police did not uncover any criminal behavior. Id. at 982.

         [49].     Scott E. Sundby, The Rugged Individual’s Guide to the Fourth Amendment: How the Court’s Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights, 65 UCLA L. Rev. 690, 725 (2018).

         [50].     Tom Jackman, U.S. Police Chiefs Group Apologizes for ‘Historical Mistreatment’ of Minorities, Wash. Post, (Oct. 17, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/10/17/head-of-u-s-police-chiefs-apologizes-for-historic-mistreatment-of-minorities/ [https://perma.cc/7SHU-4RH3].

         [51].     Utah v. Strieff, 579 U.S. 232, 254 (2016) (Sotomayor, J., dissenting).

         [52].     Terry v. Ohio, 392 U.S. 1, 14–15 (1968) (recognizing “wholesale harassment” of Black individuals “by certain elements of the police community”). Despite accounting for 13.6% of the population, Black people comprise 21% of all police-civilian encounters, 38.6% of the federal prison population, and 24% of all people shot and killed by police. See U.S. Census Bureau, QuickFacts (2019) [https://perma.cc/99BG-CJ7U]; Fed. Bureau Prisons, Inmate Race (2023 [https://perma.cc/6PEP-DZ39]; Erika Harrell & Elizabeth Davis, Contacts Between Police and the Public, 2018 – Statistical Tables, Bureau Just. Stat. 3 (Dec. 2020); Pierson et al., supra note 47, at 736 (“We assessed racial disparities in policing in the United States by compiling and analysing a dataset detailing nearly 100 million traffic stops. . . . Our results indicate that police stops and search decisions suffer from persistent racial bias . . .”).

         [53].     Harrell & Davis, supra note 54, at 7.

         [54].     Commonwealth v. Hart, 695 N.E.2d 226, 228 (Mass. App. Ct. 1998); see, e.g., Dep’t of Just., Investigation of the Chi. Police Dep’t 146 (Jan. 13, 2017) (documenting that Black youth are routinely called “n****r,” “animal,” “monkey,” or “pieces of shit” by CPD officers, according to reports from both residents and officers) [https://perma.cc/EQW6-W76X]; Dep’t of Just., Investigation of the Balt. City Police Dep’t, 21–24 (Aug. 10, 2016) (documenting that BPD disproportionately stops, searches, and arrests African Americans in violation of Title VI and the Safe Streets Act, and this disparate impact, along with evidence suggesting intentional discrimination against African Americans, exacerbates community distrust of BPD) [https://perma.cc/Z23L-CMN9]; Rob Voigt, Nicholas P. Camp, Vinodkumar Prabhakaran, William L. Hamilton, Rebecca C. Hetey, Camilla M. Griffiths, David Jurgens, Dan Jurafsky & Jennifer L. Eberhardt, Language from Police Body Camera Footage Shows Racial Disparities in Officer Respect, 114 PNAS 6521, 6521 (June 20, 2017) (noting that body camera footage reflects that “[p]olice officers speak significantly less respectfully to black than to white community members in everyday traffic stops, even after controlling for officer race, infraction severity, stop location, and stop outcome”).

         [55].     United States v. Knights, 989 F.3d 1281, 1297 (11th Cir. 2021) (Rosenbaum, J., concurring).

         [56].     Illinois v. Wardlow, 528 U.S. 119, 132, 134 (2000) (Stevens, J., concurring).

         [57].     Ornelas v. United States, 517 U.S. 690, 696 (1996).

         [58].     Sibron v. New York, 392 U.S. 40, 66–67 (1968) (referencing furtive gestures); Wardlow, 528 U.S. at 124 (referencing high crime area and flight); see Commonwealth v. DeWitt, 530 Pa. 299, 307–08 (1992) (referencing furtive movements and flight).

         [59].     United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting the “divide-and-conquer” analysis for reasonable suspicion).

         [60].     See Seth W. Stoughton, Kyle McLean, Justin Nix & Geoffrey Alpert, Policing Suspicion: Qualified Immunity and “Clearly Established” Standards of Proof, 112 J. Crim. L. & Criminology 37, 56 (2022).

         [61].     Commonwealth v. Torres, 424 Mass. 153, 161 (1997) (Greaney, J., dissenting).

         [62].     See State v. Johnson, 861 S.E.2d 474  (N.C. 2021).

         [63].     See Floyd v. City of New York, 959 F. Supp. 2d 540, 578 (S.D.N.Y. 2013).

         [64].     Johnson, 861 S.E.2d 474 at 488 (Earls, J., dissenting).

         [65].     Geoffrey P. Alpert, John M. MacDonald & Roger G. Dunham, Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 Criminology 407, 422–23 (2005) (showing that whether a suspect is Black influences an officer’s decision to form suspicion based on nonbehavioral versus behavioral cues); see also Bernard E. Harcourt & Tracey L. Meares, Randomization and the Fourth Amendment, 78 U. Chi. L. Rev. 809, 862–64 (2011) (using data from studies of street stops to explore the empirical implications of Wardlow).

         [66].     See Jeffrey Fagan & Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing, 82 U. Chi. L. Rev. 51, 51 (2015) (hereinafter “Following the Script”).

         [67].     Id.

         [68].     Id. at 78–79.

         [69].     Id. at 80.

         [70].     Floyd, 959 F. Supp. 2d at 578.

         [71].     Id. at 630.

         [72].     Id. at 561 (quoting 4/18 Trial Transcript (“Tr.”) at 4047–49 (emphasis added)).

         [73].     Id. at 614 (quoting 5/9 Tr. at 643).

         [74].     Id. (“Given the frequency with which Furtive Movements is checked (roughly 42% of forms), and the obvious risk that stops based merely on ‘strange, suspicious, or evasive behavior’ may lack reasonable suspicion, the [police manual’s] description of furtive movements is inadequate.”).

         [75].     Id. at 575.

         [76].     Pervaiz Shallwani, NYPD Stop-and-Frisks Decrease By 60% in Single Year, Wall St. J. (Jan. 16, 2014), http:// blogs.wsj.com/metropolis/2014/01/16/nypd-stop-and-frisks-decrease-by-60-in-single-year/ [https://perma.cc/34WN-R6X2]; Sally Goldenberg, City Council Overrides Mayor Bloomberg’s Vetoes on NYPD Stop-and-Frisk Measures, N.Y. Post (Aug. 23, 2013), http:// nypost.com/2013/08/23/city-council-overrides-mayorbloombergsvetoes-on-nypd-stop-and-frisk-measures/ [https://perma.cc/6MJN-X6KW].

         [77].     See, e.g., John Tyler Clemons, Blind Injustice: The Supreme Court, Implicit Racial Bias, and the Racial Disparity in the Criminal Justice System, 51 Am. Crim. L. Rev. 689, 707–10 (2014) (explaining that officers’ reliance on an individual’s “furtive movements” and presence in a “high crime area” are racially applied); Kristin Henning, The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment, 67 Am. U. L. Rev. 1513, 1556–58 (2018) (positing that in light of the drastic overrepresentation of Black youth in the juvenile justice system, police and courts must recognize how implicit racial bias affects Fourth Amendment doctrine and specifically to rethink the ubiquitous reasonable person standard).

         [78].     Fareed Nassor Hayat, Preserving Due Process: Applying Monell Bifurcation to State Gang Cases, 88 U. Cin. L. Rev. 129, 137–38 (2019) (arguing that serious due process violations with gang allegations could be alleviated by separating gang allegations from criminal acts in the prosecution’s case-in-chief); see K. Babe Howell, Fear Itself: The Impact of Allegations of Gang Affiliation on Pretrial Detention, 23 St. Thomas L. Rev. 620, 636 (2011).

         [79].     Hayat, supra note 80, at 136–38.

         [80].     Howell, supra note 80, at 649.

         [81].     Hayat, supra note 80, at 137–38. Hayat cites several other scholars who argue that using gang affiliation to support police intervention is inherently racist.

         [82].     Diaz Ortiz v. Garland, 23 F.4th 1, 15–22 (1st Cir. 2022) (addressing unreliability of Boston police department’s gang database).

         [83].     This is a qualitative assessment, having read hundreds of reasonable suspicion cases for research and as a criminal defense advocate. It would be valuable to quantify the reduction in reliance on “furtive gestures” in a future project.

         [84].     See, e.g., Commonwealth v. Mercado, 663 N.E.2d 243, 246 (Mass. 1996) (holding that nervous and evasive behavior are relevant but insufficient standing alone to support reasonable suspicion).

         [85].     See generally Capers, supra note 19 (arguing that Black males in particular must perform “citizenship work” and be particularly deferential to police to offset the criminality associated with their racial construction); Gaynes, supra note 19 (describing the ways in which the criminal justice system disproportionately targets African American young men).

         [86].     Brandon Hasbrouck, The Unconstitutional Police, 56 Harv. C.R.-C.L. L. Rev. 239, 253 (2021); see generally Alexander, supra note 47 (arguing that mass incarceration is an extremely well-coordinated means of racial control).

         [87].     Sophie Trawalter, Jennifer A. Richeson & J. Nicole Shelton, Predicting Behavior During Interracial Interactions: A Stress and Coping Approach, 13  Personality and Soc. Psych. Rev. 243, 252–56 (2009).

         [88].     Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. of Personality and Soc. Psych. 797, 807 (1995).

         [89].     Cynthia J. Najdowski, Bette L. Bottoms & Phillip Atiba Goff, Stereotype Threat and Racial Differences in Citizen’s Experience of Police Encounters, 39 Law and Human Behav. 463, 465 (2015). Goff cites one study where 27% of Black college students stated that during a low-stakes interaction with police officers, they expected the officer to suspect they were a criminal. Only 3% of White students had the same fear. Id. at 469.

         [90].     See, e.g., Amanda Geller, Jeffrey Fagan, Tom Tyler & Bruce G. Link, Aggressive Policing and the Mental Health of Young Urban Men, 104 Am. J. Pub. Health. 2321, 2324 (2014) (finding, through the results of empirical study, that participants who experienced more police contacts reported more trauma and anxiety symptoms, correlating to the intrusiveness and perceived fairness of the police encounter).

         [91].     Utah v. Strieff, 579 U.S. 232, 254 (Sotomayor, J., dissenting).

         [92].     See Brittany N. Fox-Williams, The Rules of (Dis)engagement: Black Youth and Their Strategies for Navigating Police Contact, 34 Soc. Forum 115, 118, 123–27 (2019).

         [93].     L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035, 2039, 2044–53 (2011) (examining hit-rate statistics from major cities in seven states and drawing from over a dozen psychological studies to analyze implicit bias in police-citizen encounters); see also Pippen v. State, 854 N.W.2d 1, 33 n.9 (Iowa 2014) (J. Waterman, concurring specially) (citing Arrest Efficiency in discussion of implicit bias).

         [94].     See, e.g., Susan McNeeley & Garrett Grothoff, A Multilevel Examination of the Relationship Between Racial Tension and Attitudes Toward the Police, 41 Am. J. Crim. Just. 383, 397 (2016) (finding that Black individuals are more likely than White individuals to be suspicious of police regardless of the Black individual’s socioeconomic level); Mia Carpiniello, Striking a Sincere Balance: A Reasonable Black Person Standard for “Location Plus Evasion” Terry Stops, 6 Mich. J. Race & L. 355, 361–62 (2001).

         [95].     Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020) (discounting evidence of “nervous and evasive behavior,” which the prosecution suggested showed guilt, because of the likelihood that the defendant was nervous in part because of racial profiling).

         [96].     United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en banc) (affirming reasonable suspicion where the officer’s “increasing suspicion was also fueled by [defendant’s] extreme nervousness, his avoidance of eye contact, and his pattern of answering the officer’s questions with questions of his own”).

         [97].     United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010) (holding that defendant’s criminal history, nervousness, and inconsistent travel plans contributed to reasonable suspicion for a search); United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (explaining that “[n]ervousness is a common and entirely natural reaction to police presence”); United States v. Richardson, 385 F.3d 625, 630–31 (6th Cir. 2004) (“[A]lthough nervousness has been considered in finding reasonable suspicion in conjunction with other factors, it is an unreliable indicator, especially in the context of a traffic stop. Many citizens become nervous during a traffic stop, even when they have nothing to hide or fear.”); United States v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002) (“We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity.”); United States v. Jones, 269 F.3d 919, 929 (8th Cir. 2001) (holding that a suspect’s nervous behavior alone was not enough to establish reasonable suspicion); United States v. Chavez Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001) (holding that “extreme nervousness” during a traffic stop does not alone “support a reasonable suspicion of criminal activity, and does not justify an officer’s continued detention of a suspect after he has satisfied the purpose of the stop”); United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (“Nervousness . . . alone will not justify a Terry stop and pat-down.”).

         [98].     Commonwealth v. Mercado, 663 N.E.2d 243, 246 (Mass. 1996) (“Neither evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support . . . reasonable suspicion.”).

         [99].     Commonwealth v. Brown, 915 N.E.2d 252, 257 (Mass. App. Ct. 2009).

      [100].     Commonwealth v. Warren, 58 N.E.3d 333, 341 (Mass. 2016).

      [101].     Id. at 341–42.

      [102].     Id. at 341.

      [103].     Id.

      [104].     See Terrence Scudieri, Fleeing While Black: How Massachusetts Reshaped the Contours of the Terry Stop, 54 Am. Crim. L. Rev. 42 (2017). At least Illinois and the District of Columbia have followed suit. See People v. Horton, 142 N.E.3d 854, 868 (Ill. App. Ct. 2019) (concluding empirical data offered an “eminently reasonable and noncriminal reason” for Black men’s flight); Mayo v. United States, 266 A.3d 244, 260–61 (D.C. 2022) (recognizing empirical data provided “myriad reasons” that “undermine[d] the reasonableness of an inference of criminal activity from all instances of flight” and discounting relevance of flight in reasonable suspicion analysis).

      [105].     Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020); Commonwealth v. Long, 152 N.E.3d 725, 746–47 (Mass. 2020) (lowering the evidentiary standard for proving racial bias in police stops). In 2023, the SJC applied Long in the context of pedestrian stops, reducing the evidentiary burden for plaintiffs seeking to argue selective enforcement based on race. Commonwealth v. Robinson-Van Rader, 208 N.E.3d 693, 707 (Mass. 2023).

      [106].     Evelyn, 152 N.E.3d at 113 (concluding that Evelyn was seized when, having trailed him for 100 yards in the cruiser and repeatedly trying to converse with him, the officer in the front passenger seat opened the door of the vehicle).

      [107].     Id. at 126 .

      [108].     State v. Moore, 781 S.E.2d 897, 902 (S.C. 2016).

      [109].     Washington v. Maryland, 287 A.3d 301, 325 (Md. 2022); see Aliza Hochman Bloom, Reasonable, Yet Suspicious: The Maryland Supreme Court Wrestles with the Paradox of Flight from Police, 103 B.U. L. Rev. Online 59, 67 (2023).

      [110].     Floyd v. City of New York, 959 F. Supp. 2d 540, 581 (S.D.N.Y. 2013); see Fagan & Geller, supra note 68, at 59.

      [111].     See Committee on Proactive Policing: Effects on Crime, Communities, and Civil Liberties, Law and Legality, in Proactive Policing: Effects on Crime and Communities 87–88, 91 (David Weisburd & Malay K. Majmundar eds., 2018) (explaining that hot spot and other proactive, deterrent policing strategies may encourage officers to initiate stops not supported by reasonable suspicion).

      [112].     Anna Lvovsky, Rethinking Police Expertise, 131 Yale L.J. 475, 482 (2021). Other scholars similarly critique judicial obsequiousness to alleged experts in criminal law-adjacent contexts. For example, Justin Driver and Emma Kaufman recently questioned the Supreme Court’s long tradition of deference to prison officials. The Incoherence of Prison Law, 135 Harv. L. Rev. 515, 537 (2021); see also Sharon Dolovich, Forms of Deference in Prison Law, 24 Fed. Sent’g Rept. 245, 248 (2012) (arguing that judicial deference to prison officials in prisoners’ rights cases often operates in ways that undermine the lived experience of prisoners and force of the claim).

      [113].     Lvovsky, supra note 114, at 482 (citing Susan Stefan, Leaving Civil Rights to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard, 102 Yale L.J. 639, 699–715 (1992) (discussing a range of under-interrogated grants of deference to expert judgment)).

      [114].     Ornelas v. United States, 517 U.S. 690, 699 (1996). Lvovsky lists other criminal procedure arenas where courts wholly defer to alleged police expertise, such as the presence of “exigent circumstances,” or the risk of an individual to officer safety. Lvovsky, supra note 114, at 488.

      [115].     Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1890 (2015) (citing Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 192, 248–49 (1993)).

      [116].     See Lvovsky, supra note 114, at 561–64.

      [117].     See, e.g., Fagan & Geller, supra note 68, at 81-86 (upon reviewing evidence from 4.4 million police stops, finding that particular “scripts” are expressions of the norms within police discretion and that they undermine the requirement of individuation inherent in Fourth Amendment doctrine);  Richardson, supra note 95, at 2046–47, 2075–95 (examining policing statistics from many cities and drawing from psychological studies to analyze implicit bias in police citizen encounters); Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. Rev. 956, 969–71, 989–90, 1003–04 (1999) (addressing the constitutional and policy implications of racially motivated searches and seizures); Randall S. Susskind, Race, Reasonable Articulable Suspicion, and Seizure, 31 Am. Crim. L. Rev. 327, 334–38 (1994) (analyzing the role of race in police encounters); Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271, 1302–07 (1998) (detailing the unconstitutional manner in which officers use stop and frisk to combat street crime); Andrew E. Taslitz, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7, 10–11 (2010) (examining stress and other factors contributing to police officers’ judgment during interventions); Eric J. Miller, Detective Fiction: Race, Authority, and the Fourth Amendment, 44 Ariz. State L.J. 213, 227 (2012) (arguing that the Supreme Court’s repeated reference to police expertise is a fiction).

      [118].     Scholars criticize the foundation underlying police claims of professional judgment, including limited training, subjectivity, and reliance on hunches, as opposed to actual data. See Ben Grunwald & Jeffrey Fagan, The End of Intuition-Based High-Crime Areas, 107 Calif. L. Rev. 345, 350–52 (2019); Fagan & Geller, supra note 68, at 86–87; L. Song Richardson, Cognitive Bias, Police Character, and the Fourth Amendment, 44 Ariz. St. L.J. 267, 268 (2012); Maclin, supra note 119, at 1299–307 (1998); Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 1997–98 (2017); Rachel Moran, In Police We Trust, 62 Vill. L. Rev. 953, 970 (2017).

      [119].     See, e.g., Grunwald & Fagan, supra note 120, at 363–67 (2019) (using empirical evidence to show that police reliance on “high crime areas” to support reasonable suspicion for intervention was not supported by crime data); see United States v. Weaver, 9 F.4th 129, 156 n.3 (2d Cir. 2021) (en banc) (Lohier Jr., J., concurring) (“[b]ecause officers are more likely to perceive majority-minority neighborhoods as ‘high-crime areas,’ African Americans are viewed suspiciously wherever they go. Majority-minority neighborhoods become ‘high-crime’ neighborhoods, and otherwise innocent conduct appears to some as suspicious.”).

      [120].     See United States v. Hernandez, 847 F.3d 1257, 1268–69 (10th Cir. 2017) (finding that wearing “all black clothing and carrying two backpacks” while walking in a high-crime area was insufficient to support reasonable suspicion); United States v. Jones, 606 F.3d 964, 967 (8th Cir. 2010) (acknowledging that the defendant’s behavior of clutching the outside of his sweatshirt pocket fit the firearm carrying clues but declining to give dispositive weight to this conduct in a high-crime area); United States v. Slocumb, 804 F.3d 677, 682-83] (8th Cir. 2015) (holding that ambiguous but commonly shared behavior observed in a high-crime area is not sufficient to create reasonable suspicion); State v. Edmonds, 145 A.3d 861, 883 (Conn. 2016) (recognizing that “[T]he crime rate of a particular area cannot transform otherwise innocent-appearing circumstances” into suspicion); State v. Weyand, 399 P.3d 530, 536 (Wash. 2017) (rejecting Terry stops justified solely on the basis of ambiguous behavior observed in a high-crime area, noting that “reliance on ‘furtive movements’ as a basis of a Terry stop can be problematic.”).

      [121].     United States v. Wright, 485 F.3d 45, 53–54 (1st Cir. 2007).

      [122].     State v. Andrade-Reyes, 442 P.3d 111, 114, 119–20 (Kan. 2019).

      [123].     Sizer v. State, 174 A.3d 326, 338 (Md. 2017) (finding the lack of evidence   linking the defendant or his group to the “nature of the crimes that led them to conclude that the Village Center was a high crime area” relevant).

      [124].     Id. at 344 (Adkins, J., concurring and dissenting in part).

      [125].     Mayo v. United States, 266 A.3d 244, 267–68 (D.C. 2022) (pending rehearing).

      [126].     See Samuel Walker, Not Dead Yet: The National Police Crisis, a New                             Conversation About Policing, and the Prospects for Accountability-Related   Police Reform, 2018 U. Ill. L. Rev. 1777, 1783 (describing a “National Police Crisis” after the events in Ferguson and the creation of a “New Conversation” about police reform).

      [127].     See, e.g., Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 151–62 (2017) (exposing the vast discretion of police when conducting stops); Hasbrouck, supra note 88, at 251 (2021) (arguing that the Court’s Fourth Amendment jurisprudence “excuses” police racism and then “enshrines it within the limits of constitutional protections”); Omavi Shukur, The Criminalization of Black Resistance to Capture and Policing, 103 B.U. L. Rev. 1, 43–45 (2023) (interrogating the assumption that physical resistance to law enforcement and arrest violates a social contract and is therefore rightly punishable, arguing that instead of criminalizing Black resistance to racially subordinating policing, society should eradicate the harms animating that resistance).

      [128].     See, e.g., Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 416 (2018) (“The rebellions in Ferguson and Baltimore . . . and the accompanying swell of Black-led organizing, forced hard-charging conversations about law, the police, and the state—routine conversations in communities of color that are relatively absent in legal scholarship—onto the national stage, changing the debate over race in the United States.”).

      [129].     Brandon Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 67 UCLA L. Rev. 1108, 1114–18 (2020); see Aya Gruber, Policing and “Bluelining,” 58 Hous. L. Rev. 867, 876 (2021) (explaining that vagrancy laws, which were contained in the Black Codes, were facially neutral, but when enforced by Southern police forces, they were “indistinguishable from the prewar slave patrol regime”).

      [130].     Jocelyn Simonson, Police Reform Through a Power Lens, 130 Yale L.J. 778, 784–85 (2021); see also Nate Cohn & Kevin Quealy, How Public Opinion Has Moved on Black                   Lives Matter, N.Y. Times (June 10, 2020), https://www.nytimes.com/interactive/2020/06/10/upshot/black-lives-matter-attitudes.html [https://perma.cc/G7CN-QHUY] (noting the public opinion shift in support of race and criminal justice issues).

      [131].     Simonson, supra note 132, at 786.

      [132].     Paul Butler, The System Is Working The Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1475 (2016) (“I want to support a frame alignment around the term ‘Third Reconstruction’”); Paul Butler, The White Fourth Amendment, 43 Tex. Tech. L. Rev. 245, 246–47 (2010) (advancing abolition of policing); I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 N.Y.U. L. Rev. 1, 59–60 (2019) (“How do we make a reality what CRT scholars and fellow travelers have long called for, a Third Reconstruction that would ‘merge “we” and “they” while eliminating the role that whiteness and blackness play in determining who belongs and who does not’?” (quoting Lisa A. Crooms-Robinson, Is the Third Time the Charm? Reconstructing Personhood and Reimaging “We the People,” 43 Hum. Rts. 28, 31 (2018)).

      [133].     See Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 650, 677–84 (2020).

      [134].     Shaun Ossei-Owusu, Police Quotas, 96 N.Y.U. L. Rev. 529, 535 (2021).

      [135].     Akbar, supra note 130, at 460 (describing how the abolitionist approach focuses on reducing the greater social and fiscal footprint of police on society as opposed to efforts to improve the police and criminal law); see Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1782, 1832–39 (2020).

      [136].     See Kendall Karson, 64% of Americans Oppose ‘Defund the Police’ Movement, Key Goals: Poll, ABC News (June 12, 2020) https://abcnews.go.com/Politics/64-americans-oppose-defund-police-movement-key-goals/story?id=71202300 [https://perma.cc/RZA2-P2KZ] (describing how                Americans oppose the defund police movement).

      [137].     Joel S. Johnson, Vagueness Avoidance, 110 Va. Law. Rev. (forthcoming 2024).

      [138].     The word “blue,” Johnson explains, refers to the color or the mood, and context typically resolves the ambiguity. Id. at 11.

      [139].     Johnson explains that the term “unreasonable” in Fourth Amendment doctrine is contestable because it invites value judgment about what level of justification is required by the Fourth Amendment for the police intervention. Id. at 14.

      [140].     Id. at 12 (citing Geert Keil & Ralf Poscher, Introduction to Vagueness and Law: Philosophical and Legal Perspectives 2 (2016) (explaining that vague terms “draw no sharp boundary between their extension and their anti-extension,” but instead “tolerate marginal changes” and “admit borderline cases”).

      [141].     In addition to only stemming from police interventions where contraband was discovered, Fourth Amendment cases citing “blading” are much more likely to be appeals from denials of motions to suppress because the government rarely appeals the exclusion of evidence at the trial level. Elsewhere, I’ve discussed the selection bias and confirmation bias of reviewing precedents stemming only from cases where police found contraband. It would be extremely helpful to have data showing how often stops relying on “blading” led to any discovery of criminal contraband, and is a worthy future project, but beyond the scope of this article.

      [142].     State v. Johnson, 861 S.E.2d 474, 482 (N.C. 2021).

      [143].     Id.

      [144].     Id. at 492 (Earls, J., dissenting).

      [145].     United States v. Faught, No. 21-6123, 2022 WL 2813240, at *2 (6th Cir. 2022) (recognizing that if a suspect stands in a “bladed” position by turning away from an officer as if to conceal something, that positioning can add to the reasonable suspicion that the suspect might have a weapon).

      [146].     Id. at *5 (citing United States v. Moberly, 861 F. App’x 27, 31 (6th Cir. 2021); United States v. Lewis, 843 F. App’x 683, 691 (6th Cir. 2021); and United States v. Johnson, 428 F. App’x 616, 618, 621 (6th Cir. 2011)).

      [147].     Id.

      [148].     State v. Wren, 982 N.W.2d 357, 358 (Wisc. Ct. App. 2022).

      [149].     Id. at 360.

      [150].     Id. at 359.

      [151].     Id. at 360.

      [152].     United States v. Belin, 626 F. Supp. 3d 321, 322 (D. Mass. 2022) (denying motion to suppress evidence during the pat down search).

      [153].     Id.

      [154].     Id.

      [155].     199 N.E.3d 879, 880 n.2 (2022) (Mass. App. Ct. 2022).

      [156].     Id.

      [157].     Crabbs v. Pitts, 817 Fed. App’x. 208, 210 (6th Cir. 2020).

      [158].     See Commonwealth v. Hem, 163 N.E.3d 1035, 1036 (Mass. App. Ct. 2021).

      [159].     State v. Malachi, 825 S.E.2d 666, 670 (N.C. App. 2019) (holding that officers had reasonable suspicion justifying a stop of defendant and were permitted to then frisk the defendant upon reasonable suspicion that he was armed and dangerous).

      [160].     Id. at 668.

      [161].     Id.

      [162].     Id. “Officer Clark placed [the defendant] in handcuffs and told him that he was not under arrest. Officer Van Aken then frisked [the defendant] and pulled a revolver from his right hip waistband. As the two officers seized the revolver, a third officer, Officer Kevin Hawkins, arrived. The officers then told [the defendant] he was under arrest and placed him in the back of Officer Clark’s patrol vehicle.”

      [163].     Id. at 670 (Officer Clark testified that Mr. Malachi “turned his body in such a way as to prevent the officer from observing a weapon”).

      [164].     Mr. Malachi was limited to plain error review because his trial counsel did not object when the revolver evidence was offered at trial. To show fundamental error, Mr. Malachi needed to “establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Further . . . because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.” Id. at 669 (quoting State v. Maddux, 819 S.E.2d 367, 371 (N.C. 2018)).

      [165].     See State v. Johnson, 783 S.E.2d 753, 760 (2016) (noting that “[p]ursuant to Terry, [an officer’s] frisk of [a] defendant may only be justified by [these] two independent criteria.”).

      [166].     Malachi, 825 S.E.2d at 669.

      [167].     Id. at 669–70.

      [168].     Johnson, 861 S.E.2d at 479.

      [169].     Nathan C. Meehan, Christopher Strange & Alexander Garinther, It’s the Walk, Not the Talk: Behavioral Indicators of Concealed and Unholstered Firearms Carrying, 94 Police J.: Theory, Prac. and Principles 462, 471 (Dec. 1, 2021), https://doi.org/10.1177/0032258X20960777 [https://perma.cc/HC83-5WD3]. The authors explain how the body position can conceal a weapon as follows: “[t]o conceal a weapon, the subject may turn 90 degrees away from the individual observing or approaching them, placing their body between the gun (or another object they wish to conceal) and the other person approaching.” Id.

      [170].     Id.

      [171].     See Nathan C. Meehan, Christopher Strange & Michael McClary, Behavioral Indicators During a Police Interdiction, Naval Rsch. Lab’y (2015), https://apps.dtic.mil/sti/pdfs/ADA620182.pdf [https://perma.cc/22W7-55GG] (2015).

      [172].     United States v. Ward, 482 Fed. App’x. 771, 773 (2012).

      [173].     Id. at 772.

      [174].     Id.

      [175].     Id. (citing United States v. Perry, 560 F.3d 246, 253 (4th Cir. 2009)).

      [176].     Id. at 773. The Fourth Circuit panel cited two unpublished cases relying on “blading” for reasonable suspicion and in support of the other factors, also citing Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000).

      [177].     Brown v. Texas, 443 U.S. 47, 51–52 (1979) (holding that an individual’s presence in an area with a high incidence of narcotics trafficking is insufficient to support reasonable suspicion).

      [178].     United States v. Lewis, 843 Fed. App’x 683, 691(6th Cir. 2021).

      [179].     Id. at 690–91 (citing Wardlow, 528 U.S. at 124).

      [180].     Id. at 691. In 1960, the Court applied the federal exclusionary rule to the states, holding that evidence obtained in violation of the Fourth Amendment cannot be used in state criminal trials. Mapp v. Ohio, 367 U.S. 643, 658-60 (U.S. 1961). “Dropsy” testimony refers to a police officer’s testimony that a fleeing suspect dropped an illegal substance that was then confiscated by police and used as probable cause for an arrest. United States v. Boyd, 365 F. Supp. 3d 534, 537 n.7 (2019) (describing allegations that officer’s testimony about having found a weapon, provided well after the stop was challenged, was fabricated, or “dropsy testimony.”). “Dropsy” testimony is sometimes given to justify an arrest without probable cause, thus circumventing the exclusionary requirement.

      [181].     Lewis, 843 Fed. App’x. at 691.

      [182].     Id.; Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (“[t]he bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer.”).

      [183].     Lewis, 843 Fed. Appx at 691. The Sixth Circuit panel in Lewis does not define “bladed position” but cites another unreported case. See United States v. Chandler, 437 Fed. App’x 420, 424, 426 (6th Cir. 2011) (approving of officer’s pat-down search of the defendant after the officer observed the defendant assumed a bladed position).

      [184].     Lewis, 843 Fed. App’x. at 691–92.

      [185].     Mackell v. Maryland, No. C-12-CR-20-00319, 2022 WL 3701728, at *1–2 (Md. Ct. Spec. App. Aug. 26, 2022).

      [186].     Id. at *2.

      [187].     Id.

      [188].     Id.

      [189].     Id. at * 11 (citing Norman v. State, 452 Md. 373, 387 (2017) (holding that, without additional circumstances, the smell of marijuana did not create reasonable articulable suspicion that an occupant of the vehicle was armed and dangerous).

      [190].     State v. Murray, 213 A.3d 571, 579 (Del. 2019) (holding that there was reasonable suspicion the defendant was carrying a concealed weapon given his “unnatural canting and blading”).

      [191].     Id. at 574.

      [192].     Id. The officer explained that Mr. Murray was “walking with his right arm canted and pinned against the right side of his body . . . which is one of the telltale signs of . . . somebody who is armed with a handgun.”

      [193].     Id. at 575.

      [194].     Id.

      [195].     Id. at 576.

      [196].     Id. The trial court provided hypothetical noncriminal explanations for why someone may walk in this manner to justify rejecting the state’s argument of the officer’s reasonable suspicion.

      [197].     Id. at 579.

      [198].     Id. at 579.

      [199].     Id. at 581 (Traynor, J., dissenting).

      [200].     Id.

      [201].     Id. at 582. In State v. Pugh, an appellate court granted a defendant’s suppression motion, finding that officers lacked reasonable suspicion to justify a seizure, and criticized the officer’s reference to defendant’s alleged blading used in a similar manner as in Murray. 826 N.W.2d 418, 424 (Wis. Ct. App. 2012) (“How does a person walk away from another (as [the defendant] had the right to do) without turning his or her body to some degree? Calling a movement that would accompany any walking away ‘blading’ adds nothing to the calculus but a false patina of objectivity.”).

      [202].     Commonwealth v. Bozeman, 205 A.3d 1264, 1276 (Pa. Super. 2019).

      [203].     Id. at 1275.

      [204].     Id. at 1276 (“Officer Opalski testified that a high percentage of the firearm arrests he has made involved firearms in a waistband, and that, in his experience, when a suspect ‘blades’ his body away from the officer in such a way that conceals his waistband, it is an indication the suspect ‘might be armed.’”).

      [205].     Meehan, Strange & Garinther, supra note 171, at 462–480; see also Nathan Meehan, Michael McClary, & Alexander Garinther, Behavioral Indicators of Drug Carrying in Open Spaces, 63 Int’l J. of Offender Therapy and Compar. Criminology 448, 448–70 (2019).

      [206].     Meehan, Strange & McClary, supra note 173, at 14, Appendix E (citing Nathan C. Meehan & Christopher Strange, Behavioral Indicators of Illegal and Legal Gun Carrying, Naval Rsch. Lab’y, 21, Table 8 (2015)).

      [207].     Commonwealth v. Evelyn, 152 N.E.3d 108, 114 (Mass. 2020) (citing Dana M. Sweet, Christian A. Meissner & Dominick J. Atkinson, Assessing Law Enforcement Performance in Behavior-Based Threat Detection Tasks Involving a Concealed Weapon or Device, 41 L. & Hum. Behav. 411 (2017)).

      [208].     Maldonado Pinedo v. United States, 814 Fed. App’x. 338, 341 (10th Cir. 2020).

      [209].     State v. Wagar, 79 P.3d 644, 646 (Alaska 2003) (holding that an officer had a reasonable belief that the object he felt during a pat down search for a weapon could have been used as a weapon and was thus entitled to examine that object).

      [210].     Id.

      [211].     Id. (noting that Officer Hsieh testified that because Mr. Wagar put his hands in his pockets and turned away, Hsieh claimed he felt he was “potentially . . . at risk”).

      [212].     Id.

      [213].     Commonwealth v. Sweeting-Bailey, 178 N.E.3d 356, 635 (Mass. 2021). Note that in Sweeting-Bailey, Paris and the passengers had exited the car and were standing up by the time police officers describe Paris as taking a bladed stance. In State v. Johnson, by contrast, the individual sitting inside the car is described as blading. 861 S.E.2d 474, 492 (N.C. 2021).

      [214].     Sweeting-Bailey, 178 N.E.3d at 365 (Mass. 2021).

      [215].     United States v. Faught, No. 3:18-cr-00186, 2021 WL 848700 (M.D. Tenn. 2021) (holding that officers’ testimony of defendant’s perceived aggression and blading established that they had reasonable suspicion that defendant was engaged in a drug transaction, reasonably inferred that he was armed, and were entitled to conduct a pat-down to check for weapons).

      [216].     Id. at *4.

      [217].     Id. at *5.

      [218].     People v. Medina, 175 N.Y.S.3d 625, 628 (N.Y. App. Div. 2022) (finding that police had sufficient reasonable suspicion to justify searching defendant’s person).

      [219].     Id. at 629.

      [220].     People v. Ammons, 193 N.E.3d 53, 69–71 (Ill. App. Ct. 2021), appeal denied, 187 N.E.3d 730 (Ill. 2022).

      [221].     Id.

      [222].     Sweet, Meissner & Atkinson, supra note 209, at 418 (“Across three experiments using different detection paradigms we observed no significant differences in performance between law enforcement officers and naïve controls in detecting a concealed object.”); Taslitz, supra note 119, at 10 (finding that the New York Police Department made over 500,000 stops in 2006, and only 10% of those stops resulted in an arrest or summonses).

      [223].     Sweet, Meissner & Atkinson, supra note 209, at 418.

      [224].     Commonwealth v. Karen K., 199 N.E.3d 860, 936 n.6 (Mass. 2023); id. at 943 n.19 (Milkey, J., dissenting) (“The justice system would be better served if motion judges, attorneys, and witnesses avoided loaded terms such as ‘blading’ and just addressed what happened.”).

      [225].      See, e.g., Jennifer Eberhardt, Phillip Atiba Goff, Valerie J. Purdie & Paul G. Davies, Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psych. 876, 876(2004) (“Not only is the association between Blacks and crime strong (i.e., consistent and frequent), it also appears to be automatic. . . .”); see also infra Part I.

      [226].     Richardson, supra note 120, at 268; see also Henning, supra note 79, at 1556 (describing that police officers would likely invent alternative reasons based on behavior of a young Black boy to justify a stop).

      [227].     Historically, an individual’s “attempt to avoid contact with or observation by police . . . may be considered along with other facts.” Commonwealth v. Wren, 463 N.E.2d 344, 346 n.2 (Mass. 1984).

      [228].     Commonwealth v. Mercado, 663 N.E.2d 243, 246 (Mass. 1996) (“Neither evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support . . . reasonable suspicion.”); Commonwealth. v. Warren, 58 N.E.3d 333, 342 (Mass. 2016).

      [229].     Commonwealth v. DePeiza, 868 N.E.2d 90, 95 (Mass. 2007) (holding that, to justify a patfrisk, a police officer must have a reasonable suspicion that the defendant is armed and dangerous and not just personally be generally concerned for the officer’s own safety).

      [230].     Commonwealth v. Torres-Pagan, 138 N.E.3d 1012, 1016 (Mass. 2020) (citing Terry v. Ohio, 392 U.S. 1, 24–25 (1968)) (“Without a more particularized fear that the suspect is presently armed and dangerous, the officer cannot take the more intrusive step of pat frisking the suspect.”).

      [231].     Mercado, 663 N.E.2d at 246 (“Neither evasive behavior, proximity to a crime scene, nor matching a general description is alone sufficient to support . . . reasonable suspicion.”).

      [232].     Commonwealth v. Johnson, 908 N.E.2d 729, 733 (Mass. 2009).

      [233].     Id.

      [234].     Commonwealth. v. Warren, 58 N.E.3d 333, 342 (Mass. 2016).

      [235].     See Commonwealth v. Long, 152 N.E.3d 725, 737 (Mass. 2020) (2020) (lowering the evidentiary standard for proving racial bias in police stops and explaining that “[t]he right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy”); see also Commonwealth v. Evelyn, 152 N.E.3d 108, 126 (Mass. 2020) (discounting evidence of “nervous and evasive behavior” that the prosecution suggested showed guilt because of the likelihood that Defendant was nervous in part because of racial profiling); see also Commonwealth v. Robinson-Van Rader, 208 N.E.3d 693, 707 (Mass. 2023) (extending the reduced procedural burden for proving racial discrimination to pedestrian stops).

      [236].     Evelyn, 152 N.E.3d at 120 (citing Buckley, 478 Mass. 861 (2018) (noting the “enormity . . . of the problem of racial profiling”); Commonwealth v. Feyenord, 833 N.E.2d 590, 604 (Mass. 2005) (Greaney, J., concurring) (discussing the “humiliating, painful, and unlawful” nature of some police encounters with African American and Hispanic individuals); see Tracey Maclin, “Black and Blue Encounters” – Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter? 26 Val. U. L. Rev. 243, 255 (1991) (“Black males learn at an early age that confrontations with the police should be avoided; [B]lack teenagers are advised never to challenge a police officer, even when the officer is wrong.”).

      [237].     Evelyn, 152 N.E.3d at 120 (citing United States v. Washington, 490 F.3d 765, 768–69 (9th Cir. 2007) (concluding that recent well-publicized incidents in which police shot African American citizens were relevant to the determination of whether an African American man had been seized by police) and United States v. Easley, 911 F.3d 1074, 1081–82 (10th Cir. 2018), cert. denied, 139 S. Ct. 1644 (2019) (declining to consider race in seizure analysis)); Dozier v. United States, 220 A.3d 933, 944 (D.C. 2019) (“As is known from well-publicized and documented examples, an African-American man facing armed policemen would reasonably be especially apprehensive” in defendant’s situation, having been “perceived with particular suspicion by hyper vigilant police officers expecting to find criminal activity in a particular area”)).

      [238].     United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015) (echoing Mendenhall, holding that “while [the defendant’s] race is ‘not irrelevant’ to the question of whether a seizure occurred, it is not dispositive either,” nevertheless noting “the relevance of race in everyday police encounters . . . around the country” as well as “empirical data demonstrating the existence of racial profiling, police brutality, and other racial disparities in the criminal justice system.”).

      [239].     See, e.g., United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018) (holding that “[t]here is no uniform life experience for persons of color, and there are surely divergent attitudes toward law enforcement officers among members of the population,” therefore, “there is no uniform way to apply a reasonable person test that adequately accounts for racial differences consistent with an objective standard for Fourth Amendment seizures”); United States v. Knights, 989 F.3d 1281, 1288–89 (11th Cir.), cert. denied, 142 S. Ct. 709 (2021) (holding that “most personal characteristics, including race, do not lend themselves to objective conclusions” amenable to a Fourth Amendment seizure analysis).

      [240].     State v. Jones, 172 N.H. 774, 780 (2020) (holding that “race is an appropriate circumstance to consider in . . . seizure analysis”); State v. Sum, 511 P.3d 92, 97 (Wash. 2022) (holding clearly that, while in the past courts have not explicitly held that in interactions with law enforcement, race and ethnicity matter,” they “do so today”); see Aliza Hochman Bloom, “What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing, 107 Minn. L. Rev. Headnotes [2-3] (Fall 2022).

      [241].     Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020). The Court declined to explicitly add race to seizure analysis, instead affirming that analysis of whether an article 14 seizure had occurred “must arise from the actions of the police officer[,]” and not from the individual’s state of mind.

      [242].     Commonwealth v. Williams, 116 N.E.3d 609, 617 (Mass. 2019) (citing Commonwealth v. Buckley, 90 N.E.3d 767 (2018) (Budd, J., concurring)).

      [243].     See, e.g., Commonwealth v. Warren, 58 N.E.3d 333, 341 (Mass. 2016).

      [244].     Commonwealth v. Karen K., 199 N.E.3d 860 (Mass. 2023).

      [245].     Id. at 869.

      [246].     Id.

      [247].     See Commonwealth v. Resende, 52 N.E.3d 1016, 1020 n.8 (Mass. 2016) (characterizing “blading” based on the trial record there as “hiding one side of the body from the other person’s view”).

      [248].     Id.

      [249].     Id.

      [250].     Id. at 1022. The term is put in quotation marks and defined with a footnote referring to the police officer’s definition provided during the hearing. Id. at 1020 n.8.

      [251].     Commonwealth v. Hem, 163 N.E.3d 1035, 1037 (Mass. App. Ct. 2021).

      [252].     Id.

      [253].     Id.

      [254].     Id. at 1037 (citing Commonwealth v. Resende, 52 N.E.3d 1016, 1023 (Mass. 2016) for the proposition that “blading” movements and motions consistent with weapons checks support reasonable suspicion that a defendant is armed).

      [255].     Commonwealth v. Garcia, 36 N.E.3d 1267, 1271 (Mass. App. Ct. 2015) (holding that police had reasonable suspicion to justify the investigatory stop because Mr. Garcia was walking in a high crime area holding his waistband with his right hand in a way that, based on one officer’s training and experience, the officer believed suggested possession of a firearm in his waistband).

      [256].     Id. at 1270–71.

       [257].  Id.

      [258].     Id.

      [259].     Id. at 1271 (citing Commonwealth v. Carrion, 552 N.E.2d 558, 567(1990) (“Flight is perhaps the classic evidence of consciousness of guilt”)).

      [260].     Id.

      [261].     Commonwealth v. Garner, 159 N.E.3d 1085, 1086] (Mass. App. Ct. 2020).

      [262].     Id. at 1087.

      [263].     Id. at 1088 n.7 (citing Commonwealth v. Resende, 52 N.E.3d 1016, 1020 n.8 (Mass. 2016)).

      [264].     Id. at 1087.

      [265].     Cf., Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020) (finding that officers’ observations that the defendant had a firearm-sized object in his pocket and kept his hands pressed against his body indicated that he might be trying to conceal a weapon); Resende, 52 N.E.3d at 1022 (finding that the defendant’s behavior in holding his hand near his waistband was a factor supporting reasonable suspicion that the defendant was holding a concealed gun); Commonwealth v. DePeiza, 868 N.E.2d 90, 95 (Mass. 2007) (holding that behavior suggesting an attempt to conceal a firearm from officers in a high crime area supported reasonable suspicion that defendant was carrying an illegal firearm).

      [266].     Commonwealth v. Garner, 188 N.E.3d 965, 972 (Mass. 2022).

      [267].     Commonwealth v. Torres-Pagan, 138 N.E.3d 1012, 1015 (Mass. 2020) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).

      [268].     Garner, 188 N.E.3d at 970–71.

      [269].     Commonwealth v. Mason, 122 N.E.3d 1100, 1103 (Mass. App. Ct. 2019).

      [270].     Id.

      [271].     Id.

      [272].     Id.

      [273].     Id. at 1103 n.6.

      [274].     See infra Part II.A.

      [275].     Commonwealth v. Sweeting-Bailey, 178 N.E.3d 356, 365 (Mass. 2021).

      [276].     Id. at 373 (Wendlandt, J., concurring).

      [277].     Id. at 361.

      [278].     Id. at 364.

      [279].     Id. at 375–76 (Budd, C.J., dissenting).

      [280].     The young Black man’s frustration at being stopped for a lane change violation is understandable. See Id. at 377 (Budd, C.J., dissenting) (citing Mandala v. NTT Data, Inc., 988 F.3d 664, 669 (2d Cir. 2021) (Pooler, J., dissenting) (“Most Americans understand that the criminal justice system has quite clear racial biases that create disparate outcomes for [B]lack Americans”)).

      [281].     Id. (Budd, C.J., dissenting) (citing Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020) (“long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future”)).

      [282].     Id.

      [283].     Id. at 378 (Gaziano, J., dissenting) (“The court’s view of what a police officer must believe in order to establish ‘a reasonable suspicion, based on specific articulable facts, that the suspect is armed and dangerous’ . . . eviscerates the standard of a reasonable police officer and replaces it with subject, speculative beliefs that an officer might have, contrary to [the jurisprudence] of the United States Supreme Court under the Fourteenth Amendment to the United States Constitution”).

      [284].     Commonwealth. v. Karen K., 199 N.E.3d 860, 867–88 (Mass. 2023).

      [285].     Id. at 868.

      [286].     Commonwealth v. Karen K., 164 N.E.3d 934, 935 (Mass. App. Ct. 2021).

      [287].     Id. at 936 (“As the juvenile walked, she continuously looked back and forth over her shoulder at the officers before changing direction, adjusted her waistband, and turned her body away”).

      [288].     Id. at 946 (Milkey, J., dissenting).

      [289].     Id. at 946–47 (Milkey, J., dissenting).

      [290].     Karen K., 199 N.E.3d at 868.

      [291].     Id. at 876 (“While certainly a close case, the combination of factors here afforded Lopes reasonable suspicion that the juvenile was carrying an illegal firearm in her waistband such that the stop and patfrisk of the juvenile comported with constitutional requirements”).

      [292].     Commonwealth v. Sweeting-Bailey, 178 N.E.3d 356, 366 (Mass. 2021).

      [293].     Karen K., 199 N.E.3d at 868.

      [294].     Commonwealth v. Resende, 52 N.E.3d 1016, 1020 n.8 (2016).

      [295].     In Karen K., the juvenile is described as turning around to watch police officers following her. The Appeals Court escalates the characterization to “pivot[ing] her hip away from the officers’ view,” Karen K., 164 N.E.3d at 937; see Commonwealth v. Garner, 188 N.E.3d 965, 970–71 (Mass. 2022).

      [296].     Sweeting-Bailey, 178 N.E.3d at 365.

      [297].     Resende, 52 N.E.3d at 1019 n.6, 1020 n.8; id. at 377 (Budd, C.J., dissenting).

      [298].     Karen K., 199 N.E.3d at 869.

      [299].     Karen K., 199 N.E.3d at 876 (Budd, C. J., concurring).

      [300].     State v. Pugh, 345 Wis. 2d 832 (Wisc. Ct. App. 2012) (reversing the judgment of conviction and granting the suppression motion where officers lacked reasonable suspicion to justify a Terry seizure).

      [301].     Id. at 843.

      [302].     Id.

      [303].     Id. at 835–36.

      [304].     Id. at 837.

      [305].     Id.

      [306].     Id.

      [307].     Id. at 838.

      [308].     Id. at 841 (citing Florida v. Royer, 460 U.S. 491, 497–98 (1983) (“The person approached [by a law-enforcement officer], however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.”).

      [309].     Id. at 843.

      [310].     State v. Nimmer, 395 Wis. 2d 769, 772–73 (2021) (per curiam). In Nimmer, the trial court considered evidence that the defendant had “accelerated his pace of walking in response to learning that the police were near him” and was “blading” consistent with concealing a weapon. The court of appeals cites Pugh that an individual’s purported blading away from a police officer as they walk is insufficient to support reasonable suspicion.

      [311].     United States v. Hood, 435 F. Supp. 3d 1, 9 (D.D.C. 2020).

      [312].     Id. at 5–6 (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

      [313].     Id. at 8.

      [314].     Id. The district court also appropriately discounted the government’s outsized reliance on Mr. Hood’s presence on his own street, a high-crime area, and his unsolicited decision to put his hands in the air, which was “hardly surprising, given how the [particular police unit] operates in neighborhoods such as his—i.e., essentially as a ‘rolling roadblock.’”

      [315].     United States v. Dixon, No. 20-CR-368, 2021 WL 1662492 (S.D.N.Y. Apr. 28, 2021).

      [316].     Id. at *14.

      [317].     Id. (citing United States v. Parker, No. 99–CR–123, 1999 WL 997282 (E.D.N.Y. Oct. 18, 1999)).

      [318].     Id. (citing United States v. Wardlow, 528 U.S. 119, 125 (2000)).

      [319].     Id.

      [320].     Id. at *16 (citing United States v. Doughty, No. 08 Cr. 375(RPP), 2008 WL 4308123, at *6 (S.D.N.Y. Sept. 19, 2008).

      [321].     People v. Williams, 141 N.Y.S.3d 224, 226 (N.Y. App. Div. 2021).

      [322].     Id.

      [323].     Id.

      [324].     Id.

      [325].     Id. at 227.

      [326].     Id.

      [327].     Commonwealth v. Evelyn, 152 N.E.3d 108, 125 (Mass. 2020).

      [328].     Brief of Defendant on Interlocutory Appeal from the Suffolk Superior Court, Commonwealth v. Evelyn, No. 2019-P-0499, 2019 WL 6894247 at *83, 85–86 (Mass. Sept. 18, 2019).

      [329].     Id. at *81.

      [330].     Id. at *81 n.3, 85–86.

      [331].     Commonwealth v. Evelyn, SJC-12808, 58:34, https://boston.suffolk.edu/sjc/pop.php?csnum=SJC_12808 [https://perma.cc/5PU5-TXNK].

      [332].     See Grunwald & Fagan, supra note 120, at 352, 397.

      [333].     Daniel Harawa, Whitewashing the Fourth Amendment, 111 Geo. L. J. 923, 963 (2023) (calling for the adoption of more race-conscious litigation strategies).

      [334].     Id. at 930–35.

      [335].     Devon Carbado, [E]racing the Fourth Amendment, 100 Mich. L. Rev. 946, 965, 969 (2002).