COMMONWEALTH VS. MICHAEL ROBINSON-VAN RADER.
SJC-13329
Supreme Judicial Court of Massachusetts
May 15, 2023
Suffolk. January 6, 2023. — May 15, 2023.
Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Firearms. Threshold Police Inquiry. Constitutional Law, Search and seizure, Reasonable suspicion, Equal protection of laws. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court Department on August 28, 2018.
A pretrial motion to suppress evidence was heard by Peter B. Krupp, J., and a conditional plea was accepted by Mary K. Ames, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
John P. Warren for the defendant.
Kathryn Sherman, Assistant District Attorney (Michelle Slade, Assistant District Attorney, also present) for the Commonwealth.
Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma S. Jaber, & Douglas J. Plume, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submittеd a brief.
Katharine Naples-Mitchell, Audrey Murillo, & Radha Natarajan, for Criminal Justice Institute at Harvard Law School & another, amici curiae, submitted a brief.
The defendant filed a motion to suppress the evidence seized from his person, on the ground that the stop was in violation of
A Superior Court judge denied the defendant‘s motion because he concluded that the officers had had reasonable suspicion to stop the defendant to investigate his involvement in the shooting, and reasonable suspicion that he was armed and dangerous to support the patfrisk for a weapon. In addressing the defendant‘s equal protection challenge, the judge presumed that this court‘s revised standard for establishing an equal protection claim under the
We conclude that the stop did not violate the defendant‘s rights under the Fourth Amendment or
1. Background. a. Facts. The facts are derived from the facts found by the motion judge, supplemented with undisputed evidence from the record that is not contrary to the judge‘s rulings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
On April 23, 2018, at 7:29 P.M., Boston police received reports and ShotSpotter acoustic alerts of gunfire at a basketball court near Annunciation Road, an area located not far from Boston police headquarters. Within a minute of the first report, police received two 911 calls detailing the incident. The first caller, “Manny,” reported that “[t]here was a bunch of shots just fired,” “about . . . eight or so,” near a particular address on Annunciation Road. The second caller, “Mаrie,” called from a location a few blocks away from Annunciation Road, adjacent to the Southwest Corridor Park. She reported having heard “about six” gunshots, and described seeing two Black males wearing black “hoodies” (sweatshirts with hoods) riding “off on their bikes.” She also reported that the two males on bicycles left the area by riding along Prentiss Street, and then turned right (southbound) onto Tremont Street. About fifteen seconds after placing the call, Marie was reporting to the 911 operator that she could still see the two males on bicycles, when she said, “I can see the cop coming now.” In an audio recording of the call introduced at the hearing on the defendant‘s motion to suppress, police sirens are audible in the background of the call.
Following this call, the police dispatcher broadcast a description of the suspects. The first broadcast stated, “I do have a description of two males that were seen on bikes take off on Tremont from Prentiss.” Subsequent broadcasts detailed multiple witness‘s reports that the two males on bicycles were the shooters, and that they were wearing “black hoodies.” Although the dispatcher had information from one of the 911 callers that the two males were Black, she did not broadcast the reported race of the suspects over the police radio. The judge found the police response to have been “swift and coordinated.”
As the investigation was developing, Officer James O‘Loughlin, Jr., was working a paid detail on New Heath Street, slightly
O‘Loughlin saw two Black males on bicycles, wearing black shirts or sweatshirts, pedaling southward toward Heath Street, and reported as much to the police dispatcher. He told the disрatcher, “You got two Black males coming down Tremont Street right now” toward Heath Street, and he described their appearance as one man wearing “a black vest and a Black male in a black jacket.” O‘Loughlin also reported that the pair appeared to be pedaling slowly; he assumed that they were tired.
When the police dispatcher first broadcast the information about the incident, three other officers, in an unmarked sport utility vehicle (SUV), were approximately one and one-half to two miles away from the scene of the shooting. Officer Korey Franklin was driving the SUV in the vicinity of Blue Hill Avenue and Columbia Road; Officer Gregory Eunis was in the front passenger‘s seat and Officer Reivilo Degrave was in the rear seat on the passenger‘s side. The three officers, all members of the youth violence strike force, were in plain clothes, but were wearing tactical vests that had “Boston Police” printed on the fronts and backs.1
Upon hearing the dispatch, Franklin drove quickly in the direction of the reported shooting. After further details about the incident were broadcast, the officers stopped at the location where O‘Loughlin had been speaking to the dispatcher, and they talked with him. O‘Loughlin told them that two Black males on bicycles, wearing black hoodies, were slowly pedaling toward Heath Street. Based on O‘Loughlin‘s report, Franklin drove north along Columbus Avenue, which parallels the bike path, to search for the suspects. At that point, the three officers had heard the dispatcher‘s description of two males on bicycles in black
When they reached the area of the Southwest Corridor Park, the officers observed two young Black males wearing black hoodies walking south on Columbus Avenue on the southbound side of the road. Few other people were outside in the area that evening, and the males were the only two individuals wearing hoodies whom police saw in that location.2
The officers drove past the two young men and noticed that each kept continuously looking back over his shoulder toward Boston police headquarters, although nobody appeared to be following them. Franklin turned the SUV around at Cedar Street, and headed south on Columbus Avenue, so that he ended up trailing the two pedestrians. Near the corner of Columbus Avenue and Heath Street, he pulled up adjacent to the two young men, who were on the passenger‘s side of the SUV. After Franklin stopped the vehicle, Eunis and Degrave got out and approached the two men, who later were identified as the defendant and J.H. The young men did not change their pace as the officers approached. Degrave said, “Hold up a second,” and the two complied. Degrave spoke with J.H., while Eunis approached the defendant. The officers did not observe any indications of hidden firearms, such as noticeably weighted pockets or suspicious bulges.
When Degrave asked J.H. whether he had “anything on him,” J.H. turned sideways in “kind of like a jerk reaction -- like as a reflex.” This resulted in J.H.‘s right hip being shielded from the officer. Degrave then pat frisked J.H. and found a firearm in his waistband. As Degrave was conducting the pat frisk, Eunis had been observing the defendant, who was sweating and continuously looking over his shoulder toward Boston police headquarters. Throughout the encounter, the defendant kept his right hand in his sweatshirt pocket but, unlike J.H., did not make any effort to turn or to shield his body. After Degrave found the firearm on J.H.‘s person, Eunis “grabbed [the] defendant, pulled him to the ground, secured his arms, and put him in handcuffs.” A subsequent patfrisk of the defendant revealed a firearm in his pants
Mary Fowler, a professor of mathematics at Worcester State University, testified in support of the defendant‘s argument that the investigatory stop violated his rights to equal protection.3 Fowler conducted a statistical analysis of the traffic stops Eunis and Degrave had made, which included information about the racial distribution of individuals in the set of field interrogation and observation (FIO) reports submitted by Eunis and Degrave from January 5, 2017, through August 31, 2018. An estimated fifty-one percent of residents in the officers’ patrol area were Black. Among the 276 individuals who had been subjects of the officers’ discretionary stops during that period, 248, or ninety percent, were Black, and five, or two percent, were “white, non-Hispanic.”
Fowler compared those figures to data from the United States Census Bureau for the locations of each of the FIOs the officers had reported. The census data contained the racial distribution of the residents living within the officers’ patrol area at the time of the stops at issue, which acted as a benchmark. Within the twenty-month period, Fowler testified, Black individuals were more than five times as likely to be stopped as other individuals. Fowler conducted a statistical analysis called an “equality of proportions” test, which indicated that the difference between the frequency of non-Black individuals stopped and the frequency of
b. Prior proceedings. A grand jury returned indictments charging the defendant with unlawful possession of a firearm,
2. Discussion. a. Reasonable suspicion. “To justify a police investigatory stop under the Fourth Amendment or
In this case, we must determine whether the officers had reasonable suspicion when Eunis and Degrave, wearing Boston police tactical vests, got out of their unmarked SUV, approached the two young men, and told them to “[h]old up a second.” See Commonwealth v. Evelyn, 485 Mass. 691, 699 (2020) (“the
The defendant argues that the officers had only a generic description of the suspects as Black males wearing black hoodies, which left virtually nothing to distinguish the suspects from others in the area. When they were stopped, the defendant and J.H. were on foot, and were not riding bicycles as the suspects were reported to have done. In addition, the stop took place “nearly one mile away” from the location where the shots were reported, and the context of the stop, in a busy residential and retail area, early in the evening, made it less reasonable to conclude that the defendant and J.H. were more likely to be the shooters than anyone else in the area.
The Commonwealth maintains that there was reasonable suspicion for the stop because of the defendant‘s and J.H.‘s temporal and geographic proximity to the scene of the shooting, the similarity between the description of the two shooters and the appearance of the defendant and J.H., their nervous and evasive behavior, and the ongoing safety concern related to multiple shots being fired in a populated area.
i. Physical description. The fact that an individual matches a broad, general description does not alone amount to reasonable suspicion, particularly if that description could fit many people in the area where the stop takes place. See Commonwealth v. Warren, 475 Mass. 530, 535 (2016) (description of suspects as three Black males wearing dark clothing, one wearing red hoodie, without any description of their facial features, hairstyles, height, weight, or other physical characteristics, was insufficient to support reasonable suspicion that Black male in general area wearing dark clothing was involved); Commonwealth v. Cheek, 413 Mass. 492, 496 (1992) (“the description of the suspect as a ‘[B]lack male with a black 3/4 length goose’ [jacket] could have fit a large number of men who reside in the Grove Hall section of Roxbury“); Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554, 557 (2002) (general description that fails to distinguish suspect from others cannot alone support reasonable suspicion). Nonetheless, use of a general description is not an insurmountable obstacle to a finding of reasonable suspicion. “[T]he value of a vague or general description in the reasonable suspicion analysis may be enhanced if other factors known to the police make it reasonable to surmise that the suspect was involved in the crime under investigation.” Meneus, 476 Mass. at 237.
Prior to the stop of the defendant and J.H., the officers knew only that they were searching for two Black male suspects, who were wearing black hooded sweatshirts, and were riding bicycles in a particular direction. No information had been communicated about the suspects’ facial features, hairstyles, skin tone, height, weight, or other physical characteristics that could have contributed to the officers’ ability to distinguish the suspects from everyone else in the area. See Warren, 475 Mass. at 535. Moreover, at the time of the stop, the defendant and J.H. were walking, and not riding bicycles as the suspects were reported to have done. Thus, the description of the suspects, standing alone, was too general to give rise to reasonable suspicion to stop the defendant. Indeed, the judge recognized the description as being “generic.” See id. at 535-536 (“With only this vague description, it was simply not possible for the poliсe reasonably and rationally to target the defendant or any other black male wearing dark clothing as a suspect in the crime“).
The inquiry, however, does not end there. The judge also properly considered whether other pieces of information allowed the officers to narrow the range of suspects from a generic description fitting many members of the community to particular individuals. See Meneus, 476 Mass. at 237. See, e.g., Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010) (general description that was insufficiently detailed and particularized to provide police reason to stop any person matching that description was bolstered by “accompanying circumstances“); Commonwealth v. Mercado, 422 Mass. 367, 371 (1996) (general description combined with other relevant factors may provide adequate narrowing of description such that police have reasonable suspicion).
Thus, we turn to consider whether the bare-bones description of the suspects as Black men wearing black hoodies was enhanced by other factors relevant to a determination of reasonable suspicion.
The defendant argues that the judge‘s finding of nervousness “added little, if anything, to the suspicion equation.” The officers would have been limited only to speculating that “the teenagers’ head movements were related to the shots-fired incident, which took place nearly one mile away.”
In Commonwealth v. Karen K., 491 Mass. 165, 179 (2023), we considered whether evidence that a juvenile was “repeated[ly] looking over her shoulder and . . . attempt[ing] to avoid police officers” was properly factored into the analysis of reasonable suspicion. We observed that, although “nervous or furtive movements do not supply reasonable suspicion when considered in isolation,” taken together with оther factors, they may be considered as supporting reasonable suspicion. Id. at 179, quoting Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007). See Commonwealth v. Barros, 425 Mass. 572, 584 (1997) (reasonable suspicion was supported by observation of three men “walking rapidly away from the crime scene while glancing over their shoulders“).
At the same time, caution must be exercised in considering nervous or evasive behavior in the calculus of reasonable suspicion. “[I]n some instances, the fact that members of certain groups -- such as Black males in Boston -- have been disproportionately and repeatedly targeted for police encounters suggests a reason” for flight or evasive conduct unrelated to any possible consciousness of guilt (quotations and alterations omitted). Karen K., 491 Mass. at 179-180. See Evelyn, 485 Mass. at 708-709 (nervousness and evasive behavior must be considered in context of unwillingness to engage in conversation with police); Warren, 475 Mass. at 540 (flight of Black man from Boston police officers, based on reports of racial profiling, was “not necessarily probative of . . . consciousness of guilt“); Commonwealth v. Martin, 457 Mass. 14, 21 (2010) (in light of his young
There was nо error in the judge‘s decision to consider the defendant‘s act of repeatedly glancing over his shoulder toward Boston police headquarters in the analysis of reasonable suspicion. See Barros, 425 Mass. at 584. Notably, the concerns expressed in Karen K., 491 Mass. at 179-180; Evelyn, 485 Mass. at 708-709; Warren, 475 Mass. at 540; and Martin, 457 Mass. at 21, are not present here. The officers were driving an unmarked vehicle, and there was no evidence that the defendant and J.H. were aware that the car that drove past them in the opposite direction was a police vehicle. In particular, the judge found that the defendant and J.H. were nervously glancing over their shoulders “before they were aware of . . . Franklin‘s unmarked vehicle.” Thus, the officers’ approach cannot be considered the source of the defendant‘s nervousness.
iii. Geographic and temporal factors. The judge also relied on the defendant‘s geographic and temporal proximity to the location of the shooting to bolster his view of the officers’ ability to distinguish the defendant and J.H. from other Black men wearing black hooded sweatshirts. The judge determined that the “[d]efendant and J.H. were moving in the direction of flight from the scene where shots were fired and were observed there only a few minutes after the shots were reported. As in Evelyn[, 485 Mass. at 708-709,] and Depina[, 456 Mass. at 246-247,] [the] defendant‘s location and direction of travel were consistent with the expected location and direction of travel of the suspects at that time.”
The defendant contends that his proximity to the location of the crime, minutes after the reports of shots fired, did not support a finding of reasonable suspicion. Relying on Warren, 475 Mass. at 536-537, he argues that the officers had limited information concerning the direction of the suspects’ flight. In the defendant‘s view, the officers, “could only guess where the suspects went . . . . On bicycles, within minutes, the suspects could have been in any number of neighborhoods in the dense city of Boston.” See Meneus, 476 Mass. at 233-234, 240 (no reasonable suspicion despite report that young men ran into courtyard of housing complex). The defendant notes that, while he was stopped only minutes after the shooting, the distance of one mile from the scene, on a spring evening where Degrave testified that “a lot of people” were “walking around,” but according to Eunis, no one
The presence of a suspect in geographic and temporal рroximity to the scene of the crime under investigation appropriately may be considered as a factor in the calculus of reasonable suspicion. See, e.g., Henley, 488 Mass. at 103 (officers had reasonable suspicion where defendant was stopped two blocks away from, and five minutes after, shooting); Evelyn, 485 Mass. at 704-705 (defendant being stopped thirteen minutes after shooting, one-half mile away from scene, weighed in favor of reasonable suspicion); Depina, 456 Mass. at 246 (defendant being within three blocks of crime scene ten minutes after shooting added to calculus of reasonable suspicion). “Proximity is accorded greater probative value in the reasonable suspicion calculus when the distance is short and the timing is close.” Warren, 475 Mass. at 536.
In Warren, 475 Mass. at 536-537, the defendant was stopped one mile from the scene of the crime, approximately twenty-five to thirty minutes after a breaking and entering had taken place. testified that he did not see any other pedestrians that stood out to him that night, that he did not remember seeing other individuals, and that the defendant and J.H. “were the only two people I seen walking in that area.” The judge apparently credited this testimony, rather than Degrave‘s testimony that “[i]t‘s a very commonly-traveled area. Some people were on foot. A lot of people were just walking around . . . .” The fact that Eunis‘s testimony was contradicted by his partner‘s testimony does not render the judge‘s finding clearly erroneous. “A judge may accept or reject, in whole or part, the testimony offered on a motion to suppress.” Commonwealth v. Harvey, 390 Mass. 203, 206 n.4 (1983). We determined that the broad time frame, combined with speculative evidence concerning the path of flight, could have placed the suspect anywhere in multiple neighborhoods within a two-mile radius of the crime scene. Id. at 536-537. The location and timing of that stop, therefore, were “no more than random occurrences . . . where the direction of the perpetrator‘s path of flight was mere conjecture.” Id. at 536.
Here, by contrast, the defendant and J.H. were stopped seven minutes after the initial report of shots having been fired, approximately one mile from the scene of the shooting. The location of the stop was not a “random occurrence.” Multiple reports by witnesses and police officers followed the path of the suspects as
Accordingly, here, unlike in Warren, 475 Mass. at 536-537, the judge properly considered the defendant‘s geographic and temporal location relative to the scene of the crime under investigation as factors in his calculus of reasonable suspicion.
iv. Nature of the crime. The judge observed that “the officers werе looking for suspects in a shooting that had occurred nearby, a very short time before.” The shooting took place in a dense residential and commercial area, near a university and a train station. The judge concluded that the “gravity of this crime and the fact that the shooters were at large further supports the officers’ stop.”
The seriousness of the offense, and the danger presented to the community, are factors that properly may be considered in assessing whether police had reasonable suspicion at the time of a stop. Depina, 456 Mass. at 247. See, e.g., Henley, 488 Mass. at 104 (“we consider that the circumstances of this crime, a shooting that left one victim dead, presented ongoing risk to public safety“); Evelyn, 485 Mass. at 705 (“circumstances indicated a potential ongoing risk to public safety, and therefore weighed in favor of reasonable suspicion“); Meneus, 476 Mass. at 239 (“fact that the crime under investigation was a shooting, with implications for public safety, was relevant but not dispositive in determining the reasonableness of the stop“); Commonwealth v. Lopes, 455 Mass. 147, 157-159 (2009) (in evaluating reasonable suspicion to justify stop, court considered report that van had been involved in homicide).
Given thе facts found by the judge, we conclude that the officers had reasonable suspicion to stop the defendant to investigate
b. Equal protection. In addition to his argument that he had been subject to an unreasonable search and seizure, the defendant moved to suppress the evidence seized as a result of the stop on the ground of equal protection. He argued that the officers violated his right to be protected from selective enforcement of the laws, and urged the judge, in analyzing this contention, to apply the less-stringent equal protection standard set forth in Long, 485 Mass. at 723-725, rather than the traditional three-part test elucidated in Commonwealth v. Franklin, 376 Mass. 885, 894-895 (1978). Under the Long standard, the defendant argued, “once the low bar of a reasonable inference of discriminatory motive has been established -- a burden of production -- the burden of proof of non-discrimination shifts to the Commonwealth.” See Long, supra at 735. The defendant maintained that the Commonwealth had failed to rebut the inference of discriminatory motive, which was supported by Fowler‘s statistical evidence.
The Commonwealth argued that the Long standard is limited to traffic stops, and therefore is inapplicable to a pedestrian stop. In the Commonwealth‘s view, a selective enforcement claim arising out of a pedestrian stop requires evaluation under the more rigorous, three-part test set forth in Franklin, 376 Mass. at 894. In any event, the Commonwealth maintained, whatever the applicable standard, it had presented an adequate, race-neutral justification for the stop.
The judge agreed with the defendant that the Long standard applies with equal force to pedestrian stops as to traffic stops. He reasoned, “just as a racially motivated motor vehicle stop would be constitutionally problematic, a racially motivated stop of a pedestrian would also offend the constitutional right to equal
In reviewing the judge‘s decision, we first must determine whether the judge erred in applying the Long standard to a challenge to a pedestrian stop. We then must decide whether there was error in the judge‘s conclusion that the Commonwealth met its burden of rebutting an inference of selective enforcement by articulating an adequate, race-neutral reason for the stop.
i. Selective enforcement and selective prosecution. Equal protection jurisprudence encompasses two broad categories of rights, which prоtect people against selective prosecution and selective enforcement. Selective prosecution refers to the decision to charge a person with a crime based upon impermissible criteria such as race, national origin, or gender, resulting in a greater number of convictions of persons who share that characteristic compared to similarly situated persons who do not. See Commonwealth v. Bernardo B., 453 Mass. 158, 167-169 (2009). Selective enforcement refers to law enforcement practices that unjustifiably target an individual for investigation based on the individual‘s race or other protected class. See Lora, 451 Mass. at 436-437. These categories are often confused, and the terms used interchangeably. See United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017), cert. denied, 138 S. Ct. 713 (2018). In this case, we refer to claims of discriminatory police investigative practices as selective enforcement.
ii. Burden of proof. Prior to our decision in Long, 485 Mass. at 724-725, all equal protection challenges under arts. 1 and 10 of the Massachusetts Declaration of Rights required review under a tripartite burden. See Lora, 451 Mass. at 437-438. See also United States v. Armstrong, 517 U.S. 456, 465 (1996) (“ordinary” equal protection claim brought under
In Long, 485 Mass. at 723-725, we revised the standard by which a defendant can establish a claim of selective enforcement, in the context of the traffic laws. In deciding that such a change was necessary, we explained, “it is clear that Lora has placed too great an evidentiary burden on defendants. The right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy.” Id. at 721.
Under the revised standard, it is the defendant‘s burden to demonstrate that the decision to make the traffic stop was motivated by race or another constitutionally protected class. A defendant may do so by producing “evidence upon which a reasonable person could rely to infer that the officer discriminated on the basis of the defendant‘s race or membership in another protected class.” Id. at 723-724. The defendant must point to specific facts that support such an inference, which are known to the defendant based on “personal knowledge, the defendant‘s оwn investigation, evidence obtained during discovery, and other relevant sources.” Id. at 724. A bald allegation of selective enforcement, based only on membership in a constitutionally protected class, would not suffice. See id. at 723. If the defendant does raise an inference of discrimination, the burden shifts to the Commonwealth to rebut the inference by establishing a race-neutral reason for the stop.
Our decision in Long, 485 Mass. at 721-723, noted explicitly that we had revised the standard by which to establish an equal
In Long, 485 Mass. at 722, we determined that the first two parts of the three-part Franklin standard are not necessary in the context of motor vehicle stops. We explained that,
“because of the ubiquity of traffic violations, only a tiny percentage of these violations ultimately result in motor vehicle stops, warnings, or citations. Thus, it is virtually always the case that a broader class of persons violated the law than those against whom the law was enforced. Similarly, in stopping one vehicle but not another, an officer necessarily has made a deliberate choice.” (Quotation and citation omitted.)
Id. Accordingly, the appropriate inquiry is restricted to whether the traffic stop was motivated by the driver‘s race or membership in another protected class. Id. at 723.
For similar reasons, the three-part Franklin standard is equally ill-suited to other claims of discriminatory law enforcement practices. There is no reason to anticipate, for example, that a defendant challenging a threshold inquiry on the sidewalk in front of a public housing complex would be better able to prove a negative -- that similarly situated suspects of other races were not investigated. See Washington, 869 F.3d at 216 (revising Federal discovеry standard in selective enforcement cases because “there are likely to be no records of similarly situated individuals who were not arrested or investigated“). “Asking a defendant claiming selective enforcement to prove who could have been targeted by an informant, but was not, or who the [investigating agency] could have investigated, but did not, is asking [the defendant] to prove a negative; there is simply no statistical record for a defendant to point to.” United States v. Sellers, 906 F.3d 848, 853 (9th Cir. 2018).
Moreover, a claim of selective prosecution implicates the discretionary authority of the executive branch to enforce the criminal laws. See Commonwealth v. Ehiabhi, 478 Mass. 154, 160 (2017) (“the decision to prosecute is particularly ill-suited to judicial review” [citation and quotation omitted]); Bernardo B., 453 Mass. at 161 (judicial review of decisions to prosecute “must proceed circumspectly lest we intrude on a function constitutionally vouchsafed to another branch of government“). The presumption of regularity, a deference doctrine, limits judicial scrutiny of certain executive branch decisions. See Armstrong, 517 U.S. at 464; Bernardo B., 453 Mass. at 161; The Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431, 2432 (2018).
In Massachusetts, the presumption of regularity encompasses charging decisions by both police officers and prosecutors. See Lora, 451 Mass. at 437. “An arrest or prosecution based on probable cause . . . ordinarily [is] cloaked with a presumption of regularity. Because we presume that criminal prosecutions are undertaken in good faith, without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement” (citation and quotation omitted). Id. See Franklin, 376 Mass. at 894 (“prosecutors and other law enforcement officers enjoy considerable discretion in exercising some selectivity
The presumption of regularity, however, applies to decisions by prosecutors and police officers to charge an individual with a crime; it does not apply to street-level police investigations. See Conley, 5 F.4th at 791 (presumption of regularity did not shield police “sting” operation from scrutiny because doctrine “is driven by separation of powers concerns, which increase as courts venture closer to core executive activity“). While decisions by police officers “certainly reflect law enforcement priorities, judicial inquiry into their motives is routine.” Id. See Sellers, 906 F.3d at 853 (Federal agents “are not protected by a powerful privilege or covered by a presumption of constitutional behavior” [citation omitted]). “Unlike prosecutors, agents [of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and of the Federal Bureau of Investigation] regularly testify in criminal cases, and their credibility may be relentlessly attacked by defense counsel. They also may have to testify in pretrial proceedings, such as motions to suppress evidence, and again their honesty is open to challenge.” United States v. Davis, 793 F.3d 712, 720-721 (7th Cir. 2015) (en banc).
iii. Application. As discussed supra, a defendant raising a claim of selective enforcement based on alleged discriminatory policing practices bears the initial burden of establishing a reasonable inference that the investigation was motivated by race or membership in another constitutionally protected class. See Long, 485 Mass. at 724. The defendant must point to “specific facts” about the police investigation that support such an inference. Id. If the defendant succeeds in doing so, the burden shifts to the Commonwealth to rebut the inferencе of discrimination. Id.
In examining a claim of selective enforcement, a reviewing judge must consider the totality of the circumstances surrounding the claim. See Long, 485 Mass. at 724-725. In the context of police investigations such as pedestrian stops, the totality of the circumstances may include patterns of enforcement actions by the particular officer; the events preceding the investigation, i.e., the reasons the officer decided to target the defendant; the seriousness of the crime being investigated; and whether the defendant‘s race
A decision by the Supreme Court of New Jersey is illustrative of a case where the court considered a defendant‘s selective enforcement claim arising out of an allegedly racially motivated threshold inquiry. See State v. Maryland, 167 N.J. 471 (2001). In that case, undercover police officers confronted two young Black men, who were arriving at a train station along with numerous other rush-hour commuters. Id. at 477, 485. The officers approached and asked to speak to the men. A struggle ensued when the defendant turned his body and reached into his waistband, and several bags of marijuana fell to the ground. Id. at 478. In reviewing the defendant‘s claim for selective enforcement, the court concluded that there had been no viоlation of a Federal or State right to be free from unreasonable searches and seizures, because the officers were entitled to approach and ask questions “without grounds for suspicion” (citation omitted). Id. at 483.
Nonetheless, the court went on to consider whether the decision to target the defendant for investigation constituted selective enforcement in violation of the defendant‘s right to equal protection of the laws. Id. at 485-486. The court observed that the equal protection clause of the
Here, by contrast, we discern no error in the judge‘s conclusion that the Commonwealth rebutted an inference of selective enforcement raised by the statistical evidence. The Commonwealth demonstrated that the police officers had a race-neutral reason to have conducted a pedestrian stop of the defendant and J.H., the suspects in the case of reported shots fired. The second 911 caller introduced the suspects’ race to the investigation when she reported that she heard multiple gunshots and then saw two Black men on bicycles wearing black hoodies. Within minutes of the 911 call, O‘Loughlin told the responding officers that he had seen two Black males, on bicycles, wearing black hooded sweatshirts, heading towards Heath Street. In short order, the officers located the suspects, who were walking in a direction “consistent in time аnd direction with two individuals fleeing from a shooting on bicycles.”
The defendant contends that, in denying his motion to suppress on the ground of equal protection, the judge conflated the requirements of art. 14 and the equal protection analysis. The defendant argues that the “equal protection question was not answered by the motion judge‘s art. 14 determination that the officers had reasonable suspicion to conduct the stop -- that analysis is simply inapposite to rebutting the defendant‘s prima facie statistical case, apples and oranges.” According to the defendant, ”Long‘s plain language dictates that the Commonwealth cannot ignore or sidestep a defendant‘s statistical case,” and therefore the judge “erroneously absolved the Commonwealth of its equal protection rebuttal burden.”
We emphasize that the Federal and State constitutional guarantees of equal protection of the laws provide residents of the Commonwealth a degree of protection separate and distinct from the prohibition against unreasonable searches and searches under the
As the United States Court of Appeals for the Sixth Circuit has explained, the guarantee of equal protection “does not fit neatly into the various stages of
That does not mean, however, that the Commonwealth is precluded from explaining why a police officer stopped a motor vehicle or conducted a threshold inquiry. See Long, 485 Mass. at 724-725. There may be substantial overlap between an inquiry into the reasonableness of a stop and the officer‘s motivation for stopping a suspect.6 To be sure, the constitutional basis for the stop is not sufficient, standing alone, to rebut an inference of
and all of the evidence that a defendant presented and would have to prove that the stop was not racially motivated.” Id.
Here, the judge was required to determine whether the Commonwealth had rebutted the reasonable inference that the stop or investigation was not “motivated at least in part by race” or another impermissible сlassification. Id. We conclude that the evidence supported the judge‘s determination that police stopped the defendant to investigate his involvement in a recent shooting, and not because of his race.
3. Conclusion. As there was no violation of the defendant‘s rights to be protected against unreasonable searches and seizures, and against selective enforcement of the laws, there was no error in the judge‘s denial of the defendant‘s motion to suppress.
Order denying motion to suppress affirmed.