Commonwealth v. Long ( 2020 )

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SJC-12868
COMMONWEALTH v. EDWARD LONG.
Suffolk. March 3, 2020. - September 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1
Threshold Police Inquiry. Constitutional Law, Equal protection
of laws. Practice, Criminal, Motion to suppress.
Evidence, Profile, Statistics.
Indictments found and returned in the Superior Court
Department on February 9, 2018.
A pretrial motion to suppress evidence was heard by Joseph
F. Leighton, Jr., J.
An application for leave to file an interlocutory appeal
was allowed by Lenk, J., in the Supreme Judicial Court for the
county of Suffolk, and the appeal was reported by her.
John P. Warren for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
Rebecca Kiley, Committee for Public Counsel Services,
Matthew R. Segal, Jessica Lewis, & Jessie J. Rossman, for
Committee for Public Counsel Services & another, amici curiae,
submitted a brief.
1 Chief Justice Gants participated in the deliberation on
this case and authored his concurrence prior to his death.
2
Oren N. Nimni, Katharine Naples-Mitchell, Chauncey B. Wood,
& Radha Natarajan, for Massachusetts Association of Criminal
Defense Lawyers & others, amici curiae, submitted a brief.
GAZIANO, J. At about eleven o'clock on a November morning,
two members of the Boston police department's youth violence
strike force, who had been driving an unmarked vehicle, noticed
a maroon Mercedes pass in front of them on a residential street.
The driver was a Black man. The officers decided to query the
vehicle's license plate in their onboard computer. The results
returned indicated that the vehicle was registered to a Black
woman and that it lacked an inspection sticker. The officers
stopped the vehicle. When they learned that the driver, the
defendant, had outstanding warrants and his driver's license was
suspended, they searched the vehicle and found a gun in a bag on
the rear passenger seat.
The defendant subsequently was charged with several
firearms offenses.2 He moved to suppress the evidence seized
from the vehicle, on the ground that the motor vehicle stop was
the product of selective enforcement based on race, and the
2 The defendant was charged with unlawful possession of a
firearm, G. L. c. 269, § 10 (a), as well as an enhancement for
two previous convictions of violent crimes or serious drug
offenses, G. L. c. 269, § 10G; carrying a loaded firearm, G. L.
c. 269, § 10 (n); possession of ammunition, G. L. c. 269,
§ 10 (h); possession of a large capacity feeding device, G. L.
c. 269, § 10 (m); and receiving a firearm with a defaced
identification number, G. L. c. 269, § 11C.
3
inventory search of the vehicle was impermissible. A Superior
Court judge determined that the defendant had not met his
initial burden to raise a reasonable inference that the stop had
been made been motivated by race, and that the decision to
impound the vehicle was reasonable in the circumstances; he
therefore denied the motion. The defendant sought leave in the
county court to pursue an interlocutory appeal; the single
justice allowed the application and ordered the appeal to be
conducted in this court.
We conclude that the Superior Court judge abused his
discretion in denying the motion to suppress, because the
defendant produced sufficient evidence to raise a reasonable
inference that the stop was racially motivated. Nonetheless, we
are persuaded that, in our efforts in Commonwealth v. Lora, 451
Mass. 425, 436-438 (2008), to ease the burden on defendants, we
set the bar too high for defendants attempting to establish a
reasonable inference of a discriminatory stop. In practice,
providing statistical evidence sufficient to raise a reasonable
inference that a motor vehicle stop was racially motivated,
given the limitations of available police data, has proved
infeasible for defendants. The judge's ruling well illustrates
the concerns repeatedly raised about the difficulty of meeting
the requirements set forth in Lora, supra at 447-449. See
4
Commonwealth v. Buckley, 478 Mass. 861, 879-880 (2018) (Budd,
J., concurring), and cases cited.
Thus, in order to ensure that drivers who are subjected to
racially motivated traffic stops have a viable means by which to
vindicate their rights to the equal protection of the laws, as
provided by the Massachusetts Declaration of Rights, we today
establish a revised test. A defendant seeking to suppress
evidence based on a claim that a traffic stop violated
principles of equal protection bears the burden of establishing,
by motion, a reasonable inference that the officer's decision to
initiate the stop was motivated by race or another protected
class. To raise this inference, the defendant must point to
specific facts from the totality of the circumstances
surrounding the stop; the inference need not be based in
statistical analysis. If this inference is established, the
defendant is entitled to a hearing at which the Commonwealth
would have the burden of rebutting the inference. Absent a
successful rebuttal, any evidence derived from the stop would be
suppressed.3
3 We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the American Civil
Liberties Union of Massachusetts, Inc.; and by the Massachusetts
Association of Criminal Defense Lawyers, The New England
Innocence Project, Lawyers for Civil Rights, and the Charles
Hamilton Houston Institute for Race and Justice at Harvard Law
School.
5
1. Background. We present the facts as found by the
motion judge, supplemented by uncontroverted facts from the
record that the judge "explicitly or implicitly credited,"
reserving certain details for discussion. See Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015) ("Although an appellate
court may supplement a motion judge's subsidiary findings with
evidence from the record that is uncontroverted and undisputed
and where the judge explicitly or implicitly credited the
witness's testimony, . . . it may do so only so long as the
supplemented facts do not detract from the judge's ultimate
findings" [quotations and citations omitted]).
At approximately 11 A.M. on November 28, 2017, the
defendant, a young Black man, was driving a Mercedes sport
utility vehicle (SUV) on a well-traveled and largely residential
road in the Clam Point section of Boston. Two plainclothes
officers from the Boston police department's youth violence
strike force (gang unit)4 were sitting in an unmarked vehicle on
a side street, where they were waiting to make a right turn onto
the road on which the defendant was driving.
The defendant drove past the side street, and the officers
turned onto the main road directly behind his vehicle. They did
4 The primary purpose of the Boston police department's
youth violence strike force is proactively to reduce gang and
gun violence and drug activity in Boston.
6
not observe a traffic violation, but one of the officers decided
to enter the vehicle's license plate number into the Criminal
Justice Information Services (CJIS) database. The query
revealed that the defendant's vehicle was registered to a Black
woman, later identified by the defendant as his girlfriend. The
query also showed that the vehicle did not have a current
inspection sticker.
The officers decided to stop the vehicle on the basis of
the missing inspection sticker. When the officers activated
their lights and siren, the defendant pulled into a lawful
parking spot on the side of the street. The officers requested
his driver's license; the defendant explained that he did not
have a driver's license, only a permit, which he provided the
officers. Although they had never encountered each other, one
of the officers recognized the defendant's name and photograph
from the gang unit's database. After conducting a query of the
defendant's information in the CJIS database, the officers
learned that his driver's license was suspended, and that he had
two default warrants for operating without a license and failure
to identify himself. The officers ordered him out of the
vehicle and handcuffed him.
The officers, who testified that they were aware of thefts,
vandalism, and shootings in the vicinity, decided to tow and
impound what they deemed to be a "high-end" vehicle, which did
7
not belong to the defendant.5 Before towing the vehicle, one
officer began to search it. During the search, he observed what
he believed was the handle of a gun inside an open bag on the
rear passenger seat. Once he confirmed that the object indeed
was a firearm, he read the defendant the Miranda warnings and
then inquired whether the defendant had a license to carry a
firearm. When the defendant responded that he did not, the
officers called dispatch to transport the defendant to the
police station.
2. Prior proceedings. The defendant filed a motion to
suppress the evidence seized from the vehicle on the ground that
the stop was impermissible because it was the result of
selective enforcement of the traffic laws based on race, and the
inventory search was an unlawful search for investigatory
purposes, as impoundment of the vehicle was not necessary. The
defendant obtained an expert in statistics (a mathematics
professor who has published numerous articles and reports, and
had testified previously in the Superior Court and the District
Court). The expert testified at an evidentiary hearing on the
motion, and introduced a report on her findings. The judge
5 At the hearing on the defendant's motion to suppress, one
of the officers testified that, in cases where he was arresting
the driver and the driver was not the owner of the vehicle, he
routinely had the vehicle towed unless the owner arrived at the
scene.
8
found that the datasets used by the expert were "insufficiently
reliable to yield results that could raise a reasonable
inference of impermissible discrimination," and denied the
motion. The defendant filed a timely notice of appeal and an
application in the county court for leave to pursue an
interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as
amended, 476 Mass. 1501 (2017). The single justice allowed the
appeal to proceed in this court.
3. Discussion. In Lora, 451 Mass. at 437-438, we adapted
general principles of our jurisprudence on selective prosecution
in an attempt to address the persistent and pernicious problem
of racial profiling in traffic enforcement. Today, we conclude
that that decision placed too great an evidentiary burden on
defendants, and that we must lower this burden in order to
create a viable path for individuals to present and demonstrate
their claims of racial profiling in traffic stops. While
defendants still may raise a reasonable inference of racial
profiling by demonstrating consistent patterns of racially
disparate traffic enforcement by the officer involved, they also
may raise a reasonable inference that a stop was racially
motivated based on the totality of the circumstances surrounding
the particular traffic stop at issue.
Furthermore, in our view the problem of discriminatory
traffic stops continues to be best addressed under our equal
9
protection jurisprudence and not, as Justice Budd's concurrence
suggests, the search and seizure doctrine of art. 14 of the
Massachusetts Declaration of Rights. As to the stop of this
defendant, even under the overly heavy evidentiary burden that
resulted from our decision in Lora, we conclude that he
presented more than adequate data to support his claim, and thus
that the judge erred in denying his motion to suppress.
a. Equal protection framework. Our guarantee of equal
protection under the law derives both from the Fourteenth
Amendment to the United States Constitution and arts. 1 and 10
of the Massachusetts Declaration of Rights. When the Fourteenth
Amendment was ratified after the Civil War, its "primary
objective . . . was the freedom of [African-Americans], the
security and firm establishment of that freedom, and the
protection of the newly-made freeman and citizen from the
oppressions of those who formerly had exercised unlimited
dominion over him" (quotation and citation omitted). Flowers v.
Mississippi, 139 S. Ct. 2228, 2238 (2019). Art. 1 has a similar
purpose. Ratified as part of the Massachusetts Declaration of
Rights in 1780, the article was the basis of the judicial
abolition of slavery in 1781, see Jackson v. Phillips, 14 Allen
539, 563 (1867), and subsequent decisions applying the guarantee
10
of equal protection to African-Americans.6 See, e.g.,
Commonwealth v. Aves, 18 Pick. 193, 210 (1836).
Under these constitutional guarantees, the racism in which
our nation had been steeped was to yield to the promise of
equality. See Williams v. Illinois, 399 U.S. 235, 245 (1970)
("the constitutional imperatives of the Equal Protection Clause
must have priority over the comfortable convenience of the
status quo"). And, indeed, many explicitly discriminatory laws
did fall. See, e.g., McLaughlin v. Florida, 379 U.S. 184, 184
(1964).
All too frequently, however, the prohibition against
facially discriminatory laws has been inadequate to address the
role played by racism and other invidious classifications in the
6 These protections, of course, also apply to suspect
classifications other than those based on race. "The Equal
Protection Clause was intended to work nothing less than the
abolition of all caste-based and invidious class-based
legislation." Plyler v. Doe, 457 U.S. 202, 213 (1982). Under
the Federal Constitution, the guarantee of equal protection
forbids the government from making suspect classifications,
include those based on race, religion, nationality, alienage, or
membership in another discrete and insular minority, unless the
governmental action survives strict scrutiny. See, e.g., New
Orleans v. Dukes, 427 U.S. 297, 303-304 (1976); Graham v.
Richardson, 403 U.S. 365, 372 (1971), citing United States v.
Carolene Prods. Co., 304 U.S. 144, 152-153 n.4 (1938); Graham,
supra at 376. See also Bolling v. Sharpe, 347 U.S. 497, 500
(1954) (applying equal protection guarantee against Federal
government under Fifth Amendment to United States Constitution).
Our State Constitution goes further and applies strict scrutiny
review to sex and gender classifications as well. See Finch v.
Commonwealth Health Ins. Connector Auth., 459 Mass. 655, 665-666
(2011), S.C., 461 Mass. 232 (2012).
11
way facially neutral laws actually are enforced. See Buckley,
478 Mass. at 871 (sharing "considerable, legitimate concerns
regarding racial profiling and the impact of such practices on
communities of color"); Lora, 451 Mass. at 449 (Ireland, J.,
concurring); Commonwealth v. Feyenord, 445 Mass. 72, 88 (2005),
cert. denied, 546 U.S. 1187 (2006) (Greaney, J., concurring);
Commonwealth v. Gonsalves, 429 Mass. 658, 670 (1999) (Ireland,
J., concurring).
Thus, it long has been held that "[t]he equal protection
principles of the Fourteenth Amendment . . . and arts. 1 and
10 . . . prohibit discriminatory application of impartial laws."
See Lora, 451 Mass. at 436, quoting Commonwealth v. Franklin
Fruit Co., 388 Mass. 228, 229–230 (1983). See also New York
Times Co. v. Commissioner of Revenue, 427 Mass. 399, 406 (1998),
citing Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). While some
selectivity or discretion must be tolerated in criminal law
enforcement, that selectivity is permissible only so long as it
"is not based on an 'unjustifiable standard such as race,
religion or other arbitrary classification.'" Lora, supra
at 437, quoting Commonwealth v. King, 374 Mass. 5, 20 (1977).
See Oyler v. Boles, 368 U.S. 448, 456 (1962).
Consistent with Federal equal protection law, we have held
that a prosecution brought based on an impermissible
classification must be dismissed. See King, 374 Mass. at 22.
12
"Because we presume that criminal prosecutions are undertaken in
good faith, without intent to discriminate, the defendant bears
the initial burden of . . . present[ing] evidence which raises
at least a reasonable inference of impermissible
discrimination." Commonwealth v. Franklin, 376 Mass. 885, 894
(1978), and cases cited. To support this inference, a defendant
must show that "a broader class of persons than those prosecuted
has violated the law, . . . that failure to prosecute was either
consistent or deliberate, . . . and that the decision not to
prosecute was based on an impermissible classification such as
race, religion, or sex" (citations omitted). See id. "If a
defendant meets this prima facie showing, the case must be
dismissed unless the Commonwealth is able to rebut the inference
of selective prosecution." Commonwealth v. Wilbur W., 479 Mass.
397, 409 (2018), citing Commonwealth v. Bernardo B., 453 Mass.
158, 168 (2008).
This court has identified the discriminatory enforcement of
traffic laws as particularly toxic. "Years of data bear out
what many have long known from experience: police stop drivers
of color disproportionately more often than Caucasian drivers
for insignificant violations (or provide no reason at all)."
Buckley, 478 Mass. at 876-877 (Budd, J., concurring). See
Pierson, Simou, Overgoor, Corbett-Davis, Jenson, Shoemaker,
Ramachandran, Barghouty, Phillips, Shroff, & Goel, A Large-Scale
13
Analysis of Racial Disparities in Police Stops Across the United
States, 4 Nature Human Behavior 736, 736, 737 (2020) (analysis
of approximately 95 million stops nationwide found that
"[r]elative to their share of the residential population, . . .
[B]lack drivers were, on average, stopped more often than white
drivers," and that Black drivers comprised a smaller share of
drivers stopped at night, when it is harder for officers to
detect race, "suggest[ing] [B]lack drivers were stopped during
daylight hours in part because of their race").
The discriminatory enforcement of traffic laws is not a
minor annoyance to those who are racially profiled. To the
contrary, these discriminatory practices cause great harm. See
Buckley, 478 Mass. at 877 (Budd, J., concurring), citing
Feyenord, 445 Mass. at 88 (Greaney, J., concurring) ("to a
Caucasian driver a traffic stop may be annoying or embarrassing,
but for a driver of color, such a stop can be humiliating and
painful. . . . Further, recent tragic events have shown that the
fear people of color have of being stopped by police is
justified: African–Americans have been killed during routine
traffic stops"). See also Utah v. Strieff, 136 S. Ct. 2056,
2069 (2016) (Sotomayor, J., dissenting) ("unlawful 'stops' have
severe consequences much greater than the inconvenience
suggested by the name. . . . When we condone officers' use of
14
these devices without adequate cause, we . . . risk treating
members of our communities as second-class citizens").
While the constitutional principle at stake in this case is
exceedingly clear -- police may not target drivers for traffic
stops, citations, and further investigation because of their
race -- the evidentiary difficulties in identifying racially
motivated traffic stops are profound. The traffic stop often
constitutes the first and only interaction between a police
officer and the occupants of a stopped vehicle; the interaction
thus generally provides a minimal amount of direct evidence of
the officer's motivations for the particular stop.
Additionally, the plethora of potential traffic violations is
such that most drivers are unable to avoid committing minor
traffic violations on a routine basis, thereby affording
officers wide discretion in the enforcement of traffic laws.
See State v. Ladson, 138 Wash. 2d 343, 358 n.10 (1999), citing
Shakow, Let He Who Never Has Turned Without Signaling Cast the
First Stone: An Analysis of Whren v. United States, 24 Am. J.
Crim. L. 627, 633 (1997).
b. The Lora selective prosecution analysis. Due to these
challenges, in combination with the urgent need to deter
discriminatory policing, in Lora, 451 Mass. at 437, we attempted
to adapt the principles of selective prosecution to the unique
evidentiary challenges posed by claims of discriminatory traffic
15
stops. We did so by relying upon the preexisting burden-
shifting analysis of our selective prosecution framework, but
expanding the ways in which a defendant could meet his or her
initial burden.
In the first stage of that analysis, a defendant must
"'present evidence which raises at least a reasonable inference
of impermissible discrimination,' including evidence that 'a
broader class of persons than those prosecuted has violated the
law, . . . that failure to prosecute was either consistent or
deliberate, . . . and that the decision not to prosecute was
based on an impermissible classification such as race, religion,
or sex.'" Lora, 451 Mass. at 437, quoting Franklin, 376 Mass.
at 894. Because of the difficulty of showing that a particular
officer's intent in making a specific motor vehicle stop was
racially motivated, however, we held that the defendant's burden
could be met through the presentation of evidence of that
officer's motor vehicle stops in other cases. See Lora, supra
at 442.
By allowing reasonable inferences based on broader patterns
involving other defendants, our holding in Lora avoided the
limitations that have been placed on Federal equal protection
claims based on variances in statistics since the United States
Supreme Court's decision in McCleskey v. Kemp, 481 U.S. 279,
292-293, 297-298, 311-313 (1987). In that case, the Court
16
determined that the statistical data presented by the defendant
demonstrated a correlation between race and the imposition of
the death penalty, but was insufficient to show causation in the
defendant's specific case. With respect to the protections
against selective enforcement of traffic laws under our State
constitution, we stated that the evidence presented by a
defendant, "[a]t a minimum, . . . must establish that the racial
composition of motorists stopped for motor vehicle violations
varied significantly from the racial composition of the
population of motorists making use of the relevant roadways, and
who therefore could have encountered the officer or officers
whose actions have been called into question." Lora, 451 Mass.
at 442.
As with any other selective enforcement claim, if a
defendant raises a reasonable inference that a stop was
motivated by race, the burden shifts to the Commonwealth to
rebut the inference. See Lora, 451 Mass. at 438. Unlike other
types of selective prosecution cases, however, if the
Commonwealth fails to rebut that inference in the context of a
traffic stop, the remedy is not dismissal. Because the
discriminatory enforcement of traffic laws is more closely tied
to the evidence obtained as a result of the stop, rather than
the decision to bring criminal charges based on that evidence,
we concluded that suppression was the correct remedy for a
17
traffic stop that violated the guarantees of equal protection in
arts. 1 and 10. See id. at 438-439.
c. Revising the evidentiary requirements of Lora. Our
decision in Lora was intended to make it easier for defendants
to establish racial discrimination by allowing them to raise a
reasonable inference of racial profiling based on an officer's
conduct in other traffic stops. From this pattern of unequal
treatment, and in the absence of explicit "smoking gun" evidence
concerning that particular stop, a judge could infer that the
challenged stop of an individual defendant was motivated by
race. Importantly, this mechanism also allows defendants a
means by which to detect and challenge implicit bias, by
demonstrating that an officer's pattern of behavior toward
members of the protected class of which the defendant is a
member showed discrimination, regardless of the officer's lack
of awareness of any bias.
When Lora was decided, it was believed that data regarding
the traffic stops made by individual police officers throughout
the Commonwealth, and the demographics of the individuals
stopped, would be readily available to defendants. See Lora,
451 Mass. at 446 & n.33, n.34. See also Boston Police
Patrolmen's Ass'n, Inc. v. Police Dep't of Boston, 446 Mass. 46,
48-49 (2006), discussing St. 2000, c. 228, § 10. Unfortunately,
that assumption has not been borne out in practice. A statute
18
enacted in 2000, effective for a limited period of time,
mandated that police departments that appeared to have engaged
in racial profiling in motor vehicle stops collect detailed data
on stops made by each officer, and the races of the driver
stopped. See St. 2000, c. 228, § 10. That statute, however,
expired by its terms, and a replacement was not enacted. See
id. (requiring one year of data collection, followed by
additional year of broader data collection for departments found
to have engaged in racial or gender profiling). Instead, our
effort to ease the burden on defendants has been unsuccessful
due to inadequate or inaccessible data. See Buckley, 478 Mass.
at 880 (Budd, J., concurring); Lora, 451 Mass. at 449 (Ireland,
J., concurring). Consequently, since 2008 when Lora was
decided, we are aware of only one case in which a defendant
successfully moved to suppress evidence under it. See
Commonwealth vs. Vargas, Middlesex Superior Court
No. 1481CR1135, slip op. at 1, 16 (Aug. 16, 2019).
Although we conclude that the defendant here also met his
burden under the existing Lora standard, 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.
Therefore, the time has come to address Lora's practical
shortcomings.
19
i. Defendants' revised burden. Although Lora, 451 Mass.
at 440-442, focused on how statistical evidence could be used to
meet a defendant's initial burden of raising a reasonable
inference of discrimination, we did not say in that case that
statistical evidence would replace the previous means of
establishing a violation of equal protection, and would become
the only way in which an inference that a stop was motivated by
race could be raised. See id. at 442 ("We are of the view that
statistical evidence may be used to meet a defendant's initial
burden of producing sufficient evidence to raise a reasonable
inference of impermissible discrimination" [emphasis added]).
Indeed, in the broader jurisprudence on selective
enforcement, both nationally and in Massachusetts, the evidence
necessary to raise a reasonable inference of discrimination need
not be statistical. See, e.g., Wilbur W., 479 Mass. at 409,
quoting Bernardo B., 453 Mass. at 168 ("defendant raising a
selective prosecution claim may do so 'by introducing
statistical evidence or other data demonstrating that similarly
situated suspects or defendants are treated differently by the
prosecutor on the basis of impermissible categorizations'"
[emphasis supplied]); Franklin, 376 Mass. at 894 (testimonial
evidence was used to support claim of selective prosecution);
Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1168 (10th
Cir. 2003) ("[the defendant] seeks to prove the racially
20
selective nature of his stop and arrest not by means of
statistical inference but by direct evidence of [the officer's]
behavior during the events in question"). Nor must the asserted
discrimination be "systematic [or] long-continued." See Snowden
v. Hughes, 321 U.S. 1, 9–10 (1944).
In light of the persistent difficulties attendant to using
statistical data to meet a claim under Lora, however, we now
must develop more fully the other ways in which defendants may
show that a stop was based on an impermissible classification.
Cf. Batson v. Kentucky, 476 U.S. 79, 92 (1986) (previous
decisions that required comprehensive statistics showing prior
discriminatory action amounted to "crippling burden of proof" on
defendants attempting to vindicate rights to equal protection).
Therefore, while the use of statistical data continues to be one
means by which a defendant may raise a reasonable inference that
the challenged traffic stop was racially motivated, we today
expand and clarify the other ways in which such an inference may
be raised, by evidence of the totality of the circumstances
surrounding the stop itself.
Moreover, not only must the categories of permissible
evidence be altered; the way in which defendants may establish a
reasonable inference of discrimination also requires
modification. Under general selective prosecution analysis, a
defendant's initial showing must include evidence "that a
21
broader class of persons than those prosecuted violated the
law, . . . that failure to prosecute was either consistent or
deliberate, . . . and that the decision not to prosecute was
based on an impermissible classification such as race, religion,
or sex." See Bernardo B., 453 Mass. at 168, quoting Lora, 451
Mass. at 437. These first two requirements generally would be
difficult or impossible to prove with circumstantial evidence.
If a defendant sought to present evidence only concerning the
stop itself, the defendant would not be able to show that a
broader class of persons violated the law. Furthermore, if a
defendant did not point to consistent patterns of conduct or
police admissions, it usually would not be possible to show that
the failure to enforce the traffic laws was deliberate or
consistent.
In the context of racially biased motor vehicle stops,
purportedly to enforce traffic laws, however, these first two
requirements are unnecessary. As stated, 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 virtually always will be the case "that
a broader class of persons" violated the law than those against
whom the law was enforced. See Bernardo B., 453 Mass. at 168.
Similarly, in stopping one vehicle but not another, an officer
necessarily has made a deliberate choice. In the context of a
22
motor vehicle stop, we therefore conclude that the first two
requirements are not needed. The totality of the circumstances
test, described infra, requires only the evidence necessary to
support a reasonable inference that the stop was based on race
or membership in another constitutionally protected group.
Additionally, in the context of traffic stops, we must
depart from our prior interpretations of the meaning of a
"reasonable inference," to the extent that the phrase was used
to represent an onerous standard in other areas of selective
enforcement law. In King, 374 Mass. at 17, for instance, a
female defendant argued that her arrest and prosecution for
prostitution was based on her gender, in violation of equal
protection principles. Notwithstanding the arresting officer's
testimony "that he had never arrested a male prostitute and that
it was the policy of the Boston police department vice squad to
arrest only female prostitutes," we held that the defendant had
fallen "far short of establishing any evidence of a denial of
equal protection since other criminal statutes may be employed
to punish male conduct equivalent to female prostitution." Id.
at 18.
Similarly, in Franklin Fruit Co., 388 Mass. at 229-230, the
defendant supermarket claimed that the prohibition against the
operation of a supermarket on Sundays was applied against it,
and not others, because its owners were Greek. Relying upon the
23
doctrine of selective enforcement, the judge dismissed the
charges against the supermarket after he found that the police
chief had refused to enforce the prohibition against the
defendant's competitors, and had called the owner of the
supermarket a "money hungry Greek." Id. at 230. Yet, this
court reversed that decision because it concluded that there was
"nothing in the record to indicate that citations were issued to
[the supermarket] simply because [its owner] was of Greek
heritage." Id. at 234.
As has been demonstrated, these holdings would set a nearly
impossible bar for victims of discriminatory traffic stops to
clear in order to establish their claims, whether through
statistics or other circumstantial evidence. See Lora, 451
Mass. at 445 (biased policing "would not be alleviated by a
standard that nominally allows a defendant to make claim of
selective enforcement of traffic laws, but forecloses such a
claim in practice"). Rather than requiring a "reasonable
inference," these cases actually demand something much more.
Accordingly, we conclude that our past interpretations of a
reasonable inference do not control in the context of traffic
stops. While a defendant must show more than the fact that he
or she was a member of a constitutionally protected class and
was stopped for a traffic infraction, the burden must not be so
heavy that it makes any remedy illusory. The requirement that a
24
defendant establish a reasonable inference that a traffic stop
was motivated by racial bias means simply that the defendant
must produce 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.
Conclusive evidence is not needed.
ii. The revised test. The burden shifting framework under
Lora remains the same, even as we elaborate on the ways in which
a defendant can present nonstatistical evidence of a race-based
pretextual stop. A defendant first should raise a reasonable
inference of racial profiling through a motion to suppress. The
motion should describe all of the circumstances of the traffic
stop that support a reasonable inference that the decision to
make the stop was motivated (whether explicitly or implicitly)
by race. The defendant need not submit admissible evidence;
rather, the motion simply must point to specific facts about the
stop that support such an inference. These facts, including
statements by the defendant and others, may be based on the
defendant's personal knowledge, the defendant's own
investigation, evidence obtained during discovery, and other
relevant sources. If the defendant's motion establishes such an
inference, the defendant is entitled to a hearing, at which the
Commonwealth would bear the burden of rebutting the inference.
Of course, a traffic stop motivated by race is unconstitutional,
25
even if the officer also was motivated by the legitimate purpose
of enforcing the traffic laws.
When examining the totality of the circumstances, judges
should consider factors such as: (1) patterns in enforcement
actions by the particular police officer;7 (2) the regular duties
of the officer involved in the stop;8 (3) the sequence of events
7 To make such a demonstration, a defendant might point to
an officer's patterns of enforcement before and after the stop
at issue. It could be probative, for example, if a significant
percentage of stops made by the officer in the preceding weeks
or months involved drivers of the same race being stopped for
minor traffic infractions, while those of other races were not.
Or, if the officer repeatedly noted the same minor infraction,
such as a failure to signal a lane change, while stopping
drivers who shared the same protected class as the defendant.
Such evidence need not be demonstrated to be statistically valid
in order to support a reasonable inference.
8 Traffic stops initiated by officers whose primary
assignment does not involve the enforcement of traffic laws
might warrant particular scrutiny. For example, an officer
working routine patrol might write many tickets as part of
ordinary duties, as compared to an officer working a specialized
assignment such as drug enforcement task force, hostage rescue,
or a domestic violence unit.
26
prior to the stop;9 (4) the manner of the stop;10 (5) the safety
interests in enforcing the motor vehicle violation;11 and (6) the
specific police department's policies and procedures regarding
traffic stops.12 These factors are not exhaustive; any relevant
facts may be raised for the judge's consideration.
9 It could be relevant that officers observed or followed a
vehicle for an extended period of time prior to making the stop,
see State vs. Deleon, N.M. Ct. App., No. 30,813, slip op. at 8
(Feb. 14, 2013) (officer followed defendant for multiple miles
before stop); State v. Arreola, 176 Wash. 2d 284, 301 (2012)
(Chambers, J., dissenting) ("officer noticed, after following
the car he wished to stop for a half mile or so, that its
exhaust system was not in compliance with traffic regulations");
a judge also might consider whether the circumstances would have
allowed the officer to note the defendant's race, see State v.
Snapp, 174 Wash. 2d 177, 199-200 (2012) (on dark night, officer
could not see race of defendant).
10A judge might examine whether the officer's conduct
during the stop was consistent with, and limited to, that
necessary to enforce the motor vehicle violation. See, e.g.,
People v. Roundtree, 234 A.D. 2d 612, 613 (N.Y. 1996) (court
considered fact that officer "did not question [the driver]
about the [traffic] infraction or issue a traffic summons").
Cf. Commonwealth v. Cordero, 477 Mass. 237, 242 (2017) ("police
inquiry in routine traffic stop must end upon production of
valid license and registration" [citation omitted]).
11For example, where the traffic infraction clearly
implicated significant public safety concerns, such as operating
under the influence of alcohol, those concerns would weigh
against drawing an inference of discriminatory intent.
12If an officer's actions in making the stop deviated from
the policies and procedures of his or her department, such as a
stop by an undercover officer where a department had a policy
against making routine traffic stops in unmarked vehicles, the
deviation might support an inference that the stop involved
racial profiling.
27
A defendant has a right to reasonable discovery of evidence
concerning the totality of the circumstances of the traffic
stop; such discovery may include the particular officer's recent
traffic stops and motor vehicle-based field interrogations and
observations (FIOs). To the extent that the relevant
information exceeds the automatic discovery requirements of
Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501(2005), a defendant may seek such discovery by means of a motion
filed pursuant to Mass. R. Crim. P. 14 (a) (2), as appearing in
442 Mass. 1518 (2004). See Commonwealth v. Durham, 446 Mass.
212, 234, cert. denied, 549 U.S. 855 (2006) (Cordy, J.,
dissenting) ("Rule 14 (a) (2) gives a judge discretion to
authorize a defendant to discover from the Commonwealth
'relevant evidence'"). "At the discovery stage, the question is
whether the defendant has made a threshold showing of
relevance." Bernardo B., 453 Mass. at 169, discussing Mass. R.
Crim. P. 14 (a) (2). Where relevant and material, discovery
also would include information regarding the policies and
procedures pertaining to the officer's unit, as well as the
officer's typical duties and responsibilities. Of course, this
right to discovery applies equally to all claims of racially
motivated stops, regardless of whether a defendant is pointing
to the circumstances of the stop to raise a claim of
28
discriminatory enforcement or is presenting the type of broader
statistics contemplated by Lora.
Once a reasonable inference of racial profiling has been
established, the Commonwealth would bear the burden of rebutting
that inference. See Lora, 451 Mass. at 438. To meet its
burden, the Commonwealth would have to do more than merely point
to the validity of the traffic violation that was the asserted
reason for the stop. Rather, it would have to grapple with all
of the reasonable inferences and all of the evidence that a
defendant presented, and would have to prove that the stop was
not racially motivated. If the Commonwealth does not rebut the
reasonable inference that the stop was motivated at least in
part by race, the defendant would have established that the stop
violated the equal protection principles of arts. 1 and 10, and
therefore was illegal, and any evidence derived from the stop
would have to be suppressed. See id.
d. Equal protection is the appropriate constitutional
provision. Justice Budd would use art. 14 to address the
affliction of racial profiling in traffic enforcement, thereby
grafting the equal protection inquiry onto our jurisprudence on
searches and seizures. This court and the United States Supreme
Court, however, consistently have held that "the constitutional
basis for objecting to intentionally discriminatory application
of laws is the Equal Protection Clause, not the Fourth
29
Amendment" to the United States Constitution or art. 14 of the
Massachusetts Declaration of Rights. See Lora, 451 Mass.
at 436, quoting Whren v. United States, 517 U.S. 806, 813
(1996).
While the justices differ as to which constitutional
principles to use as the basis of a system intended to eliminate
racial profiling in traffic stops, both approaches share this
common goal. It is critical to bear in mind that a disagreement
about the best legal analysis to use to redress the fundamental
problem of racial bias in traffic stops is not a disagreement
about the importance of systemic change to attempt to reach this
goal.
Justice Budd contends that the use of a "would have" test,
based solely on a reasonable officer standard, without inquiry
into the true motivations of the officer who conducted the stop,
would address the evidentiary challenges inherent in
establishing that a traffic stop was based on racial profiling.
In her view, an analysis under equal protection is susceptible
to manipulation, whereas an analysis under art. 14, which asks
whether a reasonable officer would have made the stop, somehow
magically would eliminate all concerns of police manipulation or
lack of candor. Similarly, in this view, analyzing a traffic
stop under art. 14 would eliminate judicial reluctance to
inquire into an officer's motive in making the stop whereas, for
30
a driver to prevail on an equal protection claim, necessarily
requires a finding that an officer indeed was racially biased.
But these complex and nuanced subjective inquiries are not so
easily avoided. Given the significant difficulties in
discerning the characteristics of a "reasonable officer," in
conjunction with the justified trepidation of trial judges in
second guessing discretionary law enforcement decisions where no
discriminatory motivation was involved, any version of the
"would have" inquiry, regardless of whether it explicitly
includes only an objective component, inevitably would slide
into the subjective motivation of the officer. A determination
that a reasonable (nonracist) officer would not have made the
stop may be worded more palatably, but the underlying conclusion
is the same as a determination that a stop was in violation of
equal protection: a judge allowing a motion to suppress
evidence seized after both stops has inquired, however
obliquely, into the officer's intent, and has determined that
the stop was motivated by racial bias.
That the examination of subjective motives is essentially
unavoidable under the "would have" test, and therefore also
subject to the "fraught" judicial inquiry into subjective
intent, and potential manipulation by law enforcement, is
illustrated by the ways in which the test has been used in
practice. That it has not, in fact, accomplished its goal of
31
removing officer intent and implicit bias from a reviewing
judge's decision-making process suggests that in Massachusetts,
too, the "would have" test will not be the magic wand that
Justice Budd anticipates. A review of its history in
instructive.
In 1995, the United States Supreme Court rejected the
"would have" test and declared that a motor vehicle stop based
on probable cause that a traffic violation had occurred complies
with the Fourth Amendment, regardless of any ulterior motives
for the stop. See Whren, 517 U.S. at 813, 816-819. In
subsequent years, forty-seven States have followed the Court in
rejecting the "would have" test.13
13See Commonwealth v. Buckley, 478 Mass. 861, 870 (2018);
State v. Williams, 249 So.3d 527, 532–533 (Ala. Crim. App.
2017); Hamilton v. State, 59 P.3d 760, 765–766 (Alaska Ct. App.
2002), cert. denied, 540 U.S. 915 (2003); Jones v. Sterling, 210
Ariz. 308, 311 (2005); State v. Mancia-Sandoval, 361 S.W.3d 835,
839 (Ark. 2010); People v. Woods, 21 Cal. 4th 668, 680 (1999),
cert. denied, 529 U.S. 1023 (2000); People v. Rodriguez, 945
P.2d 1351, 1359–1360 (Colo. 1997); State v. Jones, 113 Conn.
App. 250, 265 (2009) (noting Federal rule and declining to
address under State Constitution); Dobrin v. Florida Dep't of
Highway Safety & Motor Vehicles, 874 So. 2d 1171, 1173 (Fla.),
cert. denied, 543 U.S. 957 (2004); State v. Holler, 224 Ga. App.
66, 70 (1996); State v. Bolosan, 78 Haw. 86, 94 (1995); State v.
Myers, 118 Idaho 608, 610 (Ct. App. 1990); People v. Gray, 305
Ill. App. 3d 835, 839 (1999); Mitchell v. State, 745 N.E.2d 775,
787 (Ind. 2001); Brown, 930 N.W.2d at 848-855, and cases cited;
State v. Hardyway, 264 Kan. 451, 456 (1998); Moberly v.
Commonwealth, 551 S.W.3d 26, 29 (Ky. 2018), reh'g denied (Aug.
16, 2018); State v. Waters, 780 So. 2d 1053, 1056 (La. 2001);
State v. Bolduc, 722 A.2d 44, 45 (Me. 1998); Thornton v. State,
465 Md. 122, 135 (2019); People v. Labelle, 478 Mich. 891, 891
32
New Mexico and Washington, the only two States to have
adopted the "would have" test post-Whren, explicitly have
included the subjective motivations of the officer conducting
the stop as part of their version of the test.14 See State v.
Gonzales, 257 P.3d 894, 898 (N.M. 2011) (question is whether,
based on totality of circumstances, "the officer who made the
stop would have done so even without the unrelated motive");
Ladson, 138 Wash. 2d at 358–359 ("When determining whether a
(2007), overruled on other grounds by People v. Mead, 503 Mich.
205 (2019); State v. George, 557 N.W.2d 575, 578-579 (Minn.
1997); Martin v. State, 240 So. 3d 1047, 1051–1052 (Miss. 2017),
cert. denied, 138 S. Ct. 2592 (2018); State v. Smith, 595 S.W.3d
143, 145-146 (Mo. 2020); Brunette v. State, 383 Mont. 458, 465
(2016); State v. Draganescu, 276 Neb. 448, 460–461 (2008); Doyle
v. State, 116 Nev. 148, 155 (2000); State v. McBreairty, 142
N.H. 12, 15 (1997); State v. Bacome, 228 N.J. 94, 103 (2017);
People v. Robinson, 97 N.Y.2d 341, 349 (2001); State v.
McClendon, 350 N.C. 630, 635–636 (1999); State v. Bartelson, 704
N.W.2d 824, 827-828 (N.D. 2005); Dayton v. Erickson, 76 Ohio St.
3d 3, 11 (1996); Lozoya v. State, 932 P.2d 22, 32 (Okla. Crim.
App. 1996); State v. Olaiz, 100 Or. App. 380, 386-387 (1990);
Commonwealth v. Chase, 599 Pa. 80, 102 (2008); State v. Bjerke,
697 A.2d 1069, 1073 (R.I. 1997); Milledge v. State, 422 S.C.
366, 375 (2018); State v. Sleep, 590 N.W.2d 235, 237-238 (S.D.
1999); State v. Donaldson, 380 S.W.3d 86, 92 (Tenn. 2012);
Holder v. State, 595 S.W.3d 691, 698 (Tex. Crim. App. 2020);
State v. Lopez, 873 P.2d 1127, 1134-1135 (Utah 1994); State v.
Trudeau, 165 Vt. 355, 359 n.3 (1996); Thomas v. Commonwealth, 57
Va. App. 267, 273-274 (2010); Miller v. Chenoweth, 229 W. Va.
114, 120 (2012); State v. Houghton, 364 Wis. 2d 234, 250 (2015);
Fertig v. State, 146 P.3d 492, 501 (Wyo. 2006).
14Delaware has left the question unresolved, with one trial
court decision applying the test and others rejecting it. See
Turner v. State, 25 A.3d 774, 777 (Del. 2011), citing State v.
Heath, 929 A.2d 390 (Del. Super. Ct. 2006).
33
given stop is pretextual, the court should consider the totality
of the circumstances, including both the subjective intent of
the officer as well as the objective reasonableness of the
officer's behavior."
Under these tests, courts have focused on whether the
circumstantial evidence was sufficient to establish that the
officer had the requisite subjective motive.15 See, e.g.,
Schuster v. State Dep't of Taxation & Revenue, Motor Vehicle
Div., 283 P.3d 288, 298 (N.M. 2012) (approaching motorcycle
operator whose motorcycle had fallen to ground was not pretext
because motive was community caretaking); State vs. Deleon, N.M.
Ct. App., No. 30,813, slip op. at 6-8 (Feb. 14, 2013) (wide turn
violation was pretext for investigation of driving under
influence of alcohol, where pattern was established by six
witnesses who testified that they had been pulled over for minor
15Moreover, Washington has deemed constitutional certain
"mixed-motive" stops, in which an officer was motivated both by
the need to address the traffic violation and by a desire to
investigate other suspected criminal activity. In these cases,
Washington courts delve even further into the subjective
motivations of the officer, and will consider a stop permissible
if the officer "ma[de] an independent and conscious
determination that a traffic stop to address a suspected traffic
infraction [was] reasonably necessary in furtherance of traffic
safety and the general welfare." See Arreola, 176 Wash. 2d
at 298–299. Of course, under equal protection principles, a
traffic stop motivated by race is unconstitutional even if the
officer also is motivated by the legitimate purpose of enforcing
traffic laws.
34
violations in previous months after leaving same bar, asked
about drinking, and released without traffic citation); State v.
Jones, 163 Wash. App. 354, 363 (2011) (stop for failure to use
seat belt was not pretext, where officer cited defendant for
infraction); State v. Montes-Malindas, 144 Wash. App. 254, 262
(2008) (stop of driver who turned on headlights one hundred
yards after starting to drive, conducted by officer who was not
on traffic patrol, was pretext).16 These inquiries are quite
similar to the inquiry described, supra, under a selective
prosecution analysis.
A move to art. 14 would confuse this inquiry, because our
jurisprudence on search and seizure provides no guidance
regarding which officer motivations render unreasonable an
otherwise permissible traffic stop. Our equal protection
jurisprudence, by contrast, provides clear guidelines. A
governmental action based on membership in a suspect class,
including "sex, race, color, creed, or national origin," is
unconstitutional unless the action survives strict scrutiny.
16See also State v. Scharff, 284 P.3d 447, 451 (N.M. Ct.
App. 2012); State vs. Shindledecker, N.M. Ct. App., No. 34,442,
slip op. at 5 (Aug. 11, 2016); State vs. Gonzales, N.M. Ct.
App., No. 30,188, slip op. (May 1, 2012); State vs. Dominguez,
N.M. Ct. App., No. 29,741, slip op. at 5 (Oct. 20, 2010); State
v. Wright, 155 Wash. App. 537, 559 (2010), reversed on other
grounds sub nom. State v. Snapp, 174 Wash. 2d 177 (2012); State
v. Nichols, 161 Wash. 2d 1, 11-12 (2007); State v. Myers, 117
Wash. App. 93, 96-98 (2003); State v. DeSantiago, 97 Wash. App.
446, 452 (1999).
35
See Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass.
655, 662 (2011), S.C., 461 Mass. 232 (2012), quoting King, 374
Mass. at 21. Thus, unlike art. 14, our equal protection
doctrine provides a clear definition of an unlawful traffic
stop: any stop based on a suspect classification.
In practice, the additional methods of establishing racial
profiling that the court adopts today, and the "would have" test
that Justice Budd propounds, often could look similar at a
hearing on a motion to suppress. In some situations, however,
the "would have" test might not be effective where an analysis
under equal protection would. By focusing on what a reasonable
officer would have done in those particular circumstances, for
example, and disregarding any overt discussion of intent, the
"would have" test would conclude that a stop for driving twenty
miles per hour over the speed limit in a residential
neighborhood was reasonable to protect public safety, and would
not take into account that the traffic enforcement officer
making the stop largely was stopping Black drivers. Similarly,
if an officer targeted intensive traffic enforcement efforts
only at neighborhoods where most residents are people of color,
motor vehicle stops such as for running red lights or stop signs
would be reasonable under the "would have" test to protect
pedestrians and other vehicles. Yet, under an equal protection
analysis, the municipality-wide statistics that will be
36
available for all municipalities in the Commonwealth on an
ongoing basis, as a result of a 2019 statute, see G. L. c. 90,
§ 63, inserted by St. 2019, c. 122, § 10, and part 3.f., infra,
could be used to support a reasonable inference that the stops
unfairly targeted communities of color, and were made due to
racial bias.
In sum, the deficiency in our response to race-based
traffic enforcement has not been the basic principles of equal
protection, but, rather, the burdens we have placed on
defendants to establish their claims. The way to address that
issue, as we do today, is to modify the ways in which claims of
racial profiling can be demonstrated, and not to change the
constitutional protection under which claims are analyzed.
e. The defendant's evidence in this case. Even as we
create new methods that defendants may use to establish a
reasonable inference of discrimination in traffic stops, we
recognize that statistical evidence, if available, has unique
advantages for reaching the thorny question of intent,
particularly when implicit bias is at issue. This is so
regardless of whether the officers' actions are analyzed under
an equal protection framework or under art. 14. In terms of
systemic change, statistics provide potentially the strongest
tool to demonstrate that bias, particularly where it is
implicit; indeed, the many journal articles relied upon by the
37
concurrence derive their power from presenting staggering
inequity in numbers.
There generally are two components to the statistical data
that defendants have used to establish a reasonable inference
that the decision to conduct the traffic stop was motivated by
race: (1) information about how the statute was enforced
against other drivers of the defendant's race by the officers or
department in question, often involving numbers of stops,
citations, and FIOs for drivers of specific races (enforcement
data); and (2) statistical data that estimate the demographic
distribution of drivers on the roads in the area of the stop
(benchmark data). The two are then compared, under the
assumption that, absent impermissible discrimination, the
enforcement rates should reflect the demographic composition of
all drivers. See Lora, 451 Mass. at 442. More specifically, in
this case, the percentage of citations and FIOs involving Black
drivers should have been similar to the estimated percentage of
Black drivers on the road in the area of the stop.
In support of his claim, the defendant obtained FIO reports
issued by the officers who stopped him, for a period spanning
from January 1, 2011, to November 28, 2017, the day of the stop;
he also obtained citation data from December 14, 2011, to
November 11, 2017. The defendant then engaged a statistical
expert to compare the citations and FIO reports involving motor
38
vehicle stops to the population of drivers on the road on which
the defendant was stopped, that is, the "benchmark" population.
The expert estimated the demographics of the benchmark
population based on data from the 2010 United States Census
concerning "census blocks" -- geographical subunits containing
from 600 to 3,000 people -- for areas in which these officers
either had issued a citation or had reported a motor vehicle-
related FIO. Because the population of motorists on these
largely residential roads may include motorists who reside in
areas outside the pertinent census blocks, the expert also
estimated the demographics of benchmark populations in
additional census blocks within 300 feet, 600 feet, and 1,000
feet of an FIO or citation. Ultimately, the expert concluded
that the officers in this case were significantly more likely to
conduct an FIO of a driver based on a motor vehicle infraction
if the driver was Black than if the driver was not Black.17 She
17Of the total number of the officers' vehicle-related
field investigation and observation (FIO) reports, 80.62 percent
involved Black drivers, as compared to a benchmark population of
the census blocks containing those stops in which 44.67 percent
of residents were Black. The benchmark estimate that 44.67
percent of motorists on these roads were Black likely was an
overestimate of the percentage of Black motorists on them, given
that the proportion of Black residents was lower in all of the
surrounding areas and municipalities. Nonetheless, the expert
concluded that even if 77 percent of the actual motorists were
Black, there was still a statistically significant probability
that Black drivers were more likely to be the subject of an FIO
than other drivers.
39
also concluded that there was strong statistical evidence that
the officers issued citations to Black drivers in Boston at
rates consistent with racial profiling.18
The judge, however, found that this evidence did not
satisfy the defendant's initial burden to raise a reasonable
inference of discrimination under Lora. Although the judge
recognized that it was unclear whether the data that he
concluded were necessary even existed, he reasoned that the FIO
and citation data presented were unreliable because not every
traffic stop results in the production of an FIO report or the
issuance of a citation.19 As the available data did not reflect
18Of all the traffic citations the officers issued in
Boston, 56.59 percent were issued to Black drivers. The expert
compared this to a benchmark population for all of Boston, in
which, in 2010, 24.38 percent of residents were Black. In the
absence of racial profiling, the odds of this disparity in
citations occurring randomly is less than one in 100,000.
According to the expert's analysis, this data would support a
statistically significant inference of discrimination in
citations even if fifty percent of the drivers in Boston were
Black.
19In 2005, certain police departments, including the Boston
police department, were required to collect data on "all traffic
stops, including those not resulting in a warning, citation or
arrest," for a period of one year after an initial review of
citation data suggested they had engaged in racial or gender
profiling. See St. 2000, c. 228, § 10; Boston Police
Patrolmen's Ass'n, Inc. v. Police Dep't of Boston, 446 Mass. 46,
48 (2006) ("249 of 366 Massachusetts law enforcement agencies
appeared to have engaged in racial or gender profiling"). This
case, however, arose more than a decade after the end of the
statutory mandate to collect this "all stops" data. It appears
that no such data were available for the relevant time period
and the particular officers who stopped the defendant.
40
the "larger, unknown total number of motor vehicle stops," the
judge found that it "f[e]ll well short" of the data analyzed in
State v. Soto, 324 N.J. Super. 66 (1996), a New Jersey case we
cited approvingly in Lora, 451 Mass. at 440-441, where the
defendants had access to a police database of all stops made on
the relevant roadway. See Soto, supra at 69. The judge also
concluded that, as compared to the observational data presented
in Soto, the census data here were an unreliable benchmark for
the demographics of motorists on the roads patrolled by the
officers without some "independent verification" that the data
were reflective of the population of relevant motorists. See
Lora, 451 Mass. at 444.
The judge erred in discounting both aspects of the
defendant's data. With regard to benchmark data, Lora,
451 Mass. at 443-444, does not stand for the categorical rule
that census data is never an appropriate proxy for the actual
population of motorists on the relevant roadway. In Lora,
supra, we concluded that it was inappropriate to use census data
from the town of Auburn as a benchmark for the demographics of
drivers passing through Auburn on a major interstate highway; we
noted that, of the fifty-two motorists ticketed by the officer
in question on that stretch of highway, ninety percent were not
residents of Auburn. Here, where the relevant roadways are
urban residential roads, as opposed to an interstate highway, we
41
have much greater confidence in the accuracy of residential
demographics from United States Census data as representative of
those making use of the residential roads. Moreover, in this
case, the defendant's expert statistician took pains to account
in sophisticated ways for the possible presence of nonresident
drivers. This benchmarking data was more than sufficiently
reliable to support a claim of selective enforcement and racial
discrimination in making the traffic stop, under the defendant's
then-existing burden. The judge abused his discretion in
rejecting it as insufficient.
The same is the case with respect to the defendant's use of
data on citations and motor vehicle stop-generated FIOs. If, as
here, the data on the officers' citations and motor vehicle FIOs
show that these interactions are racially skewed, it is a
reasonable inference that the rate at which those officers'
stops of drivers of a particular race is similarly
disproportionate to stops of other drivers. In declining to
take this inferential step, the judge erred. His insistence
that this inference had to be all but unescapable, and not
merely reasonable, was an abuse of discretion.
In support of his motion to suppress, the defendant
submitted the expert's statistical analysis, which established a
reasonable inference of impermissible discrimination. Having
made this implicit determination, the judge properly decided to
42
conduct an evidentiary hearing, where the burden was on the
Commonwealth to rebut the reasonable inference established by
the defendant. See Lora, 451 Mass. at 438. The Commonwealth
offered the testimony of the arresting officers, who testified
that they did not conduct the stop due to the defendant's race.
Because implicit bias may lead an officer to make race-based
traffic stops without conscious awareness of having done so,
such a simple denial is insufficient to rebut the reasonable
inference. See Commonwealth v. McCowen, 458 Mass. 461, 499
(2010) (Ireland, J., concurring) ("people possess [implicit
racial biases] over which they have little or no conscious,
intentional control" [citation omitted]); Givelber, The
Application of Equal Protection Principles to Selective
Enforcement of the Criminal Law, 1973 U. Ill. L.F. 88, 114
(1973) (where "there is no legitimate justification for a given
instance of selective enforcement, then the unjust treatment by
the prosecutor should violate the equal protection clause
regardless of whether the prosecutor knew he was abusing his
office").
The Commonwealth did not call an expert or present any
statistical evidence. As discussed, supra, the prosecutor's
primary argument was that analyses based on FIOs and United
States Census tracts were unreliable. Additionally, the
Commonwealth argued that Black drivers were overrepresented in
43
the statistical data because Black individuals commit more
crimes. "[W]e are unaware of any reliable study establishing
that motor vehicle violations are more frequently committed by
any particular race of driver." Lora, 451 Mass. at 442 n.30,
citing Soto, 324 N.J. Super. at 74. Thus, the Commonwealth
clearly failed to rebut the reasonable inference of
impermissible discrimination raised by the defendant, and the
denial of the motion to suppress must be reversed.20
f. The potential for widely available statistics. In
2019, the Legislature enacted G. L. c. 90, § 63, see St. 2019,
c. 122, § 10, which requires, on an ongoing basis, an annual
report of consolidated traffic stop data by town, and
consolidation of that data to the registry of motor vehicles. A
bill currently under consideration by the Legislature would
repeal G. L. c. 90, § 63, and instead would require law
enforcement officers to collect more comprehensive data on each
traffic stop they make, such that data by officer would be
available to the municipality as well as the registry of motor
vehicles. See 2020 Senate Doc. No. 2820, § 52. This bill would
require all officers, not only those in police departments found
to have engaged in racial profiling, to record information on
20Because of this conclusion, we need not reach the
defendant's contention that the subsequent inventory search was
unconstitutional.
44
any traffic stop (not just those resulting in an issued
citation), including the reason for the stop and the age, race,
ethnicity, and gender of the individual stopped, among other
information. See 2020 Senate Doc. No. 2820, § 52 (d) (1).
Further, the bill would require each municipal law enforcement
department semiannually to publish a statistical analysis of the
department's stop and search data. See 2020 Senate Doc. No.
2820, § 52 (d) (5). If enacted, the bill likely would enable
defendants to access publicly available, department-wide data on
the demographics of all traffic stops, by officer, in the
relevant municipality, and would provide a plethora of relevant
data available to support (or weaken) equal protection claims.
The House of Representatives, however, recently passed a revised
version of the bill that completely omits the provisions
requiring collection of data on traffic stops. See 2020 House
Doc. No. 4860.
We urge the Legislature to require the collection and
analysis of officer-specific data, such as set forth in 2020
Senate Doc. No. 2820. This type of data collection would help
protect drivers from racially discriminatory traffic stops, and
also would protect police officers who do not engage in such
discriminatory stops.
4. Conclusion. The matter is remanded to the county
court, where an order shall issue reversing the Superior Court
45
judge's order denying the defendant's motion to suppress, and
remanding the matter to the Superior Court for such other
proceedings as are necessary, consistent with this decision.
So ordered.
GANTS, C.J. (concurring). I agree with the court that a
motor vehicle stop motivated to any extent by the race of the
driver or passenger (or by the driver's or passenger's
membership in any suspect class) violates our guarantee of equal
protection under arts. 1 and 10 of the Massachusetts Declaration
of Rights, and that the fruits of any such unconstitutional stop
must be suppressed. See ante at . I also agree with the
court that a reasonable inference of racial profiling does not
require statistical evidence but may instead be based on the
totality of evidence surrounding the stop. See ante at .
I agree with Justice Budd's concurrence that a motor
vehicle stop that is found unconstitutional as a violation of
equal protection would also be an unreasonable stop in violation
of art. 14 of our Declaration of Rights. See post at .
Specifically, I agree that a stop that is motivated by the race
of the driver is not constitutionally reasonable. I note that,
despite our authorization rule, we have long considered the
motivation of the law enforcement officer who conducts a search
where it is claimed to be an inventory or administrative search;
if the officer's motivation is investigative and the search is
not lawful as an investigative search, the search is
unconstitutional and the fruits of the search are suppressed.
See Commonwealth v. Rostad, 410 Mass. 618, 620 (1991) (inventory
search "may not be allowed to become a cover or pretext for an
2
investigative search"); Commonwealth v. Eagleton, 402 Mass. 199,
207 n.13 (1988) ("An administrative search may not be used as a
subterfuge to avoid the burden of establishing probable cause to
support a criminal investigative search"). These cases
demonstrate that courts can, and do, successfully explore the
true motivation of an officer in examining the lawfulness of a
search.
I do not join Justice Budd's concurrence because I would
not declare in this case that any pretextual motor vehicle stop,
even where the pretext is not based on the membership of the
driver or passenger in a suspect class, is also a violation of
art. 14. See post at . Here, the only claim of pretext is
based on the race of the driver; we need not decide in this case
whether to extend the reach of our opinion to apply to all
pretexts.
In closing, I note that, despite our jurisprudential
differences reflected in the various opinions in this case, the
court is unanimous in concluding that a motor vehicle stop that
arises from racial profiling is unconstitutional, that the
burden placed on defendants in criminal cases to establish an
inference of racial profiling need not be based on statistical
evidence, that the burden may be met by inferences arising from
the totality of the evidence of the stop, and that the burden
should not be so high that a remedy is, in practice, mostly
3
illusory. In short, it is the unanimous view of this court that
the prohibition against racial profiling must be given teeth and
that judges should suppress evidence where a motor vehicle stop
is motivated, even in part, by the race of the driver or
passenger.
BUDD, J. (concurring, with whom Lenk, J., joins). Racial
profiling in traffic stops has proven to be an intractable
problem, the devastating consequences of which members of this
court have recognized for many years. See Commonwealth v.
Buckley, 478 Mass. 861, 871 (2018); id. at 876 (Budd, J.,
concurring); Commonwealth v. Lora, 451 Mass. 425, 449 (2008)
(Ireland, J., concurring); Commonwealth v. Feyenord, 445 Mass.
72, 88 (2005) (Greaney, J., concurring), cert. denied, 546 U.S.
1187 (2006); Commonwealth v. Gonsalves, 429 Mass. 658, 670
(1999) (Ireland, J., concurring). Today, the court expressly
acknowledges that discriminatory motor vehicle stops are
profoundly harmful to persons and communities of color, and
adjusts our existing equal protection framework for addressing
such stops.
I agree that the statistical evidence provided by this
defendant was more than sufficient to show that the traffic stop
was racially motivated under the requirements set forth in Lora,
supra at 436-438. I also agree that Lora inadvertently set the
bar too high for defendants to meet their initial burden of
raising an inference of racial discrimination. However, the
problem of racially discriminatory motor vehicle stops is a
systemic product of the criminal justice system as it currently
functions -- it thus requires a systemic solution.
2
In looking at the issue more broadly, it is clear that the
root of the problem is pretextual stops, which allow police to
utilize traffic stops as a means to act on hunches that are
unsupported by reasonable suspicion and often based on the race
of the driver. I conclude that pretextual stops are
unconstitutional under art. 14 of the Massachusetts Declaration
of Rights1 because they allow for the investigatory stop of an
individual without reasonable suspicion of the crime sought to
be investigated. For that reason, I would prohibit all
pretextual stops.2
1 Article 14 of the Massachusetts Declaration of Rights
states in pertinent part: "Every subject has a right to be
secure from all unreasonable searches, and seizures, of his
person, his houses, his papers, and all his possessions."
2 The defendant has not challenged the stop under art. 14;
however, as we declined to evaluate the art. 14 standard for
determining reasonableness of a motor vehicle stop (i.e., the
authorization test) less than two years ago in Commonwealth v.
Buckley, 478 Mass. 861, 866 (2018), it is understandable that
the defendant here did not raise what reasonably might have
appeared to be a futile argument. See generally Commonwealth v.
Vasquez, 456 Mass. 350, 358-359 (2010). In any case, the
constitutionality of pretextual stops was well and fully briefed
by both parties and by amici in Buckley. The fundamental points
I raise today were laid out before us then, together with
citations to dozens of studies, law review articles, and
statistical reports relating to racial profiling in traffic
stops and pretextual stops. See, e.g., Harris, The Stories, the
Statistics, and the Law: Why "Driving While Black" Matters, 84
Minn. L. Rev. 265, 273-274 (1999); Sklansky, Traffic Stops,
Minority Motorists, and the Fourth Amendment, 1997 Sup. Ct. Rev.
271, 312-316 (1997); Davis, Race, Cops, and Traffic Stops, 51 U.
Miami L. Rev. 425, 432 (1997).
3
The court seeks to solve the problem of race-based traffic
stops by improving upon the traditional equal protection
analysis. However, the ability to challenge alleged race-based
stops on both equal protection and art. 14 grounds would enhance
the ability of people of color to pursue an effective remedy
against discrimination. That is, I fear that the efficacy of
the equal protection test remains blunted by the ability of
police to use pretextual stops to disguise stops based on racial
bias. The long, difficult history of racial discrimination in
law enforcement demonstrates that, without more, making it
easier for defendants to raise an inference that race was the
basis for their stops in discrete cases will not be enough to
dismantle the practice of racial profiling. Acknowledging the
unconstitutionality of pretextual stops has the added systemic
benefit of removing, in the first instance, the means by which
racial profiling is accomplished.
1. Pretext and the systemic problem of racially motivated
motor vehicle stops. Under the authorization test, a traffic
stop is valid "so long as the police are doing no more than they
As is obvious from this concurrence, since Buckley was
decided I have changed my view that it is "unworkable" to shift
our jurisprudence away from the authorization test announced in
Commonwealth v. Santana, 420 Mass. 205, 208-209 (1995).
Buckley, 478 Mass. at 876 (Budd, J., concurring). See
Commonwealth v. Larose, 483 Mass. 323, 336 (2019) (Lenk, J.,
concurring).
4
are legally permitted and objectively authorized to do."
Buckley, 478 Mass. at 865, quoting Commonwealth v. Santana, 420
Mass. 205, 209 (1995).3 In practice, this means that an officer
is permitted to stop a vehicle so long as he or she has observed
a motor vehicle violation (or otherwise has either probable
cause or reasonable suspicion to believe that one was
committed). See Commonwealth v. Rodriguez, 472 Mass. 767, 774
(2015). The authorization test therefore permits police to
perform pretextual motor vehicle stops, i.e., stops ostensibly
made on the basis of a motor vehicle violation, but actually
made for the purpose of investigating suspicions of unrelated
criminal activity. See State v. Ladson, 138 Wash. 2d 343, 349
(1999) ("[T]he essence of [a] pretextual traffic stop is that
the police are pulling over a citizen, not to enforce the
traffic code, but to conduct a criminal investigation unrelated
to the driving. Therefore the reasonable articulable suspicion
that a traffic infraction has occurred which justifies an
exception to the warrant requirement for an ordinary traffic
stop does not justify a stop for criminal investigation").
3 As discussed in more detail infra, this is the same
approach that the United States Supreme Court adopted with
regard to the Fourth Amendment to the United States
Constitution. See Whren v. United States, 517 U.S. 806, 813
(1996).
5
"[D]riving is an indispensable part of modern life."
Commonwealth v. McCarthy, 484 Mass. 493, 507 (2020). In
addition, our traffic code is comprehensive and detailed.4 As a
result, "[v]ery few drivers can traverse any appreciable
distance without violating some traffic regulation" (quotation
and citation omitted). LaFave, The "Routine Traffic Stop" from
Start to Finish: Too Much "Routine," Not Enough Fourth
Amendment, 102 Mich. L. Rev. 1843, 1853 (2004). See Caldwell v.
State, 780 A.2d 1037, 1048 n.25 (Del. 2001), quoting Whitehead
v. State, 116 Md. App. 497, 507 n.4 (1997) ("studies conducted
on a stretch of Interstate 95 between Baltimore and Delaware
revealed that 93% of all drivers committed some type of traffic
violation"). See also Caldwell, supra, citing Harris, Whren v.
United States: Pretextual Traffic Stops and "Driving While
Black," The Champion (March 1997), at 41; State v. Soto, 324
N.J. Super. 66, 70 (1996) (observational study over four days on
three-exit stretch of New Jersey turnpike showed 98.1 percent of
2,096 observed vehicles exceeded speed limit).
4 Our traffic code regulates nearly every aspect of
operating a motor vehicle, from obvious moving violations such
as speeding and failing to stop at red lights, see G. L. c. 90,
§ 17; G. L. c. 89, § 9, to less conspicuous moving violations
such as failing to come to a full stop at a stop sign, see G. L.
c. 89, § 9, or crossing marked lanes, see G. L. c. 89, § 4A, and
subtle equipment deficiencies including window tint, lights, and
passenger restraints, see G. L. c. 90, §§ 7, 7AA, 9D, 13A.
6
Pretextual stops are an attractive investigatory technique
because a traffic stop can lead to a multitude of additional
investigatory actions. See, e.g., Commonwealth v. Goncalves-
Mendez, 484 Mass. 80, 81 (2020) (traffic stop led to discovery
of bench warrant, arrest, impoundment, and inventory search);
Commonwealth v. Amado, 474 Mass. 147, 150 (2016) (exit order and
patfrisk during traffic stop). See also Carbado, From Stopping
Black People to Killing Black People: The Fourth Amendment
Pathways to Police Violence, 105 Cal. L. Rev. 125, 151 (2017)
(Carbado) (describing "the ways in which traffic stops function
as gateways to more intrusive searches and seizures"). Thus,
law enforcement officers have powerful incentives to use traffic
violations as a pretext to conduct investigatory stops.
It is no secret that this combination of factors has
allowed racially motivated motor vehicle stops to flourish.
See, e.g., Carbado, supra at 129, 152 (describing "de facto
legalization" of racial profiling 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," including
Whren v. United States, 517 U.S. 806 [1996]); Capers, Rethinking
the Fourth Amendment: Race, Citizenship, and the Equality
Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 34 (2011) (Capers)
("Given that drivers routinely violate traffic laws . . .
[Whren] virtually gives officers carte blanche to engage in
7
race-based pretextual stops. And if the driving while [B]lack
statistics . . . show anything, this is what officers do");
Johnson, How Racial Profiling in America Became the Law of the
Land: United States v. Brignoni-Ponce and Whren v. United
States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J.
1005, 1069 (2010) (summarizing critiques of Whren); Glasser,
American Drug Laws: The New Jim Crow, 63 Alb. L. Rev. 703, 708
(2000) ("We are talking about a national policy which is
training police all over this country to use traffic violations,
which everyone commits the minute you get into your car, as an
excuse to stop and search people with dark skin").
If "systemic racism" is defined as a "system[ or]
institution[] that produce[s] racially disparate outcomes,
regardless of the intentions of the people who work within
[it]," then our criminal justice system is rife with it. See
There's Overwhelming Evidence That the Criminal Justice System
is Racist. Here's the Proof, Washington Post, June 10, 2020,
https://www.washingtonpost.com/graphics/2020/opinions
/systemic-racism-police-evidence-criminal-justice-system/
[https://perma.cc/8YLM-KWSY]. As applicable here, allowing
ostensibly routine traffic stops produces racially disparate
outcomes. In order adequately to address this systemic problem,
we must take a clear-eyed look at pretextual stops.
8
2. The unconstitutionality of pretextual stops. The
requirement that government searches or seizures require a
warrant supported by probable cause is the touchstone of art.
14's protection against arbitrary searches and seizures. See
Commonwealth v. Bostock, 450 Mass. 616, 623–624 (2008), quoting
Commonwealth v. Cast, 407 Mass. 891, 901 (1990) ("It is a
cardinal principle that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable [under both the Fourth Amendment to the United
States Constitution and art. 14] -- subject only to a few
specifically established and well-delineated exceptions"
[quotations omitted]). See also Commonwealth v. Antobenedetto,
366 Mass. 51, 57 (1974) ("under the Fourth Amendment searches
conducted without valid warrants are presumed in the first
instance to be unreasonable. It is then up to the government to
show that a particular search falls within a narrow class of
permissible exceptions").
The various exceptions to the warrant requirement, and the
exceptions to those exceptions, make up our search and seizure
jurisprudence. We carefully scrutinize warrantless actions
taken by law enforcement, recognizing that, where the power of
police to conduct warrantless searches or seizures is "too
permeating," it necessarily is "too susceptible to being
exercised arbitrarily by law enforcement -- precisely the type
9
of governmental conduct against which the framers sought to
guard" (quotations and citation omitted). Commonwealth v.
Almonor, 482 Mass. 35, 47 (2019).
Although a motor vehicle stop constitutes a seizure for the
purposes of art. 14, we have held that an investigatory stop of
a vehicle, like a Terry-type stop of a pedestrian, does not
require a warrant because it is by its nature a threshold, on-
the-spot inquiry that is less intrusive than an arrest. See
Commonwealth v. Willis, 415 Mass. 814, 818 (1993); Commonwealth
v. Bacon, 381 Mass. 642, 643 (1980). See generally Terry v.
Ohio, 392 U.S. 1, 20 (1968). Motorists nevertheless are
ostensibly protected from unreasonable searches and seizures
because, ordinarily, to pass constitutional muster under art. 14
a warrantless investigatory stop (seizure) of a motor vehicle
and its occupants requires "reasonable suspicion, based on
specific, articulable facts and inferences therefrom, that an
occupant . . . had committed, was committing, or was about to
commit a crime" (citation omitted). Commonwealth v. Manha, 479
Mass. 44, 46 (2018). However, the authorization test strips
away that protection because it substitutes reasonable suspicion
of a traffic violation for reasonable suspicion of the separate
10
criminal conduct that the officer seeks to investigate.5 That
is, as discussed supra, the rule permits officers to make an
investigatory stop without the reasonable suspicion normally
required as long as they have observed a traffic violation that
can be used as pretext for the stop.
In practice, if an officer wants to investigate a hunch
about suspected criminal activity in connection with a
particular motor vehicle, he or she has two options. If the
officer has reasonable suspicion of the suspected criminal
activity, he or she may conduct an investigatory stop. If not,
the officer can simply wait until the driver commits a traffic
violation, stop the vehicle based on that violation, and then
attempt to get more information during the stop to corroborate
that hunch. See Commonwealth v. Cordero, 477 Mass. 237, 241
(2017) ("A routine traffic stop may not last longer than
reasonably necessary to effectuate the purpose of the stop"
[quotations and citation omitted]).
The problem with the authorization test is that it
automatically categorizes any stop preceded by a traffic
violation as "authorized," and therefore presumptively
reasonable, regardless of the actual motivation for the stop.
5 It is worth noting that many types of traffic violations
are civil in nature, not criminal. See, e.g., Commonwealth v.
Rodriguez, 472 Mass. 767, 770-771 (2015).
11
See Buckley, 478 Mass. at 869. Because the test predetermines
the outcome of any claim of unreasonableness for the purposes of
art. 14, no actual reasonableness analysis is required (or
allowed). Incredibly, this is true even if the motive is
unlawful. See Santana, 420 Mass. at 209 ("Under [the
authorization] test, it is irrelevant whether a reasonable
police officer would have made the stop but for the unlawful
motive" [citations omitted]). In this case, for example, the
officers discovered the inspection sticker violation prior to
making the stop.6 Pursuant to Santana, the stop would likely be
considered constitutionally reasonable under art. 14, even
though the court concludes, and I agree, that the defendant
successfully showed that it was racially motivated. Such an
outcome clearly is indefensible -- it hardly can be argued that
a motor vehicle stop predicated on one's race is reasonable in
any circumstance.
6 As Justice Cypher notes, the stop here was not based on a
moving or equipment violation. Instead, the officers discovered
the inspection sticker violation only after deciding to check
the vehicle's license plate number in a database. However, just
like a traffic stop based on an observed motor vehicle
violation, a traffic stop resulting from a plate check is a
seizure pursuant to art. 14 and the Fourth Amendment. See
generally Buckley, 478 Mass. at 865, quoting Rodriguez, 472
Mass. at 773 ("Because '[a] police stop of a moving automobile
constitutes a seizure,' . . . that stop must be reasonable in
order to be valid under the Fourth Amendment and art. 14").
12
The authorization test's reflexive and inflexible rule is
at odds with the origins and purpose of art. 14. Our cases
acknowledge that the framers "wrote constitutional search
protections in 'response to the reviled general warrants and
writs of assistance of the colonial era, which allowed British
officers to rummage through homes in an unrestrained search for
evidence of criminal activity'" (quotations omitted). McCarthy,
484 Mass. at 498-499, quoting Carpenter v. United States, 138 S.
Ct. 2206, 2213 (2018). See Commonwealth v. Blood, 400 Mass. 61,
71 (1987) (adoption of art. 14 motivated by "[o]pposition to the
search policies . . . which allowed officers of the crown to
search, at their will, wherever they suspected [evidence of
criminal activity] to be" [citation omitted]). The general
warrant epitomized the type of government intrusion that is
intolerable under our Constitution: invasions of privacy which
technically are cloaked in legal authorization but are exercised
in an arbitrary or unfair manner. Given the broad discretion
afforded to police officers by way of the authorization test and
the ample opportunities they have to exercise that discretion,
pretextual investigatory stops are comparable to the general
warrants that were the impetus for art. 14. And like general
warrants, the fact that pretextual investigative stops are
legally "authorized" does not make them tolerable. See Blood,
supra.13
Notably, the nearly unlimited discretion granted to law
enforcement officers to make pretextual traffic stops is an
anomaly under our art. 14 jurisprudence. For example, we do not
permit investigatory stops of pedestrians unless police have
reasonable suspicion "that a person has committed, is
committing, or is about to commit a crime," based on "specific
and articulable facts" (quotations and citations omitted). See
Bacon, 381 Mass. at 643. "A mere 'hunch'" and "[s]imple good
faith on the part of the officer" are not enough to justify an
investigatory stop of a pedestrian (citation omitted). Id. Yet
under the authorization test, the moment a driver commits (or
the police discover) a motor vehicle violation, the occupants of
a vehicle are exposed to the very same investigatory stops we
rightly prohibit when they are on foot -- stops based on
unsupported hunches, discrimination, harassment, or any other
purpose lacking reasonable articulable suspicion of criminal
activity. See United States v. Botero-Ospina, 71 F.3d 783, 790
(10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996) (Seymour,
C.J., dissenting) ("Given the multitude of applicable traffic
and equipment regulations in any jurisdiction . . . upholding a
stop on the basis of a regulation seldom enforced opens the door
to the arbitrary exercise of police discretion condemned in
Terry and its progeny").
14
We also previously have recognized, and limited, the
discretion law enforcement officers may exercise in the context
of exit orders during motor vehicle stops. In Gonsalves, 429
Mass. at 660, 662, we concluded that although the Supreme Court
held that the Fourth Amendment allows a police officer to issue
exit orders during any lawfully executed traffic stop, see
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (drivers),
Maryland v. Wilson, 519 U.S. 408, 415 (1997) (passengers), art.
14 prohibits the practice unless the officer has a reasonable
belief that the officer's safety, or the safety of others, is
threatened. We rejected the Federal rule that "permit[s]
automobile exit orders during any traffic stop, but which do not
require that such orders be given," because we recognized that
this unfettered discretion is "a clear invitation to
discriminatory enforcement of the rule" (emphasis added). See
Gonsalves, supra at 664. We further noted that "[c]itizens do
not expect that police officers handling a routine traffic
violation will engage, in the absence of justification, in
stalling tactics, obfuscation, strained conversation, or
unjustified exit orders, to prolong the seizure in the hope
that, sooner or later, the stop might yield up some evidence of
an arrestable crime." Id. at 663.
Thus, we take care to protect pedestrians from
investigatory stops without reasonable suspicion, and drivers
15
from being unduly detained by an exit order during a traffic
stop barring safety concerns. However, the authorization test
has created a markedly different standard when it comes to
initiating a motor vehicle stop, as it provides officers with
wide discretion to substitute pretext for reasonable suspicion
as an investigatory tactic in the hopes that a hunch regarding
criminal activity might bear fruit.
The reasonable suspicion requirement is the linchpin of a
valid investigatory stop under art. 14. Using pretext to
circumvent it breaks with our fundamental rules of search and
seizure. As observed by the Supreme Court of Washington:
"[T]he problem with a pretextual traffic stop is that it is
a search or seizure which cannot be constitutionally
justified for its true reason (i.e., speculative criminal
investigation), but only for some other reason (i.e., to
enforce traffic code) which is at once lawfully sufficient
but not the real reason. Pretext is therefore a triumph of
form over substance; a triumph of expediency at the expense
of reason. But it is against the standard of
reasonableness which our constitution measures exceptions
to the general rule, which forbids search or seizure absent
a warrant. Pretext is result without reason."
Ladson, 138 Wash. 2d at 351. If art. 14 is meant to protect
individuals against the arbitrary exercise of power by agents of
the Commonwealth, pretextual investigatory stops are in direct
conflict with this objective. As the authorization test creates
a gaping hole in the foundational principle that a stop must be
16
backed by reasonable suspicion, I would abandon it.7 Instead, I
would hold that a traffic violation cannot replace the
reasonable suspicion required to make an investigatory stop
under art. 14.
3. Detecting pretext: the "would have" test. Identifying
a pretextual traffic stop may not be a straightforward task, but
other courts and commentators have outlined what I conclude is a
workable test. Prior to Whren, many State courts, including
courts in Arkansas, Illinois, Iowa, New York, Ohio, and
Washington, employed various forms of the "reasonable officer,"
or "would have," test to determine the validity of a stop. See
State v. Brown, 930 N.W.2d 840, 902 (Iowa 2019) (Appel, J.,
dissenting) (collecting cases). Although there are varying
versions of that test, their common feature is that an alleged
pretextual stop is valid only if a reasonable police officer
"would have" made the stop in the absence of an ulterior motive;
that is, a reasonable officer would have made the stop solely to
enforce the motor vehicle infraction.
7 Although the court notes that after Whren was decided, a
majority of States adopted a version of the authorization test,
ante at , it perhaps goes without saying that, regardless of
what other jurisdictions have to say about their State
constitutions, "ultimately we must accept responsibility for
interpreting our own Constitution as text, precedent, and
principle seem to us to require." Planned Parenthood League of
Mass., Inc. v. Attorney Gen., 424 Mass. 586, 590 (1997).
17
A version of the "would have" test has been adopted in
Washington and New Mexico. See State v. Arreola, 176 Wash. 2d
284, 298 (2012). However, it has been criticized as requiring a
judge to discern an officer's subjective motives. See Whren,
517 U.S. at 815; Buckley, 478 Mass. at 867-868. See also Brown,
930 N.W.2d at 869 n.16 (Cady, C.J., dissenting) ("despite
adopting the ['would have'] test, Washington courts may be
reluctant to find that a police officer is lying about their
motivations or 'have difficulty discerning pretextual behavior
without an admission'" [citation omitted]); Lawton, The Road to
Whren and Beyond: Does the "Would Have" Test Work?, 57 DePaul
L. Rev. 917, 935-936, 956-957 (2008).
Under my proposed formulation of the test, the defendant
need not prove, and the motion judge is not required to
determine, the officer's true motive. Instead, the question
would be whether a reasonable officer would have made the stop
solely for the purpose of traffic enforcement.8 See State v.
8 Although the court foresees difficulty in determining the
characteristics of a reasonable officer, this standard is
applied successfully in other circumstances. See Commonwealth
v. Barreto, 483 Mass. 716, 722 (2019), quoting Commonwealth v.
Gonsalves, 429 Mass. 658, 661 (1999) (exit order based on safety
concerns is justified where "a reasonably prudent [person] in
the [officer's] position would be warranted in the belief that
the safety of the police or that of other persons was in
danger"); LaChance v. Commissioner of Correction, 463 Mass. 767,
777-778 (2012), quoting Longval v. Commissioner of Correction,
448 Mass. 412, 419 (2007) (qualified immunity standard asks
18
Sullivan, 340 Ark. 315, 318 (2000), cert. granted, judgment
rev'd, 532 U.S. 769 (2001) ("Claims of pretextual arrest raise a
unique problem in law -- deciding whether an ulterior motive
prompted an arrest which otherwise would not have occurred.
Confusion can be avoided by applying a 'but for' approach, that
is, would the arrest not have occurred but for the other,
typically, the more serious crime. . . . The question then
becomes whether [the defendant] would have been arrested simply
for" purported traffic violation). See also State v. Ochoa, 146
N.M. 32, 44 (2008); Abramovsky & Edelstein, Pretext Stops and
Racial Profiling After Whren v. United States: The New York and
New Jersey Responses Compared, 63 Alb. L. Rev. 725, 734-735
(2000) (describing objective circumstantial factors New York
courts considered when identifying pretext).
Like the revised equal protection test announced by the
court today, this version of the "would have" test allows a
defendant to raise an inference that a stop was a pretext based
on the circumstances of the stop. It would allow for
consideration of the same factors and likewise would operate
under a burden-shifting framework. See Ochoa, 146 N.M. at 44
(listing factors). See also State v. Heath, 929 A.2d 390, 403
whether "it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted").
19
(Del. Super. Ct. 2006). The mechanics of this test to detect
pretext, then, are very similar to the one the court presents to
detect racial profiling.9
Importantly, because all underlying motives lacking
reasonable suspicion would be considered unreasonable under art.
14, and therefore impermissible,10 this version of the test would
avoid the fraught inquiry into whether an officer was in fact
motivated by racial bias.11 The advantage of an objective "would
9 These similarities are not surprising, because many of the
factors the court identifies as relevant to the totality of the
circumstances analysis, ante at notes 9 and 10, are drawn from
cases applying other jurisdictions' versions of the "would have"
test. See State vs. Deleon, N.M. Ct. App., No. 30,813 at 4-5
(Feb. 14, 2013); People v. Roundtree, 234 A.D. 2d 612, 613 (N.Y.
1996); State v. Arreola, 176 Wash. 2d 284, 301 (2012) (Chambers,
J., dissenting); State v. Snapp, 174 Wash. 2d 177, 200-201
(2012).
10 The court cautions that analyzing pretextual stops under
art. 14 would confuse the inquiry into whether a stop is
unlawful because "our jurisprudence on search and seizure
provides no guidance regarding which officer motivations render
unreasonable an otherwise permissible traffic stop." Ante at
. However, our art. 14 and Fourth Amendment jurisprudence is
quite clear that an "unlawful" search or seizure is an
unreasonable one -- that is, any motive lacking reasonable
suspicion of criminal activity would render a pretextual stop
unreasonable. See generally Commonwealth v. Alvarado, 423 Mass.
266, 268 (1996); Commonwealth v. Bacon, 381 Mass. 642, 643
(1980).
11The court posits that, like other versions of the "would
have" test, this one inevitably would lead to an examination of
subjective motives. Ante at . I do not agree with this
assessment; I conclude that much can be learned from the
experiences in Washington and New Mexico where each employed an
explicitly subjective test. At any rate, as the court
20
have" test is that whatever purportedly race-neutral
justification the Commonwealth might proffer as the true motive
for the stop would be irrelevant to the question whether a
reasonable officer would have made the stop as a traffic stop,
absent any motive other than traffic enforcement. Thus, the
Commonwealth would not be able to justify a pretextual stop
under the "would have" test I propose simply by substituting a
facially neutral motive for the alleged race-based motive.12
We have remarked that, generally, "police conduct is to be
judged 'under a standard of objective reasonableness without
acknowledges, those subjective inquiries are "quite similar" to
the court's equal protection analysis, which requires a
subjective determination of whether racial bias was the true
motive for the stop. Ante at . Even assuming for the sake
of argument that the "would have" test necessarily entails a
subjective inquiry, the added benefits of undoing the
authorization test, described infra, would justify the potential
difficulty of formulating a workable test to identify pretext.
12The court points out that, like the revised equal
protection test, this formulation of the "would have" test would
not eliminate issues of less than candid police officers, or of
judges reluctant to reject an officer's proffered motive for a
stop. I am under no illusions that an art. 14 approach is
"magic." See ante at . Righting the wrongs of the racism
that have been plaguing this country since its inception has
been slow-going -- some might say glacial. Although I conclude
that the approach I suggest could be part of a larger solution,
it will take much more than any single judicial pronouncement
(or concurrence) to increase the pace of progress. Despite any
perceived flaws in my suggested approach, I conclude that
defendants who pursue claims of racial discrimination in
connection with a traffic stop should be entitled to all
available remedies, especially where, as discussed, such a stop
plainly is unconstitutional under art. 14.
21
regard to the underlying intent or motivation of the officers
involved.'" Buckley, 478 Mass. at 867, quoting Santana, 420
Mass. at 208. The "would have" test, the hallmark of which is
the reasonableness of an officer's actions pursuant to art. 14,
squares neatly with art. 14's focus on objective reasonableness.
4. The court's approach. To be sure, the revised equal
protection test announced today will provide a measure of relief
to defendants who raise claims of having been racially profiled.
Indeed, as the court indicates, there are likely instances in
which the revised equal protection analysis will be able to
detect of racial profiling where an art. 14 inquiry would not.
However, this revised test strengthens what is, in the end, a
partial work-around to a complex problem that we have yet to
solve.
a. Reliance on the equal protection approach alone leaves
in place the unconstitutional practice of pretextual stops. As
discussed, pretextual stops are unreasonable pursuant to art.
14's prohibition against unreasonable seizures. Because the
equal protection approach taken by the court prohibits only
those pretextual stops motivated by race, the court's solution
preserves the permissibility of pretextual stops based on any
other ulterior motive. And because the court concludes that it
is unnecessary to analyze such stops under art. 14,
investigatory stops made without reasonable suspicion of the
22
criminal activity sought to be investigated will continue
unabated.
It appears that the court previously has not examined the
constitutionality of pretextual stops from an art. 14
perspective. When we essentially adopted the authorization test
in Santana, 420 Mass at 208-209, we did not consider
specifically the art. 14 consequences of automatically
validating pretextual stops. In that case, although the
defendant argued that a broken tail light was used as a pretext
to stop and search the vehicle, the motion judge did not so
find. Instead, the judge found that "the stop of the vehicle
for defective equipment was a matter of routine standard police
procedure." Santana, supra at 209, citing Commonwealth v.
Matchett, 386 Mass. 492, 510–511 (1982). The Santana court
accepted that finding and simply concluded that "the record does
not support the contention that the troopers stopped the
automobile in order to search it or to interrogate the
defendants regarding illegal drug activities." Id. at 209.
Thus, pretext was discussed only briefly and was not truly at
issue.
Further, although the observation made in Santana, supra,
that "Massachusetts cases follow the authorization approach" was
supported with citations to prior Massachusetts cases, see id.
at 208, pretext was not at issue in any of those cases, either.
23
See Commonwealth v. Petrillo, 399 Mass. 487, 489 (1987) (arrest
for trespass); Commonwealth v. Ceria, 13 Mass. App. Ct. 230, 235
(1982) (Terry-type analysis of stop of man riding moped in park
by officers on foot); Commonwealth v. Tisserand, 5 Mass. App.
Ct. 383, 386 (1977) (automobile double-parked on public street
appropriately approached by police).
Since Santana was decided, we specifically have affirmed
the principle that a stop legally authorized by the observation
of a motor vehicle violation, including where the observed
violation is pretext for an unrelated motivation, is per se
reasonable for the purposes of art. 14, but we have not
explained why. See Buckley, 478 Mass. at 869 ("a traffic stop
cannot be 'arbitrary,' because it is predicated on a driver
violating a traffic law"). See also, e.g., Larose, 483 Mass.
323 327 (2019); Buckley, supra at 865-866; Feyenord, 445 Mass.
at 75-76.
In Lora, although the defendant challenged his stop on both
equal protection and art. 14 grounds, we dispensed with the art.
14 argument by quoting the authorization test, and then went on
to analyze only the equal protection claim. See Lora, 451 Mass.
at 435-436. In Buckley, 478 Mass. at 781, because the defendant
had "expressly disavowed any . . . argument that race was a
factor in the stop at issue," we declined to reexamine "our
general art. 14 standard governing the reasonableness of traffic
24
stops." Instead, we reviewed Lora's discussion of Santana and
Whren, and summarily stated that, "to the extent we do consider
the purpose of a stop when assessing its validity, we do so
pursuant to the equal protection principles of arts. 1 and 10
[of the Massachusetts Declaration of Rights] -- not art. 14's
guarantee against unreasonable seizures." Id. at 870. Thus,
despite the fact that Santana often is cited for the proposition
that pretextual stops are valid, see, e.g., Larose, 483 Mass. at
327; Buckley, 478 Mass. at 865; Commonwealth v. Blevines, 438
Mass. 604, 608 (2003); Commonwealth v. Gentile, 437 Mass. 569,
576 (2002); Commonwealth v. Barros, 435 Mass. 171, 180 n.4
(2001), there is no case of which I am aware that specifically
has considered whether using pretext to make an investigatory
stop without reasonable suspicion of the crime sought to be
investigated is a violation of art. 14, and if not, why not.13
13Similarly, the Supreme Court's decision in Whren did not
fully elaborate on the reasoning behind its oft-cited holding
that "the constitutional basis for objecting to intentionally
discriminatory application of laws is the Equal Protection
Clause, not the Fourth Amendment" and that "[s]ubjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis." See Whren, 517 U.S. at 813. The Whren
Court rested its conclusion almost entirely on precedents that
had not addressed the reasonableness of traffic stops made for a
reason other than routine traffic enforcement. See LaFave, The
"Routine Traffic Stop" from Start to Finish: Too Much
"Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843,
1856 (2004) ("By this reckless use of its own precedents, the
Court in Whren makes it appear that the issue raised by the
petitioners was already settled, while in fact it was very much
25
Today, the court reiterates that "the constitutional basis
for objecting to intentionally discriminatory application of
laws is the Equal Protection Clause, not the Fourth Amendment"
or art. 14, but fails to explain why. See Lora, 451 Mass. at
436, quoting Whren, 517 U.S. at 813. However, a pretextual stop
also properly is analyzed under art. 14, just like any other
warrantless stop. Without reasonable suspicion of criminal
activity (other than the traffic violation), I conclude that
such stops are not justifiable under art. 14. For that reason,
I conclude that the court's decision today leaves in place an
investigatory practice that is unconstitutional.
b. The revised equal protection test is necessary but is
not alone sufficient. The revisions to the test the court
announces today undoubtedly will make it easier for a defendant
to raise an inference of discriminatory intent. However,
because the authorization test is left intact, it will be
possible for the Commonwealth to rebut an inference of racial
profiling by pointing to a hunch of criminal activity, based on
an open question. The fact that the Court created this false
appearance perhaps explains why the Court in Whren had so little
to say about the merits of the petitioners' claim").
26
factors that ostensibly are race-neutral but are in fact proxies
for race.14
For example, an officer could testify that the stop was
based on the officer's recognition of the vehicle or an occupant
from a prior interaction or observation, conversations with
other officers, or information in a gang database. These are
the same factors currently used by police to racially profile
people of color. See generally Commonwealth v. Warren, 475
Mass. 530, 539-540 (2016) (according to study of Boston police
field interrogation and observation reports, "[B]lack men in the
city of Boston were more likely to be targeted for police-
civilian encounters such as stops, frisks, searches,
observations, and interrogations. Black men were also
disproportionately targeted for repeat police encounters");
Inside the Boston Police Gang Database, WGBH, July 30, 2019,
https://www.wgbh.org/news/local-news/2019/07/30/inside-the-
boston-police-gang-database [https://perma.cc/N475-MS5K] (noting
stark racial disparities and errors in individuals included in
police gang database).
In addition to well-disguised proxies for conscious racial
bias, unconscious bias is also at play and by definition may not
14As discussed infra, even if race-neutral, any factors
that together fail to establish reasonable articulable suspicion
of criminal activity unrelated to a traffic violation are
insufficient to conduct an investigatory stop under art. 14.
27
be easily identified. See generally D. Weisburd & M.K.
Majmundar, eds., Proactive Policing: Effects on Crime and
Communities, ch. 7, Racial Bias and Disparities in Proactive
Policing, 251, 277-280 (2018) (collecting studies on unconscious
racial bias); id. at 277 ("Although overt expressions of biased
behavior have declined in society and among police, racial
animus has not disappeared. Rather, it has evolved"); Norton,
Vandello, Sommers, & Darley, Mixed Motives and Racial Bias, 12
Psychol. Pub. Pol'y & L. 36, 39 (2006), and studies cited
("people are quite good at masking their biased behavior by
couching it in more acceptable terms, both to avoid the
appearance of impropriety and as part of a more general effort
to view themselves and their choices positively").
Furthermore, we know that judges traditionally are
reluctant to reject race-neutral explanations based on what
happens when they are required to rule on them in the context of
jury selection.15 In fact, the Batson framework has been
criticized for this very reason, i.e., the unwillingness of
judges to make a finding that the nondiscriminatory reason
15Under the Batson framework, a party may challenge a
peremptory strike by raising an inference of discrimination
which the opposing party may rebut by proffering a
nondiscriminatory reason for the strike. Batson v. Kentucky,
476 U.S. 79, 93-96 (1986). See Commonwealth v. Soares, 377
Mass. 461, 486-488, cert. denied, 444 U.S. 881 (1979). It is
for the judge to determine whether the party seeking to exercise
the peremptory strike has met its burden.
28
proffered to explain a peremptory strike is not the actual
reason for the strike. See Batson v. Kentucky, 476 U.S. 79, 93-
96 (1986); Bellin & Semitsu, Widening Batson's Net to Ensnare
More Than the Unapologetically Bigoted or Painfully
Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1092, 1098-
1099, 1127 (2011) (analysis of Federal court opinions and orders
evaluating race-based Batson challenges from 2000 through 2009
revealed "[a] broad subset of reasons [accepted by courts to
justify a challenged strike], while not race-based per se, seem
to correlate with race, suggesting that an attorney seeking to
eliminate all the members of a certain race from the jury could
achieve much of that goal by focusing on purportedly 'race-
neutral' factors that happen to correlate with race"); Cavise,
The Batson Doctrine: The Supreme Court's Utter Failure to Meet
the Challenge of Discrimination in Jury Selection, 1999 Wis. L.
Rev. 501, 545 (1999) ("The savvy litigator can succeed with the
most blatant discriminatory purpose by a simple manipulation of
the neutral explanation coupled with a dose of
disingenuousness").
Statistical data are not as susceptible to being explained
away with race-neutral justifications and therefore will, as the
court indicates, continue to have "unique advantages" over other
types of evidence. However, the available data on the racial
demographics of motorists involved in traffic stops continues to
29
be severely limited, which is the very reason that Lora did not
work for defendants alleging racial profiling.16 Although this
defendant was able to collect sufficient data (consisting of the
six most recent years of officer-specific field investigation
and observation reports and citations), it is unlikely that
other defendants will be able to follow suit.17
16Even if sufficient data is theoretically available,
practically speaking we cannot expect every defendant to have
the resources to collect, analyze, and present existing data to
make a prima facie case of discrimination. See State v. Brown,
930 N.W.2d 840, 865 n.8 (Iowa 2018) (Cady, C.J., dissenting),
quoting Jackson, Profiling the Police: Flipping 20 Years of
Whren on its Head, 85 UMKC L. Rev. 671, 680 (2017) ("On average,
to take an equal protection claim to trial costs anywhere from
$45,000 up to $125,000").
17I agree that statistical evidence is an excellent form of
evidence and that it can be a vital part of demonstrating that a
stop was based on race, particularly when implicit bias is at
play. Nonetheless, there are lingering concerns about the
availability and accessibility of necessary data.
In 2019 the Legislature enacted G. L. c. 90, § 63, which
requires municipalities to report annually traffic stop data.
See St. 2019, c. 122, § 10. I am not aware of any reports or
data yet published pursuant to that statute. The court notes
that a bill currently under consideration "likely would enable
defendants to access publicly available, department-wide data on
the demographics of all traffic stops in the relevant
municipality, and would provide a plethora of relevant data
available to support (or weaken) equal protection claims." Ante
at . It appears that neither the 2019 act nor the bill
currently under consideration would guarantee defendants access
to the officer-specific data that the defendant analyzed here.
Moreover, even assuming a showing of a department-wide, as
opposed to an officer-specific, pattern of racial profiling
would be a sufficient statistical showing, the shortcomings I
raise regarding the one-time collection of similar data pursuant
to St. 2000, c. 228, apply equally to the new data sets, which
30
The most recent Statewide dataset on racial profiling in
traffic stops of which we have been made aware is a May 2004
report prepared by experts at Northeastern University pursuant
to St. 2000, c. 228. Analyzing motor vehicle citations issued
by every police department in the Commonwealth from April 1,
2001, through June 30, 2003, the experts concluded that 249 of
the Commonwealth's 366 police departments appeared to have
engaged in racial or gender profiling.18 See Farrell, McDevitt,
are also aggregated by municipality and therefore may obscure
particular race-based stops or the actions of individual biased
officers. Given the experience after Lora, if past is prologue,
we have no assurance that such information will be available in
the future.
18The experience with the Legislature's attempt to mandate
data collection on racial profiling via St. 2000, c. 228,
further illustrates the uncertainty of defendants' access to
useful data for equal protection claims. Pursuant to that act,
in 2005 the Secretary of the Executive Office of Public Safety
(Secretary) ordered the 249 police departments found by the
Northeastern experts to have engaged in racial or gender
profiling to collect additional data on all traffic stops for
one year, including information on the identities of officers
making such stops. See St. 2000, c. 228, § 10. See generally
Boston Police Patrolmen's Ass'n, Inc. v. Police Dep't of Boston,
446 Mass. 46, 48-49 (2006). In that case, the union for Boston
police officers sought to enjoin the collection of officer
identities in this second phase of data collection. Id. at 47.
We held that, "[i]n order to fulfil the Act's objective of
eliminating profiling by police officers," the Secretary could
require the collection of data identifying the officer making
the stop during this second phase. See id. at 52-53. However,
by the time Lora was decided in 2008, "nearly one-half of the
targeted police departments did not follow recommended
guidelines and the State did not receive or review any data"
collected pursuant to the second phase of data collection by
departments found to have engaged in racial or gender profiling.
See Lora, 451 Mass. at 449 (Ireland, J., concurring).
31
Bailey, Andresen, & Pierce, Massachusetts Racial and Gender
Profiling Study: Final Report, Institute on Race and Justice of
Northeastern Univ., at 1, 30 (May 4, 2004).
For a defendant challenging a traffic stop by an officer in
one of those 249 departments, this 2004 study may be sufficient
to raise an inference of racial profiling if unrebutted by more
recent data. But for defendants stopped by officers of any of
the 117 departments that were not found to have engaged in
racial profiling in 2004, it is unclear whether any data
currently exists that could raise a statistical inference of
racial profiling. More generally, data showing an over-all
pattern of racially evenhanded stops by a department (or by an
individual officer) may belie particular instances of racial
profiling that are not apparent in the aggregation of numerous
stops. The vast majority of stops by an officer or department
may be race-neutral; however, data demonstrating an over-all
pattern of fairness should not preclude a remedy for an outlier
racially motivated stop.
Despite the foregoing, the court's revised test
unquestionably increases a defendant's chances of demonstrating
racial discrimination. Indeed, the scenarios the court foresees
in which traffic stops that pass muster under the "would have"
test are nonetheless products of racially discriminatory
decisions about where to deploy police officers, illustrate the
32
continuing importance of the equal protection remedy.
Nevertheless, the ability to proceed on both equal protection
and art. 14 grounds would give defendants an even greater
opportunity to establish illegal discrimination.
c. Equal protection is not the only constitutional
guarantee available to address racial discrimination. Today the
court continues to analyze claims of racial profiling solely
through an equal protection lens, without explaining why such
claims do not also implicate art. 14. The court's failure to
engage this question at all is particularly bewildering because
the answer seems straightforward: surely a stop based on race
is an unreasonable seizure under art. 14.
Historically, equal protection of the laws, enshrined in
both the Declaration of Rights and the United States
Constitution, never has been the only constitutional avenue for
redressing racial injustices. In fact, many Supreme Court cases
that granted to all criminal defendants what are now basic
procedural rights originated from the mistreatment of people of
color. See, e.g., Miranda v. Arizona, 384 U.S. 436, 444-445
(1966) (right to Miranda warnings); Gideon v. Wainwright, 372
U.S. 335, 344-345 (1963) (right to counsel); Powell v. Alabama,
287 U.S. 45, 68-69 (1932) (same); Brown v. Mississippi, 297 U.S.
278, 287 (1936) (right to be interrogated free from coercion);
Capers, supra at 7 n.45 (noting that "an earlier draft of
33
[Miranda] was explicit about the racial dynamics of police
interrogations"); id. at 8 (noting that in Gideon, "relying
heavily on the racially-tinged Scottsboro Boys case . . . the
Court clearly recognized the impact its decision would have on
minority defendants especially, given the correlation, at the
time [and today], between race and indigence"). See also
Klarman, The Racial Origins of Modern Criminal Procedure, 99
Mich. L. Rev. 48, 48(2000) ("the linkage between the birth of
modern criminal procedure and southern [B]lack defendants is no
fortuity"); Kahan & Meares, Foreword: The Coming Crisis of
Criminal Procedure, 86 Geo. L.J. 1153, 1153 (1998) ("The need
that gave birth to the existing criminal procedure regime was
institutionalized racism"); Pye, The Warren Court and Criminal
Procedure, 67 Mich. L. Rev. 249, 256 (1968) ("The Court's
concern with criminal procedure can be understood only in the
context of the struggle for civil rights"). As succinctly put
by Kahan & Meares, supra:
"Law enforcement was a key instrument of racial repression,
in both the North and the South, before the 1960's civil
rights revolution. Modern criminal procedure reflects the
Supreme Court's admirable contribution to eradicating this
incidence of American apartheid. Supplanting the
deferential standards of review that had until then
characterized its criminal procedure jurisprudence, the
Court, beginning in the 1960's and continuing well into the
1970's, erected a dense network of rules to delimit the
permissible bounds of discretionary law-enforcement
authority. Although rarely couched as such, the
unmistakable premise of these doctrines was the assumption
34
that communities could not be trusted to police their own
police because of the distorting influence of racism.
There is no reason why a defendant claiming that a stop was
motivated by race should be barred from seeking a remedy for an
unreasonable seizure violative of art. 14 in addition to an
equal protection claim. Cf. Goodridge v. Department of Pub.
Health, 440 Mass. 309, 320 (2003) (analyzing restrictions on
marriage under equal protection and due process doctrines, "two
constitutional concepts [which] frequently overlap"). See
Brown, 930 N.W.2d at 920 (Appel, J., dissenting) ("Certainly,
the theoretical availability of an equal protection claim should
not preempt the possibility of a claim under search and seizure
principles").19
5. Conclusion. In 1999, then-Associate Justice Ireland
broached the issue of racially discriminatory motor vehicle
19Obviously, this approach would affect substantially more
stops than those where, as here, the defendant alleges that the
ulterior motive for the stop was racial discrimination. As
discussed, supra, art. 14's bedrock protection against
unreasonable seizures applies to all pretextual stops, not only
those based on race. Just as we should not sanction as
reasonable a traffic stop based explicitly on a driver's race,
we also should not allow stops based on nothing more than, for
example, the driver's hairstyle or the apparent expense of the
car relative to the neighborhood in which it is traveling. See
Brown, 930 N.W.2d at 928 (Appel, J., dissenting), quoting United
States v. Scopo, 19 F.3d 777, 786 (2d Cir.), cert. denied, 513
U.S. 877 (1994) (Newman, C.J., concurring). Given the
historical and ongoing connection between systemic law
enforcement practices and racial discrimination, it is not at
all surprising that an effective remedy for racial profiling
entails a broader prohibition on the use of pretextual stops.
35
stops, noting that, by that time, the "widespread public
concerns about police profiling, commonly referred to as 'DWB --
driving while [B]lack,' ha[d] been the subject of much
discussion and debate both across the country and within the
Commonwealth." See Gonsalves, 429 Mass. at 670 (Ireland, J.,
concurring). It would be nearly ten years before the court
addressed the problem directly. See Lora, 451 Mass. 426.
Unfortunately, for the reasons previously discussed, Lora was
not effective in solving the problem of racially motivated motor
vehicle stops. Twelve years after Lora was decided, and more
than two decades since the issue first was raised by Justice
Ireland, we have a chance to revisit the question of how to
craft a remedy that will provide relief to people in the
Commonwealth who are targeted on the basis of the color of their
skin.
This time around we should confront squarely the fact that
the phenomenon of racial profiling is a product of more than
one-off cases of individual bias or animus -- it is a systemic
problem that has flourished under the rules that this court has
set. A systemic solution requires more than an improved test
for identifying individual instances of bias when they come
before courts. It requires a reevaluation of the rules that
enable and incentivize officers to make pretextual race-based
36
stops in the first place.20 Combining the court's improved test
for identifying particular cases of race-based stops with a
broader prohibition on pretextual stops would deter racial
profiling and eliminate the tool most often used to accomplish
it. More generally, as long as we continue to allow pretextual
stops, the search and seizure protections of art. 14 will
continue to ring hollow.
In the twenty-five years since deciding Santana, the court
has not examined the art. 14 implications of the pretextual
stops that are legitimized by the authorization test. Given the
opportunity to broaden the options available to combat racial
profiling, it is disappointing that the court is willing to
stand behind a rule that allows for pretextual stops without
considering whether, and how, such stops are reasonable from an
As I advocate for adding an option to proceed under art.
20
14 in addition to the court's solution, there is no need to
compare which strategy is better -- I conclude that a defendant
should have the option to choose either, or both. The
difference between my position and that of the court is not a
disagreement regarding "the best legal analysis"; it is a
question of which position is more comprehensive.
I differ with the court, however, with regard to what is
meant by a systemic solution. The court is of course correct
that improvements in data collection will further illustrate the
existence of systemic racism in traffic stops. But using new
data to confirm the existence of an already undeniable systemic
problem is not the same as changing the system of rules and
practices that perpetuate racial discrimination in policing. A
focus on individual instances of race-based stops without
addressing the rule that enables them cannot be considered a
systemic approach, no matter how well-meaning it may be.
37
art. 14 standpoint. See Amado, 474 Mass. at 151 n.4 (pretextual
stops, "though lawful under our current jurisprudence, implicate
important policy concerns about racial profiling in encounters
between the police and persons of color"); Lora, 451 Mass. at
447 (Ireland, J., concurring), quoting Feyenord, 445 Mass. at 87
(Greaney, J., concurring) ("I repeat the observation of Justice
Greaney that poorer citizens, who likely would include
minorities, are more likely to be 'driving vehicles with
defective equipment,' thus providing police with a legitimate
reason to exercise discretion to stop them").
As evidenced by the letter that the full court issued
recently, we are united in the goal to "ensure that the justice
provided to African-Americans is the same that is provided to
white Americans." Letter from the Seven Justices to Members of
the Judiciary and Bar (June 3, 2020). It is worth reiterating,
however, that systemic or institutional racism produces racially
disparate outcomes regardless of the intent of the people who
work within the institution. See id. Our current state of
affairs is not what any one of the Justices who comprise this
court chose or would choose. It nevertheless is a painful fact.
I conclude that evaluating this form of racial profiling
under art. 14 not only would resolve an inconsistency in our
search and seizure jurisprudence but also would go a long way,
38
at long last, toward addressing the systemic problem of racial
profiling with a systemic solution.
CYPHER, J. (concurring). I agree with Justice Gaziano that
lessening the burden on the defendant in the Lora test is the
best approach to address the disparate effects of automobile
stops on minority communities. See Commonwealth v. Lora, 451
Mass. 425, 440-442 (2008). I write separately to emphasize two
points.
First, the officers' stop of the defendant did not result
from an observed traffic violation, but rather from conducting a
query regarding the defendant's license plates.1 There was no
observed traffic violation that motivated the officers to query
the plates; however, there is no expectation of privacy in a
license plate number, which is required by law to be displayed
conspicuously on the exterior of a vehicle. G. L. c. 90, § 6.
See Commonwealth v. McCarthy, 484 Mass. 493, 502 & n.8 (2020),
discussing Commonwealth v. Starr, 55 Mass. App. Ct. 590, 593-594
(2002).2
1 Through a mobile computer, "[a]n officer inputs license
plate numbers, and, within seconds, receives various information
in reply, including the type of vehicle that is assigned to the
plate, whether the vehicle is registered, whether the vehicle
owner has an active license, and whether any warrants are
outstanding." See Commonwealth v. Muckle, 61 Mass. App. Ct.
678, 679 n.3 (2004).
2 It is well established that there is a "lesser expectation
of privacy in a motor vehicle because its function is
transportation and it seldom serves as one's residence or as the
repository of personal effects." Cardwell v. Lewis, 417 U.S.
583, 590 (1974).
2
Although the random stop of a motor vehicle has been held
to be a violation of the Fourth Amendment to the United States
Constitution, a random number plate check is not. Starr, supra
at 594. See United States v. Diaz-Castaneda, 494 F.3d 1146,
1151-1152 (9th Cir.), cert. denied, 552 U.S. 1031 (2007).
That does not mean, however, that a race-based decision to
query plates is permissible. See Starr, supra at 594 n.8. Much
like a decision to selectively perform a traffic stop based on
race, the querying of plates based on race is a potential
violation of the principles of equal protection. Even though
there are no limitations under art. 14 of the Massachusetts
Declaration of Rights or the Fourth Amendment on querying
license plates, the start of the analysis in some cases should
be the decision to query the plates. In the event that a judge
determines, based on the totality of the circumstances, that an
officer's decision to query plates was motivated by racial or
ethnic bias, the remedy remains suppression of evidence obtained
during the subsequent stop. See Lora, 451 Mass. 425 439-440.
Second, Massachusetts places the enforcement of motor
vehicle laws with the police. Under G. L. c. 90C, § 3 (A) (1),
"if a police officer observes or has brought to the officer's
attention the occurrence of a civil motor vehicle infraction,"
the officer may issue a warning or citation. Indeed, in some
circumstances, a police officer or his or her employer may face
3
liability for failing to address a public safety hazard created
by a driver. See Irwin v. Ware, 392 Mass. 745, 764 (1984) (jury
could have found that town's police officers had duty to
plaintiffs and that police officers' negligence in failing to
remove intoxicated driver proximately caused plaintiffs'
injuries). As Justice Budd's opinion has demonstrated, the
problem we are confronting today is systemic in nature and
therefore requires a systemic solution. Such a solution,
however, requires the full engagement of all of the relevant
interests, including the public and the police, and perhaps the
Legislature. See, e.g., Berkeley council approves "omnibus
motion" on police reform, Berkeleyside, July 15, 2020,
https://www.berkeleyside.com/2020/07/15/berkeley-council-
approves-omnibus-motion-to-reform-policing
[https://perma.cc/S7UP-VGZL].