Commonwealth v. Robinson-Van Rader ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13329
COMMONWEALTH vs. MICHAEL ROBINSON-VAN RADER.
Suffolk. January 6, 2023. - May 15, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Firearms. Threshold Police Inquiry. Constitutional Law, Search
and seizure, Reasonable suspicion, Equal protection of
laws. Search and Seizure, Threshold police inquiry,
Reasonable suspicion. Practice, Criminal, Motion to
suppress.
Indictments found and returned in the Superior Court
Department on August 28, 2018.
A pretrial motion to suppress evidence was heard by Peter
B. Krupp, J., and a conditional plea was accepted by Mary K.
Ames, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
John P. Warren for the defendant.
Kathryn Sherman, Assistant District Attorney (Michelle
Slade, Assistant District Attorney, also present) for the
Commonwealth.
Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma
S. Jaber, & Douglas J. Plume, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
2
Katharine Naples-Mitchell, Audrey Murillo, & Radha
Natarajan, for Criminal Justice Institute at Harvard Law School
& another, amici curiae, submitted a brief.
GAZIANO, J. In the early evening of April 23, 2018, Boston
police officers received reports of gunfire in a neighborhood
near their headquarters. Approximately seven minutes later,
three officers patrolling in an unmarked vehicle encountered two
young Black men, the defendant and J.H. (a juvenile), walking
away from the location where shots had been fired. The two were
less than a mile from police headquarters and matched a bare-
bones description of the shooters. The officers stopped and
frisked the defendant and J.H. and discovered that each
possessed a concealed handgun. The defendant subsequently was
indicted on charges of discharging a firearm within 500 feet of
a building, unlawful possession of a firearm, and related
offenses.
The defendant filed a motion to suppress the evidence
seized from his person, on the ground that the stop was in
violation of the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights because the officers lacked reasonable suspicion to
believe that he had committed a crime. The defendant also
argued that the stop and frisk was unconstitutional because it
violated his Federal and State rights to equal protection of the
3
law. In support of his argument on equal protection, the
defendant submitted statistical evidence that two of the police
officers involved, who were assigned to the Boston police
department's youth violence strike force, were more likely to
stop Black members of the community than individuals of other
races.
A Superior Court judge denied the defendant's motion
because he concluded that the officers had had reasonable
suspicion to stop the defendant to investigate his involvement
in the shooting, and reasonable suspicion that he was armed and
dangerous to support the patfrisk for a weapon. In addressing
the defendant's equal protection challenge, the judge presumed
that this court's revised standard for establishing an equal
protection claim under the Massachusetts Declaration of Rights,
which was adopted in the context of a traffic stop, see
Commonwealth v. Long, 485 Mass. 711, 724-725 (2020), applied as
well to a challenge of a pedestrian stop asserted to be racially
motivated. The judge reasoned that, "just as a racially
motivated motor vehicle stop would be constitutionally
problematic, a racially motivated stop of a pedestrian would
also offend the constitutional right to equal protection."
Notwithstanding the statistical evidence presented by the
defendant, the judge then determined that the Commonwealth had
satisfied its burden of establishing that the officers had had a
4
race-neutral reason for conducting a threshold inquiry, and also
for pat frisking the defendant for a weapon.
We conclude that the stop did not violate the defendant's
rights under the Fourth Amendment or art. 14, because the
officers had had a reasonable articulable suspicion that the
defendant had been involved in the shooting. We emphasize that
the equal protection clause provides an independent basis upon
which a defendant may rely in pursuing claims of intentional
discriminatory application of the law, separate and distinct
from the right to be free from unreasonable searches and
seizures. We agree with the judge that the new standard we
adopted in Long, 485 Mass. at 724-725, to provide a defendant a
more accessible path to pursuing an equal protection claim in
the context of a motor vehicle stop, is applicable not only to
traffic stops, but also to other police investigations such as
pedestrian stops. We also agree with the judge that, in this
case, at the hearing on the defendant's motion to suppress, the
Commonwealth demonstrated an adequate, race-neutral reason for
the stop, sufficient to rebut the defendant's statistical
evidence of discriminatory policing. Accordingly, we affirm the
denial of the defendant's motion to suppress.
1. Background. a. Facts. The facts are derived from the
facts found by the motion judge, supplemented with undisputed
evidence from the record that is not contrary to the judge's
5
rulings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431
(2015).
On April 23, 2018, at 7:29 P.M., Boston police received
reports and ShotSpotter acoustic alerts of gunfire at a
basketball court near Annunciation Road, an area located not far
from Boston police headquarters. Within a minute of the first
report, police received two 911 calls detailing the incident.
The first caller, "Manny," reported that "[t]here was a bunch of
shots just fired," "about . . . eight or so," near a particular
address on Annunciation Road. The second caller, "Marie,"
called from a location a few blocks away from Annunciation Road,
adjacent to the Southwest Corridor Park. She reported having
heard "about six" gunshots, and described seeing two Black males
wearing black "hoodies" (sweatshirts with hoods) riding "off on
their bikes." She also reported that the two males on bicycles
left the area by riding along Prentiss Street, and then turned
right (southbound) onto Tremont Street. About fifteen seconds
after placing the call, Marie was reporting to the 911 operator
that she could still see the two males on bicycles, when she
said, "I can see the cop coming now." In an audio recording of
the call introduced at the hearing on the defendant's motion to
suppress, police sirens are audible in the background of the
call.
6
Following this call, the police dispatcher broadcast a
description of the suspects. The first broadcast stated, "I do
have a description of two males that were seen on bikes take off
on Tremont from Prentiss." Subsequent broadcasts detailed
multiple witness's reports that the two males on bicycles were
the shooters, and that they were wearing "black hoodies."
Although the dispatcher had information from one of the 911
callers that the two males were Black, she did not broadcast the
reported race of the suspects over the police radio. The judge
found the police response to have been "swift and coordinated."
As the investigation was developing, Officer James
O'Loughlin, Jr., was working a paid detail on New Heath Street,
slightly more than one-half mile south of the intersection of
Prentiss and Tremont Streets. O'Loughlin had been monitoring
his police radio when he heard the report of shots fired, and
the description of the suspects as two males on bicycles wearing
black shirts or sweatshirts. From where O'Loughlin was standing
on New Heath Street, he had an "obstructed, distant view of the
[Southwest Corridor Park] bike path," which was elevated and ran
perpendicular to his line of sight. Trees, fencing, and signage
partially obstructed the view from his position 300 feet away
from the bicycle path.
O'Loughlin saw two Black males on bicycles, wearing black
shirts or sweatshirts, pedaling southward toward Heath Street,
7
and reported as much to the police dispatcher. He told the
dispatcher, "You got two Black males coming down Tremont Street
right now" toward Heath Street, and he described their
appearance as one man wearing "a black vest and a Black male in
a black jacket." O'Loughlin also reported that the pair
appeared to be pedaling slowly; he assumed that they were tired.
When the police dispatcher first broadcast the information
about the incident, three other officers, in an unmarked sport
utility vehicle (SUV), were approximately one and one-half to
two miles away from the scene of the shooting. Officer Korey
Franklin was driving the SUV in the vicinity of Blue Hill Avenue
and Columbia Road; Officer Gregory Eunis was in the front
passenger's seat and Officer Reivilo Degrave was in the rear
seat on the passenger's side. The three officers, all members
of the youth violence strike force, were in plain clothes, but
were wearing tactical vests that had "Boston Police" printed on
the fronts and backs.1
Upon hearing the dispatch, Franklin drove quickly in the
direction of the reported shooting. After further details about
the incident were broadcast, the officers stopped at the
location where O'Loughlin had been speaking to the dispatcher,
1 The officers described the youth violence strike force as
a city-wide unit tasked with monitoring neighborhood "hot spots"
that are "plagued" by gun-related violence.
8
and they talked with him. O'Loughlin told them that two Black
males on bicycles, wearing black hoodies, were slowly pedaling
toward Heath Street. Based on O'Loughlin's report, Franklin
drove north along Columbus Avenue, which parallels the bike
path, to search for the suspects. At that point, the three
officers had heard the dispatcher's description of two males on
bicycles in black hoodies, and O'Loughlin's observations that
two Black males wearing black hoodies were riding bicycles and
heading south toward Heath Street. The officers had no
information about the suspects' age, height, weight, build, hair
style, or facial features.
When they reached the area of the Southwest Corridor Park,
the officers observed two young Black males wearing black
hoodies walking south on Columbus Avenue on the southbound side
of the road. Few other people were outside in the area that
evening, and the males were the only two individuals wearing
hoodies whom police saw in that location.2
The officers drove past the two young men and noticed that
each kept continuously looking back over his shoulder toward
Boston police headquarters, although nobody appeared to be
following them. Franklin turned the SUV around at Cedar Street,
2 The defendant challenges the judge's finding that "[t]here
were not a lot of people out that evening" as not supported by
the record and therefore clearly erroneous. We conclude that it
was not clearly erroneous. See note 4, infra.
9
and headed south on Columbus Avenue, so that he ended up
trailing the two pedestrians. Near the corner of Columbus
Avenue and Heath Street, he pulled up adjacent to the two young
men, who were on the passenger's side of the SUV. After
Franklin stopped the vehicle, Eunis and Degrave got out and
approached the two men, who later were identified as the
defendant and J.H. The young men did not change their pace as
the officers approached. Degrave said, "Hold up a second," and
the two complied. Degrave spoke with J.H., while Eunis
approached the defendant. The officers did not observe any
indications of hidden firearms, such as noticeably weighted
pockets or suspicious bulges.
When Degrave asked J.H. whether he had "anything on him,"
J.H. turned sideways in "kind of like a jerk reaction -- like as
a reflex." This resulted in J.H.'s right hip being shielded
from the officer. Degrave then pat frisked J.H. and found a
firearm in his waistband. As Degrave was conducting the pat
frisk, Eunis had been observing the defendant, who was sweating
and continuously looking over his shoulder toward Boston police
headquarters. Throughout the encounter, the defendant kept his
right hand in his sweatshirt pocket but, unlike J.H., did not
make any effort to turn or to shield his body. After Degrave
found the firearm on J.H.'s person, Eunis "grabbed [the]
defendant, pulled him to the ground, secured his arms, and put
10
him in handcuffs." A subsequent patfrisk of the defendant
revealed a firearm in his pants pocket. The defendant and J.H.
were arrested between 7:35 and 7:36 P.M., approximately seven
minutes after the report of shots fired near Annunciation Road.
The location where they were stopped is approximately eight-
tenths of a mile from Boston police headquarters.
Mary Fowler, a professor of mathematics at Worcester State
University, testified in support of the defendant's argument
that the investigatory stop violated his rights to equal
protection.3 Fowler conducted a statistical analysis of the
traffic stops Eunis and Degrave had made, which included
information about the racial distribution of individuals in the
3 The defendant moved, pursuant to Mass. R. Crim. P.
14 (a) (2), as appearing in 442 Mass. 1518 (2004), for discovery
of statistical data necessary to analyze potential patterns of
racial profiling by the arresting officers. In support of this
request, the defendant cited studies indicating that Black men
in the city of Boston were more likely to be targeted for police
investigation than individuals of other races. See Commonwealth
v. Warren, 475 Mass. 530, 539 (2016). In addition, counsel
cited an Associated Press report that "at least 71% of all
street level civilian-police encounters involved minorities
while minorities make up about 25% of the Boston population,"
and stated that, in his experience, officers assigned to the
youth violence strike force "consistently stop, search and
arrest Black and Brown people at higher rates" than the
department-wide statistics. A judge ordered the Commonwealth to
"make available all [field interrogation and observation (FIO)]
and arrest reports submitted by Officers Reivilo Degrave and
Gregory Eunis" for a two-year period preceding the incident.
Fowler utilized this data to "determine if the likelihood of an
individual being recorded in an FIO [conducted by Eunis or
Degrave] is related to race."
11
set of field interrogation and observation (FIO) reports
submitted by Eunis and Degrave from January 5, 2017, through
August 31, 2018. An estimated fifty-one percent of residents in
the officers' patrol area were Black. Among the 276 individuals
who had been subjects of the officers' discretionary stops
during that period, 248, or ninety percent, were Black, and
five, or two percent, were "white, non-Hispanic."
Fowler compared those figures to data from the United
States Census Bureau for the locations of each of the FIOs the
officers had reported. The census data contained the racial
distribution of the residents living within the officers' patrol
area at the time of the stops at issue, which acted as a
benchmark. Within the twenty-month period, Fowler testified,
Black individuals were more than five times as likely to be
stopped as other individuals. Fowler conducted a statistical
analysis called an "equality of proportions" test, which
indicated that the difference between the frequency of non-Black
individuals stopped and the frequency of Black individuals
stopped was statistically significant. Fowler explained that
the frequency of randomly observing differences that extreme was
less than one in 100,000. Accordingly, she concluded that the
stops were consistent with racial profiling.
b. Prior proceedings. A grand jury returned indictments
charging the defendant with unlawful possession of a firearm,
12
G. L. c. 269, § 10 (a); carrying a loaded firearm, G. L. c. 269,
§ 10 (n); unlawful possession of ammunition, G. L. c. 269,
§ 10 (h); and discharging a firearm within 500 feet of a
building, G. L. c. 269, § 12E. The defendant filed a motion to
suppress the contraband found on his person on the ground that
the officers lacked reasonable suspicion at the time of the stop
that he had committed a crime and was armed and dangerous. The
motion also argued that the stop violated the defendants' rights
to equal protection. After a three-day hearing, and additional
briefing, the motion to suppress was denied. The defendant then
entered a conditional guilty plea, conditioned on reserving his
right to appeal from the denial of his motion to suppress. See
Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501(2019). He filed a timely notice of appeal, and we transferred
the case to this court on our own motion.
2. Discussion. a. Reasonable suspicion. "To justify a
police investigatory stop under the Fourth Amendment or art. 14,
the police must have 'reasonable suspicion' that the person has
committed, is committing, or is about to commit a crime."
Commonwealth v. Costa, 448 Mass. 510, 514 (2007), citing
Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990). Reasonable
suspicion "must be based on specific and articulable facts and
reasonable inferences therefrom, in light of the officer's
experience" (citation omitted). Commonwealth v. Gomes, 453
13
Mass. 506, 511 (2009). See Terry v. Ohio, 392 U.S. 1, 21
(1968). The calculus of reasonable suspicion examines "the
totality of the facts on which the seizure is based."
Commonwealth v. Meneus, 476 Mass. 231, 235 (2017). See
Commonwealth v. Henley, 488 Mass. 95, 103 (2021) (determining
whether factors, "when viewed as a whole," gave rise to
reasonable suspicion). Reasonable suspicion must be more than a
hunch. Lyons, supra at 19.
In this case, we must determine whether the officers had
reasonable suspicion when Eunis and Degrave, wearing Boston
police tactical vests, got out of their unmarked SUV, approached
the two young men, and told them to "[h]old up a second." See
Commonwealth v. Evelyn, 485 Mass. 691, 699 (2020) ("the naiveté,
immaturity, and vulnerability of a child will imbue the
objective communications of a police officer with greater
coercive power"); Commonwealth v. Matta, 483 Mass. 357, 362
(2019) (seizure occurs when officer "objectively communicate[s]
that the officer would use . . . police power to coerce [a
suspect] to stay"). When reviewing the disposition of a motion
to suppress, we accept the motion judge's subsidiary findings
absent clear error, and "make an independent determination
whether the judge properly applied constitutional principles to
the facts as found." Commonwealth v. Lyles, 453 Mass. 811, 814
(2009).
14
The defendant argues that the officers had only a generic
description of the suspects as Black males wearing black
hoodies, which left virtually nothing to distinguish the
suspects from others in the area. When they were stopped, the
defendant and J.H. were on foot, and were not riding bicycles as
the suspects were reported to have done. In addition, the stop
took place "nearly one mile away" from the location where the
shots were reported, and the context of the stop, in a busy
residential and retail area, early in the evening, made it less
reasonable to conclude that the defendant and J.H. were more
likely to be the shooters than anyone else in the area.
The Commonwealth maintains that there was reasonable
suspicion for the stop because of the defendant's and J.H.'s
temporal and geographic proximity to the scene of the shooting,
the similarity between the description of the two shooters and
the appearance of the defendant and J.H., their nervous and
evasive behavior, and the ongoing safety concern related to
multiple shots being fired in a populated area.
i. Physical description. The fact that an individual
matches a broad, general description does not alone amount to
reasonable suspicion, particularly if that description could fit
many people in the area where the stop takes place. See
Commonwealth v. Warren, 475 Mass. 530, 535 (2016) (description
of suspects as three Black males wearing dark clothing, one
15
wearing red hoodie, without any description of their facial
features, hairstyles, height, weight, or other physical
characteristics, was insufficient to support reasonable
suspicion that Black male in general area wearing dark clothing
was involved); Commonwealth v. Cheek, 413 Mass. 492, 496 (1992)
("the description of the suspect as a '[B]lack male with a black
3/4 length goose' [jacket] could have fit a large number of men
who reside in the Grove Hall section of Roxbury"); Commonwealth
v. Doocey, 56 Mass. App. Ct. 550, 554, 557 (2002) (general
description that fails to distinguish suspect from others cannot
alone support reasonable suspicion). Nonetheless, use of a
general description is not an insurmountable obstacle to a
finding of reasonable suspicion. "[T]he value of a vague or
general description in the reasonable suspicion analysis may be
enhanced if other factors known to the police make it reasonable
to surmise that the suspect was involved in the crime under
investigation." Meneus, 476 Mass. at 237.
Prior to the stop of the defendant and J.H., the officers
knew only that they were searching for two Black male suspects,
who were wearing black hooded sweatshirts, and were riding
bicycles in a particular direction. No information had been
communicated about the suspects' facial features, hairstyles,
skin tone, height, weight, or other physical characteristics
that could have contributed to the officers' ability to
16
distinguish the suspects from everyone else in the area. See
Warren, 475 Mass. at 535. Moreover, at the time of the stop,
the defendant and J.H. were walking, and not riding bicycles as
the suspects were reported to have done. Thus, the description
of the suspects, standing alone, was too general to give rise to
reasonable suspicion to stop the defendant. Indeed, the judge
recognized the description as being "generic." See id. at 535-
536 ("With only this vague description, it was simply not
possible for the police reasonably and rationally to target the
defendant or any other black male wearing dark clothing as a
suspect in the crime").
The inquiry, however, does not end there. The judge also
properly considered whether other pieces of information allowed
the officers to narrow the range of suspects from a generic
description fitting many members of the community to particular
individuals. See Meneus, 476 Mass. at 237. See, e.g.,
Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010) (general
description that was insufficiently detailed and particularized
to provide police reason to stop any person matching that
description was bolstered by "accompanying circumstances");
Commonwealth v. Mercado, 422 Mass. 367, 371 (1996) (general
description combined with other relevant factors may provide
adequate narrowing of description such that police have
reasonable suspicion).
17
Thus, we turn to consider whether the bare-bones
description of the suspects as Black men wearing black hoodies
was enhanced by other factors relevant to a determination of
reasonable suspicion.
ii. Nervous or evasive behavior. The judge noted that the
defendant and J.H. were exhibiting nervous behavior when the
officers saw them walking approximately one mile from the scene
of the shooting. The officers testified, and the judge found,
that the two young men "repeatedly look[ed] back 'over their
shoulders' toward Boston [p]olice [h]eadquarters, although no
one was following them." The judge determined that this nervous
behavior was an additional factor that could be considered in
the calculus as to whether the officers had reasonable suspicion
at the time of the stop.
The defendant argues that the judge's finding of
nervousness "added little, if anything, to the suspicion
equation." The officers would have been limited only to
speculating that "the teenagers' head movements were related to
the shots-fired incident, which took place nearly one mile
away."
In Commonwealth v. Karen K., 491 Mass. 165, 179 (2023), we
considered whether evidence that a juvenile was "repeated[ly]
looking over her shoulder and . . . attempt[ing] to avoid police
officers" was properly factored into the analysis of reasonable
18
suspicion. We observed that, although "nervous or furtive
movements do not supply reasonable suspicion when considered in
isolation," taken together with other factors, they may be
considered as supporting reasonable suspicion. Id. at 179,
quoting Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007). See
Commonwealth v. Barros, 425 Mass. 572, 584 (1997) (reasonable
suspicion was supported by observation of three men "walking
rapidly away from the crime scene while glancing over their
shoulders").
At the same time, caution must be exercised in considering
nervous or evasive behavior in the calculus of reasonable
suspicion. "[I]n some instances, the fact that members of
certain groups -- such as Black males in Boston -- have been
disproportionately and repeatedly targeted for police encounters
suggests a reason" for flight or evasive conduct unrelated to
any possible consciousness of guilt (quotations and alterations
omitted). Karen K., 491 Mass. at 179-180. See Evelyn, 485
Mass. at 708-709 (nervousness and evasive behavior must be
considered in context of unwillingness to engage in conversation
with police); Warren, 475 Mass. at 540 (flight of Black man from
Boston police officers, based on reports of racial profiling,
was "not necessarily probative of . . . consciousness of
guilt"); Commonwealth v. Martin, 457 Mass. 14, 21 (2010) (in
19
light of his young age, defendant's nervousness around police
officer added little to determination of reasonable suspicion).
There was no error in the judge's decision to consider the
defendant's act of repeatedly glancing over his shoulder toward
Boston police headquarters in the analysis of reasonable
suspicion. See Barros, 425 Mass. at 584. Notably, the concerns
expressed in Karen K., 491 Mass. at 179-180; Evelyn, 485 Mass.
at 708-709; Warren, 475 Mass. at 540; and Martin, 457 Mass.
at 21, are not present here. The officers were driving an
unmarked vehicle, and there was no evidence that the defendant
and J.H. were aware that the car that drove past them in the
opposite direction was a police vehicle. In particular, the
judge found that the defendant and J.H. were nervously glancing
over their shoulders "before they were aware of . . . Franklin's
unmarked vehicle." Thus, the officers' approach cannot be
considered the source of the defendant's nervousness.
iii. Geographic and temporal factors. The judge also
relied on the defendant's geographic and temporal proximity to
the location of the shooting to bolster his view of the
officers' ability to distinguish the defendant and J.H. from
other Black men wearing black hooded sweatshirts. The judge
determined that the "[d]efendant and J.H. were moving in the
direction of flight from the scene where shots were fired and
were observed there only a few minutes after the shots were
20
reported. As in Evelyn[, 485 Mass. at 708-709,] and Depina[,
456 Mass. at 246-247,] [the] defendant's location and direction
of travel were consistent with the expected location and
direction of travel of the suspects at that time."
The defendant contends that his proximity to the location
of the crime, minutes after the reports of shots fired, did not
support a finding of reasonable suspicion. Relying on Warren,
475 Mass. at 536-537, he argues that the officers had limited
information concerning the direction of the suspects' flight.
In the defendant's view, the officers, "could only guess where
the suspects went . . . . On bicycles, within minutes, the
suspects could have been in any number of neighborhoods in the
dense city of Boston." See Meneus, 476 Mass. at 233-234, 240(no reasonable suspicion despite report that young men ran into
courtyard of housing complex). The defendant notes that, while
he was stopped only minutes after the shooting, the distance of
one mile from the scene, on a spring evening where Degrave
testified that "a lot of people" were "walking around," but
according to Eunis, no one "stood out," did not support a
finding of reasonable suspicion.4
4 As stated, see note 2, supra, the defendant challenges the
judge's finding that "[t]here were not a lot of people out that
evening" as clearly erroneous. A finding is clearly erroneous
"only if the reviewing court has a firm conviction that a
mistake has been committed" (citation and quotation omitted).
Commonwealth v. Bresnahan, 462 Mass. 761, 775 (2012). Eunis
21
The presence of a suspect in geographic and temporal
proximity to the scene of the crime under investigation
appropriately may be considered as a factor in the calculus of
reasonable suspicion. See, e.g., Henley, 488 Mass. at 103
(officers had reasonable suspicion where defendant was stopped
two blocks away from, and five minutes after, shooting); Evelyn,
485 Mass. at 704-705 (defendant being stopped thirteen minutes
after shooting, one-half mile away from scene, weighed in favor
of reasonable suspicion); Depina, 456 Mass. at 246 (defendant
being within three blocks of crime scene ten minutes after
shooting added to calculus of reasonable suspicion). "Proximity
is accorded greater probative value in the reasonable suspicion
calculus when the distance is short and the timing is close."
Warren, 475 Mass. at 536.
In Warren, 475 Mass. at 536-537, the defendant was stopped
one mile from the scene of the crime, approximately twenty-five
to thirty minutes after a breaking and entering had taken place.
testified that he did not see any other pedestrians that stood
out to him that night, that he did not remember seeing other
individuals, and that the defendant and J.H. "were the only two
people I seen walking in that area." The judge apparently
credited this testimony, rather than Degrave's testimony that
"[i]t's a very commonly-traveled area. Some people were on
foot. A lot of people were just walking around . . . ." The
fact that Eunis's testimony was contradicted by his partner's
testimony does not render the judge's finding clearly erroneous.
"A judge may accept or reject, in whole or part, the testimony
offered on a motion to suppress." Commonwealth v. Harvey, 390
Mass. 203, 206 n.4 (1983).
22
We determined that the broad time frame, combined with
speculative evidence concerning the path of flight, could have
placed the suspect anywhere in multiple neighborhoods within a
two-mile radius of the crime scene. Id. at 536-537. The
location and timing of that stop, therefore, were "no more than
random occurrences . . . where the direction of the
perpetrator's path of flight was mere conjecture." Id. at 536.
Here, by contrast, the defendant and J.H. were stopped
seven minutes after the initial report of shots having been
fired, approximately one mile from the scene of the shooting.
The location of the stop was not a "random occurrence."
Multiple reports by witnesses and police officers followed the
path of the suspects as they traveled from near the scene on
Annunciation Road to Columbus Avenue near the Southwest Corridor
Park. The first person who called 911 told the emergency
operator that multiple shots had been fired on Annunciation
Road. The second caller provided another relevant location when
she said that, from her position at a corner near the Southwest
Corridor Park, a few blocks away from Annunciation Road, she saw
two men wearing black hoodies riding bicycles, and heading south
on Tremont Street in the direction of Heath Street. Within one
minute, O'Loughlin saw two men, wearing dark hoodies, riding
bicycles on the Southwest Corridor bike path, heading south
toward Heath Street. A short time after speaking with
23
O'Loughlin, Degrave and Eunis spotted the defendant and J.H. on
foot at the corner of Columbus Avenue and Heath Street, walking
south.
Accordingly, here, unlike in Warren, 475 Mass. at 536-537,
the judge properly considered the defendant's geographic and
temporal location relative to the scene of the crime under
investigation as factors in his calculus of reasonable
suspicion.
iv. Nature of the crime. The judge observed that "the
officers were looking for suspects in a shooting that had
occurred nearby, a very short time before." The shooting took
place in a dense residential and commercial area, near a
university and a train station. The judge concluded that the
"gravity of this crime and the fact that the shooters were at
large further supports the officers' stop."
The seriousness of the offense, and the danger presented to
the community, are factors that properly may be considered in
assessing whether police had reasonable suspicion at the time of
a stop. Depina, 456 Mass. at 247. See, e.g., Henley, 488 Mass.
at 104 ("we consider that the circumstances of this crime, a
shooting that left one victim dead, presented ongoing risk to
public safety"); Evelyn, 485 Mass. at 705 ("circumstances
indicated a potential ongoing risk to public safety, and
therefore weighed in favor of reasonable suspicion"); Meneus,
24
476 Mass. at 239 ("fact that the crime under investigation was a
shooting, with implications for public safety, was relevant but
not dispositive in determining the reasonableness of the stop");
Commonwealth v. Lopes, 455 Mass. 147, 157-159 (2009) (in
evaluating reasonable suspicion to justify stop, court
considered report that van had been involved in homicide).
Given the facts found by the judge, we conclude that the
officers had reasonable suspicion to stop the defendant to
investigate the shooting. As in other cases discussed supra,
reasonable suspicion in this case was "based on a convergence of
supporting factors," including the defendant's nervous or
evasive behavior, his geographic and temporal proximity to the
area of the shooting, the location of a likely flight path, and
the ongoing threat to public safety. See Henley, 488 Mass.
at 105. While the description of the two suspects was, as the
judge described it, "generic" and, standing alone, was
insufficient to provide reasonable suspicion for an
investigatory stop, the additional factors narrowed the search
for suspects such that the officers did have reasonable
suspicion when they stopped the defendant. Accordingly, the
stop did not violate the defendant's right to be free from
unreasonable searches and seizures.
b. Equal protection. In addition to his argument that he
had been subject to an unreasonable search and seizure, the
25
defendant moved to suppress the evidence seized as a result of
the stop on the ground of equal protection. He argued that the
officers violated his right to be protected from selective
enforcement of the laws, and urged the judge, in analyzing this
contention, to apply the less-stringent equal protection
standard set forth in Long, 485 Mass. at 723-725, rather than
the traditional three-part test elucidated in Commonwealth v.
Franklin, 376 Mass. 885, 894-895 (1978). Under the Long
standard, the defendant argued, "once the low bar of a
reasonable inference of discriminatory motive has been
established -- a burden of production -- the burden of proof of
non-discrimination shifts to the Commonwealth." See Long, supra
at 735. The defendant maintained that the Commonwealth had
failed to rebut the inference of discriminatory motive, which
was supported by Fowler's statistical evidence.
The Commonwealth argued that the Long standard is limited
to traffic stops, and therefore is inapplicable to a pedestrian
stop. In the Commonwealth's view, a selective enforcement claim
arising out of a pedestrian stop requires evaluation under the
more rigorous, three-part test set forth in Franklin, 376 Mass.
at 894. In any event, the Commonwealth maintained, whatever the
applicable standard, it had presented an adequate, race-neutral
justification for the stop.
26
The judge agreed with the defendant that the Long standard
applies with equal force to pedestrian stops as to traffic
stops. He reasoned, "just as a racially motivated motor vehicle
stop would be constitutionally problematic, a racially motivated
stop of a pedestrian would also offend the constitutional right
to equal protection." Under the Long standard, the judge
explained, "[o]nce a defendant raises a reasonable inference
that a stop was racially motivated, the burden shifts to the
Commonwealth 'to provide a race-neutral explanation for such a
stop.'" See Commonwealth v. Lora, 451 Mass. 425, 426 (2008).
See also Long, 485 Mass. at 723-725. The judge then concluded
that he "need not address the question of a threshold showing
because the officers had a race-neutral motivation for stopping
the defendant."
In reviewing the judge's decision, we first must determine
whether the judge erred in applying the Long standard to a
challenge to a pedestrian stop. We then must decide whether
there was error in the judge's conclusion that the Commonwealth
met its burden of rebutting an inference of selective
enforcement by articulating an adequate, race-neutral reason for
the stop.
i. Selective enforcement and selective prosecution. Equal
protection jurisprudence encompasses two broad categories of
rights, which protect people against selective prosecution and
27
selective enforcement. Selective prosecution refers to the
decision to charge a person with a crime based upon
impermissible criteria such as race, national origin, or gender,
resulting in a greater number of convictions of persons who
share that characteristic compared to similarly situated persons
who do not. See Commonwealth v. Bernardo B., 453 Mass. 158,
167-169 (2009). Selective enforcement refers to law enforcement
practices that unjustifiably target an individual for
investigation based on the individual's race or other protected
class. See Lora, 451 Mass. at 436-437. These categories are
often confused, and the terms used interchangeably. See United
States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017), cert.
denied, 138 S. Ct. 713 (2018). In this case, we refer to claims
of discriminatory police investigative practices as selective
enforcement.
ii. Burden of proof. Prior to our decision in Long, 485
Mass. at 724-725, all equal protection challenges under arts. 1
and 10 of the Massachusetts Declaration of Rights required
review under a tripartite burden. See Lora, 451 Mass. at 437-
438. See also United States v. Armstrong, 517 U.S. 456, 465
(1996) ("ordinary" equal protection claim brought under
Fourteenth Amendment to United States Constitution requires
proof of discriminatory effect, motivated by discriminatory
purpose, and that similarly situated individuals were not
28
prosecuted); Washington, 869 F.3d at 214 (substantive claims of
selective prosecution and selective enforcement are evaluated
under same test). Under this standard, the defendant bears the
initial burden of demonstrating selective enforcement by
presenting some evidence that raises at least a reasonable
inference of impermissible discrimination. This must include
evidence that a broader class of persons than those prosecuted
or investigated has violated the law. See Lora, supra at 437.
Second, the defendant must establish that failure to enforce the
law was either consistent or deliberate. Id. Third, the
evidence must show that the decision not to enforce or prosecute
was based on membership in a protected class, such as race. Id.If a defendant is able to raise a reasonable inference of
selective enforcement by presenting credible evidence that,
deliberately or consistently, similarly situated individuals who
are not members of the protected class have not been prosecuted,
the Commonwealth must rebut that inference of discrimination.
Id. at 438. The remedy for a selective enforcement violation is
suppression of the evidence that was obtained in violation of
the defendant's constitutional right to equal protection. Id.
at 439.
In Long, 485 Mass. at 723-725, we revised the standard by
which a defendant can establish a claim of selective
enforcement, in the context of the traffic laws. In deciding
29
that such a change was necessary, we explained, "it is clear
that Lora has placed too great an evidentiary burden on
defendants. The right of drivers to be free from racial
profiling will remain illusory unless and until it is supported
by a workable remedy." Id. at 721.
Under the revised standard, it is the defendant's burden to
demonstrate that the decision to make the traffic stop was
motivated by race or another constitutionally protected class.
A defendant may do so by producing "evidence upon which a
reasonable person could rely to infer that the officer
discriminated on the basis of the defendant's race or membership
in another protected class." Id. at 723-724. The defendant
must point to specific facts that support such an inference,
which are known to the defendant based on "personal knowledge,
the defendant's own investigation, evidence obtained during
discovery, and other relevant sources." Id. at 724. A bald
allegation of selective enforcement, based only on membership in
a constitutionally protected class, would not suffice. See id.
at 723. If the defendant does raise an inference of
discrimination, the burden shifts to the Commonwealth to rebut
the inference by establishing a race-neutral reason for the
stop.
Our decision in Long, 485 Mass. at 721-723, noted
explicitly that we had revised the standard by which to
30
establish an equal protection claim involving allegations of
discriminatory traffic stops, given the difficulties defendants
had experienced in establishing claims for selective enforcement
based on race under the Lora framework. See Long, supra, and
cases cited. We did not address whether this standard was to
extend to all claims of selective enforcement, a question we had
no need to reach. The issue having been squarely raised here,
we conclude that the equal protection standard established in
Long for traffic stops applies equally to pedestrian stops and
threshold inquiries, as well as other selective enforcement
claims challenging police investigatory practices.
In Long, 485 Mass. at 722, we determined that the first two
parts of the three-part Franklin standard are not necessary in
the context of motor vehicle stops. We explained that,
"because of the ubiquity of traffic violations, only a tiny
percentage of these violations ultimately result in motor
vehicle stops, warnings, or citations. Thus, it is
virtually always the case that a broader class of persons
violated the law than those against whom the law was
enforced. Similarly, in stopping one vehicle but not
another, an officer necessarily has made a deliberate
choice." (Quotation and citation omitted.)
Id. Accordingly, the appropriate inquiry is restricted to
whether the traffic stop was motivated by the driver's race or
membership in another protected class. Id. at 723.
For similar reasons, the three-part Franklin standard is
equally ill-suited to other claims of discriminatory law
31
enforcement practices. There is no reason to anticipate, for
example, that a defendant challenging a threshold inquiry on the
sidewalk in front of a public housing complex would be better
able to prove a negative -- that similarly situated suspects of
other races were not investigated. See Washington, 869 F.3d
at 216 (revising Federal discovery standard in selective
enforcement cases because "there are likely to be no records of
similarly situated individuals who were not arrested or
investigated"). "Asking a defendant claiming selective
enforcement to prove who could have been targeted by an
informant, but was not, or who the [investigating agency] could
have investigated, but did not, is asking [the defendant] to
prove a negative; there is simply no statistical record for a
defendant to point to." United States v. Sellers, 906 F.3d 848,
853 (9th Cir. 2018).
The inaccessibility or unavailability of relevant data in
such situations stands in contrast to cases of selective
prosecution, which occur "when, from among the pool of people
referred by police, a prosecutor pursues similar cases
differently based on race" or another protected class. See
Conley v. United States, 5 F.4th 781, 789 (7th Cir. 2021). In
Bernardo B., 453 Mass. at 173, for example, we considered a
selective prosecution claim arising from a district attorney's
practice of declining to bring statutory rape charges against
32
female complainants, "where the facts described by the girls
could be viewed as contravening those same laws by them." See
Franklin, 376 Mass. at 896-897 (selective prosecution claim
alleging that white residents of housing project were not
arrested for violent crimes, and that "police, prosecutors, and
court officials assigned to work in that area insulated whites
from being punished for their participation in those
incidents").5
Moreover, a claim of selective prosecution implicates the
discretionary authority of the executive branch to enforce the
criminal laws. See Commonwealth v. Ehiabhi, 478 Mass. 154, 160
(2017) ("the decision to prosecute is particularly ill-suited to
judicial review" [citation and quotation omitted]); Bernardo B.,
453 Mass. at 161 (judicial review of decisions to prosecute
"must proceed circumspectly lest we intrude on a function
constitutionally vouchsafed to another branch of government").
The presumption of regularity, a deference doctrine, limits
judicial scrutiny of certain executive branch decisions. See
Armstrong, 517 U.S. at 464; Bernardo B., 453 Mass. at 161; The
5 We note that the decision to conduct a pedestrian stop, or
to investigate a suspect, is a "deliberate choice," thus
satisfying the requirement under the second part of the three-
part Franklin test, see Franklin, 376 Mass. at 894, that a
defendant show that the failure to prosecute was deliberate.
33
Presumption of Regularity in Judicial Review of the Executive
Branch, 131 Harv. L. Rev. 2431, 2432 (2018).
In Massachusetts, the presumption of regularity encompasses
charging decisions by both police officers and prosecutors. See
Lora, 451 Mass. at 437. "An arrest or prosecution based on
probable cause . . . ordinarily [is] cloaked with a presumption
of regularity. Because we presume that criminal prosecutions
are undertaken in good faith, without intent to discriminate,
the defendant bears the initial burden of demonstrating
selective enforcement" (citation and quotation omitted). Id.See Franklin, 376 Mass. at 894 ("prosecutors and other law
enforcement officers enjoy considerable discretion in exercising
some selectivity for purposes consistent with the public
interest . . . [b]ecause we presume that criminal prosecutions
are undertaken in good faith, without intent to discriminate");
Commonwealth v. King, 374 Mass. 5, 22 (1977) ("we presume that
criminal arrests and prosecutions are undertaken in good faith,
without intent to discriminate").
The presumption of regularity, however, applies to
decisions by prosecutors and police officers to charge an
individual with a crime; it does not apply to street-level
police investigations. See Conley, 5 F.4th at 791 (presumption
of regularity did not shield police "sting" operation from
scrutiny because doctrine "is driven by separation of powers
34
concerns, which increase as courts venture closer to core
executive activity"). While decisions by police officers
"certainly reflect law enforcement priorities, judicial inquiry
into their motives is routine." Id. See Sellers, 906 F.3d at
853 (Federal agents "are not protected by a powerful privilege
or covered by a presumption of constitutional behavior"
[citation omitted]). "Unlike prosecutors, agents [of the Bureau
of Alcohol, Tobacco, Firearms and Explosives, and of the Federal
Bureau of Investigation] regularly testify in criminal cases,
and their credibility may be relentlessly attacked by defense
counsel. They also may have to testify in pretrial proceedings,
such as motions to suppress evidence, and again their honesty is
open to challenge." United States v. Davis, 793 F.3d 712, 720-
721 (7th Cir. 2015) (en banc).
iii. Application. As discussed supra, a defendant raising
a claim of selective enforcement based on alleged discriminatory
policing practices bears the initial burden of establishing a
reasonable inference that the investigation was motivated by
race or membership in another constitutionally protected class.
See Long, 485 Mass. at 724. The defendant must point to
"specific facts" about the police investigation that support
such an inference. Id. If the defendant succeeds in doing so,
the burden shifts to the Commonwealth to rebut the inference of
discrimination. Id.
35
In examining a claim of selective enforcement, a reviewing
judge must consider the totality of the circumstances
surrounding the claim. See Long, 485 Mass. at 724-725. In the
context of police investigations such as pedestrian stops, the
totality of the circumstances may include patterns of
enforcement actions by the particular officer; the events
preceding the investigation, i.e., the reasons the officer
decided to target the defendant; the seriousness of the crime
being investigated; and whether the defendant's race or
ethnicity, or membership in another protected class, was part of
a description of the suspect. See, e.g., State v. Nyema, 249
N.J. 509, 530 (2021), quoting New Jersey Attorney General,
Directive Establishing an Official Statewide Policy Defining and
Prohibiting the Practice of "Racially-Influenced Policing" (June
28, 2005) (directive prohibiting racially influenced policing
allowed officers to take into account "a person's race or
ethnicity when race or ethnicity is used to describe physical
characteristics that identify a particular individual . . .
being sought by a law enforcement agency in furtherance of a
specific investigation or prosecution"). See also Brown v.
Oneonta, 221 F.3d 329, 338-339 (2nd Cir. 2000), cert. denied,
534 U.S. 816 (2001) (where police possess description of suspect
consisting primarily of race and gender, they are permitted to
act on basis of that description, absent evidence of racial
36
animus); United States v. Avery, 137 F.3d 343, 354 n.5 (6th Cir.
1997) (use of race as descriptive factor is not prohibited under
equal protection clause, provided that police do not engage in
dragnet tactics).
A decision by the Supreme Court of New Jersey is
illustrative of a case where the court considered a defendant's
selective enforcement claim arising out of an allegedly racially
motivated threshold inquiry. See State v. Maryland, 167 N.J.
471 (2001). In that case, undercover police officers confronted
two young Black men, who were arriving at a train station along
with numerous other rush-hour commuters. Id. at 477, 485. The
officers approached and asked to speak to the men. A struggle
ensued when the defendant turned his body and reached into his
waistband, and several bags of marijuana fell to the ground.
Id. at 478. In reviewing the defendant's claim for selective
enforcement, the court concluded that there had been no
violation of a Federal or State right to be free from
unreasonable searches and seizures, because the officers were
entitled to approach and ask questions "without grounds for
suspicion" (citation omitted). Id. at 483.
Nonetheless, the court went on to consider whether the
decision to target the defendant for investigation constituted
selective enforcement in violation of the defendant's right to
equal protection of the laws. Id. at 485-486. The court
37
observed that the equal protection clause of the Fourteenth
Amendment "requires that the selection of a person for a field
inquiry . . . may not be based solely on that person's race
absent some compelling justification that pre-existed the police
approaching the individual." Id. at 485. The court then
determined that the officers' hunch that the defendant had
possessed narcotics was based, at least in part, on "racial
stereotyping." Id. at 486. The undercover officers were
patrolling the train station to prevent vandalism and graffiti.
They were not conducting a narcotics investigation, and the
officers had no reason to suspect that drugs were being carried
through the train station. Nor had they observed anything to
suggest that the defendant was involved in a drug deal. Id.
at 488. Accordingly, the court concluded that the government
had "failed to overcome the inference . . . that this was a
proscribed race-based field inquiry." Id. at 489.
Here, by contrast, we discern no error in the judge's
conclusion that the Commonwealth rebutted an inference of
selective enforcement raised by the statistical evidence. The
Commonwealth demonstrated that the police officers had a race-
neutral reason to have conducted a pedestrian stop of the
defendant and J.H., the suspects in the case of reported shots
fired. The second 911 caller introduced the suspects' race to
the investigation when she reported that she heard multiple
38
gunshots and then saw two Black men on bicycles wearing black
hoodies. Within minutes of the 911 call, O'Loughlin told the
responding officers that he had seen two Black males, on
bicycles, wearing black hooded sweatshirts, heading towards
Heath Street. In short order, the officers located the
suspects, who were walking in a direction "consistent in time
and direction with two individuals fleeing from a shooting on
bicycles."
The defendant contends that, in denying his motion to
suppress on the ground of equal protection, the judge conflated
the requirements of art. 14 and the equal protection analysis.
The defendant argues that the "equal protection question was not
answered by the motion judge's art. 14 determination that the
officers had reasonable suspicion to conduct the stop -- that
analysis is simply inapposite to rebutting the defendant's prima
facie statistical case, apples and oranges." According to the
defendant, "Long's plain language dictates that the Commonwealth
cannot ignore or sidestep a defendant's statistical case," and
therefore the judge "erroneously absolved the Commonwealth of
its equal protection rebuttal burden."
We emphasize that the Federal and State constitutional
guarantees of equal protection of the laws provide residents of
the Commonwealth a degree of protection separate and distinct
from the prohibition against unreasonable searches and searches
39
under the Fourth Amendment and art. 14. See Whren v. United
States, 517 U.S. 806, 813 (1996) (constitutional basis for
objecting to discriminatory application of law is guarantee of
equal protection, not violation of Fourth Amendment); Lora, 451
Mass. at 436 (same). See also Nieves v. Bartlett, 139 S. Ct.
1715, 1731 (2019) (Gorsuch, J., concurring) (detention based on
race, even where detention otherwise would be permissible under
Fourth Amendment, violates equal protection).
As the United States Court of Appeals for the Sixth Circuit
has explained, the guarantee of equal protection "does not fit
neatly into the various stages of Fourth Amendment search and
seizure analysis." Avery, 137 F.3d at 355. Because the equal
protection clause is intended to prevent discriminatory
governmental conduct, the particular "stage" of an investigation
is not relevant. See id. "[T]he heart of the [e]qual
[p]rotection [c]lause is its prohibition of discriminatory
treatment. If a government actor has imposed unequal burdens
based upon race, it has violated the [equal protection] clause"
(citation omitted). Id. See Nyema, 249 N.J. at 529
(investigative techniques that do not qualify as searches or
seizures requiring reasonable suspicion "must still comport with
the [e]qual [p]rotection [c]lause"). See also Marshall v.
Columbia Lea Regional Hosp., 345 F.3d 1157, 1166 (10th Cir.
2003) ("That [the plaintiff's] stop and arrest were based on
40
probable cause does not resolve his more troubling claim that he
was targeted by [a police officer] on account of his race").
That does not mean, however, that the Commonwealth is
precluded from explaining why a police officer stopped a motor
vehicle or conducted a threshold inquiry. See Long, 485 Mass.
at 724-725. There may be substantial overlap between an inquiry
into the reasonableness of a stop and the officer's motivation
for stopping a suspect.6 To be sure, the constitutional basis
for the stop is not sufficient, standing alone, to rebut an
inference of selective enforcement. See id. at 726 ("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"). The burden shifts to the
Commonwealth to "grapple with all of the reasonable inferences
6 In Long, 485 Mass. at 725, we included within the totality
of circumstances a judge could consider "the safety interests in
enforcing the motor vehicle violation." For example, a police
officer may stop a vehicle traveling at 110 miles per hour on a
highway. The driver's excessive and unsafe speed would be both
the reason for the stop and most likely an adequate,
nondiscriminatory reason to stop the vehicle. By contrast, a
police officer is permitted to stop a vehicle traveling at
sixty-six miles per hour on a highway as a violation of the
speed limit of sixty-five miles per hour. See Commonwealth v.
Bacon, 381 Mass. 642, 644 (1980) (police were warranted in
stopping vehicle based on observation of traffic violation).
This latter, nominal traffic violation, however, would not
suffice as an adequate, race-neutral reason to rebut an
inference of racial profiling.
41
and all of the evidence that a defendant presented and would
have to prove that the stop was not racially motivated." Id.Here, the judge was required to determine whether the
Commonwealth had rebutted the reasonable inference that the stop
or investigation was not "motivated at least in part by race" or
another impermissible classification. Id. We conclude that the
evidence supported the judge's determination that police stopped
the defendant to investigate his involvement in a recent
shooting, and not because of his race.
3. Conclusion. As there was no violation of the
defendant's rights to be protected against unreasonable searches
and seizures, and against selective enforcement of the laws,
there was no error in the judge's denial of the defendant's
motion to suppress.
Order denying motion
to suppress affirmed.