Search and seizure Equal protection Discriminatory policing – Massachusetts Lawyers Weekly

Where a judge denied a defendants motion to suppress evidence found when the police stopped and frisked him, that ruling should be upheld because (1) the police had a reasonable articulable suspicion that the defendant had been involved in a shooting and (2) the commonwealth demonstrated an adequate, race-neutral reason for the stop, sufficient to rebut the defendants statistical evidence of discriminatory policing.

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 barebones 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 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 departments 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 defendants 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 defendants equal protection challenge, the judge presumed that this courts 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 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 defendants 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 defendants motion to suppress, the Commonwealth demonstrated an adequate, race-neutral reason for the stop, sufficient to rebut the defendants statistical evidence of discriminatory policing. Accordingly, we affirm the denial of the defendants motion to suppress.

In reviewing the judges 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 judges conclusion that the Commonwealth met its burden of rebutting an inference of selective enforcement by articulating an adequate, race-neutral reason for the stop.

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.

Here, we discern no error in the judges 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, [Officer James OLoughlin Jr.] 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.

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. We conclude that the evidence supported the judges determination that police stopped the defendant to investigate his involvement in a recent shooting, and not because of his race.

As there was no violation of the defendants rights to be protected against unreasonable searches and seizures, and against selective enforcement of the laws, there was no error in the judges denial of the defendants motion to suppress.

Commonwealth v. Robinson-Van Rader (Lawyers Weekly No. 10-049-23) (41 pages) (Gaziano,J.) A pretrial motion to suppress evidence was heard by Peter B. Krupp, J., and a conditional plea was accepted by Mary K. Ames, J., in Superior Court. John P. Warren for the defendant; Kathryn Sherman (Michelle Slade also present) for the commonwealth; Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma S. Jaber and Douglas J. Plume submitted a brief for Massachusetts Association of Criminal Defense Lawyers, amicus curiae; Katharine Naples-Mitchell, Audrey Murillo and Radha Natarajan submitted a brief for Criminal Justice Institute at Harvard Law School and another, amici curiae (Docket No. SJC-13329) (May 15, 2023).

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Search and seizure Equal protection Discriminatory policing - Massachusetts Lawyers Weekly