Commonwealth v. Robinson-Van Rader

• Court: Massachusetts Supreme Judicial Court
• Decided: May 15, 2023
• Docket: SJC 13329
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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.