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22-P-295 Appeals Court
COMMONWEALTH vs. EVANS STROMAN.
No. 22-P-295.
Bristol. April 10, 2023. – August 17, 2023.
Present: Milkey, Massing, & Henry, JJ.
Firearms. Search and Seizure, Motor vehicle. Constitutional Law, Search and seizure, Investigatory stop, Equal protection of laws. Practice, Criminal, Motion to suppress, Interlocutory appeal. Evidence, Statistics, Pattern of conduct.
Indictment found and returned in the Superior Court Department on December 19, 2019.
A pretrial motion to suppress evidence was heard by Thomas J. Perrino, J.
An application for leave to prosecute an interlocutory appeal was allowed by David A. Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.
Mark Booker for the defendant. Julianne Campbell, Assistant District Attorney, for the Commonwealth. 2
MASSING, J. A defendant who files a motion to suppress
alleging a race-based traffic stop and supports the motion with
materials that create a reasonable inference of discrimination
is entitled to an evidentiary hearing. At that hearing, the
Commonwealth bears the burden of proving that the stop was not
racially motivated. See Commonwealth v. Long, 485 Mass. 711,
724 (2020). In this interlocutory appeal,1 we consider whether
the Commonwealth successfully rebutted the inference of
discrimination with testimony of the officer who made the
traffic stop, which the judge credited, that he was unaware that
the driver was Black until after he made the stop. Confident
that the judge properly considered relevant factors in finding
that the officer did not exercise his law enforcement powers in
a discriminatory manner, we affirm.
Background. The defendant, Evans Stroman, was arrested as
the result of a traffic stop that occurred in New Bedford around
2 A.M. After stopping the defendant's car because its rear
license plate was not illuminated, but before approaching the
driver, New Bedford Patrolman Adam Amaro learned that the owner
of the car had an outstanding arrest warrant and that he was
Black. After confirming that the defendant was the driver and
1 A single justice of the Supreme Judicial Court allowed the defendant's petition for leave to file an interlocutory appeal. 3
the owner, in the course of arresting the defendant on the
warrant, Amaro discovered a handgun on the defendant's person.
The defendant was subsequently indicted for unlawfully carrying
a firearm without a license, in violation of G. L. c. 269,
§ 10 (a), as an armed career criminal, see G. L. c. 269, § 10G.2
Alleging that the traffic stop was racially motivated, the
defendant filed a motion to suppress the evidence and statements
obtained from the stop. His motion was accompanied by several
exhibits, including all citations that Amaro had issued from
November 2018, around the time that he joined the police force,
through November 2020.3 During that two-year period, Amaro
issued sixty-six citations and, of those, twenty-six percent
were issued to Black motorists. According to 2019 U.S. Census
2 The indictment alleged three prior convictions for violent crimes, which would qualify the defendant as an "armed career criminal" under G. L. c. 269, § 10G (c), see Commonwealth v. Johnson, 102 Mass. App. Ct. 195, 206 n.9 (2023), as well as two adjudications of delinquency for serious drug offenses.
3 The defendant amassed much of the evidence to support his motion through pretrial discovery under the guidelines set forth in Long, 485 Mass. at 725. We are somewhat hampered in our review because neither party saw fit to include either the motion or the exhibits in the record appendix. It was the defendant's duty, as the appellant, to prepare an appendix including all record materials necessary for our review of his appeal. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). In criminal cases, the Commonwealth also has the duty to submit an appendix with any part of the record on which it relies that was not included in the defendant's appendix. See Mass. R. A. P. 18 (a) (2) (A), as appearing in 481 Mass. 1637 (2019). 4
Bureau data, also supplied with the motion, seven percent of the
population of New Bedford is Black or African-American. Four of
the ten citations that Amaro issued for license plate light
violations, including the one issued to the defendant, were
issued to Black drivers.
In addition, the defendant offered a New Bedford Police
Department directive from 2006, implementing what the judge
described as a "zero-tolerance strategy" for addressing gun
violence. The directive encouraged rigorous use of tactics such
as "threshold inquiries, field interviews, motor vehicle stops,
warrant checks, and street encounters," particularly between the
hours of 10 P.M. and 5 A.M. The directive cautioned that "no
stop, search or seizure should be conducted without the
appropriate level of legal justification," and that such patrol
activities were not intended to violate any individual's civil
or constitutional rights. The directive explicitly recognized
that such tactics might be perceived as discriminatory.
At the hearing on the motion to suppress, the judge
determined that the defendant had made a threshold showing of
discriminatory enforcement sufficient to warrant an evidentiary
hearing. The judge admitted in evidence the exhibits attached
to the defendant's motion. The Commonwealth then called Amaro,
the only witness to testify at the hearing. 5
Amaro testified that he was working the midnight to 8 A.M.
shift on November 25, 2019, wearing a uniform and driving a
marked cruiser. At about 2 A.M., he was patrolling Rivet Street
as the bars in the area were closing. He encountered a blue
Audi A6 four-door sedan traveling on Rivet Street and noticed
that the car's rear license plate was not illuminated, in
violation of the motor vehicle laws. Amaro followed the Audi
for a few seconds as the car turned onto County Street,
whereupon he activated his blue and white overhead lights and
stopped the vehicle. Amaro's headlights allowed him to read the
Audi's rear license plate; he entered the registration in his
cruiser's mobile data terminal and called the dispatcher to
report the stop and his location. The data terminal showed that
the vehicle was registered to the defendant, who had an
outstanding warrant. It also displayed a photograph, from which
Amaro learned that the registered owner was Black.
Amaro approached the driver's side of the car and saw that
it had two occupants, the driver and a front seat passenger,
both Black men. Amaro asked the driver for his license and
registration, which confirmed that the driver and the registered
owner were one and the same. Amaro returned to his cruiser and
called the dispatcher to check the status of the defendant's
warrant; he was told that it was active and involved a
carjacking charge. The judge found that "[b]y this time or 6
earlier, several backup officers had arrived on scene and they
too approached the car." Amaro asked the defendant to get out
of the car to arrest him on the warrant. Assisted by another
officer, Amaro pat frisked the defendant and found a handgun
tucked into the waistband of his pants.
The judge found Amaro's testimony "credible in all
respects." The judge recognized that Amaro "certainly had an
interest in defending his conduct and the reason for initiating
the stop," but that "he was candid where candor was called for."
The judge made findings regarding Amaro's awareness of the
defendant's race. "While Amaro was behind the Audi he was not
able to see the race, gender, or any characteristics of any
occupant, but he was able to determine that two people were in
the car." After Amaro stopped the defendant's vehicle and
looked up its license plate, "[a] photograph associated with an
Evans Stroman depicted that individual as African[-]American.
That photograph was the first indication Amaro had regarding the
racial make-up of a potential occupant." The judge found, "When
questioned about his motives for initiating the stop, Amaro
credibly denied that the occupants' race was a factor in any
way. He testified he had no idea of the race, gender or ethnic
background of the driver or occupant when he decided to initiate
the stop." 7
Near the beginning of Amaro's testimony, the prosecutor
asked Amaro to describe his "nationality." Over the defendant's
objection, Amaro responded, "I'm Hispanic." At the end of
Amaro's direct testimony, the prosecutor asked how he felt about
the accusation that some of his traffic citations were motivated
by race. Again over the defendant's objection, Amaro testified
that it was "kind of offensive" because "that's not the police
officer I am. That's not the way I was raised. So, I
definitely take offense to it." The judge found, "As a person
of Hispanic ethnicity, born and raised in New Bedford," Amaro
found the suggestion that race was a factor in the stop
"offensive and contrary to [his] upbringing and training."
The judge found that the Commonwealth had successfully
"grappled" with and rebutted the defendant's evidence of
discrimination "and showed that . . . Amaro's stop of the
vehicle was not motivated, even in part, by racial bias." The
judge further found that "Amaro credibly testified as to why he
initiated the stop, the sequence of events and the way the stop
was conducted and progressed. Implicit bias may result in race-
based traffic stops without . . . conscious awareness, however,
such was not indicated by the testimony and circumstances of
this stop." The judge denied the motion to suppress, stating,
"Based on the totality of the circumstances, the evidence 8
presented by the Commonwealth sufficiently demonstrates the stop
was not motivated by racial bias."
Discussion. "Equal protection jurisprudence encompasses
two broad categories of rights, which protect people against
selective prosecution and selective enforcement." Commonwealth
v. Robinson-Van Rader, 492 Mass. 1, 16 (2023). In this case we
are concerned with selective enforcement, which "refers to law
enforcement practices that unjustifiably target an individual
for investigation based on the individual's race or other
protected class." Id. Selective enforcement claims "are
notoriously hard to prove." Note, Criminal Law --
Discriminatory Enforcement -- Racial Profiling -- Statutory
Rape, 93 Mass. L. Rev. 342, 342 (2011).
To make it easier for defendants to advance such claims in
the context of traffic stops, in Long, 485 Mass. at 721-726, the
Supreme Judicial Court "revised the standard by which a
defendant can establish a claim of selective enforcement, in the
context of the traffic laws." Robinson-Van Rader, 492 Mass. at
17.4 See Long, supra at 723 (noting that prior decisions "set a
nearly impossible bar for victims of discriminatory traffic
The revised standard from Long, which was developed to 4
address claims of racial profiling in traffic stops, now applies to claims of selective enforcement in "pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices." Robinson- Van Rader, 492 Mass. at 18. 9
stops to clear in order to establish their claims"). Under the
revised framework, the defendant has the burden of production on
a motion to suppress to establish a reasonable inference that a
traffic stop was motivated by racial bias. See Robinson-Van
Rader, supra; Long, supra at 724. To establish a reasonable
inference, the defendant "must produce evidence upon which a
reasonable person could rely to infer that the officer
discriminated on the basis of the defendant's race or membership
in another protected class. Conclusive evidence is not needed."
Long, supra at 723-724.
"If the defendant's motion establishes such an inference,
the defendant is entitled to a hearing, at which the
Commonwealth would bear the burden of rebutting the inference."
Long, 485 Mass. at 724. See Robinson-Van Rader, 492 Mass. at 17
("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"). The
Commonwealth must "do more than merely point to the validity of
the traffic violation that was the asserted reason for the stop.
Rather, it would have to grapple with all of the reasonable
inferences and all of the evidence that a defendant presented,
and would have to prove that the stop was not racially
motivated." Long, supra at 726. 10
"In examining a claim of selective enforcement, a reviewing
judge must consider the totality of the circumstances
surrounding the claim." Robinson-Van Rader, 492 Mass. at 20.
The judge should consider the following nonexclusive factors,
along with any other relevant evidence:
"(1) patterns in enforcement actions by the particular police officer; (2) the regular duties of the officer involved in the stop; (3) the sequence of events prior to the stop; (4) the manner of the stop; (5) the safety interests in enforcing the motor vehicle violation; and (6) the specific police department's policies and procedures regarding traffic stops" (footnotes omitted).
Long, 485 Mass. at 724-725.
Here, concluding that the defendant had raised a reasonable
inference of discrimination in his motion to suppress, the judge
properly convened an evidentiary hearing and required the
Commonwealth to establish that the traffic stop was not
motivated by race.5 The judge conscientiously addressed the
applicable factors set forth in Long and reached the conclusion
that the Commonwealth had carried its burden.
The defendant takes issue with several aspects of the
judge's determination.
1. Statistical evidence of enforcement patterns.
Regarding Amaro's traffic citations, the judge found, "While the
5 The Commonwealth does not contest the judge's determination that the defendant's motion was sufficient to shift the burden. 11
statistics of Amaro's stop[s] raised a reasonable inference [of
discrimination], the data is not conclusive." Specifically, the
judge noted that "[t]he statistics provide a small sample size
in that they do not include any other encounters which Amaro may
have had with people while on patrol." He also commented that
comparison "to the census population for the city of New
Bedford" was "unreliable," as it did not necessarily reflect the
demographics "of drivers on the road on which the defendant was
stopped."
As to the sample size, the defendant correctly points out
that if Amaro's citations were "racially skewed," it is a
reasonable inference that all of his traffic stops would be
similarly disproportionate. See Long, 485 Mass. at 733. The
defendant is also correct that census data is considered more
reliable "where the relevant roadways are urban residential
roads, as opposed to an interstate highway." Id. However, the
error in Long was that the judge rejected the defendant's data
as insufficient to create a reasonable inference of
discrimination. Id. at 732-733. Here, by contrast, the judge
found that the data did create a reasonable inference and
required the Commonwealth to rebut the inference at an
evidentiary hearing. The defendant is, in effect, asserting
that because his statistical showing was unrebutted, the judge
was required to find that the Commonwealth failed to carry its 12
burden. We do not read Long as requiring the Commonwealth to
rebut each facet of the defendant's showing. Rather, the
totality of the circumstances, to which we now turn, is
dispositive.
2. Other Long factors. In addition to the patterns of
Amaro's enforcement activity, the defendant stresses the New
Bedford Police Department's zero-tolerance directive, the
relatively minor public safety implications of license plate
light violations, and the number of officers who arrived on the
scene as evidence that he was stopped because of his race.
As to the directive, which was issued twelve years before
Amaro joined the force, the judge credited Amaro's testimony
that although he was "generally aware" of the directive, "it
played no role in the stop of Stroman or his reason for
initiating the stop." Even if the directive did play a role in
Amaro's decision-making, however, it would be for the judge to
decide whether, and to what extent, the directive was probative
of discriminatory intent. The directive on its face encouraged
officers to stop any driver for any infraction, regardless of
the driver's race. On the other hand, to the extent Amaro
"targeted intensive traffic enforcement efforts only at
neighborhoods where most residents are people of color," Long,
485 Mass. at 730, a discriminatory intent might be inferred.
Here, however, there was no evidence that the area Amaro was 13
patrolling had a concentration of Black motorists.6 If the
census data provided an accurate estimate of the race of drivers
on New Bedford's urban residential roads, as discussed supra,
and only seven percent of drivers are Black, then the inference
that the directive was applied in a discriminatory manner is
weaker.
With respect to the relatively minor nature of the offense
for which the defendant was stopped, the question before us is
not whether a reasonable officer would have made a traffic stop
for a license plate light violation in this location at 2 A.M.
in late November if race was not a factor, but rather, whether
Amaro actually chose to stop the defendant's car because of the
defendant's race.7 The Long test looks to the "true" or
"subjective" motivations of the officer at the time of the stop.
Long, 485 Mass. at 726-727. Here, giving foremost consideration
to "the sequence of events prior to the stop," id. at 724, the
judge found that Amaro's true motivation for the stop was the
6 Amaro testified that one end of Rivet Street has some public housing and that the area where he stopped the defendant, near County Street, was "more lively," with "a couple [of] bars," a bank, a church, and a convenience store. There was no testimony about the distance from the public housing to County Street, or the demographics of the housing development. Amaro testified that he grew up near a housing project, but he did not give its location in relation to Rivet Street.
7 Chief Justice Budd has suggested using such a "would have" test instead of requiring the judge to determine "the officer's true motive." Long, 485 Mass. at 745 (Budd, C.J., concurring). 14
traffic infraction and not the race of the driver, because Amaro
did not know the driver's race at the time of the stop.
The defendant's argument that the manner of the stop, where
several officers appeared in response to a civil motor vehicle
infraction, was indicative of racial discrimination is
unpersuasive. The interaction went beyond a routine traffic
stop as soon as Amaro discovered that the defendant had an
outstanding warrant. Although the record is unclear as to
exactly when the backup officers arrived, based on the materials
available to us,8 the police response was proportional to the
situation as it unfolded. See Commonwealth v. Sinforoso, 434
Mass. 320, 323 (2001).
"Racial profiling 'is generally understood to mean the
improper use of race as a basis for taking law enforcement
action.'" Commonwealth v. Lora, 451 Mass. 425, 426 n.1 (2008),
quoting Chavez v. Illinois State Police, 251 F.3d 612, 620 (7th
Cir. 2001). The judge in effect found that because Amaro did
not know the defendant's race before initiating the stop, as a
matter of fact he was not engaging in racial profiling when he
made the stop. We discern no clear error or abuse of discretion
in the judge's reasoning or conclusion.
8 See note 3, supra. 15
3. Officer's personal attributes. The defendant argues
that it was error to permit Amaro to testify that he was
Hispanic and that he was offended by being accused of racial
profiling. The defendant posits that this testimony had no
relevance on the question whether his stop of the defendant was
motivated by race. See Mass. G. Evid. § 401 (2023) ("Evidence
is relevant if [a] it has any tendency to make a fact more or
less probable than it would be without the evidence and [b] the
fact is of consequence in determining the action").
We agree that Amaro's offense at being accused of
discrimination has little, if any, relevance. Most, if not all,
police officers accused of bigotry or racism would deny such
accusations. In determining Amaro's true motivation, however,
his testimony that he was "offended" by the suggestion that he
stopped the defendant because the defendant was Black is not
appreciably different from denying that raced played any role in
his decision to stop the defendant. "Because implicit bias may
lead an officer to make race-based traffic stops without
conscious awareness of having done so, . . . a simple denial is
insufficient to rebut the reasonable inference [of impermissible
discrimination]." Long, 485 Mass. at 734.9
9 Similarly, an attorney's denial of discriminatory animus in exercising a peremptory challenge does not rebut a claim that the strike was discriminatorily motivated. See Batson v. Kentucky, 476 U.S. 79, 98 (1986), quoting Alexander v. 16
The relevance of Amaro's testimony that he is Hispanic is a
more complicated question. The evidence of his background, per
se, clearly had no bearing on his credibility. "Evidence of
nationality, race, or color cannot be introduced to affect the
credibility of individual witnesses." Commonwealth v. Kazules,
246 Mass. 564, 566 (1923). To the extent the Commonwealth
offered evidence of Amaro's Hispanic origin to suggest that he
was less likely to discriminate against Black drivers, such a
suggestion, without more, is merely speculative. As an initial
matter, the term "Hispanic" is a broad term that may refer to a
variety of cultures and origins.10 Moreover, it would be
improper to infer that simply because Amaro is Hispanic, he
would be incapable of discriminating against others of Hispanic
origin, let alone against members of other groups. See Oncale
Louisiana, 405 U.S. 625, 632 (1972) ("Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or 'affirm[ing] [his] good faith in making individual selections'"). See also Commonwealth v. Maldonado, 439 Mass. 460, 465 (2003) ("The mere denial of an improper motive is inadequate to establish the genuineness of the explanation").
10For example, the 2010 Census defined "Hispanic or Latino" to refer to "a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race." Overview of Race and Hispanic Origin: 2010, U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau 2 (March 2011), https://www.census.gov/content/dam/Census/library/publications/2 011/dec/c2010br-02.pdf [https://perma.cc/6QQH-Z227]. 17
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998),
quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977) ("Because
of the many facets of human motivation, it would be unwise to
presume as a matter of law that human beings of one definable
group will not discriminate against members of their group").11
This is not to say that race and ethnicity are irrelevant
in interactions between police officers and the public. See,
e.g., Commonwealth v. Warren, 475 Mass. 530, 539-540 (2016)
(race relevant in determining significance of suspect's flight
from police officers). But in asserting and assessing evidence
that a person acted a particular way because of personal
characteristics, litigants and judges must take great care to
ensure they are acting on competent evidence rather than
stereotypes.12
11We recognize that distinctions between race and ethnicity are malleable and difficult to make, and that a person of Hispanic origin may also identify as Black or white. See Commonwealth v. Colon, 482 Mass. 162, 177 n.12 (2019); Village of Freeport v. Barrella, 814 F.3d 594, 602-603 & nn.13 & 14 (2d Cir. 2016).
12In the context of peremptory challenges, Justice O'Connor commented that there may be a grain of truth in some assumptions based on personal characteristics. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148-149 (1994) (O'Connor, J., concurring) ("A plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors"). Nonetheless, those assumptions are "irrelevant as a matter of . . . law" in considering an attorney's motives for striking jurors. Id. at 149. "That the Court will not tolerate prosecutors' racially discriminatory use of the peremptory challenge, in effect, is a 18
Even if Amaro's testimony about his origin and umbrage had
little relevance, the judge did not err in admitting it at the
evidentiary hearing on the defendant's motion to suppress. "The
law of evidence does not apply with full force at motion to
suppress hearings." Mass. G. Evid. § 1101(d) (2023). "At a
hearing on a motion to suppress, judges should 'err on the side
of considering more, not less, information' and then determine
the credibility, reliability, and weight to be applied to that
evidence." Commonwealth v. Evelyn, 485 Mass. 691, 706 (2020),
quoting United States v. Stepp, 680 F.3d 651, 669 (6th Cir.
2012). Discussing Amaro's testimony in his findings, the judge
cited and paraphrased Long, 485 Mass. at 734, stating that "a
simple denial by the officer that the stop was race based is
insufficient to rebut a reasonable inference." He further
found, "The evidence here presented more than a simple denial.
Amaro did not know the racial make-up of the occupants until he
approached the vehicle." We are confident that the judge gave
the challenged testimony appropriate consideration in
determining the state of Amaro's actual knowledge and motivation
at the time he stopped the defendant's car.
special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact." Id., quoting Brown v. North Carolina, 479 U.S. 940, 941-942 (1986) (O'Connor, J., concurring in denial of certiorari). 19
Conclusion. "We conclude that the evidence supported the
judge's determination that police stopped the defendant" for the
motor vehicle violation, "and not because of his race."
Robinson-Van Rader, 492 Mass. at 24. Nonetheless, a word of
caution is in order. Nothing in this opinion should be taken to
suggest that police officers can defeat claims of selective
prosecution in traffic stops simply by testifying that they did
not know the race of the driver before they made the stop.
Ultimately, the judge holding the evidentiary hearing must, as
the judge did here, carefully assess the officer or officers'
credibility and determine -- under the totality of the
circumstances, and in light of the factors that created the
reasonable inference of discrimination requiring an evidentiary
hearing in the first place, see id. at 20; Long, 485 Mass. at
724-725 -- whether the stop was truly made without knowledge or
consideration of race. "America's trial judges operate at the
front lines of American justice." Flowers v. Mississippi, 139
S. Ct. 2228, 2243 (2019). Just as "trial judges possess the
primary responsibility to . . . prevent racial discrimination
from seeping into the jury selection process," id., they also
bear the responsibility for ensuring that claims of selective
enforcement are fairly adjudicated.
Order denying motion to suppress affirmed.