Abstract

Excerpted From: George Ward, Bicycles, Bloody Knives, and Black Boys, 105 Massachusetts Law Review 96 (March, 2025) (99 Footnotes) (Full Document)

Commonwealth v. Robinson-Van Rader, 492 Mass. 1 (2023)

In 2020, the Supreme Judicial Court (SJC) called upon the bar to eliminate racial bias in Massachusetts' criminal legal system. But police still disproportionately harass Black Bostonians and, in 2023, even the SJC failed to answer its own charge when it decided Commonwealth v. Robinson-Van Rader. True, and to the court's credit, Robinson-Van Rader expanded the exclusionary rule to include racially motivated Terry stops. However, the SJC permitted the commonwealth to prove the race-neutrality of a Terry stop without even addressing how police first targeted a Black 18-year-old, Michael Robinson-Van Rader, for that investigation. Despite configuring the correct rule, Robinson-Van Rader holds open the door to the very discrimination the court sought to outlaw by allowing racial bias to influence an officer's choice to select suspects, as long as reasonable suspicion develops in a race-neutral manner.

II. The Road to Robinson-Van Rader

Thirty years ago, if the criminally accused hoped to exclude otherwise admissible evidence against them at trial, they could make three arguments. First, the person could establish that government agents gathered the evidence by violating search and seizure rules under the Fourth Amendment of the U.S. Constitution and art. 14 of the Massachusetts Declaration of Rights. Second, they could show that the government violated their right against compelled self-incrimination under the Fifth Amendment and art. 12. Third, the accused could demonstrate that the government interrogated them in violation of their right to counsel, which is provided by the Sixth Amendment and art. 12. Courts fashioned these three challenges to deter officers from breaking the law in order to incriminate suspects.

In 1999, the SJC began shaping a fourth basis for suppression. That year, the court ruled in Commonwealth v. Gonsalves that, under art. 14, police could order a person out of a car only if there is reasonable suspicion that they are dangerous. The majority had worried that unbound officer discretion might result in discriminatory exit orders. But, in his concurrence, Justice Roderick Ireland implied that stopping racist exit orders needed more than what art. 14 and the reasonable suspicion requirement could offer. Even the majority acknowledged that reasonable suspicion is a low standard.

After nearly 10 years, the SJC again advanced its antiracist jurisprudence in Commonwealth v. Lora, in which it granted defendants a fourth exclusionary challenge. In that case, a state trooper pulled over Andres Lora for driving in a highway passing lane for too long and, after ordering Lora out of the car, found cocaine. In an attempt to suppress the cocaine, Lora alleged neither that the trooper violated a search and seizure rule, his right against compelled self-incrimination, nor his right to counsel. Lora, a Hispanic man, argued that the trooper pulled him over because he was dark-skinned in violation of his right to equal protection under the 14th Amendment and arts. 1 and 10. After losing an initial suppression hearing and a subsequent rehearing, the commonwealth filed an interlocutory appeal to the SJC, arguing that the trooper's subjective motivation, even if racially biased, could not render the traffic stop illegal.

The SJC disagreed, holding that racial bias could invalidate an otherwise lawful traffic stop on equal protection grounds. If the 14th Amendment and arts. 1 and 10 prohibited discriminatory enforcement of impartial laws and applied to prosecutorial decisions, then equal protection principles applied to the trooper's choice to pull over Lora.

The court explained that to establish that racial bias motivated a traffic stop, a defendant must make three showings: (1) that there is evidence raising a reasonable inference of racial discrimination, including evidence that a wider class of persons than those prosecuted broke the law; (2) that failure to prosecute the wider class was either consistent or deliberate; and (3) that the decision not to prosecute was based on an impermissible classification (e.g., race, sex, religion). A defendant could cite statistics to show that the "racial composition of motorists stopped for motor vehicle violations varied significantly from the racial composition of motorists making use of the relevant roadways."

The burden then shifted to the commonwealth, which had to rebut any inference of selective prosecution. If the commonwealth's rebuttal failed, then suppression was the proper remedy. Justice Ireland cautioned, however, that Lora might overburden defendants with an "admittedly daunting" test because statewide gaps in policing data could undermine their ability to establish a reasonable inference of racial bias.

In 2020, the court eased the Lora test in Commonwealth v. Long because relief for racially targeted drivers remained "illusory" due to Lora's emphasis on raising a reasonable inference of discrimination with virtually nonexistent statistical evidence. Additionally, the court decided that the ""ubiquity" of traffic violations meant that stopping a driver necessarily involves a deliberate choice to single out an offending motorist from a broader class of potential suspects. Accordingly, a driver need only "produce evidence upon which a reasonable person could rely to infer that the officer discriminated on the basis of the defendant's race ... [c]onclusive evidence is not needed." A court should consider the totality of the circumstances of the traffic stop to determine whether the defendant established an inference of racial motivation.

In Long, the court explained that once the defendant raises a reasonable inference, the commonwealth must "do more than merely point to the validity of the traffic violation that was the asserted reason for the stop" to prove race-neutrality. Critically, though, the court did not discuss whether individuals could make an equal protection claim beyond a traffic stop. According to Justice Elspeth Cypher's Long concurrence, however, racial bias could render even the decision to query a license plate via a mobile computer violative of equal protection, suggesting that individuals could raise a Long challenge against investigatory conduct occurring well before any seizure.

[. . .]

Communities of color disproportionately pay the price for the underdevelopment of equal protection in this commonwealth. Under Robinson-Van Rader, police may still target someone because of their race, as long as they later develop reasonable suspicion suspicion in a race-neutral manner. Many, if not all, of those targeted will suffer the "great harm" and "indignity of being racially profiled," even if that investigation stops short of a Terry frisk.

For an unfortunate number of people, like Robinson-Van Rader, a racially biased investigation may tie together enough innocuous, circumstantial observations to form reasonable suspicion for a stop, pat frisk, or more perilous intrusions. To better manifest the promise of equal protection, courts must untangle the equal protection inquiry from the lower threshold of reasonable suspicion and demand a race-neutral purpose for the often discretionary decision to target a person for investigation. In Robinson-Van Rader, the SJC should have addressed whether racial bias influenced Officer O'Loughlin's belief that the two Black teenagers, slowly pedaling their bicycles, fired those gunshots.

But even the most rigorous equal protection analysis cannot give more than the imperfect deterrence of the exclusionary rule. We must confront widespread racial discrimination in our society, as well as minimize the discretionary and charged situations that invite police to act upon bias. As Korematsu's fiercest dissenter wrote, "the law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution." In this commonwealth, that hour is at hand.