Com. v. Lora, SJC-10111.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation886 N.E.2d 688,451 Mass. 425
Docket NumberSJC-10111.
Decision Date20 May 2008
886 N.E.2d 688
451 Mass. 425
Andres LORA.
Supreme Judicial Court of Massachusetts, Worcester.
Argued February 8, 2008.
Decided May 20, 2008.

[886 N.E.2d 690]

Christopher P. Hodgens, Assistant District Attorney, for the Commonwealth.

William S. Smith, Northboro, for the defendant.

Murray Kohn, Holden, Committee for Public Counsel Services, & John Reinstein, Boston, & Randy S. Chapman, Chelsea, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.


[451 Mass. 426]


In this case, in which we granted the defendant's application for direct appellate review, we conclude that evidence of racial profiling1 is relevant in determining whether a traffic stop is the product of selective enforcement violative of the equal protection guarantee of the Massachusetts Declaration of Rights; and that evidence seized in the course of a stop violative of equal protection should, ordinarily, be excluded at trial.2 We also conclude that statistical evidence demonstrating disparate treatment of persons based on their race may be offered to meet the defendant's burden to present sufficient evidence of impermissible discrimination so as to shift the burden to the Commonwealth to provide a race-neutral explanation for such a stop. Finally, we conclude that the evidence proffered by the defendant fell short of what is necessary to overcome the presumption that a law enforcement officer making a traffic stop, based on probable cause, has acted in good faith and without intent to discriminate. Consequently, the evidence seized

451 Mass. 427

in this case should not have been suppressed.3

886 N.E.2d 691

1. Background. a. Traffic stop.4 On the evening of December 20, 2001, State Trooper Brendhan Shugrue was patrolling Interstate Route 290 in Auburn (Route 290).5 At approximately 9:10 P.M., he approached a motor vehicle traveling ahead of him in the left lane. At the time, there was no traffic in the center lane or the right lane. The vehicle traveled within the speed limit, did not swerve, and made no erratic movements. It did not pass any vehicles because there was no traffic at the time.

Shugrue followed the vehicle for three-quarters mile to an area within several hundred yards of the border between Auburn and Worcester. He observed that the two occupants of the vehicle were dark skinned (the defendant, Andres Lora, is Hispanic). He activated the cruiser's blue lights and stopped the vehicle for traveling in the left lane while the center and right lanes were unoccupied.6 Shugrue approached the vehicle from the passenger's side and asked the driver for his license and registration. The driver explained that his license had been suspended and that the vehicle belonged to the passenger, Lora. Lora then produced his license and the vehicle's registration.

Shugrue asked the driver to step out of the vehicle, and instructed him to sit in the back of his cruiser. Lora remained in the vehicle. Shugrue then checked the status of the driver's license, as well as the status of Lora's license and registration. He confirmed that the driver's license was, in fact, suspended, but that Lora's license and registration were both valid. As Shugrue was retrieving this information, he observed Lora getting

451 Mass. 428

out of his vehicle while talking on his cellular telephone. Shugrue got out of the cruiser intending to instruct Lora to get back into his vehicle; as Shugrue approached, Lora got back into the vehicle and shut the door. Shugrue then directed his flashlight inside the vehicle, where he observed a small glassine bag on the driver's side floor containing white powder.

Shugrue immediately asked Lora to step out of the vehicle and frisked him. He then retrieved the glassine bag, which appeared to contain cocaine, and radioed the State police barracks to request assistance. Trooper William Pinkes arrived at the scene ten to fifteen minutes later. The troopers then proceeded to search the vehicle.7 Shugrue discovered substantially more cocaine in the trunk.8 Pinkes then placed Lora and the driver under arrest.

A grand jury subsequently returned an indictment charging Lora with trafficking in cocaine in violation of G.L. c. 94C, § 32E (b).

886 N.E.2d 692

b. Motion to suppress. On March 27, 2003, Lora filed a motion to suppress the cocaine as the fruit of an unconstitutional search.9 He contended that Shugrue initiated the traffic stop because the occupants of the vehicle were dark skinned, and not solely because the operation of the vehicle committed a traffic violation by driving in the left lane. In other words, he claimed that Shugrue impermissibly engaged in the practice of racial profiling. Thus, Lora asserted, the stop violated his right to equal protection under the law, as guaranteed by the Fourteenth Amendment to the United States Constitution and arts. 1 and 10 of the Massachusetts Declaration of Rights. He further asserted that a traffic stop predicated solely on the race of the passengers of a vehicle was inherently unreasonable and constitutionally

451 Mass. 429

infirm under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.

Lora sought to prove that the stop of the vehicle in which he was traveling was the product of racial profiling by establishing that Shugrue had a history of disproportionately stopping and citing nonwhite motorists for motor vehicle violations. To that end, defense counsel filed an affidavit stating that he had reviewed 25610 citations issued by Trooper Shugrue between August 22, 2001, and February 18, 2002.11,12 The affidavit pointed out that during this time period, Shugrue cited the operators of fifty-one vehicles driving on the stretch of Route 290 that passes through Auburn. Sixteen of the operators cited (or 31.37 per cent) were identified as Hispanic, and six (or 11.76 per cent) as African-American.13,14

Defense counsel then compared the percentage of citations issued to each racial group with the racial composition of the town of Auburn, as tabulated by the 2000 United States census (census). White residents accounted for 97.5 per cent of the population of Auburn; Hispanic residents, one per cent; and African-American residents, .6 per cent. Implicitly assuming that the demographics of the town of Auburn mirror the demographics of those driving on Route 290 through Auburn, defense counsel argued that Shugrue cited minority drivers at a rate wildly disproportionate to their representation in the local Auburn population. This type of comparison is known as census benchmarking. Using this analytical framework, defense counsel contended that a Hispanic driver would be 31.37 times more

451 Mass. 430

likely to be

886 N.E.2d 693

cited than an average motorist15,16; and an African-American driver would be 19.60 times more likely to be cited than an average motorist. By contrast, white drivers were only .5631 times as likely to be pulled over as an average motorist (or, in other words, about one-half as likely).

Defense counsel's affidavit also included information regarding traffic citations issued by Shugrue along the stretch of Route 290 passing through the city of Worcester. In that same period, i.e., between August 22, 2001, and February 18, 2002, Shugrue cited eighty-nine motorists. Seventy-four, or 83.15 per cent, of the motorists cited were white; seven, or 7.87 per cent, were Hispanic; and six, or 6.74 per cent, were African-American. According to the census, white residents account for 77.1 per cent of the population of Worcester; Hispanic residents, 15.1 per cent; and African-American residents, 8.0 per cent. Defense counsel again used census benchmarking to compare the racial composition of the citations to the racial composition of the inhabitants of Worcester. Using the same implicit assumption that the demographics of Worcester accurately reflected the demographics of motorists driving on Route 290 in Worcester, defense counsel calculated that white motorists were 1.08 times more likely to be cited than an average motorist (that is, slightly more likely). Hispanic motorists were .52 times as likely to be cited as an average motorist (that is, about one-half as likely), while African-American drivers were .84 times as likely to be cited (that is, slightly less likely).17

451 Mass. 431

At the hearing on the motion to suppress, Lora introduced Shugrue's citation history, which was admitted de bene by the motion judge.18 Troopers Shugrue and Pinkes testified on behalf of the Commonwealth,

886 N.E.2d 694

contending that the traffic stop was motivated solely by the operator's failure to keep to the right, and that the subsequent search was justified by the cocaine-filled glassine bag within the passenger compartment of the vehicle.19 After taking the matter under advisement, the judge allowed Lora's motion to suppress. In his decision, the judge found, that although "[a] strict reading of Massachusetts law supports that Shugrue was authorized to stop the [vehicle] for traveling in the left-hand lane," the record left "no reasonable conclusion but that Shugrue stopped the motor vehicle in which the Defendant was a passenger because of the race of the operator and the race of the Defendant." Therefore, the trooper "violated the Defendant's rights pursuant to the Fourteenth Amendment ... and Articles 1 and 10 ... when he stopped and searched his vehicle."

In reaching his conclusions, the judge noted that "Massachusetts

451 Mass. 432

appellate courts have yet to resolve the conflict that arises when a well-substantiated allegation of racial profiling is made within the context of a legitimate traffic stop" (emphasis in original). He ruled that the authorization approach to motor vehicle stops, under which a stop is deemed to be constitutionally valid as long as it is one that...

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