-: SJC-12868 Commonwealth the Edward Long.
-: Mr. Warren, good morning.
-: Good morning, Chief Justice,
and may I please the Court, John Warren
on behalf of Edward Long who is present today.
I'm asking that this Court reverse the motion judge's order
for two reasons.
First, because under Commonwealth vs law, the defendant
met his initial burden under the framework
which the Commonwealth failed to rebut.
And second because the Commonwealth failed
to meet its burden that the empowerment of the vehicle
was reasonably necessary under these circumstances,
and that the inventory search was
for non investigatory purposes.
In fact to begin with the Laura issue,
there is a persistent and pervasive problem,
which is that not everyone's treated equally on the road.
And our constitutional principles do not tolerate that.
In Laura, this court sought to alleviate those concerns
by establishing a practical framework.
Not just one that could nominally allow a defendant
to make a claim, but one that actually, in fact,
could allow a defendant to make a claim
and a successful claim at that.
And that's what we did in this case.
In this case, we use relevant and available stop data.
We use an approach appropriate benchmark with which to view
that stop data, which actually was an over estimate
of the likely motorists that these officers
would have encountered on the roadway.
And the data revealed racial disparities
that were statistically significant.
What happened here was the motion judge,
set the bar too high.
And I think one way of looking at this case is to look at it
in light of Commonwealth versus Laura,
the facts of that case.
(audience member coughs)
In that case, as a benchmark
with which to view the citations,
the defendant used, essentially the census data
of a small town, the town of Auburn,
to determine who the motorists would have been
on an interstate highway heading into Worcester.
-: So, Laura is too small and to show this,
it's the whole state.
But here you use the sense for your benchmark,
which I think comes out to something like 44%,
you're going through the neighborhoods involved,
and six blocks per square feet.
And you indicate that's a good benchmark.
And I didn't really understand what Judge Leighton's
criticism of the benchmark issue was.
-: To your point, I think it is a good benchmark,
because what we did here is we,
the statistician looked at every FIO that these officers
made over a six year period.
And from that established,
well, we know where they patrol because we know where
they're making FIOs.
And then very specifically looked at who lives
in these exact areas, and what the population was
of that patrol area.
And then from there, looked,
well what does the population look 300 feet, 600 feet,
1000 feet, five miles, 10 out to 30 miles.
And in this particular case, what happened was,
the areas were less black, less black and less black.
And so when we use that 44% that's an appropriate benchmark
because it almost certainly was an over estimate of who
these officers would have encountered on the road way.
-: We can translate and have that that if you go out further
and further that the numbers don't change that much,
did he have that before him?
-: He did have that.
And it was in Professor Fowler's report,
which was provided to the court in the Commonwealth,
five months prior the hearing.
And in her report, she indicated what would happen
300 feet, 600 feet, 1000 feet and up to 10 miles.
And then at the hearing, there was some dispute
about whether the court could consider,
essentially the defendant we provided in from maps
and graphs regarding up to 30 miles,
but the court did hear testimony on that from Dr. Fowler.
So, in essence, the answer is yes, the court did hear
up to 30 miles, what the racial demographics were.
And that strongly supports Dr. Fowler's testimony,
which was that 44% is more than appropriate
because it's an over estimate of who these officers actually
would have seen on the roadway.
-: So, assuming that the Laura framework
make sense, right?
-: Right.
-: What if it doesn't?
-: So, Laura was a step in the right direction.
And I think the issue with Laura is that it needs
to be analyzed appropriately.
And there is some wisdom in laura, because what it does
is it puts the initial burden on the defendant
to come forward with relevant stop data.
And then it shifts the burden to the Commonwealth
to explain any disparities in that data.
-: What we do about the data not really being
compiled appropriately?
-: Appropriately in terms of the
-: The hour at all, in some instances,
what will we do about this.
-: That's the problem.
I think, whatever this court does, going forward,
it needs to incentivize law enforcement to track all
of their traffic stops, because this is a systemic problem.
It's a pervasive problem, and it's one
in which law enforcement alone must fix.
-: How do you incentivize law enforcement
to do something like that?
How would we do that?
How would,
-: One way is reversing the order in this case,
and holding that a defendant can meet his burden
by putting forth the available data,
the data that's available.
And this is why that could incentivize is
because if this court holds
that a defendant could put forth relevant
and available data, and that's enough
to make the defendants claim,
it would behoove law enforcement to start tracking
all of their stops.
-: So in fact, one of the criticisms that the judge had
of the data was that it did include all the traffic stops.
Are you saying if we say what,
if a case is made based upon available data,
the incentive is to include all data
for more realistic picture of the traffic stop.
-: Well, the data is evidently non existent at this point.
So, what I'm saying is if a defendant could use
available data, and that shows racial disparities,
it then shifts the burden to the Commonwealth
to explain that come up in law enforcement.
And if law enforcement is saying,
look you using the wrong things, FIOs, citations,
this is not what you should be looking at,
then come forward with the total stops and show us
why officers Rodriguez and Lopes,
were not disproportionately pulling over black drivers.
Because if they had that data,
it might be a very easy hearing,
and there might not really be much of an argument.
And the reason that's important is because
that will identify illuminate the problem,
it really will and it will illuminate the scope
of the problem.
And from there, the problem can be suggest can be fixed.
-: If this case were heard today,
what data would be available to you for the city of Boston.
-: It sounds like so in terms of FiOS--
-: Would you still have the FIOs which identify race?
-: They do.
-: They do, so they still do that.
-: I, they still do that, although, to my in terms
of the news articles, they're no longer
publicly making it available.
Part of what I did hear was partially rely
on publicly available FiOS
and then make a discovery requesting
and gain some FIOS that were not publicly
available to use my data.
I would imagine that they're still keeping track
of FiOS and through a discovery request,
a defendant could obtain that.
Now, with respect to citations,
my understanding based on the new law is that a defendant
could no longer obtain officer specific citation data,
because that has been made unavailable in the change
of the law.
-: So, if you were to do this today,
you would not be able to present your second category
of data, which is the disparity in terms
of the issuance of citations.
-: No, I suppose I could historically,
if I'm looking like I did here seven years back,
citation data.
But to put it another way, seven years down the line,
no one could not look back seven years
under the current state of the law,
and that would render the laura framework plan workable.
-: And the laura framework,
can I ask you about the second stage?
'Cause it doesn't really get discussed all that much.
I wanna get your take on it.
It just basically says, well, there's a way
'cause we've never gotten past the stage one, right?
So, if the defense satisfies and make this prima facie case,
the burden then shifts the government to rebut
that inference.
The stops predicated on impermissible grounds here race.
One way to do it, I think you argue is for the government
to show the statistical flawed, right?
-: Right. -: That's, I guess, easy.
Secondly, we're not easy to do
but that's one way to attack.
But the second ground I want your take on,
is it possible to rebut that first stage inference
with other evidence beyond just a mere denial by the police
that they didn't do it for impermissible grounds?
-: Is your Honor, so, I don't think it's sufficient
to introduce evidence regarding the particular stop.
I think
-: Okay, that's what I'm asking you.
-: No, I don't think that's efficient.
-: But what if the evidence is that we stopped the car
because we had a bolo, that this red Audi was involved
in an armed robbery?
-: No, I don't think what the laura framework did is, put
the initial burden on the defendant to set forth statistics
and to make his prime of facial case using statistics.
And for rebuttal, that's what the Commonwealth
has throughout.
-: The Commonwealth takes a different view.(mumbles)
-: Okay if I could just finish one followup please?
So, the police officers testify that there was a car
that sped by 90 miles an hour and a 30 mile zone
we couldn't even see inside the car
and one final bolo, is it admissible to report it?
-: I don't think it would be a good rule to say
that an officer can come and testify,
I didn't see the race of the driver.
If it was a case, which is not this case,
if it were a case where it would have been impossible
for an officer to have seen who was in the car,
I think the outcome with would have a good argument.
-: Thank you.
-: So, under your theory, if we had perfect data,
and we had a record of racial disparity,
police officer could never successfully or could stop
an African American but it would always be suppressed
because you could never offer evidence of the reason
why that particular officer made that stuff.
-: Right, I mean, I think it would need a change
in behavior and the Commonwealth coming forward,
let's say the next law motion happens
a year down the line, the Commonwealth coming forward
and say, look, here's what's been happening in that year,
there has been a change.
-: But you understand the problem.
I mean, just as Gaziano gave an example you know,
armed robbery or shooting, bolo with respect
to a particular car, even a particular license,
or at least a few numbers of the license everything matches
that stop would be suppressed because there's a history
of essentially stop and frisk of motor vehicles
which are discriminatory against African Americans.
-: So, I think there's a different issue
because I guess it would, I was just
-: When you limit this to only two motor vehicle stops.
Is that what you're limiting it to
or you're limiting it to all stops?
Are you saying it applies to all stops?
-: The Laura framework was limited to motor vehicle stops.
I think the framework could be used
in other contexts though.
-: But is it, let's just think about that answer
for a moment because I may have this one
but what you're talking about pre tech stops
based on motor vehicle violations.
Now, if there's reasonable and articulable suspicion
or probable cause you're not saying that
they'd be a ceasure right now?
-: That exactly right, now I apologize,
and if I could amend my answer.
-: Can I ask seriously, that's right there, isn't it?
-: It is right, and if I could amend the answer and say,
what we're not dealing with are reasonable suspicion
of criminality, probable cause, we're dealing
in this medium of there's no reasonable suspicion,
and yet the car is being stopped for a minor motor vehicle
infractions so I apologize.
-: Would you ever need statistics
of how many motor vehicles that had minor
motor vehicle infractions apparent that they did not stop.
-: I think the Commonwealth brief addresses
that nicely to say that's very difficult to obtain.
-: Can I ask about the so this is a gang unit.
And I find your argument persuasive on the first prong
that the statistics here are concerning.
And then I'm trying to get to the second stage.
So, but they're gang officers, they're not traffic cops.
These aren't steadies on the highway.
There I take it I don't know what the record shows a lot of
I assume they're pulling over people
they know a lot of the time, not this time.
But isn't that going to work the statistics sum?
'Cause these are not blind stops or their stops
of again, a group of people they've gotten a whist, right?
I mean, the whist may be wrong.
-: That's first of all, that's not this case because it is
but to your point,
-: Isn't it what say you win,
and you've made a good case that the first stage
is satisfied.
And we remember this 'cause we've gotta clarify
with the second stages.
And the second stage, I assume the Commonwealth is gonna say
these are gang officers.
So, they're different from steadies,
and they're different from those cases that
we've been reading about in other states.
And then we gotta look at, the neighborhoods
where the different gangs in the neighborhoods
and their makeup, I just, how do we do that?
Because isn't that again, if you win,
isn't the next stage, stage two is just as Gaziano says,
we don't have very much guidance on how
you're gonna do stage two.
-: I think to your point, again, it's not this case,
because in this case, you're gonna see just query and.
-: Well, but they're, again, they're not traffic cops.
For some reason they thought this Mercedes
in that neighborhood is indicative of something.
I'm not sure that's justified.
-: That's the problem.
-: But I take it their statistics are more complicated
than a state police officer pulling people over
because they're pulling people over
because they're concerned about gang activity.
-: It raises an important point,
which is that I'm not necessarily
sure that it's explainable,
if they have a list comprised of black and Hispanic people.
And those are the people that they're targeting
for minor motor vehicle infractions.
-: I mean, it could be say they're
in a different neighborhood, and there's a gang of X,
that number is gonna,
that may skew the statistics sum, right?
I mean, if you're, you know, I don't know
we have all different kinds of gangs.
We have Cambodian gangs, we have different kinds of gangs.
Isn't the number gonna be different?
Isn't gonna be I'm not saying that the number
is gonna be justified here.
I'm just saying isn't the statistical analysis
is gonna be more complicated than a traffic stop
on a state highway, isn't it?
-: So, I think the Commonwealth attempted
to make that some of those rebuttal points and argument,
but conceded we don't have the data to back them up.
-: Okay, so that, but we have to give guidance
on the second stage, if you win,
what kind of statistical despair?
How do you prove a statistical disparity,
as you say?
What kinds of factors?
'cause when you do the standard deviation analysis,
you have to remove all the factors
and it's very complicated, at least in employment cases.
I just don't how's it gonna work here
when you've got these skewing factors out there?
-: So, I think I would go back to the original point
which is this is why law enforcement needs to keep track
of all the traffic stops, because that
would be the easiest way to rebut what this data shows.
-: We will, we're the standard or we make clear
that the standard is impossible to prove.
If you put this type of statistical disparity
that satisfies prong one, prong two then the Commonwealth
of that wants to satisfy prong two is gonna have
to create much better data
in order to show a statistical disparity that's justifiable.
-: I think that would be the best way to rebut it.
Frankly, I don't exactly know.
It's hard for me to know exactly what the Commonwealth
would do in rebuttal, because I don't know
what sort of justification they would have had
for stopping and then citing 81% black individuals,
I don't know what that's gonna look like.
-: Can I take us away from the statistics for a minute,
with modern technology.
If I go through Mass Pike without paying,
I will get a notification in the mail and a bill.
Now we're talking about minor traffic violations, correct?
Why can't those just be simple citations mailed
to the automobile owner rather than a stop?
-: I don't see any any issue with that.
I hadn't thought of that.
I think it makes quite a bit of sense
and would alleviate some problems.
-: Mr. Warren on just on this case,
in your view about the rebuttal,
and I wanna ask you, so do you have a chance
to respond to what I think the D.A's proposal is?
But on your rebuttal point, you say, well,
they didn't raise the issue as it relates to this case,
before the superior court judge,
so there shouldn't be a remand.
-: Which issue the fact that.
-: The law of statistics, they didn't come forward
with statistics to rebut, estimated rebut.
So, as it relates to this case,
you're saying that this should not be remanded, correct?
-: Right, I'm saying they had the opportunity to do that.
-: Okay, so from your perspective,
this really complicated issue about what you do
with the prong two really, from your view,
she can't be remanded to address
because they didn't wave below, is that right?
-: Exactly, and they had Dr. Fowler's report five months
prior to the hearing.
It was an extensive report,
essentially what she testified to.
So, they knew exactly what was gonna be presented
at the hearing and made the decision.
-: Why would they go to stage two if they won stage one?
-: So, I mean, I think the answer to that is they need
to be prepared to address both stages at the hearing.
And there was no statement from the Commonwealth
at the hearing to say, judge by the way, just to clarify,
this is on stage one or before you make your decision,
we wanna make sure that we have the opportunity
for to rebut anything they didn't present
any evidence as to stage two.
-: Can I ask just a more general question,
which is the two amicus briefs here filed
by the defense bar, wanna know whether
you are embracing those?
And of course, we have the brief by the Commonwealth,
which also does not like Laura, apparently
and wants to supersede it.
Do you agree with the kind of last position?
I wanna know what your position is with respect
to these positions?
I suppose.
-: So, Laura, was a step in the right direction.
I think the standard for the reasons I articulated need
to be clarified in the sense that
a defendant can use available and relevant data
and an appropriate benchmark.
That would be the first step and I think
that would be another step in the right direction.
To the extent the court wishes to change
at either another manner, an alternative manner
in which a defendant can raise an equal protection claim
or go back and look at some of the cases
that might have really be the core issue Buckley
and Santana here.
That would be a bigger step in the correct direction.
Whatever the court does, I think incentivizing
law enforcement to track the data should be a focus.
-: So arguably, to do that we could have a rule that said,
if you don't have enough data, that's your problem.
That's the government's problem, not the defendants.
-: Right, I think a defendants job is to provide relevant
and available data.
-: Can we just you talked a little bit about it,
but what does it take for you to get the statistics
that you got?
How, practically speaking, how does the defendant
go about doing this?
I just wanna figure out, okay, you brought some
statistics and they seem to be pretty good.
How about the next person?
-: What we did was file.
So for the FiOS part of it was publicly available.
So, we obtained that, we did real 17th for additional FiOS
and the citation data citations compiled
by the Merit Rating Board.
And then that was both a real 17 motions that were led
by the court and then sent that to the statistician
who was tasked with organizing, compiling
and analyzing that data.
-: Chief (mumbles)
-: Sure.
So, I just wanna see if you could have a chance
to respond to what I think the Commonwealth argument is.
Because before you sit down,
because I think if there was a remand in this case,
or if they have the same proposal, another case,
then what happens once you satisfy Laura
or out actually in any way through testimony satisfy
That might have been an equal protection issue.
I think what they're saying in the next poem
is it gets subjective.
And you look at discriminatory purpose
discriminatory result as well, actually,
what's the effect of the discrimination along
with the discriminatory purpose.
And that it's equal protection so that it's subjective
of course, we'll ask Miss Campbell, flush yourself,
but you're not gonna be able to stand up again.
So, I'd love to know what you think about their proposal.
-: So, first of all, I'm not entirely sure
what their proposal is, because on the one hand,
it's simply restates what Laura says, almost verbatim,
and then it says the court should adopt this new rule.
And then at the end says, by the way, the court needs
to look at subjective motivations of the police officers,
which would completely undercut this, the lower framework.
I mean, if a police officer could testify
and say, no, no, no, I that wasn't my intention
and a defendant would have to introduce direct evidence
as to an officer's subjective intent.
That would be a complete departure from what Laura says.
Laura says a defendant can meet its burden
through statistics alone.
And I would suggest that's
what the Commonwealth has to rebut.
-: But they, I guess that will hear what Common has to say.
But it seems like we don't really
have much information.
You know, even going back to justice grannies concurrences
about exactly what rebut means.
-: I think the Sodo case,
-: The New Jersey case,
-: The New Jersey case describes it very well.
-: Yeah, sure.
-: And I would ask this court to look at that language and it
-: Do you agree the remedy is dismissal
and not suppression?
-: No, I don't know where that's, I was kind of
I don't know where that's coming from.
I don't think it makes a lot of sense.
The harm here is the stop.
So, I think the suppression should be related to that just
as it is in the fourth, fifth, sixth amendment.
-: But the case would be completely dismissed
under the power of analysis.
-: Right, and that's fine.
(laughing)
That's fine.
But it is irrelevant in this case.
-: It is irrelevant in this case,
but they don't think it's fine.
They think it ups the ante, and then it's so draconian,
that it's counterproductive?
-: It would, it would and I'm not sure if that's the point
that the Commonwealth is trying to make,
Commonwealth is trying to up the ante.
But so right, it would up the ante, I think, doctrinally,
it doesn't make sense.
It would lead to cases where the hypothetical
I put in the footnote was we have a murder case.
There's a minor piece of evidence seized
from a bad everyone agrees a bad traffic stop.
Murder case dismissed.
I don't think I mean, I think the suppression it's related
to what's happening.
So, it's not that I would agree that
Mr. Long's case shouldn't be dismissed.
But here is a distinction without a difference.
And I just don't think it makes a lot of sense,
and at that it could make a defendants burden
much, much harder.
A burden that's been very difficult to achieve.
-: And you had said that we should say that a defendant
may use available and relevant data
to make the prima facie case.
But you also said that the amount of available
and relevant data today is less than it was
when you brought your motion.
What do we do if there's not available and relevant data?
What if, say Boston decides
we're not gonna keep racial information in our FIO?
-: So under the new lie, my reading of it is
that police departments as a whole will have their own data.
And so I think the CPCS-Amicus brief makes the point
that the court could strip the presumption of regularity
and traffic stops with entire departments
that either that and the point that they make speeches
strip the presumption of regularity with departments
that have issues with racial profiling work,
where disparities are shown in that data.
The other remedy would be remove the presumption
of regularity where a police department declines
to make this data available.
-: And by presumption of regularity,
you would mean essentially
you satisfied your prima facie case with regard
to a motor vehicle violation.
And that suffices to essentially put the burden
on the Commonwealth to show that it was race neutral.
-: Right.
-: Now, I have one last question for you,
which is what are the states should we look to for guidance?
-: Now manager, we have New Jersey, it's about it.
-: Is it.
-: As far as I can tell from my research.
-: Okay,
-: unfortunately.
-: Wait, wait, wait, I'm sorry, so,
I'm not sure I understood the answer
to the Chiefs question if there are no available statistics.
So, the defendant has nothing to present.
What happens?
I mean, what should happen?
-: So I think there's, I mean,
the court could go many directions,
but I think either you put the burden
on the Commonwealth to present evidence
that it was raised neutral,
or the defendant has to make some limited showing.
And this is addressed in the McDole Amicus brief,
but some sort of variation on the would have test.
-: So if it so we start we stripped the presumption
of regularity, and a defendant says, look,
these were gang needed officers not typically law enfor,
sorry, traffic enforcement.
And here are some other factors that happened in that case
that and again, a low bar because we've stripped
the presumption that this is a regular traffic stop.
-: So you're saying you didn't go to the would have test,
or you wouldn't have to go to the would have test.
-: So I think there's two ways to do it I guess.
You could either and you could put the burden
on the Commonwealth prove its race neutral,
or make the defendant make some minor showing
as to this doesn't seem to be.
-: I guess one of the things I'm thinking about is
that this is a systemic issue built into society.
And so to defend any particular officer
or accuse any particular officer,
regardless of that officer's race or ethnicity
might be more difficult than one would want.
If it were if since it says systemic problem.
I'm wondering do we need a more systemic solution?
-: Right and I think that would be looking
at macros answer for taking another look at Santana,
which I know this court just did in Buckley
but another reexamination.
-: But remember that was under a fourth amendment analysis
you would be asking us to employ
that under an equal protection analysis.
-: So, I guess my first answer would be take another look
at Santana and Buckley.
The second would be, how do we use some of the principles
that the Washington and New Mexico courts have applied
in the fourth amendment context,
under an equal protection where we have a gigantic issue?
We don't have the data because the people who are in charge
of recording the data aren't recording it.
And we're left with no options and the status quo.
I think everyone agrees the status quo is not good enough.
Thank you.
-: Miss Campbell.
-: Good morning, I believe still I may please the Court.
Kalen Campbell on behalf of the Commonwealth.
To make it very simple the Commonwealth,
as it argued in his brief believes
that the lower standard should change,
and it's how exactly it should change that the court
is tasked with figuring out today.
In some of the questions that were posed,
there were a lot of questions posed about how
we incentivize police departments
to actually collect this data.
And that's why the Commonwealth propose that change
in remedy that it did.
-: I think the remedy use you skip the hard work
and go right to the remedy.
-: We can talk about the hard work first.
-: Lets skip through the hard work first,
tell us whether or not you agree that the judge was wrong
in his decision as to prong one,
and then tell us what prong two looks like.
-: Sure, as two prong one is the district
attorney's position that it should be remanded
with for application of the new, the new standard.
However, it's articulated because no one had the benefit
of that at the motion hearing.
-: Are you wrong or not.
-: It was okay under the old standard.
-: Yes.
-: He was he did not hear.
-: Correct.
And I think when you look at the type of data
that was presented, I disagree with my brother
and I disagree with the immediate Amicus that F IO data
standing alone is sufficient to meet the burden.
And that's because it misunderstands what f biofield entire
and investigative observations are.
And what I think is important when you look
at a case like Laura, when you look at all these cases
is that there's a triggering event, right,
which is typically a traffic stop,
which is undeniably a stop in the constitutional sense.
When you look at an fo what they are, are compilations
of all types of observations that aren't necessarily
anything that would trigger any constitutional right.
It might be that they saw you and I Justice gaziano speaking
on the street, there is no constitutional right
that is triggered in that sort of lump,
that that type of observation with a stop
in the constitutional sense with a Frisk
with a traffic stop, I think is a good basis by which
a judge could look at that data and say that's not the
correct type of data that we should be looking at.
Now, that's not to say that that type of data
would never be relevant to this type of motion.
I think that could be relevant both in determining
whether the inference is raised in as to the step two
analysis which is you could look at an officers
pattern of sort of his interactions
with individuals how he patrols and you could infer
some sort of inference as to that.
-: But can't you say that the and I think I know
I read this but that I think the FMO are
over something like seven year period
and and there's something like 80% minority
if my memories right, but correct and
and then I can't remember where I read it, but
there's discrimination built into the BIOS as to
who's fit as well.
So in other words, that it's an underrepresented number.
-: I don't know if I agree with that assertion
that there's discrimination built into the FIOs itself?
Are you talking about the FBI goes
as uses statistics to support the defense personnel?
-: The FBI OHS are over represented with people of color be
that that's the contention.
I can't remember if it's the defendants
prefer the amicus briefs.
So it it actually undervalues that number
for the lower part.
-: I do, I do understand your question,
and I think that but I think that when
you're looking at sort of, again, to go back
if you're looking at sort of what type of data
we should be looking at when determining what the data
should be comprised of and and what should it focus on,
I think I think framing it in terms of
Was there a stopping the constitutional senses is sort of
it the cleanest, easiest way to look at it?
And then that's not to say that you can't consider
that other data, but but sort of the type of data
that should be sort of the stop
and the constitutional sense the stop of this car.
-: Yeah, and I and I know you're, you're dealing
with a different structure than Lauren,
you're gonna answer Justice gaziano his question,
but what plan to it look like?
But I asked the question in terms of whether the
spiritual judge got it wrong that Laura was satisfied.
-: And no, no, is the answer to my question.
But But even if you this court were to look
at these statistics and find that Laura was satisfied.
That's only stage one.
There was never any finding.
If you look at the way that it is structured,
there has to be that there is a finding that
there's a reasonable inference and then it then only then
when there's the finding is that is that triggered
that the Commonwealth has to rebut that inference?
So I say, at best we're asking for
-: And so you're saying that the in every Morrow type case
there's to be two evidentiary hearings?
One, we don't do that discrimination cases
we don't do anywhere else that we have
two evidentiary hearings unless the judge says,
I'm going to bifurcate the hearing
and only decide the first issue.
Was that was that done here?
-: That was not done here.
But there was also no finding us to the first prom.
So I'd say the combo was never ends when
-: Since when do you get the privilege
of a bifurcated evidentiary hearing to say
we only will discuss prong one at this evidentiary hearing
will offer no evidence in the event you make the finding,
and we reserve the right then to then come back
and have a second evidentiary hearing.
-: I'd say the problem with any kind of question
about how these hearings should go is that
there haven't been many that have been successful,
so there isn't any sort of guidance as to how
they should go.
I'd say looking at the standard itself would suggest
that as to how the Commonwealth could present evidence.
That's why I mean, there's a lot of confusion generally
as to how it happens, because you have sort of
what happens is because it's largely the same witnesses,
you have sort of, at least in my experience,
the Commonwealth goes versus to the officer,
but just on the fourth amendment issue,
and so there's that type of testimony
and then the statistician either goes first or go second.
And it really is jumbled and confused
as to the the two different types of issues.
-: Let's assume you we figured all that out.
-: Okay.
-: What would you have presented?
Had you had the opportunity for the stuff to park?
-: Sure and so as as to this case,
I don't want to talk in specifics
because it isn't supported by the record.
But I think it could be instructive as to sort of
what is stage two hearings should look like?
And I disagree with my brother that it only
should be refuting the statistics,
because if you look at equal protection claims generally
but I think the most instructive are the selective
prosecution claims.
What you're really looking for,
is the selective effect and a discriminatory effect
with a discriminatory purpose.
And I do assert in my brief and I do believe the case
law supports that the discriminatory discriminatory purpose
is subjective.
I think in it an easy way to think about this is almost
to analogize this to a Batson claim,
in which, you know, there's numbers that you can point
to in that instance, it's the striking of jurors
to see if there's a pattern and then it switches
to the prosecutor to state the race neutral reason
why they exercise that that challenge.
I think, a similar type of sort of analogous analysis
could work and should work.
-: How does that help the harm?
If if say, this played out right in the stats
of what they are in this case,
and then collapsed here and police officers get back
on the stand and they say we really,
really telling you judge, we didn't stop the person
because they were black.
And the judge says, good for me, it's over?
-: No, I think there has to be more and
-: That's our race neutral.
We stopped, we stopped it because we ran the
inspection sticker and inspection sticker was invalid.
We pull everybody over that has
an invalid inspection sticker.
That's similar to what happens in Batson source.
It's a reasonable reason.
But how does that help the systemic calm
that Laura's trying to combat?
-: I think my answer to that is is twofold.
I think looking at the statistics and the broader
statistics are sort of a pattern of behavior
of any kind of officer would inform the credibility
determination that a judge hearing any officer saying
that would would make.
The second is I don't think that you can just point
at statistics when you think and this case shows
why as to sort of what officers are tasked
with investigating and the type of units that
they're tasked with being in.
So for example, if you have an officer who is part
of the youth violence strike force in Boston
and is tasked with investigating Cape verdean gang violence,
then of course, the statistics
as to his BIOS are going to look very different
than the statistics of someone who's just
on a routine traffic patrol or someone who is tasked
with investigating crime in Chinatown.
The specific sort of investigatory tasks that these officers
are given have to be taken into account
when looking at the statistics that are presented.
And that's important.
Again, I don't want to bring bring it back to
this sort of triggering event and what should the focus be,
but there's no constitutional right not to be investigated.
And so there has to be a balance against police officers
valid right to investigate crimes, often serious crimes
of violence, against individual rights of of people
and recognizing the systemic problems of racism,
racism in society, and that's almost an impossible balance
I recognize that.
-: Are we talking we're I thought
we weren't talking about investigating crimes
that we were talking about basic minor traffic violations.
-: Sure, but I think if you look at so if you were
to use the benchmark of FiOS, for example,
that's investigatory.
That's investigating crime.
Sort of pointed FiOS and say, you know,
they stop 80% of people of color that they look at that
that's not really a true picture of,
of sort of the discriminatory intent or purpose
of the interactions that this officer had
with an individual.
So I agree with you.
That's where I think the data is important.
And what data that that is look at is.
-: Can you think of any way to address the systemic harm
without putting the weight on the individuals involved in it
in this instance.
-: Without putting it on
-: The weight on the individual police officer or the weight
on the individual defendant?
Because it is a broader systemic issue, isn't it?
-: Correct.
-: So how do we remedy that with individual
little individual remedies?
-: I think in the same way, and again, not to bring it back
to Bateson, but Bateson also recognizes that
there's sort of system, I can't say this word
systemic problems of racism and jury selection, right.
And so the way that they do that is create a burden
for defendant which is initially low and then to shift
that burden prosecutor to state the reasons
why this would be a valid exercise of power
exercise of a parameter.
-: But you seem to agree that that right now
we have Laura which is the end that first prong is
is so difficult because we just liquid a chicken
New Jersey on the New Jersey Turnpike to the man hours.
So it's it's too much I mean, even this case was
was a lot of legwork over a lot seven years
or something like that.
So, it seems like you're agreeing that that that first prong
shouldn't just like in Batson I guess
you shouldn't be very weighty, what should it be?
-: Now and I think it should, -: What should.
-: What should it be or what shouldn't it be?
-: What should it be, what would you need to
if Lauren's just too much too much,
which I think you're saying then then what do you need
to be able to show to get to this
almost two prong two.
-: The answer to that, I think is the problem
that I could identify with the lower standard
was that similarly situated,
that the defendant would have to point to someone
who is similarly situated and Laura,
and this is at page 438.
It was described as credible evidence that persons
similarly situated to himself have been deliberately
or consistently not prosecuted because
-: How do you show the people who weren't stop?
-: Absolutely, I agree with you.
So I say that's the problem,
because you're asking the definitive proven negative
as opposed to point to evidence which shows a positive.
And so the common loss proposition is that the change
in that first prong is is is really the change away
from the negative which is similarly situated persons
to the positive which is using data and seeing
if there's a statistically significant,
anything about sort of the stops as they compare to.
-: Do you agree that if the particular department
is not keeping was sharing the data
that should ignore to the detriment of a strong one.
-: Yeah, that's a difficult question and and you know
it the Commonwealth I think wishes that
there was more data available as well.
-: I'm getting totally confused at this point of
because I don't understand the
because we got traffic stops, we got units
and traffic stuff.
So this is a gang unit doing traffic stops,
but it's not has no intention of giving traffic citation.
So how do and then you're telling us we should look
at the traffic stops maybe but not the FiOS.
But that's the data we got fit.
So how, but how do we do I mean, is, is this a would give us
a little practical guidance here.
He got two masses of information, Ci FiOS and traffic stops?
And both of them have apparent disparities,
particularly the FiOS.
Now, I understand it's a gang unit but are we allowed to?
Is has he done his job on those two things?
Because he can't do any better given what he's been given?
-: I would say no and so as to the FiOS no because.
-: He can't do any better or know what,
-: Who's know who's?
Defendant defense the heat the he is defendant
as to the two categories of that information
as to the FBI owes.
The problem is when you look at the experts report,
she lumps all the FiOS together
so she doesn't segregate out the FiOS that
we're a traffic stop, as opposed to FIOs
that were observations.
So I'd say that and she made assumptions that in FAO
was conducted in every single traffic stop,
which there was evidence to support that that wasn't true.
So I'd say that's a problem with methodology
that the expert used to to make conclusions
based on the statistics.
-: Just to evaluate the defendant has a problem,
which is they're pulling over people
minority communities in a much higher rate.
why they're doing it is, you know the cops are doing
their especially the gang related is not in traffic patrol.
They're using these excuses for FiOS, right?
-: I disagree with that.
-: What are they then why are they pulling over this?
Why are they pulling over this car?
-: Well, I disagree that an officer that witnesses
a traffic violation necessarily has to be assigned
to a traffic stop to be able to pull that car over.
-: I thought one of the two officers pulled over 1000 people
and gave five traffic's it some astronomical number
indicating he's not doing traffic patrol, right?
-: Sure, sure.
-: What do we do with that good to take that example.
Say that's all we presented,
is that enough to meet stage one?
When it's 80% of the people I'm just seems like
that seems like a compelling number that
we should be analyzing, because the statistics I mean,
I don't know a lot about statistics,
but that is a really big number.
-: Sure, and and I would say that pointing
to those statistics a judge could find
that a judge could find that doesn't mean
that a judge necessarily has to find that.
And I think that's where the difference lies in sort of the
Commonwealth articulation as to the moral standard,
the new law standard that it says this court should adopt
in the current law standard.
-: What is the new, I mean, the lower standard
made perfect sense at the time,
it was a time in which people were recognizing the
importance of maintaining data
to deal with racial profiling.
And it was written with the expectation that
we were going to have data on traffic stops based
on race so that we could do the analysis in Laura.
And that turns out that to not be true.
So we have one alternative,
which is what the defendant argues,
which is we have to defend it has to play the cards
that they're dealt and we have to be essentially
quite forgiving in terms of what stand what
when it meets the promise fashi case because
we don't have the best available data.
Do you agree with that?
-: I yes and not qualify it, but yes.
And so far that that could be enough to meet the standard.
That doesn't necessarily mean that emotion judge
would have to find that.
-: And why is the you've discussed the FIO.
Why is the motor vehicle citation data here,
not enough here.
-: I think the motor vehicle citation is not enough here,
if you look at the judge's findings.
He found that with respect to Dorchester itself,
Dr. Fowler found that 19 of the 38 citations
are 50% were issued to black drivers,
and that the racial composition of Dorchester
is 46.31% black per census data.
After running the Z test on this data,
Dr. Fowler found that the resulting p value
does not cast out on the assumption of no racial profiling.
So I'd say that expert that there was a finding
from the judge that the experts own analysis
of the statistics as compared to African American drivers
who were stopped as compared to this neighborhood
and day in Dorchester doesn't work
-: Different in Roxbury I believe that was
it was a finding that it was distinctly significant
with regard to Roxbury.
Okay, So, you're saying this is not enough here,
even though we have a considerable effort on the part
of enabled defense lawyer and enable statistician
to attempt to do the best they can with the data they have.
-: Under the old law standard, yes.
-: So you said the old lower standard ain't gonna work.
Because even when you have enable attorney
and enable statistician, given the quality of the data,
it's not going to be enough.
So what but you also recognize that there
is a reasonable concern about selective enforcement
through racial profiling, correct?
-: Absolutely.
-: Okay, so give us the new prama fashi test.
-: Sure, the new premier fascia test is and this is what
I wrote in my brief credible showing that either
those similarly situated were not stopped.
So, that's like New Jersey where they count the cars.
You could do it that way or
-: You cannot mean, -: No, I mean.
-: How we gonna I mean defense Park and barely pay
for investigation we're gonna they're gonna hire people
to be counting cars on city streets.
-: I'm not disagreeing with you there.
-: C'mon I mean, don't get don't give us a formula
which you know, is impracticable.
-: I don't believe that i think i think i'm giving a formula
that recognizes that that what is one avenue,
however impractical that someone could choose to take,
especially with the advent of new technology
where there are some cases, the Federal cases
where they talk about setting up cameras
and counting based on the cameras that are set up.
So that some sense.
-: And what the defense counsel to have access
to all of the all of the cameras that a police force
has so they can gather all that data as part of a defense.
-: I am putting it forth simply as an avenue
by which a defendant could try to meet it not
-: Give us one that a defense lawyer with reasonable means
and reasonable ability can pragmatically meet.
Where there is, in fact, racial profile.
-: Sure and the second is looking at I don't disagree
with my brother that looking at what is available,
so long as what is available accounts
for the correct type of data.
So, you know, the, my argument
sort of depends on what police officers collect.
I think there's a problem with the new passage
of the law that doesn't necessitate the notation of race.
But I think, in this instance,
looking at the merit rating board,
looking at who's stopped,
I don't think that it necessarily has to be indicative
of everyone that was stopped.
But looking at that data at those stops
and saying, is there a difference
between is there a higher number
or a statistically significant number of people of color
who are stopped as opposed to as opposed to people
that are not of color?
-: So are you saying that if the data reflects that Boston
or Brockton early in or for that matter, Wellesley
or Lexington, indicates that there's racial disparity
in terms of a stop that that suffices for all cases
by those police officers to meet the promise fashi case
and shifts the burden to the prosecutor to show
that it was race neutral.
-: Are you saying that, I'm sorry,
I just don't understand the question, are you saying that.
-: Let's assume for the sake of argument,
okay, that that data when it's generated,
shows that there are various jurisdictions
with substantial racial disparity among who is stopped
and that the racial disparity indicates
that African Americans are considerably more likely
to be stopped given their percentage
of the population than white persons.
Your brother says, well, that means then
with regard to every case, involving a police officer
from that jurisdiction, that should suffice
to meet the promise fashi case of racial profiling
or selective enforcement, and that should shift the burden
to the Commonwealth to prove that this
was a race neutral stuff.
-: So, generally a town generally
engaging in racial profiling, that fits wirelessly.
-: It's the wealthy police officer making the
motor vehicle stop which results in
in a non motor vehicle prosecution, then that would suffice.
-: Under the current data that's collected, under...
-: Under the new state law.
-: Under the new state law, absent if it really is true,
that they aren't collecting it individually by officer
and it's that problem, then yes,
I could see how that could be a workable solution.
I would caution against that insofar as we don't know
how actually that's going to shake out.
We don't know if it is in fact true.
We don't What does sort of citations look like.
I don't know how that information wouldn't be collected
by merit of the way that traffic citations are issued.
So that's what gives me pause in that answer,
but hypothetically, assuming that there is no universe
in which you can reasonably figure out
which officers issued wishes citations, then yes.
-: That the macro brief offers an alternative,
which is, if there is a showing that it is a pretextual stop
that is that the true purpose for the motor vehicle stuff
was not to make a motor vehicle, the citation
but in fact to attempt to do a criminal investigation,
but there essentially was a stop and frisk policy
with regard to automobiles, that that would suffice
to meet the fashi case.
Do you agree with that?
-: No, I don't, I don't agree with that.
And I disagree with that insofar as it though,
it doesn't explicitly ithat it really does
is switches the presumption that traffic stops
are undertaking a good faith.
-: Well, but maybe it's time to do that.
-: I don't believe that you should
I understand that that is something that that
that the court could do I caution against that insofar
as that presumption exists because it asks the court
to exercise a judicial power over special problems
of the executive and where it touches on separation
of powers, I strongly, strongly urge the court not to do so.
But I do fully understand that is something the court
could do.
-: What about the idea of always making this be by citation
as opposed to by stopping?
-: I hadn't thought about that until you guys are good.
I disagree with that, insofar as
there's certain sort of motor vehicle infractions
that could impinge on the safety of the road
and I wouldn't want
-: That'd be different than some other kind of
motor vehicle citation.
-: Sure, just blanket when you see a motor vehicle citation
-: By motor vehicle translate, they would only be subject
to fines.
-: Broken taillight
-: Five lines.
(laughter)
-: Understanding of potential public safety.
-: So, what do we do?
I mean, you say this infringed.
We have an officer here, who says that he made
hundreds of traffic stops every year and gave
only a handful of traffic citations.
So we know that when he's making those stops
in the vast majority of cases he's not doing either
he's not doing it to give a motor vehicle citation
or his evaluation of whether there's probable cause
or reasonable suspicion that there is
a motor vehicle citation is terribly poor.
So let's assume it's the first is that is that
within a law enforcement prerogative to essentially say that
if we have reasonable suspicion to believe
or probable cause believe this motor vehicle, citation.
And that's not our intent.
But our intent is to stop the car.
Give us an opportunity to see if
there's an outstanding warrant.
See if the person looks nervous, and if we can find guns
or drugs, see if something happens
to justify the empowerment of the vehicle
and therefore do an inventory search and maybe find drugs
or guns, that that is something which is permissible
for police to do and that we as a judiciary
should not in any way prevent that or or or have any,
or it's not within our judicial power to take any steps
with regard to that.
-: I think you could, I think you could take steps in saying
that that type of showing could result in a finding
by a judge of the first problem.
But I don't think you want to create a rule
by which an officer has to issue a citation every time
they pull someone over for a minor motor vehicle infraction
that's mostly as a driver in this Commonwealth but.
-: But so but when I presented their possibility
that is showing a pretext would suffice.
You said, No, we can't do that.
And I'm trying to figure out why we can't do that.
-: I know you asked me if I thought that
that was a standard that you should adopt.
No, that's not the Commonwealth position that the
that's the standard you should adopt.
Because I What, what gives me pause
there is sort of the definition and meaning of protectable
And what gives me pause there is especially I am glad that
we ended up here because I wanted to respond to my brothers.
What he ended on which was asking the court
to revisit Buckley and Santana there,
there really does exist under the Fourth Amendment
is separate and apart remedy for fourth amendment violations
as to where there isn't an objective basis for this stuff.
And, and this even, you know, the equal protection claim
and violation here is really it should stand separate,
because it recognizes that even where
there's an objective basis for these types of stops,
there could be an improper motivation for those stops.
And so to mix the two together, I just don't think that
that analytically really serves any anybody's best purpose
where there are these two different remedies.
-: I'm sorry, but what is it mixed it together
if we say Buckley was a fourth amendment case,
and we're not going to say that pretext matters
for fourth amendment claim, but it might matter
with regard to legal protection claim.
-: And I guess I don't understand what you mean by by pretext
is they're finding that they're.
-: I think that the true reason for the motor vehicle stuff
was not the motor vehicle violation,
but it was an excuse to do all the things that can happen
when you stop somebody the same motivation that was found
in New York with regard to stop and frisk policy
is all the things that can happen when you stop a vehicle
and interact with the individual and the potentials
for the arrest on outstanding warrant the possibility
of inventory sameen of impalement and inventory search.
I think you mean no I know it goes a lot on the street.
-: I don't know, I agree.
Well, I understand the question that you're asking,
and i would say, sort of what you're touching upon
is is more of a second problem,
discriminatory effect and discriminatory intent.
So So if the intent of the officer was not necessarily
to do a traffic stop if the intent of the officer was
to do something else, that surely is something
that could be considered at that at that second stage.
So I don't think that it necessarily
never comes into play at all.
And independence surely could argue that but I think
in the framework that the Commonwealth has presented
that there is room for that evidence to come forth
and for the judge to consider it.
-: But the first stage can be very high
and that's why I don't understand to me
if you had these facts, you have a police officer who
over the course of years is given so few traffic citations
for minimal vehicle infractions.
Why that should get you to that second question.
-: And it could it could.
And I think I think that's where pointing
I think that's where sort of re articulating
and explaining what is in that first prong
is what the court should do.
Now, that doesn't necessarily mean that a judge
has to credit that or judge has to find that.
And that's why I caution that you the real reason
why the Commonwealth is advocating
well, not the real reason,
but a reason that the Commonwealth
is advocating for remand in this case is
because none of this was clear when the evidence
was being presented to the judge because of the lack
of any type of case law on this type of of this issue.
So it wasn't really clear what could suffice
for the first prong and it never has really been discussed
what should be considered at the second problem.
So it seems in the interest of justice to sort of let
everybody with guidance of
-: The remand, the interest of justice
in this particular case, you couldn't robot it.
The Laura evidence it doesn't seem fair mean,
it might be the next case.
But in this case for this defendant, Tennessee inferior,
remanded because it could have been the bottle
could have been presented it this motion to
-: So, my response is twofold.
The first is I don't think that that was clear first
based on the lorry standard that the Commonwealth
had an obligation to do so at the hearing but the second is
if you're looking at what was before the judge
and what the judge found, and whether
that would be sufficient to rebut the presumption.
I would point to the officers specific
crediting the judges specific crediting of the officers
that they didn't know the race of the individuals
at the time they decided to run the the license plate
through sieges.
-: May I ask you, one I understand that
in some circumstances, there's difficulty
for defendants just getting a lower hearing,
which would be the threshold to trigger the
lower hearing itself.
-: So, I think similar to a motion for new trial
If you look at sort of the papers that are presented
and ask whether it raises I forget sufficiently sufficiently
financial issue or substantial issue,
I think it should be similar to that motion
for new trial standard.
-: We still have the impairment issue,
which I don't want to dwell on.
But the Boston Police Department policy,
at least as articulated in the brief of not going back
to look at the policy apparently says that securing
a car even if you don't tow it requires an inventory search.
First of all, does the policy say that?
-: If you have to go into the car, yes.
-: If Why would you have to go into the core
if you're merely securing it,
if you're really basically say, we're going to lock it
and park it on the street?
-: It depends on there could be an instance
where you have to go get the keys
or you have to go get valuables out.
It's meant to protect the Boston Police Department
from claims of theft insofar as they entered the car.
-: So you're saying every time they enter record for
protective search, they're entitled
to do an inventory search?
Every time every time police officer enters a car
for any reason, even for a protective sweep,
they're permitted to do an inventory search.
-: I guess it typically, if they're going to tell it, Yes.
-: Leave it
-: Or leave it.
-: What if they decide they're gonna
just let it going to lock it
and leave it Don't leave it to be on the street.
-: If they have to actually go inside the car
to take the keys to lock it,
then then yes to present themselves
from the the risk that a defendant would say I had X amount
of property in the car, and it wasn't there when I returned.
-: That does give an incentive for police to find a reason
to go inside the car, because then they would get
an inventory search under your theory.
-: Yes, but I think that can be resolved by looking
at the specific facts of the stop
and what was necessary to secure it.
If the court has no further questions,
the comma four restaurants Yuri Perry.
-: All rise.