Commonwealth v. Stroman

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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.