Supreme Judicial Court (May 20, 2008)

Evidence of racial profiling is relevant in determining whether a traffic stop is the product of selective enforcement in violation of the equal protection guarantee of the Massachusetts Declaration of Rights; and that evidence seized in the course of a stop in violation of equal protection should be excluded at trial.

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.

The defendant in this case was stopped by a state trooper after being followed traveling in the left lane of the highway for three quarters of a mile while the center and right lanes were unoccupied. The defendant, the passenger in the vehicle, is Hispanic. Based on the stop and the results of a subsequent search of the motor vehicle the defendant was indicted with trafficking in cocaine.

At the motion to suppress the evidence based on the stop, the defendant, through expert testimony, sought to prove that the stop of the vehicle in which he was traveling was the product of racial profiling by establishing that the trooper had a history of disproportionately stopping and citing nonwhite motorists for motor vehicle violations. To do this, the expert examined the citations the trooper issued on an interstate highway in the town the defendant was arrested. The expert used "census benchmarking" to opine that the percentage of Hispanic and African-Americans issued citations on that roadway was far higher than the percentage of those residing in the town. The motion to suppress was allowed and the Commonwealth appealed the judge's decision.

The Supreme Judicial Court reversed the decision ruling that statistical evidence may be used to meet a defendant's initial burden of producing sufficient evidence to raise a reasonable inference of impermissible discrimination and that the exclusionary rule can be used where a stop is based on racial profiling. In this case, the defendant failed to meet his initial burden to show the reason for the stop was based on unlawful selective enforcement. "The use of census benchmarking to compare the demographics of a small community with citation ratios on a major interstate highway, which happens to pass through it, is unreliable and not accepted in the scientific community. At a minimum, the evidence must establish that the racial composition of motorists stopped for motor vehicle violations varied significantly from the racial composition of the population of motorists making use of the relevant roadways, and who therefore could have encountered the officer or officers whose actions have been called into question."

Note: Commonwealth v. Betences, also decided May 20, 2008, held that records sought in an effort by the defendant to prove racial profiling are not subject to automatic discovery under Rule 14 but require the defendant first show that the information is material and relevant.