In September, the Massachusetts Supreme Judicial Court reexamined its case law on pretextual traffic stops by police in Commonwealth v. Long. The court set a new standard for criminal defendants who wish to suppress evidence because they believe they were targeted for a stop on the basis of race or their status as part of another protected class. Previously, these defendants had to provide statistical analysis in support of their claims. Now such defendants need only “point to specific facts from the totality of the circumstances surrounding the stop” in order to raise a reasonable inference that the stop was racially motivated. If the defendant can establish this inference, the burden is on the Commonwealth to rebut it, and, if it cannot, evidence found during the stop will not be admitted at trial. The theory underlying this ruling is that the police officer, as a government official, violated the defendant’s right to equal protection under the Fourteenth Amendment to the US Constitution as well as the Massachusetts Declaration of Rights, in making the stop, so evidence uncovered as a result of an illegal search should not be used against that person at trial.

In its opinion in Long, the Supreme Judicial Court recognized that “the discriminatory enforcement of traffic laws [is] particularly toxic.” There are stark racial disparities in traffic stops across the United States. The Stanford Open Policing Project analyzed 200 million records of traffic stop and search data from 21 state patrol agencies and 29 municipal departments, finding that Black drivers are stopped more often than white drivers and that police require less suspicion to search Black and Hispanic drivers than they do to search white drivers.  An analysis of 7,000 police stops in 2019 in Boston showed that 70% of the people the BPD stopped were Black, though less than a quarter of Boston’s residents are Black.

In practice, the Massachusetts court’s decision gives defendants more protection than they currently get under the federal Constitution. The leading case on racially motivated police stops at the Supreme Court is Whren v. United States. There, in an opinion authored by Justice Scalia, the Court held that the subjective intent of police officers is irrelevant to whether or not a search was reasonable under the Fourth Amendment. Under Whren, it does not matter if a police officer stops someone because of their race as long as there was probable cause for the stop. It is important to note that Whren is a Fourth Amendment case, while Long is dealing with an equal protection claim; under the federal Constitution, it is still illegal for police officers to target drivers based on race, but evidence from such a search will not be excluded under the Fourth Amendment.

Equal protection claims about selective enforcement have traditionally been very difficult to make – it’s hard for a defendant to prove that a police officer stopped them because of their race, especially because there are just so many traffic laws that most people cannot drive three blocks without breaking one. This overcriminalization gives cover for discriminatory police stops, since police can nearly always find a “legitimate” reason to pull someone over. Coupled with Whren’s refusal to suppress evidence under the Fourth Amendment where there is any legitimate reason for the stop, even if the police acted with racist intent, victims of racial profiling are left with little recourse.

The Massachusetts Supreme Court attempted to provide defendants with a structure for addressing systemic racism in police stops in a 2008 case called Commonwealth v. Lora. There, the court put the burden on defendants to show that similarly situated people of other races were treated differently, requiring them to amass statistical evidence in support of their claim. However, in Long, the court acknowledged that this was a mistake: “Today, we conclude that that decision placed too great an evidentiary burden on defendants, and that we must lower this burden in order to create a viable path for individuals to present and demonstrate their claims of racial profiling in traffic stops.” While defendants are still welcome to support their claims with statistical evidence, now they can make equal protection claims based on the circumstances of their stop alone; they are no longer required to research other stops made by police (a task which is made all the more difficult as the raw data must come from the police themselves).

While providing the victims of racial profiling a means of suppressing evidence in their cases is not going to solve racist policing, it is heartening to see a state court offer criminal defendants greater protections than the federal government, especially as the Supreme Court is more conservative than it has been in decades. It is also a good sign that the court course-corrected after realizing that its initial remedy in such cases presented an insurmountable obstacle to defendants. It remains to be seen how this new test will play out in practice, but hopefully it will equip criminal defendants to push back against illegal policing tactics in a way that actually changes behavior.