Opinion
17-P-1630
10-11-2019
COMMONWEALTH v. Calendula CAUDLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial, the defendant, Calendula Caudle, was convicted of possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h ), having committed a prior violent crime or serious drug offense in violation of G. L. c. 269, § 10G (a ), and possession of heroin, G. L. c. 94C, § 34. At issue on appeal is the denial of a motion to suppress evidence discovered following a stop of the defendant while riding a bicycle without a front light after sunset in violation of G. L. c. 85, § 11B. The defendant argues (1) the stop was a pretext stop not supported by reasonable suspicion or probable cause and (2) the stop was the product of selective enforcement of the laws and racial profiling in violation of the Fourteenth Amendment to the United States Constitution and arts. 1 and 10 of the Massachusetts Declaration of Rights. For the reasons that follow, we affirm.
The defendant was acquitted on additional indictments charging illegal possession of a firearm, G. L. c. 269, § 10 (a ), subject to sentencing enhancements as a habitual offender in violation of G. L. c. 269, § 10G ; possession of a class B substance as a subsequent offender, G. L. c. 94C, § 34 ; and possession of heroin as a subsequent offender, G. L. c. 94C, § 34.
The defendant raises no claims relating to the trial or sentencing.
Background. In reviewing a ruling on a motion to suppress, "[w]e accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [her] ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). On April 16, 2014, at approximately 10 P.M. , Massachusetts State Police Trooper Noah Pack was driving a police cruiser in a northerly direction along Appleton Street in Holyoke. That portion of Holyoke has a predominantly Hispanic makeup. He observed a person, later identified as the defendant, riding a bicycle toward him from approximately 300 to 400 feet away. The bicycle was not equipped with a front light. As it was past sunset, this was in violation of G. L. c. 85, § 11B (8), which provides, in pertinent part: "During the period from one–half hour after sunset to one–half hour before sunrise, the operator shall display to the front of his bicycle a lamp emitting a white light visible from a distance of at least five hundred feet ...." Based on the bicycle violation, Trooper Pack decided to stop the defendant. The motion judge credited Trooper Pack's testimony that he could not discern the defendant's race or ethnicity at that time.
To effectuate the stop, Trooper Pack parked on the opposite (southbound) side of the street, stepped from his cruiser, and walked to the center of the street. He said, "Hey man, stop." The defendant did not immediately stop and instead crossed into the northbound lane and almost collided with an oncoming car. After the near collision, the defendant stumbled from and then attempted to pick up his bicycle as if he intended to ride it in the opposite direction and also positioned himself as if he was shielding or concealing something. A patfrisk ensued and uncovered a revolver loaded with five rounds of ammunition, two small bags of powder consistent with heroin, and a "crack" pipe.
Prior to trial, the defendant filed and twice supplemented a motion to suppress that argued, inter alia, the stop was made based on racial profiling. In support of this claim, the defendant presented a statistical analysis performed by Dr. Mary Fowler, a mathematics professor at Worcester State University, on bicycle citations issued by State or local law enforcement personnel in Sunderland, Greenfield, Springfield, Holyoke, Northampton, and Amherst between June 2013 and October 2014 as collected by the Merit Rating Board. The Merit Rating Board data included eleven citations issued in Holyoke. As a result of multiple statistical tests, Dr. Fowler concluded that there was strong evidence of racial profiling in Holyoke, but not evidence of racial profiling in the other five municipalities. In addition, the defendant presented evidence of Trooper Pack's bicycle stop history between April 1, 2013, and April 1, 2014. The data showed that, during this period, Trooper Pack had stopped three White and six Hispanic individuals on bicycles. The Commonwealth rebutted with evidence from Dr. David Schap, an economics professor at College of the Holy Cross in Worcester. The motion judge credited Dr. Schap's opinion that Dr. Fowler's conclusion that there was evidence of racial profiling was unreliable because it was based on population estimates derived from national data and did not take into account the unique socioeconomic characteristics of Holyoke.
Unlike the Merit Rating Board data, Trooper Pack's bicycle stop history including both warnings and citations.
Discussion. 1. Due process. Contending that the bicycle stop at issue was a pretext to conduct an investigatory stop, the defendant argues that evidence of pretext should be considered in weighing whether a bicycle stop is reasonable under the Fourth Amendment and art. 14. In determining the validity of a traffic stop, we follow the "authorization approach," which provides that "a stop is reasonable under art. 14 as long as there is a legal justification for it." Commonwealth v. Buckley, 478 Mass. 861, 865-866 (2018). Pursuant to G. L. c. 85, §§ 11B and 11E, a police officer has legal authorization to stop a person for an observed bicycle violation. This is implicitly authorized by G. L. c. 85, § 11E, which provides that "[a] police officer who observes a traffic law violation committed by a bicyclist may request the offender to state his true name and address." Without the authority to stop a bicyclist, it would be impossible for a police officer to obtain a passing bicyclist's true name and address. Compare Commonwealth v. Rodriguez, 472 Mass. 767, 773 (2015) (noting that because " G. L. c. 90C, § 2, requires an officer to give a copy of a traffic citation to the violator and to ask that person to sign the citation, c. 90C, §§ 2 and 3 [A], implicitly authorize police officers to stop motor vehicles in order to issue traffic citations. Otherwise, it would be impossible for police to issue citations for moving traffic violations").
Where a traffic law has been violated, a stop is permitted "irrespective of any additional suspicions held by the officer(s) conducting the stop." Buckley, 478 Mass. at 869. See Commonwealth v. Santana, 420 Mass. 205, 210 (1995) (police have authority to stop automobile for broken taillight). See also United States v. Bell, 86 F.3d 820, 822 (8th Cir. 1996) (where officer observes violation of State bicycle headlamp statute, "the stop is objectively reasonable and any ulterior motivation on the officer's part is irrelevant"). Where the Legislature has given police officers implicit authority to stop bicyclists for observed traffic law violations, we decline the defendant's invitation to depart from the authorization approach in the context of bicycle stops.
2. Selective enforcement. The defendant also argues that the bicycle stop was the product of selective enforcement or racial profiling in violation of the Fourteenth Amendment and arts. 1 and 10. A defendant may challenge on equal protection grounds a traffic stop that is the product of selective enforcement or racial profiling. Commonwealth v. Lora, 451 Mass. 425, 439-440 (2008). As there is a presumption that traffic stops are made in good faith and without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement. See Buckley, 478 Mass. at 879 ; Lora, 451 Mass. at 443. "Once a defendant has raised a reasonable inference of selective prosecution by presenting credible evidence that persons similarly situated to himself have been deliberately or consistently not prosecuted because of their race, ‘the Commonwealth must rebut that inference or suffer dismissal of the underlying complaint.’ " Lora, 451 Mass. at 438, quoting Commonwealth v. Franklin, 376 Mass. 885, 895 (1978).
Here, the motion judge, who had the benefit of the witnesses' live testimony, explicitly credited Trooper Pack's statement that at the time he decided to stop the defendant, he could not discern the defendant's race or ethnicity. That finding was not clearly erroneous and we are therefore bound by it. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015). Whether viewed as removing this case from the analysis described in Lora altogether, or otherwise viewed as rebutting any inference of selective enforcement, this finding effectively defeats the defendant's claim that he was stopped on the basis of his race or ethnicity in violation of equal protection principles.
Even if this finding was not fatal to his claim, the defendant did not present credible evidence to support an inference of selective enforcement. Although a defendant may use statistical evidence to meet this burden, the Supreme Judicial Court has explained that in the context of motor vehicle stops, "[a]t a minimum, that 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." Lora, 451 Mass. at 442. We agree with the parties that in the context of bicycle stops the relevant population is the racial or ethnic composition of bicyclists making use of the relevant roadways. Whether those roadways are limited to Holyoke or, as the defendant contends, they should include the surrounding municipalities, the defendant did not provide an adequate basis for assessing the racial or ethnic population of bicyclists. We agree with the motion judge that the defendant's use of data from the 2010 United States Census, as adjusted by data from a 2011 national study on the prevalence of walking and bicycle riding by race and age, to estimate the population of bicyclists was an untenable attempt to establish the population of bicyclists. See Chavez v. Illinois State Police, 251 F.3d 612, 643 (7th Cir. 2001), cited by Lora, 451 Mass. at 441-442 ("It is widely acknowledged that the Census fails to count everyone, and that the undercount is greatest in certain subgroups of the population, particularly Hispanics and African-Americans"). Contrast State v. Soto, 324 N.J. Super. 66, 69-70, 84 (1996), cited by Lora, 451 Mass. at 440-441 (de facto policy of certain troopers targeting black motorists shown where judge was presented with rigorously prepared surveys completed by observing traffic over twenty-one randomly selected two and one-half hour sessions at four different sites along New Jersey Turnpike).
The study focused on health effects and only counted persons that rode a bicycle for more than thirty minutes per day.
We also reject the defendant's argument that credible evidence to support an inference of selective enforcement was demonstrated by Trooper Pack's testimony or stop history. The defendant's assertion that Trooper Pack used bicycle infractions as a pretext to stop people in urban, minority neighborhoods is not supported by any findings made by the motion judge. Although the defendant extensively cross-examined Trooper Pack on this topic, the motion judge explicitly credited Pack's testimony that he decided to stop the defendant for bicycle violations.
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Judgments affirmed.