Coalition Urges MA Supreme Judicial Court to Abolish Pretextual Stops

As we have argued twice previously to the Massachusetts Supreme Judicial Court, yesterday we joined an amicus brief in Commonwealth v. Daveiga, led by Rebecca Kiley at the Committee for Public Counsel Services and a coalition of advocacy organizations including the ACLU of Massachusetts, the Massachusetts Association of Criminal Defense Lawyers, and the New England Innocence Project to argue that it is long past time to end the policy allowing police officers to use minor traffic offenses as a legal justification for an otherwise unconstitutional criminal probe. Too often these stops are a vehicle for racial profiling and both invite and produce racial discrimination throughout the criminal punishment system.

As the motion judge observed, this case “tests the limits of what are known as ‘pretext’ car stops.” The trial prosecutor acknowledged the pretextual nature of the stop here, telling the judge “I’m certainly not going to stand before the court and say that anti-crime car, [with officers] in plain clothes, was, you know, really after parking tickets that night. Obviously the officers had another subjective motivation for stopping the car.” That subjective motivation was a hunch falling far short of reasonable suspicion of criminal activity. The officers merely thought that Mr. Daveiga, a passenger in a double-parked Chrysler Pacifica, was unusually subdued, and that it was odd that, after they told the driver he could pull into a parking spot up the street to stop blocking the road, he instead drove away. But, relying on the socalled “authorization test,” which permits investigatory car stops based on hunches so long as police can also point to some traffic violation, however minor, officers stopped the car and seized all its occupants for the double-parking violation they had just waved off. This was unlawful for at least two reasons.

First, the officers’ authority to conduct a stop based on the double-parking infraction ended when they successfully resolved that infraction during the initial encounter. There was no traffic violation to legitimate their subsequent stop of the car. This was a pretext stop without a lawful pretext. Second, as the Commonwealth’s brief acknowledges, the authorization rule is “concerning” and is not “consistent with the values espoused by [this] Court.” It is also inconsistent with Article 14 of the Massachusetts Declaration of Rights, which bans general warrants and prohibits unreasonable searches. Pretext stops violate both of these provisions, and overwhelming evidence shows that this arbitrary power is exercised in a racially discriminatory and disparate fashion, including new empirical research demonstrating that judicial approval of pretext stops contributes to racial profiling. The case will be argued on November 3rd.

Read our related briefs from Commonwealth v. Long (2020) and Commonwealth v. Buckley (2018).

Read our coalition brief: