Commonwealth v. Jonathan Velez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-873

COMMONWEALTH

vs.

JONATHAN VELEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a motor vehicle stop, the defendant was charged

with various gun and drug offenses. He later moved to suppress

evidence on the ground that the stop resulted from selective law

enforcement based on his Hispanic ethnicity. After an

evidentiary hearing, a judge of the District Court allowed the

motion. The judge later denied the Commonwealth's motion to

reconsider. The Commonwealth appealed. We vacate the order

allowing the motion to suppress evidence and remand the matter

so that the judge may clarify his factual findings and legal

conclusions in a manner consistent with this memorandum and

order.
Discussion. On a motion to suppress evidence premised on

selective law enforcement, the defendant bears the initial

burden of showing a reasonable inference that a police officer's

enforcement decision was based, at least in part, on the

defendant's ethnicity. See Commonwealth v. Long, 485 Mass. 711,

723-724 (2020). This may be shown by the "totality of the

circumstances surrounding the stop," id. at 713, which may

include, as was the case here, a statistical analysis of the

involved officer's pattern of motor vehicle stops, see

Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 7-8 (2023)

(report from statistician analyzing officer's stop data raised

inference of discriminatory law enforcement).

This showing entitles the defendant to an evidentiary

hearing at which it is the Commonwealth's burden to rebut the

inference that the stop was motivated by such considerations.

See Long, 485 Mass. at 726. That there was a valid basis for

the stop is not enough to rebut the inference, since ethnicity

may still have played a part in the officer's decision to stop

the defendant as opposed to others engaged in the same

violation. See Robinson-Van Rader, 492 Mass. at 23-24. Nor can

an officer's "simple denial" of ethnic motivation suffice to end

the inquiry as "implicit bias may lead an officer to make

[ethnicity-based] traffic stops without conscious awareness of

having done so." Long, supra at 734. Rather, the judge must

2
"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 -- whether the stop was truly made without knowledge or

consideration of [ethnicity]" (citation omitted). Commonwealth

v. Stroman, 103 Mass. App. Ct. 122, 132 (2023).

Here, the defendant moved to suppress evidence resulting

from the motor vehicle stop on a number of grounds, one of them

being selective law enforcement based on ethnicity. The matter

was scheduled for an evidentiary hearing without any prior

hearing or ruling on whether the defendant had met his initial

burden to raise a reasonable inference of discriminatory law

enforcement. Although the Commonwealth assigns error to this

procedure on appeal, it did not object below. Rather, at the

start of the evidentiary hearing, the Commonwealth "reserved the

right" to argue at the end that the defendant had not met his

initial burden. Given this acquiescence, the Commonwealth's

claim of error on this procedural point is waived.1 See

Commonwealth v. Silva, 440 Mass. 772, 782-783 (2004) (where

defendant failed to properly alert judge of issue in trial

1 In any event, the Commonwealth does not argue that it was
prejudiced in this instance, given the judge's ultimate
findings, only that the procedure employed could prejudice the
Commonwealth.

3
court, waiver doctrine prevented him from raising it on appeal).

As the Commonwealth does not challenge the substantive point on

appeal -- whether the judge correctly found that the defendant

had met his initial burden -- we turn to the judge's

consideration of the Commonwealth's burden at the evidentiary

hearing.

At the hearing, the Commonwealth presented the testimony of

the officer who initiated the motor vehicle stop of the

defendant, and the defendant presented the testimony and report

of his expert statistician. In his findings, the judge "greatly

credit[ed]" the testimony of both witnesses, however, we are

left with doubts regarding what specific facts were found by the

judge.

In general, the judge's findings recounted the officer's

observation, shortly after midnight, of a car in front of him

with darkened taillights and a license plate which made it

difficult to see the plate number. The findings went on to

relate that, after observing the traffic violations, the officer

followed behind the car, which made an evasive maneuver, causing

the officer to activate his blue lights and pull the car over.

The judge specifically noted that "at no time prior to stopping

the vehicle could [the officer] observe the driver." He made

further specific note that, even after the car pulled over, the

officer "still could not see the driver." After recounting the

4
facts of the motor vehicle stop, the judge found that the

officer's record of motor vehicle stops showed that he stopped

Hispanic motorists at a greater rate (42.4 percent) than his

peers at the police department (29.4 percent).

In his legal analysis, the judge stated that "the

presentation of the Commonwealth was lacking and in no way did

it rebut the reasonable inference of profiling." The remainder

of the analysis pointed out weaknesses in the expert's report

that the Commonwealth failed to challenge. The judge concluded

that "this left the court with the unrefuted testimony of [the

expert] which was enough to meet the burden set out in Long."2

It appears that the judge may have conflated the Commonwealth's

failure to rebut the statistical data with the Commonwealth's

2 It is unclear how the judge considered the testimony of
the expert to have been "unrebutted," since the judge identified
a "glaring hole" in the expert's analysis and had "some serious
reservations concerning the 'feeder influences' cited in [the
expert's] analysis" and had "further reservations about this
methodology, especially, given that Hartford is over 30 miles
away."

Although the judge may have been disappointed with the
Commonwealth's presentation, he was not bound to accept the
expert evidence if he had a basis to doubt its credibility. See
Ulin v. Polansky, 83 Mass. App. Ct. 303, 307-308 (2013) (judge
as fact finder free to accept or reject expert testimony based
on credibility determination). Here, the judge took an active
role in questioning the expert regarding his concerns with the
report. See Matter of P.R., 488 Mass. 136, 144 (2021) ("judge
clearly may ask questions when acting as the trier of fact").
Whether the vulnerability of the evidence was explored by the
Commonwealth or the judge himself, assessment of the credibility
of the evidence remained with the judge.

5
failure to rebut the inference of discrimination. See Stroman,

103 Mass. App. Ct. at 128 (rejecting argument that Commonwealth

cannot meet its burden if statistical data is unrebutted).

Although a statistical analysis standing alone may be sufficient

to raise an inference of selective enforcement, it does not in

itself establish that selective enforcement occurred in a

particular instance. See Robinson-Van Rader, 492 Mass. at 4

(facts relating to stop sufficient to rebut statistical evidence

reflecting discriminatory policing).

The inquiry at the evidentiary stage is to discern the

"true" or "subjective" motivations of the officer at the time of

the stop. See Stroman, 103 Mass. App. Ct. at 129, quoting Long,

485 Mass. at 726-727. For this reason, a judge reviewing a

claim of selective enforcement "must consider the totality of

the circumstances surrounding the claim," Robinson-Van Rader,

492 Mass. at 20, including, for example, the sequence of events

prior to the stop, the manner of the stop, and the safety

interests in enforcing the particular motor vehicle laws at

issue, see Long, supra at 724-725. Because the legal analysis

did not mention the facts of the stop at all, it is unclear

whether they were considered.

To the extent that the judge's analysis did consider (but

simply failed to discuss) the facts of the stop, it is unclear

how the finding that the officer could not see the driver at any

6
point prior to the stop squares with the ultimate conclusion

that the stop was based on the defendant's ethnicity. See

Stroman, 103 Mass. App. Ct. at 132 (where judge credited

officer's testimony that he did not know race of driver prior to

stop, judge appropriately determined that stop, as matter of

fact, could not have been race-based).

The defendant suggests that the judge "did not credit [the

officer's] self-serving denials that race was not a factor in

this traffic stop." But the officer made no such denials of his

motivations. Rather, the officer testified that he could not

see the driver prior to the stop, and the judge credited this

testimony. The defendant goes on to suggest that, despite the

judge's general crediting of the officer's testimony, "the

motion judge was not convinced by [the officer's] specific

denial of being unable to see the driver's race." If that were

the case, there needed to be a finding to this effect. Instead,

the judge made a contrary finding -- that the defendant could

not see the driver. Due to the lack of clarity in the findings

of fact and analysis, we are not in a position to properly

review this matter. See Commonwealth v. Demos D., 497 Mass. 78,

89 (2026), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008) (confusion regarding critical

credibility determinations, within sole province of motion

judge, left appellate review unavailable). A remand is

7
necessary to allow the judge to clarify his findings and

analysis, taking into consideration the totality of the

circumstances, in determining whether the Commonwealth had met

its burden of rebutting the inference of selective law

enforcement. Accordingly, the order allowing the motion to

suppress is vacated, and the matter is remanded to the District

Court to clarify the judge's factual findings and legal

conclusions in a manner consistent with this memorandum and

order.

So ordered.

By the Court (Blake, C.J.,
Desmond & Singh, JJ.3),

Clerk

Entered: February 13, 2026.

3 The panelists are listed in order of seniority.

8

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-873

COMMONWEALTH

vs.

JONATHAN VELEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a motor vehicle stop, the defendant was charged

with various gun and drug offenses. He later moved to suppress

evidence on the ground that the stop resulted from selective law

enforcement based on his Hispanic ethnicity. After an

evidentiary hearing, a judge of the District Court allowed the

motion. The judge later denied the Commonwealth's motion to

reconsider. The Commonwealth appealed. We vacate the order

allowing the motion to suppress evidence and remand the matter

so that the judge may clarify his factual findings and legal

conclusions in a manner consistent with this memorandum and

order.
Discussion. On a motion to suppress evidence premised on

selective law enforcement, the defendant bears the initial

burden of showing a reasonable inference that a police officer's

enforcement decision was based, at least in part, on the

defendant's ethnicity. See Commonwealth v. Long, 485 Mass. 711,

723-724 (2020). This may be shown by the "totality of the

circumstances surrounding the stop," id. at 713, which may

include, as was the case here, a statistical analysis of the

involved officer's pattern of motor vehicle stops, see

Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 7-8 (2023)

(report from statistician analyzing officer's stop data raised

inference of discriminatory law enforcement).

This showing entitles the defendant to an evidentiary

hearing at which it is the Commonwealth's burden to rebut the

inference that the stop was motivated by such considerations.

See Long, 485 Mass. at 726. That there was a valid basis for

the stop is not enough to rebut the inference, since ethnicity

may still have played a part in the officer's decision to stop

the defendant as opposed to others engaged in the same

violation. See Robinson-Van Rader, 492 Mass. at 23-24. Nor can

an officer's "simple denial" of ethnic motivation suffice to end

the inquiry as "implicit bias may lead an officer to make

[ethnicity-based] traffic stops without conscious awareness of

having done so." Long, supra at 734. Rather, the judge must

2
"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 -- whether the stop was truly made without knowledge or

consideration of [ethnicity]" (citation omitted). Commonwealth

v. Stroman, 103 Mass. App. Ct. 122, 132 (2023).

Here, the defendant moved to suppress evidence resulting

from the motor vehicle stop on a number of grounds, one of them

being selective law enforcement based on ethnicity. The matter

was scheduled for an evidentiary hearing without any prior

hearing or ruling on whether the defendant had met his initial

burden to raise a reasonable inference of discriminatory law

enforcement. Although the Commonwealth assigns error to this

procedure on appeal, it did not object below. Rather, at the

start of the evidentiary hearing, the Commonwealth "reserved the

right" to argue at the end that the defendant had not met his

initial burden. Given this acquiescence, the Commonwealth's

claim of error on this procedural point is waived. 1 See

Commonwealth v. Silva, 440 Mass. 772, 782-783 (2004) (where

defendant failed to properly alert judge of issue in trial

1 In any event, the Commonwealth does not argue that it was
prejudiced in this instance, given the judge's ultimate
findings, only that the procedure employed could prejudice the
Commonwealth.

3
court, waiver doctrine prevented him from raising it on appeal).

As the Commonwealth does not challenge the substantive point on

appeal -- whether the judge correctly found that the defendant

had met his initial burden -- we turn to the judge's

consideration of the Commonwealth's burden at the evidentiary

hearing.

At the hearing, the Commonwealth presented the testimony of

the officer who initiated the motor vehicle stop of the

defendant, and the defendant presented the testimony and report

of his expert statistician. In his findings, the judge "greatly

credit[ed]" the testimony of both witnesses, however, we are

left with doubts regarding what specific facts were found by the

judge.

In general, the judge's findings recounted the officer's

observation, shortly after midnight, of a car in front of him

with darkened taillights and a license plate which made it

difficult to see the plate number. The findings went on to

relate that, after observing the traffic violations, the officer

followed behind the car, which made an evasive maneuver, causing

the officer to activate his blue lights and pull the car over.

The judge specifically noted that "at no time prior to stopping

the vehicle could [the officer] observe the driver." He made

further specific note that, even after the car pulled over, the

officer "still could not see the driver." After recounting the

4
facts of the motor vehicle stop, the judge found that the

officer's record of motor vehicle stops showed that he stopped

Hispanic motorists at a greater rate (42.4 percent) than his

peers at the police department (29.4 percent).

In his legal analysis, the judge stated that "the

presentation of the Commonwealth was lacking and in no way did

it rebut the reasonable inference of profiling." The remainder

of the analysis pointed out weaknesses in the expert's report

that the Commonwealth failed to challenge. The judge concluded

that "this left the court with the unrefuted testimony of [the

expert] which was enough to meet the burden set out in Long." 2

It appears that the judge may have conflated the Commonwealth's

failure to rebut the statistical data with the Commonwealth's

2 It is unclear how the judge considered the testimony of
the expert to have been "unrebutted," since the judge identified
a "glaring hole" in the expert's analysis and had "some serious
reservations concerning the 'feeder influences' cited in [the
expert's] analysis" and had "further reservations about this
methodology, especially, given that Hartford is over 30 miles
away."

Although the judge may have been disappointed with the
Commonwealth's presentation, he was not bound to accept the
expert evidence if he had a basis to doubt its credibility. See
Ulin v. Polansky, 83 Mass. App. Ct. 303, 307-308 (2013) (judge
as fact finder free to accept or reject expert testimony based
on credibility determination). Here, the judge took an active
role in questioning the expert regarding his concerns with the
report. See Matter of P.R., 488 Mass. 136, 144 (2021) ("judge
clearly may ask questions when acting as the trier of fact").
Whether the vulnerability of the evidence was explored by the
Commonwealth or the judge himself, assessment of the credibility
of the evidence remained with the judge.

5
failure to rebut the inference of discrimination. See Stroman,

103 Mass. App. Ct. at 128 (rejecting argument that Commonwealth

cannot meet its burden if statistical data is unrebutted).

Although a statistical analysis standing alone may be sufficient

to raise an inference of selective enforcement, it does not in

itself establish that selective enforcement occurred in a

particular instance. See Robinson-Van Rader, 492 Mass. at 4

(facts relating to stop sufficient to rebut statistical evidence

reflecting discriminatory policing).

The inquiry at the evidentiary stage is to discern the

"true" or "subjective" motivations of the officer at the time of

the stop. See Stroman, 103 Mass. App. Ct. at 129, quoting Long,

485 Mass. at 726-727. For this reason, a judge reviewing a

claim of selective enforcement "must consider the totality of

the circumstances surrounding the claim," Robinson-Van Rader,

492 Mass. at 20, including, for example, the sequence of events

prior to the stop, the manner of the stop, and the safety

interests in enforcing the particular motor vehicle laws at

issue, see Long, supra at 724-725. Because the legal analysis

did not mention the facts of the stop at all, it is unclear

whether they were considered.

To the extent that the judge's analysis did consider (but

simply failed to discuss) the facts of the stop, it is unclear

how the finding that the officer could not see the driver at any

6
point prior to the stop squares with the ultimate conclusion

that the stop was based on the defendant's ethnicity. See

Stroman, 103 Mass. App. Ct. at 132 (where judge credited

officer's testimony that he did not know race of driver prior to

stop, judge appropriately determined that stop, as matter of

fact, could not have been race-based).

The defendant suggests that the judge "did not credit [the

officer's] self-serving denials that race was not a factor in

this traffic stop." But the officer made no such denials of his

motivations. Rather, the officer testified that he could not

see the driver prior to the stop, and the judge credited this

testimony. The defendant goes on to suggest that, despite the

judge's general crediting of the officer's testimony, "the

motion judge was not convinced by [the officer's] specific

denial of being unable to see the driver's race." If that were

the case, there needed to be a finding to this effect. Instead,

the judge made a contrary finding -- that the officer could not

see the driver. Due to the lack of clarity in the findings of

fact and analysis, we are not in a position to properly review

this matter. See Commonwealth v. Demos D., 497 Mass. 78, 89

(2026), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008) (confusion regarding critical

credibility determinations, within sole province of motion

judge, left appellate review unavailable). A remand is

7
necessary to allow the judge to clarify his findings and

analysis, taking into consideration the totality of the

circumstances, in determining whether the Commonwealth had met

its burden of rebutting the inference of selective law

enforcement. Accordingly, the order allowing the motion to

suppress is vacated, and the matter is remanded to the District

Court to clarify the judge's factual findings and legal

conclusions in a manner consistent with this memorandum and

order.

So ordered.

By the Court (Blake, C.J.,
Desmond & Singh, JJ.3),

Clerk

Entered: February 13, 2026.

3 The panelists are listed in order of seniority.

8