COMMONWEALTH v. TIMMY HUNT (And a Companion Case).

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

22-P-609
22-P-1163

COMMONWEALTH

vs.

TIMMY HUNT (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After their motions to suppress evidence were denied by a

judge of the Superior Court, the defendants, Timmy Hunt and

Daquan Dooley, both entered conditional pleas pursuant to Mass.

R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019),

preserving their rights to appeal from the denial of their

motions to suppress. 2 We agree with the motion judge that the

Commonwealth demonstrated an adequate, race-neutral reason for

1 Commonwealth vs. Daquan Dooley.

2Hunt tendered guilty pleas to carrying a firearm without a
license, second offense, G. L. c. 269, § 10 (a), and possession
of ammunition without a firearm identification card, G. L.
c. 269, § 10 (h). Dooley pleaded guilty to carrying a loaded
firearm without a license, G. L. c. 269, §§ 10 (a), (n), and
possessing a large capacity firearm, G. L. c. 269, § 10 (m).
the motor vehicle stop that was sufficient to rebut the

defendants' statistical evidence alleging discriminatory

policing. The judge also correctly found that the field

interrogation and observation (FIO) statistics regarding prior

stops conducted by Dunn did not preclude him from reasonably

suspecting that Hunt, the registered owner of the vehicle

stopped here, would also be the driver. Finally, the exit order

issued to Dooley was based on the officers' reasonable safety

concerns. Accordingly, we affirm.

Facts. "We summarize the facts as found by the motion

judge . . . supplemented by evidence in the record that is

uncontroverted or that was implicitly credited by the judge,"

reserving certain details for our discussion of the issues.

Commonwealth v. Jones, 100 Mass. App. Ct. 600, 601-602 (2022).

The defendants submitted statistical evidence from Dr. Mary

Fowler, a math professor and statistician, to support their

claim that two Boston police officers, Christopher Dunn and Marc

McBrien, were more likely to stop Black members of the community

than persons of other races. After reviewing the material, the

motion judge concluded that the defendants had made a threshold

showing that race played a role in the stop and shifted the

burden to the Commonwealth "to demonstrate a non-racial reason

for the police officers' action in this context." The

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Commonwealth offered the following evidence to sustain its

burden.

Officers Dunn and McBrien were partners and patrolled

district B2 in Boston from 2016 until 2021. District B2

encompassed all of Roxbury and a small part of Dorchester. They

generally worked the last-half shift from 11:45 P.M. to 7:30

A.M. The officers distributed their time throughout B2,

although they typically spent the least amount of time in

Mission Hill. Mission Hill has a large white population and

there are more white people in the "Mass and Cass area."

Officer Dunn estimated that ninety-five percent of the people

the officers interacted with were Black. At times, the officers

were sent by superiors on "directed patrol" for a specific area

of B2, to investigate different issues such as drugs,

prostitution, or shootings.

While on patrol, Dunn's procedure was to run the license

plate of all vehicles he encountered unless he was out on a

radio call. If the registered owner of the car was not licensed

to drive, the officers stopped the car unless they were sent to

another location.

On November 26, 2018, the officers were on directed patrol

in Roxbury at the intersection of Mount Pleasant and Dudley

Streets because of recent gun activity in the area. Dunn ran

the license plate on his police car's computer of a car coming

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in the opposite direction. It was dark and the officers could

not see into the vehicle or see the occupants. The officers

received the results of the inquiry on the license plate, which

were that the car was registered to Hunt and that Hunt's

driver's license was suspended. Based on this information, the

officers stopped the car.

McBrien approached the driver's side of the car and Dunn

walked up to the passenger side. Hunt was in the driver's seat.

McBrien informed Hunt that his license was suspended, and Hunt

responded that it was not suspended as he had paid fines the day

before. Hunt continued to dispute that his license was

suspended. McBrien explained that sometimes information does

not appear in his computer immediately and he told Hunt he could

look at McBrien's computer to see that it was still showing up

as suspended. Hunt went with McBrien to the police car to look

at the computer.

While McBrien was interacting with Hunt, Dunn requested the

identification of the front passenger and of Dooley, who was in

the rear seat. Dunn requested the information to determine

whether either of them had a valid license and could drive the

car away from the scene, as it appeared that Hunt did not have a

valid license. Dunn went back to his police car to check their

identifications.

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Meanwhile, Hunt asked McBrien if he could grab his wallet.

McBrien agreed, and Hunt went back to his car. McBrien expected

Hunt to just get his wallet; however, Hunt sat back down into

the driver's seat. At that point, McBrien became concerned that

Hunt would drive away so he ordered Hunt out of the vehicle.

When Hunt did not get out immediately, McBrien repeatedly told

him to exit the car. McBrien saw Hunt's hand near the

floorboards and saw what he believed was a gun in Hunt's hand.

McBrien yelled "gun" to alert the other officers. McBrien and

another officer who was at the scene grabbed Hunt, got him out

of the vehicle, and located the firearm.

When Dunn heard the yelling about a gun, he got out of the

police car, went back to the passenger side of the car, and told

Dooley to exit. Dooley did not initially comply, so the police

officers removed him from the car. Once Dooley was out of the

car, officers placed him on the sidewalk to handcuff him. As

they were doing so, Dunn saw that Dooley had a firearm in his

waistband, which the officers confiscated.

Discussion. 1. Equal protection claim. "Equal protection

jurisprudence encompasses two broad categories of rights, which

protect people against selective prosecution and selective

enforcement." Commonwealth v. Robinson-Van Rader, 492 Mass. 1,

16 (2023). Under the revised framework of Commonwealth v. Long,

485 Mass. 711, 724 (2020), the defendant has the burden of

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production on a motion to suppress, to establish a reasonable

inference that a traffic stop was motivated by racial bias. See

Robinson-Van Rader, 492 Mass. at 17. "If the defendant's motion

establishes such an inference, the defendant is entitled to a

hearing, at which the Commonwealth would bear the burden of

rebutting the inference." Long, supra. Here, the motion judge

convened an evidentiary hearing and required the Commonwealth to

establish that the stop of Hunt's car was not motivated by race. 3

The defendants argue that Dunn's license plate query in

this case was racially motivated because McBrien and Dunn

primarily patrolled in majority Black neighborhoods and, based

on this, were aware that most license plates they queried would

be owned by Black residents and therefore their stops would be

mostly of Black people. However, this effect does not establish

that the practice constitutes discriminatory "selective

enforcement."

"The Long test looks to the 'true' or 'subjective'

motivations of the officer at the time of the stop."

Commonwealth v. Stroman, 103 Mass. App. Ct. 122, 129 (2023),

3 On appeal, the Commonwealth does not challenge the judge's
determination that the defendants had met their burden of
production pursuant to Long, but instead the Commonwealth argues
that the Long analysis does not apply to the police running the
license plates of cars. That argument was not raised in the
trial court. Given our ultimate conclusion, we need not reach
the issue or decide whether it was waived.

6
quoting Long, 485 Mass. at 726-727. "In examining a claim of

selective enforcement, a reviewing judge must consider the

totality of the circumstances surrounding the claim." Robinson-

Van Rader, 492 Mass. at 20. The judge should consider the

following nonexclusive factors, along with any other relevant

evidence:

"(1) patterns in enforcement actions by the particular
police officer; (2) the regular duties of the officer
involved in the stop; (3) the sequence of events prior to
the stop; (4) the manner of the stop; (5) the safety
interests in enforcing the motor vehicle violation; and (6)
the specific police department's policies and procedures
regarding traffic stops" (footnotes omitted). Long, 485
Mass. at 724-725.

Here, based on several factors, the motion judge concluded

that the Commonwealth met its burden of showing that the stop

was not racially motivated. The judge found that the officers

did not know the race of the vehicle's occupants when they made

the stop because they could not see inside the vehicle, and that

the officers were on direct patrol and were running plates of

many vehicles throughout the night. The judge further found

that Officer Dunn ran Hunt's plate because it was his practice

to run the plates of every vehicle he encountered while on

patrol, not because he sought to target Black drivers.

The defendants do not challenge these findings but argue

that statistical evidence of the demographic makeup of the

neighborhood where Dunn was executing this practice suggests

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that, even if Dunn did not know the race of the occupants of the

vehicle before he ran the plate, he knew there was a high

likelihood that the driver or occupants of the vehicle would be

Black, and therefore it is possible to infer that Dunn's

practice amounted to unlawful racial profiling. In support,

Hunt cites State v. Segars, 172 N.J. 481, 496-497 (2002), for

the proposition that documentary evidence can rebut an officer's

claim that a stop was not motivated by race. In that case, the

New Jersey Supreme Court concluded that based on the documentary

evidence, the officer had "testified falsely" about his

legitimate motivations for running the defendant's plate and

that in fact he had unlawfully "checked [the defendant's] plate

because of his race."

Here, in contrast, while the statistical evidence may

suggest that the officers knew it was likely that the driver or

occupants of the vehicle would be Black, the judge specifically

credited Dunn's testimony that, in conducting the query and the

stop, he was not motivated by an intent to target Black drivers.

There is no credible evidence, as there was in Segars, that

compels us to conclude that the judge's factual determination

was clearly erroneous. Dunn was executing a permissible police

practice of checking the plates of every car he encountered.

Commonwealth v. Starr, 55 Mass. App. Ct. 590, 594 (2002) ("While

random police stops of motor vehicles to check licenses and

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registrations violate the Fourth Amendment, see Delaware v.

Prouse, 440 U.S. 648 [1979], random computer checks of number

plates do not"). And he was doing so in a neighborhood where he

had been directed by his supervisor to patrol for legitimate law

enforcement purposes. 4 Based on these facts, the judge

"carefully assess[ed] the officer or officers' credibility and

determine[d] -– 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," that the stop was made without "consideration of race"

(citations omitted). Stroman, 103 Mass. App. Ct. at 132. We

discern no clear error in the judge's factual findings or error

in his reasoning and conclusion.

2. Justification for the stop. Hunt also argues that,

notwithstanding Officer Dunn's motivation for the stop, he also

lacked the reasonable suspicion required for police to execute a

motor vehicle stop. "To justify a police investigatory stop

under the Fourth Amendment [to the United States Constitution]

or art. 14 [of the Massachusetts Declaration of Rights], the

police must have 'reasonable suspicion' that the person has

committed, is committing, or is about to commit a crime."

4 At oral argument, counsel for Hunt and counsel for Dooley
both confirmed that they are not arguing that directed patrol is
an unconstitutional police practice.

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Commonwealth v. Costa, 448 Mass. 510, 514 (2007), quoting

Commonwealth v. Lyons, 409 Mass. 16, 18-19 (1990). Reasonable

suspicion "must be based on specific and articulable facts and

reasonable inferences therefrom, in light of the officer's

experience." Commonwealth v. Wilson, 441 Mass. 390, 394 (2004).

In Massachusetts, "[o]peration of a motor vehicle . . . without

a proper license is a violation of law and an arrestable

offense" (citation omitted). Commonwealth v. Puac-Cuc, 97 Mass.

App. Ct. 590, 592 (2020). Absent any contrary evidence, the

police may "reasonably conclude that a vehicle is likely being

driven by its registered owner." Id., quoting Commonwealth v.

Deramo, 436 Mass. 40, 43 (2002).

Hunt argues that contrary evidence existed that diminished

the likelihood that Hunt, the registered owner, would be the

driver of the vehicle when the officers executed the stop.

Specifically, he relies on statistics from Officer Dunn's prior

stops. This information was drawn from FIO reports produced

when a police encounter lead to "a confrontation, an arrest,

[or] some kind of enforcement." Of the stops conducted by Dunn

that produced an FIO report, eighty-six percent of the time the

driver was not the registered owner of the car. Officer Dunn

testified, however, that in many circumstances an FIO is not

produced following a stop, and that of "regular car stops that I

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do every night, I'd say eight of 10 [of the drivers] are the

actual registered owner."

In Puac-Cuc, 97 Mass. App. Ct. at 593-594, we held that

officers may presume that a registered owner of a vehicle is

also the driver of the vehicle unless there are "facts known to

the officer that would have undermined the inference that the

driver was the vehicle's owner." Examples of facts that could

undermine the inference would be the driver's apparent age,

gender, or race not matching that of the registered owner.

Here, the motion judge found that data regarding the arresting

officer's personal prior experience was not enough to undermine

reasonable suspicion. The judge did not err in reaching this

determination, particularly where the data captured a small

sample of stops, was not shown to have statistical significance,

and did not account for Officer Dunn's experience executing

regular motor vehicle stops that did not result in an FIO

report. 5

5 We see no merit to Hunt's argument that the stop was
unduly prolonged. The officers' actions were reasonably
necessary to effectuate the purpose of the stop, which was based
on reasonable suspicion that Hunt was operating a vehicle with a
suspended license. After Hunt argued with McBrien that his
license situation was taken care of, McBrien invited Hunt to go
look at his cruiser's computer to see that the system was
showing the license was still suspended. Hunt agreed and it was
only after he returned to the car and reached for the
floorboards that the stop continued to a full-blown exit,
search, and arrest. Commonwealth v. Williams, 422 Mass. 111,
118 (1996) (defendant prolonged stop by trying to flee);

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3. Exit order. 6 An exit order is justified where "police

are warranted in the belief that the safety of the officers or

others is threatened" -– that is, "if officers have a reasonable

suspicion of a threat to safety." Commonwealth v. Torres-Pagan,

484 Mass. 34, 38 (2020). "We assess 'whether there were facts

and circumstances in the course of [the] particular traffic stop

that, viewed objectively, would give rise to "a heightened

awareness of danger" on the part of the [officer].'"

Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013),

quoting Commonwealth v. Stampley, 437 Mass. 323, 326 (2002).

"[I]t does not take much for a police officer to establish a

reasonable basis to justify an exit order or search based on

safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664

(1999).

We agree with the motion judge that the exit order issued

to Dooley was reasonably based on officer safety concerns. Dunn

was in the police car verifying Dooley's and his companion's

identifications when Hunt returned to his vehicle and got into

the driver's seat. Dunn saw McBrien and another officer go

Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 642 (2001)
(stop was "[p]rolonged by the defendant's conduct, [and] the
detention led to a plain-view observation of contraband
weapons").

6 The Commonwealth argues that Dooley is without standing to
object to the exit order. Because we conclude that the exit
order was proper, we need not reach the standing issue.

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headfirst into the driving compartment and saw a struggle. He

saw the officers grabbing Hunt and at approximately the same

time heard both officers yelling, "gun." As he saw this

struggle, Dunn ran over to the car and ordered Dooley and the

other occupant to "Get out of the car." Dooley did not exit

immediately so "he got ripped out of the car and put on the

sidewalk and placed into handcuffs." When Dooley was face down

on the sidewalk, Dunn saw a firearm in his waistband, which he

removed from Dooley.

A police officer in Dunn's position who saw a struggle

between two officers and a driver and at the same time heard

officers yelling "gun" would be warranted in believing that

there was a threat to the safety of everyone at the scene.

There was no error in finding that the exit order of Dooley was

justified. 7

Order denying motions to
suppress affirmed.

By the Court (Massing,
Shin & D'Angelo, JJ. 8),

Clerk
Entered: June 24, 2024.

7 Dooley argued in his opening brief that he was unlawfully
pat frisked. In his reply brief and at oral argument, however,
counsel for Dooley agreed that Dooley had not been pat frisked.

8 The panelists are listed in order of seniority.

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