Opinion
1884CR00453 1884 CR00469
01-18-2019
COMMONWEALTH v. Richard DILWORTH
OPINION
Robert L. Ullmann, Justice of the Superior Court
Reducing gun violence in Boston is a law enforcement priority and an important matter of public safety and health. In this endeavor, social media can serve as a valuable law enforcement tool. However, the U.S. Constitution and the Massachusetts Declaration of Rights require that race play no part in any decision by police to investigate or prosecute crime.
See, e.g., Heather Kelly, "Police Embrace Social Media as Crime-fighting Tool," CNN Business, August 30, 2012, https://www.cnn.com/2012/08/30/tech/social-media/fighting-crime-social-media/index.html (last visited 12/27/18).
1 See, e.g., City of Boston, "Regional Gun Buyback Program Part of Regional Gun Safety Collaboration," Dec. 15, 2017, https://www.boston.gov/news/regional-gun-buyback-program-part-regional-gun-safety-collaboration (last visited Jan. 2, 2019); Boston Children’s Hospital, "Gun Violence and Children: Why it’s a public health issue," Thriving, https://thriving.childrenshospital.org/gun-violence-children-issue (last visited Jan. 2, 2019).
See infra at Section A.
The defendant, Richard Dilworth ("Dilworth"), a black male, has made an initial, limited statistical showing suggesting that the Boston Police Department ("BPD") uses Snapchat as an investigative tool almost exclusively against black males. Dilworth seeks additional discovery that he believes may support a claim of racial discrimination in police use of Snapchat.
Dilworth’s motion seeks information, not a finding of discrimination or other wrongdoing by BPD, and this Court makes no such finding.
This Court held hearings on December 3, 2018 and January 3, 2019. For the below reasons, the Court finds that Dilworth has met the requirements for issuance of a summons under Rule 17 of the Massachusetts Rules of Criminal Procedure ("Mass.R.Crim.P. 17" or "Rule 17"), requiring BPD to produce additional information about its use of Snapchat as an investigative tool. However, the Court will limit the scope and time frame of Dilworth’s request to exclude documents related to ongoing investigations and reduce the burden on BPD of identifying and producing the requested information.
For purposes of this motion only, the parties stipulate to the facts set forth herein.
Snapchat is a social media app that enables users to share video and other content. Snapchat users create personal accounts. An existing Snapchat account can be accessed only by permission from the account holder. The account holder grants access to someone who wants to "follow" the account by "friending" the requestor. "Friends" generally have access to the account holder’s postings.
In or around October 2017, a BPD officer submitted a request through the Snapchat app to "follow" a Snapchat account with the username "youngrick44." The officer did not identify himself as a police officer, and he did not use either the name or photo of anyone known to Dilworth. Dilworth as "youngrick44" accepted the request and became "friends" with BPD officers, who were acting in an undercover capacity. While "following" the "youngrick44" account, officers viewed eight separate Snapchat videos of Dilworth, holding what appeared to be a firearm. There is no evidence that BPD gained access to the "youngrick44" account by hacking into the account or using any means other than "friending" Dilworth while acting in an undercover capacity.
On January 11, 2018, BPD officers arrested Dilworth and recovered a loaded Smith & Wesson revolver from Dilworth’s waistband. The District Attorney’s office charged Dilworth with multiple offenses arising out of seizure of the revolver. Docket No. 1884-CR-00453. After being released on bail, Dilworth was again seen on Snapchat by BPD officers holding what appeared to be a firearm. He was again arrested by Boston police, on May 11, 2018, in the possession of a firearm, this time a loaded Ruger pistol. The District Attorney’s office charged Dilworth with multiple offenses arising out of seizure of the pistol. Docket No. 1884-CR-00469.
In August 2018, in each of his two cases, Dilworth filed a request under Mass.R.Crim.P. 17 seeking training materials and protocols used by BPD in social media investigations. On October 24, 2018, BPD responded to the motion, stating that "the Department has no training materials relating to conducting investigations on social media platforms. Likewise, the Department has no policies, protocols, or procedures in place, written or otherwise, relating to the use of social media platforms in criminal investigations."
On October 31, 2018, in each of his two cases, Dilworth filed Defendant’s Motion for Discovery: Selective Prosecution pursuant to Mass.R.Crim.P. 14 (Filing # 12 in Docket No. 1884-CR-00453; Filing # 15 in Docket No. 1884-CR-00469). On November 26, 2018, in each of his two cases, Dilworth filed a motion seeking the same material pursuant to Mass.R.Crim.P. 17 (Filing # 16 in Docket No. 1884-CR-00453; Filing # 19 in Docket No. 1884-CR-00469). The motions seek "all police/incident reports or Form 26 reports generated by the Boston Police Department from June 1, 2016 to October 1, 2018 for investigations that involve the use of ‘Snapchat’ social media monitoring." The motions excluded "reports for investigations where the police have not yet arrested and charged the suspect." Dilworth subsequently modified his requests to exclude documents related to human trafficking investigations and sexual assault investigations.
In support of the motions, Dilworth submitted affidavits of his attorney, stating that counsel had conducted an "informal survey," sending questions to all Committee for Public Counsel Services ("CPCS") Public Defender Division staff attorneys in Suffolk County and some attorneys who serve as bar advocates in Suffolk County for indigent criminal defendants. Dilworth’s attorney estimated that these attorneys collectively are responsible for roughly 25% of the criminal cases that are prosecuted in Suffolk County. The questions included "if lawyers had ‘Snapchat’ cases, what the race of the defendant was, and whether the defendant was the person being targeted by the investigation." The affidavits further state that counsel received responses identifying defendants in 20 such cases. Of those cases, 17 of the defendants (85%) were black, and three (15%) were Hispanic. There were no non-Hispanic white defendants.
"Incident reports" or "police reports," also known as "1-1s," usually memorialize an initial investigation and arrest and are readily searchable within an electronic database. However, it is the practice of the BPD not to identify Snapchat in incident reports as the investigatory tool that was used, so a search of incident reports will not easily identify "Snapchat cases."
BPD’s use of Snapchat and other social media as an investigative tool has typically been memorialized in separate reports, known as Form 26 reports. These reports are prepared on a computer, and the officer who has used the social media submits the reports in paper form or electronically to that officer’s supervisor. Apparently, Form 26 reports cannot be electronically searched.
DISCUSSION
A. Despite the Absence of a Constitutional "Search," Dilworth Has a Viable Basis for His Discovery Request, Under Principles of Equal Protection
As an initial matter, this Court rejects the Commonwealth’s and BPD’s argument that the law on selective enforcement is not applicable here because the police use of Snapchat in this case was not a "search or seizure" for purposes of the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. See Comm. Br. at 4; BPD Br. at 5. The equal protection principles of the Fourteenth Amendment of the U.S. Constitution and articles 1 and 10 of the Massachusetts Declaration of Rights provide protections that are independent of the Fourth Amendment of the U.S. Constitution and article 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Lora, 451 Mass. 425, 436-37 (2008), citing Whren v. United States, 517 U.S. 806, 813 (1996). Therefore, a claim of discriminatory enforcement does not require the existence of conduct that constitutes a search or seizure for constitutional purposes. In United States v. Avery, 137 F.3d 343, 353 (6th Cir. 1997), the court considered it "established in this circuit that the Fourteenth Amendment protects citizens from police action, including the decision to interview an airport patron, based solely on impermissible racial considerations." In the view of that court, it was irrelevant for equal protection purposes that the police do not need probable cause or reasonable suspicion to interview travelers at an airport. By way of analogy, the Massachusetts Department of Revenue does not need probable cause or reasonable suspicion to audit a taxpayer, but it cannot devote its resources to pursuing one particular race, religion or ethic group. Police use of an investigative tool based on a suspect’s membership in a protected class violates the equal protection principles of the Fourteenth Amendment and arts. 1 and 10 of the Massachusetts Declaration of Rights.
"Comm. Br." refers to the Commonwealth’s opposition brief, and "BPD Br." refers to BPD’s opposition brief.
B. The Appropriate Rule for Dilworth’s Request is Mass.R.Crim.P. 17
The Defendant brings the present motions under Massachusetts Rules of Criminal Procedure 14 and 17. While Mass.R.Crim.P. 14(a)(2) allows a defendant to obtain evidence "within the possession, custody, or control of the prosecutor or persons under his direction or control, it is Mass.R.Crim.P. 17(a)(2) ... that allows the defendant to summons books, papers, documents, or other objects from third parties." Commonwealth v. Thomas, 451 Mass. 451, 456 (2008) (internal quotations and additional citation omitted).
The Commonwealth and BPD each argue that the respective rule under which it would be required to provide discovery (Rule 14 for the Commonwealth; Rule 17 for BPD) is not applicable to Dilworth’s request. See Comm. Br. at 8-11; BPD Br. at 3-5. Although some of the documents sought by Dilworth may well be in the possession, custody or control of the prosecutor assigned to this case and those under her direction or control, the request is directed to BPD as a department, not to any team of prosecutors and agents. As such, Rule 17(a)(2), allowing a party to summons documents from third parties, is the appropriate vehicle for requesting the documents that Dilworth seeks. See Commonwealth v. Dwyer, 448 Mass. 122, 140 n.22 (2006) ("Pretrial access to the records of third parties can be obtained only on a judicial order authorizing the issuance of a rule 17(a)(2) summons") (emphasis in original); Thomas, 451 Mass. at 454-55 (where defendant was pulled over by State Trooper, materials in the possession of the colonel of State police were not discoverable under Rule 14(a)(1) because the colonel was not "part of the prosecution of the defendants’ cases"). The issue for this Court is whether Dilworth has made a sufficient showing under Mass.R.Crim.P. 17(a)(2) to support issuance of a summons for the records that he has requested.
C. Dilworth Has Met the Standard for Issuance of a Summons to BPD for the Requested Information, but the Requested Scope and Time Frame Shall be Narrowed to Exclude Documents Related to Ongoing Investigations and Reduce the Burden on the Department
To obtain documents under Mass.R.Crim.P. 17(a)(2), the party seeking the documents must make a threshold showing that the evidence sought is material and relevant. Thomas, 451 Mass. at 456. Consistent with federal case law under the analogous federal rule of criminal procedure, the Supreme Judicial Court has adopted a four-part test, which requires the defendant to show "(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’" Commonwealth v. Lampron, 441 Mass. 265, 269 (2004), quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974) (internal quotation marks omitted). If these four requirements are met, the Court must consider and balance the burden on the Commonwealth of responding to the request. See Commonwealth v. Bernardo B., 453 Mass. 158, 174 (2009) (request "may not impose undue burdens on the Commonwealth").
To meet the threshold showing, which is also the first part of the four-part test under Lampron, Dilworth must present reliable information, in affidavit form, demonstrating a reasonable basis to infer that racial profiling may have been the basis for his having been targeted by police for investigation via Snapchat. See Commonwealth v. Betances, 451 Mass. 457, 461-62 (2008) (required preliminary showing "must contain reliable information in affidavit form demonstrating a reasonable basis to infer that profiling, and not a traffic violation alone, may have been the basis for the vehicle stop"). At this stage, Dilworth need not present evidence that would raise an inference that he was, in fact, selectively targeted for investigation. As the Supreme Judicial Court noted in Bernardo B., supra, such a requirement would put defendants in a Catch-22 situation. 453 Mass. at 169 (party not required to present evidence raising" ‘reasonable inference, based on credible evidence, ’ that the defendant himself was selectively prosecuted," because such a standard "would place criminal defendants in the untenable position of having to produce evidence of selective enforcement in order to obtain evidence of selective enforcement").
Dilworth has presented, in affidavit form, the results of an informal survey of criminal defense attorneys in Suffolk County as to the race of their clients in cases in which BPD used Snapchat as an investigative tool. The threshold issue for this Court is whether this statistical showing is sufficient to create an inference that Dilworth’s race may possibly have been a factor in initially targeting him for use of Snapchat as an investigative tool. This is not a case in which the defendant has shown that a person of a different race similarly situated to him was treated more favorably by law enforcement than he was treated. Contrast Bernardo B., 453 Mass. at 161, 173 (minor male defendant prosecuted for sex crimes resulting from consensual acts with minor females, who were not prosecuted). Therefore, at this juncture, a statistical showing is Dilworth’s only vehicle to obtain information about alleged discriminatory use of Snapchat.
Dilworth was charged in case No. 1884-CR-00469 after he was released on bail in case No. 1884-CR-00453, and police officers apparently viewed him again on Snapchat brandishing a firearm. The Court questions whether any statistical showing could defeat the inference that Dilworth was targeted after his first indictment not because of his race, but because he had recently been indicted for unlawful possession of a loaded firearm.
The survey of Suffolk County criminal defense lawyers conducted by Dilworth’s counsel has identified 20 instances in which BPD used Snapchat as an investigative tool. Of these 20 instances, 17 of the defendants (85%) are black, three defendants (15%) are Latino/Hispanic, and none are white. One’s reaction to whether this statistical showing suggests the possibility of selective enforcement based on race might depend in part on one’s overall trust or distrust of the criminal justice system. However, this Court cannot rule based on conjecture, positive or negative, about the motivation for police conduct.
The Court recognizes the presumption of regularity and good faith that attaches to prosecutor and police conduct under our laws. See Lora, 451 Mass. at 437. However, "[n]otwithstanding the presumption of regularity that attaches to prosecutorial decisions, judicial scrutiny is necessary to protect individuals from prosecution based on arbitrary or otherwise impermissible classification." Bernardo B., 453 Mass. at 168. The racial composition of the defendants in the 20 cases identified by Dilworth differs dramatically from the racial composition of Boston’s population as a whole. Whereas non-Hispanic whites, blacks and African Americans, and Latinos/Hispanics are respectively 44.9%, 25.3% and 19.4% of the Boston population according to recent U.S. Census estimates, non-Hispanic whites, blacks and African Americans, and Latinos/Hispanics are respectively 0%, 85% and 15% of the cases identified by Dilworth’s counsel.
See United States Census Bureau, QuickFacts: Boston city, Massachusetts, www.census.gov/quickfacts/bostoncitymassachusetts (last visited Jan. 8, 2019).
The Supreme Judicial Court has encouraged lawyers to make statistical showings under the so-called Lora framework where selective enforcement is suspected. See Commonwealth v. Buckley, 478 Mass. 861, 871 (2018) ("We take this opportunity to encourage lawyers to use the Lora framework in cases where there is reason to believe a traffic stop was the result of racial profiling"). Buckley involved a traffic stop, in which Fourth Amendment and article 14 protections apply. However, for the above-stated reasons, this Court concludes that equal protection principles are equally applicable in the context of police investigations that do not require showings of probable cause or reasonable suspicion. See supra at Section A. As a logical corollary to this conclusion, this Court reads Buckley to encourage use of the Lora framework beyond traffic stops to include challenges to police activity in the context presented here, i.e., use of social media as an investigative tool.
On the record before this Court, the defendant has made an initial statistical showing of racial disparity and the Commonwealth has not offered any explanation as to why Dilworth was initially targeted for Snapchat monitoring. Because BPD has no policies, procedures or protocols for its use of social media as an investigative tool, the explanation cannot be that BPD was complying with a written policy. In the absence of a BPD policy or procedure and a representation of compliance with that policy or procedure, or some other explanation as to why BPD initially targeted the defendant, Dilworth, the public and this Court can only speculate as to why police initially selected Dilworth as a suspect to be "friended" on Snapchat.
Police department use of social media to investigate crime is not a new phenomenon, having been utilized by police for at least 10 years. See Kelly, supra note 2.
In at least one other context, that of inventory searches, compliance with a written policy provides a legitimate basis for police activity that would otherwise not be constitutional. See Commonwealth v. Ellerbe, 430 Mass. 769, 773 n.8 (2000); Commonwealth v. Allen, 76 Mass.App.Ct. 21, 24 (2009).
The Court recognizes that it has no authority to compel BPD to create any policy, procedure or protocol.
In its opposition memorandum, the Commonwealth relies on two cases in which the Supreme Judicial Court vacated trial court orders for production of documents pertaining to alleged discriminatory enforcement, Betances, supra, and Thomas, supra. However, both cases are readily distinguishable from this case. In Betances, the defendant sought information about a trooper’s prior motor vehicle stops as mandatory discovery, and the Supreme Judicial Court concluded that the information sought was not "subject to a[n] order to furnish automatic and mandatory discovery under rule 14(a)(1)(A)." Betances, 451 Mass. at 459-61. Were it otherwise, the Court reasoned, "an arresting officer’s motor vehicle citations, or traffic stop reports, would routinely be demanded in every case involving the traffic stop of a minority driver." Id. at 461. Here, Dilworth makes no argument that the documents he seeks should have been provided mandatorily. Additionally, the Court in Betances concluded that the defendant had not made the preliminary showing that would be required for the type of discovery he sought, as the defendant’s showing was limited to two police reports in which the trooper had pulled over one black motorist and one Cuban-born motorist in the area where the defendant was pulled over. Id. at 461-62. Here, survey data covering 20 matters provides a more extensive showing.
See Comm. Br. at 6, 10. BPD also relies on Betances in its opposition brief. See BPD Br. at 5.
In Thomas, as in Betances, the defendants sought materials on alleged selective enforcement as mandatory discovery. Thomas, 451 Mass. at 453. Moreover, in Thomas the defendants sought, with regard to the trooper who pulled them over, the trooper’s "citation books, audit sheets, and ‘any other information’ concerning whether [the trooper] had engaged in ‘profiling, stereotypical thinking and hunches, or [had] used dubious investigative techniques’" over an approximate six-year time period. Id. In reversing the trial court’s discovery order, the Supreme Judicial Court concluded that some of the requested materials were not in the possession of the prosecution team, and also concluded that the "vague and overbroad" request impermissibly ordered the Commonwealth to conduct statistical analyses and make legal evaluations about unspecified "other information" that may or may not have been relevant. Id. at 454-55. Here, by contrast, the Defendant has requested a well-defined set of documents for a specified purpose, such that the request can reasonably be carried out by BPD.
The Court further notes that the request in Thomas targeted the long-term history of a particular trooper, whereas the defendant in this case seeks information covering a shorter time frame about the broader practices of BPD.
Having found that the requested documents are material and relevant to Dilworth’s defense, the Court further finds that Dilworth has satisfied the other three requirements for issuance of a summons under Lampron. As to the first other requirement, the requested documents "are not otherwise procurable reasonably in advance of trial by exercise of due diligence." Lampron, 441 Mass. at 269. Dilworth cannot obtain the requested documents without a summons. His counsel already made an attempt to do so with only partial success, through the informal survey described herein. Only BPD has access to all of the documents that will be covered by the subpoena.
As to the second other requirement, Dilworth may have a constitutional challenge to the charges against him, and may waive his right to assert the challenge if he does not litigate the issue before trial. Therefore, he "cannot properly prepare for trial without such production and inspection in advance of trial." Id.
As to the third additional requirement, the Court has found that the requested information is relevant to Dilworth’s claim that BPD may be using Snapchat in a discriminatory way. See supra at 10-12. In this context, the fact that Dilworth does not know what the requested records will reveal does not render the request a "fishing expedition" because, as noted above, requiring a more detailed showing would put Dilworth in the "untenable position of having to produce evidence of selective enforcement in order to obtain evidence of selective enforcement." Bernardo, B., 453 Mass. at 169. Therefore, the Court finds that "the application is made in good faith and is not intended as a general ‘fishing expedition.’" Lampron, 441 Mass. at 269.
This Court has fully considered Supreme Judicial Court holdings that "rule 17(a)(2) is not a discovery tool ... Rather, it is intended to expedite trial proceedings ..." Commonwealth v. Jones, 478 Mass. 65, 68 (2017) (internal quotations and additional citations omitted), and cases cited therein. However, an overly restrictive reading of Rule 17(a)(2) in this context would undermine the Supreme Judicial Court’s encouragement to defendants that they employ the Lora framework to ferret out whether or not discrimination has played any role in law enforcement decisions about whom to investigate or prosecute. See Buckley, 478 Mass. at 871.
Because Dilworth has satisfied the four-part test for issuance of a summons pursuant to Mass.R.Civ.P. 17, the Court must consider the burden that would be imposed on BPD in collecting the Forms 26 covered by the summons. Because Forms 26 apparently are not stored electronically, BPD cannot comply with a summons by performing an electronic word search. Most likely, BPD will need to canvas the supervisory officers in the Department to whom Forms 26 are submitted.
To avoid the production of documents related to ongoing investigations and any undue burden on BPD in complying with this request, and recognizing the possibility of additional requests, the Court will limit both the scope and the time frame of the documents that BPD must produce.
As to scope, BPD will be required to produce Forms 26 only in those cases where the defendant has been charged. In all such cases, any Form 26 that references the use of Snapchat (indeed, all relevant Forms 26) should already have been produced to the defendants in those cases as part of the automatic discovery in those cases. Further, Dilworth voluntarily narrowed his initial request to exclude human trafficking investigations and sexual assault investigations. This Court will also exclude murder investigations, which raise similar issues to human trafficking and sexual assault investigations and often involve voluminous paperwork.
As to time frame, instead of producing Forms 26 for a more than two-year period, as requested by Dilworth, BPD will be required to produce such forms created during the one-year period from August 1, 2017 to July 31, 2018. This time frame begins roughly two months before police "friended" Dilworth on Snapchat and ends roughly two months after his second arrest.
The one-year set of BPD reports that this Court will summons may reveal a less dramatic discrepancy by race in police use of Snapchat than the 20 cases presented to the Court. Moreover, even if the racial composition of this broader set mirrors the racial composition of the 20 cases presented to this Court, a race-neutral explanation for this discrepancy may well defeat Dilworth’s equal protection claim. See Castaneda v. Partida, 430 U.S. 482, 493 (1977) ("an official act is not unconstitutional solely because it has a racially disproportionate impact"). However, the documents covered by the summons are material and relevant, and they will assist the Court in resolving Dilworth’s claim.
While the Supreme Judicial Court has said that its analysis of racial discrimination in jury selection "is the same under the Federal Constitution and the Declaration of Rights," Commonwealth v. Long, 419 Mass. 798, 806 (1995), the parties do not cite and this Court has not found any case in which the Supreme Judicial Court has articulated this principle in the context of alleged selective enforcement by police.
CONCLUSION AND ORDER
For the above reasons, Dilworth’s motions pursuant to Mass.R.Crim.P. 17 (Filing # 16 in Case No. 1884-CR-00453 and Filing # 19 in Case No. 1884-CR-00469) are ALLOWED, as modified herein, and his motions pursuant to Mass.R.Crim.P. 14 (Filing # 12 in Case No. 1884-CR-00453 and Filing # 15 in Case No. 1884-CR-00469) are DENIED. A summons will issue directing the Boston Police Department to submit to the Clerk of the Court within 45 days of this Order all Form 26 reports prepared by any officer or other employee of the Boston Police Department between August 1, 2017 and July 31, 2018 that reference the use of Snapchat as an investigative tool in any case in which the subject of Snapchat monitoring has been charged with any offense related to that monitoring. Documents related to human trafficking investigations, sexual assault investigations and murder investigations will not be covered by the summons.