Search and seizure – Social media – Selective enforcement

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Where a defendant moved to suppress evidence obtained as a result of an undercover officer’s monitoring of the defendant’s Snapchat account, an order denying the motion should be vacated because the defendant successfully raised a reasonable inference of selective enforcement under the “totality of the circumstances” test articulated in Commonwealth v. Long, 485 Mass. 711, 724-725 (2020).

“A member of the Lowell police department’s gang unit created an undercover profile on the social media platform Snapchat. After becoming Snapchat ‘friends’ with the defendant, the officer observed a video recording posted by the defendant on Snapchat in which the defendant is seen discharging a firearm out the window of a car. The defendant was subsequently charged with and ultimately pleaded guilty to various firearms-related offenses. At issue on appeal are two questions. The first question is whether the defendant produced sufficient evidence to raise a reasonable inference that the officer’s Snapchat investigation of the defendant was racially motivated, such that a District Court judge erred in denying the defendant’s motion to suppress evidence obtained in violation of his equal protection rights. The second question is whether the Commonwealth’s then-current resident firearm licensing scheme under which the defendant was charged was facially violative of the Second Amendment to the United States Constitution, such that another District Court judge erred in denying the defendant’s motion to dismiss the firearms charges.

“We hold as follows. First, the defendant successfully raised a reasonable inference of selective enforcement under the ‘totality of the circumstances’ test articulated in Commonwealth v. Long, 485 Mass. 711, 724-725 (2020). We therefore remand for a further evidentiary hearing at which the Commonwealth will have the burden of rebutting the inference of selective enforcement by establishing a race-neutral reason for the officer’s enforcement conduct. Second, the defendant has failed to establish that the Commonwealth’s resident firearm licensing scheme was facially unconstitutional. We therefore affirm the denial of the defendant’s motion to dismiss the firearms charges. …

“The defendant advances two principal arguments on appeal. First, the defendant argues that the second judge erred in denying his motion to suppress because, under the ‘totality of the circumstances’ test articulated in Long, 485 Mass. at 724-725, there exists a reasonable inference that Krug’s monitoring of the defendant’s Snapchat account was motivated at least in part by race. Second, the defendant argues that the third judge erred in denying his motion to dismiss because under the ‘historical tradition’ test articulated in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (Bruen), the restrictions on resident license issuance embodied in §131(d) rendered the criminalization of unlicensed possession embodied in §10(a)(2) facially unconstitutional and therefore void. …

“In short, the defendant’s claim that his Snapchat account was monitored at least in part because of race falls squarely within the scope of Long‘s selective enforcement framework. Therefore, we evaluate the ‘totality of the circumstances’ to determine whether the defendant has established ‘a reasonable inference that [Krug’s] decision to [monitor the defendant’s Snapchat account] was motivated by race.’ …

“In sum, the defendant has met his initial burden of ‘produc[ing] evidence upon which a reasonable person could rely to infer that the officer discriminated on the basis of the defendant’s race.’ … However, an equal protection violation will not be established unless the Commonwealth fails to ‘rebut the reasonable inference that the [enforcement conduct] was motivated at least in part by race.’ … Accordingly, it is now the Commonwealth’s burden to rebut the defendant’s initial inference of selective enforcement by ‘establishing a race-neutral reason’ for monitoring the defendant. …

“We now address the defendant’s argument that certain firearms charges should have been dismissed because the resident firearm licensing scheme then in effect facially violated the Second Amendment right to keep and bear arms. … We conclude that the Commonwealth’s resident firearm licensing scheme under which the defendant was charged was not facially unconstitutional under Bruen, because at least some of its applications — in particular, to felons and persons convicted of violent crimes — were constitutionally valid. …

“In short, the prohibition on firearm possession by felons or violent criminals embodied in §10(a)(2) and §131(d)(i) is consistent with the Second Amendment. Whatever else may be said about the Commonwealth’s resident firearm licensing scheme under which the defendant was charged, at least ‘some of its applications’ were constitutional. … Because a facial challenge succeeds only if the defendant ‘establish[es] that no set of circumstances exists under which [the challenged scheme] would be valid’ …, the defendant’s facial challenge to the Commonwealth’s resident firearm licensing scheme fails. …

“The defendant successfully raised a reasonable inference of selective enforcement in violation of his equal protection rights. We therefore vacate the order denying his motion to suppress and remand that matter to the District Court for a further evidentiary hearing pursuant to Long, 485 Mass. at 724, at which the Commonwealth will have the burden of rebutting that reasonable inference. However, the defendant did not succeed in his facial challenge to the Commonwealth’s resident firearm licensing scheme. Therefore, we affirm the order denying the motion to dismiss.”

Commonwealth v. Rodriguez (Lawyers Weekly No. 10-110-25) (29 pages) (Gaziano, J.) A pretrial motion to suppress evidence was heard by Zachary M. Hillman, J.; a motion to dismiss was heard by John F. Coffey, J., and conditional pleas of guilty were accepted by him. Nancy Dolberg on appeal for the defendant; Aaron J. Staudinger for the commonwealth; Maithreyi Nandagopalan, of New Mexico, and Mason A. Kortz submitted a brief for Innocence Project and others, amici curiae; Katharine Naples-Mitchell and Joshua M. Daniels, for Massachusetts Association of Criminal Defense Lawyers and another, amici curiae, submitted a brief (Docket No. SJC-13727) (Sept. 30, 2025).

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