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Commonwealth v. Dilworth

Superior Court of Massachusetts, Suffolk

January 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.[1] In this endeavor, social media can serve as a valuable law enforcement tool.[1] 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.[2]

          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.[3]

         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.

          RELEVANT FACTS[4]

          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.[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 ...


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