The defendants were the subject of a prolonged narcotics investigation that included the issuance of numerous wiretap warrants issued pursuant to G. L. c. 272, § 99. Defendant Anthony Flores has filed a Motion to Suppress Evidence Seized as the Result of an Equal Protection Violation ("Long motion") [Paper No. 34] and the remaining defendant have moved to join. Commonwealth v. Long, 485 Mass. 711 (2020). All defendants, except for Zachary Laporte, are Hispanic/Latino. Defendants Hector Arriaga, Rafael Mejias, Luis Rosaly Febo, Juan Troncoso Garcia, and Zachary LaPorte have moved to join in the motion to suppress. All motions to join, except for Defendant Laporte 's motion [Paper No. 57], have been allowed with no objection by the Commonwealth. In his motion, Flores has presented data suggesting that the wiretap warrants procured by the Middlesex District Attorney's Office heavily targets Hispanic/Latino suspects.
This matter has not reached Stage 1 of the Long protocol as defendants are seeking additional discovery. Additionally, there is a disagreement between the parties as to whether
-1-
Long applies to wiretap warrant demographics. On October 23, 2025, the Court (Haggan, J.) allowed Flores's Motion for Discovery of Demographics of Wiretap Targets in part, ordering the Commonwealth to provide the requested information for a five-year period. Flores had requested data over a ten-year period. On May 4, 2026, Flores moved for supplemental discovery specifically requesting ten years of data, noting that in the Commonwealth's opposition to his Long motion [Paper No. 36], it argued, inter alia, that the data set was too small to be meaningful. The Commonwealth filed an opposition to Flores's motion for supplemental discovery, arguing that the defendant have failed to meet their burden to establish selective enforcement under Commonwealth v. Franklin, 376 Mass. 885 (1978).
The issue before me is what standard applies to allegations of equal protection violations in securing wiretap warrants. The defendants assert that this issue is a natural expansion of Commonwealth v. Long, and reference Commonwealth v. Van Rader, 492 Mass. 1 (2023), and Commonwealth v. Dilworth, 494 Mass. 579 (2024), as examples of the Court expanding the application of Long beyond car stops. The Commonwealth disagrees and asserts that the more stringent standard set out in Commonwealth v. Franklin for claims of selective enforcement applies here.
This decision will address: 1) the appropriate standard for equal protection claims as they apply to wiretap violations; and 2) whether Zachary Laporte, who does not allege to be part of a protected class, has grounds to join in the equal protection violation claim.
BACKGROUND
In April 2021, members of the Lowell Police Department began investigating the alleged distribution of illegal narcotics by Hector Arriaga and others whom they believed to be his associates. This investigation continued through December of 2022.
-2-
In October 2022, in connection with this investigation, the Commonwealth applied for and received the first of several wiretap warrants pursuant to G. L. c. 272, § 99. Police sought permission to intercept communications from two phones belonging to Arriaga, the main target of the investigation. Police sought court approval to monitor and record relevant phone calls and text messages and to receive access to real time GPS, cell site location and ping information for the phones. Based upon information obtained directly and indirectly from the authorized interceptions, the above-named defendants and others were indicted for various offenses relating to the distribution of illegal narcotics, conspiracy to violate drug laws, and other offenses.
The defendants previously moved to suppress evidence procured through the wiretaps asserting that the applications did not establish probable cause and failed to comply with the requirements of G. L. c. 272, § 99. That motion was denied by Campbell, J. on June 14, 2024 in a 49-page decision.
DISCUSSION
I. Appropriate Standard for Equal Protection Claim
The defendants have moved to suppress evidence seized pursuant to the court-authorized interceptions of communication on equal protection grounds. It is undisputed that the defendants have a right to be protected from selective enforcement of the laws. The defendants assert that when analyzing their claim, the Court should apply the less stringent equal protection standard set forth in Long, 485 Mass. at 723-725. Under the Long standard, the defendant must establish a reasonable inference of discriminatory motive before the burden shifts to the Commonwealth to show non-discrimination. Id. at 725. The Commonwealth has opposed the application of the Long standard to the defendants' equal protection claim. The Commonwealth asserts that a selective enforcement claim arising out of the use of wiretap warrants requires evaluation under
-3-
the more rigorous, three-part test set forth in Commonwealth v. Franklin, 376 Mass. 885, 894 (1978).
Equal protection jurisprudence protects people against selective prosecution and selective enforcement. Selective prosecution refers to the decision to charge a person with a crime based upon impermissible criteria such as race, national origin, or gender, resulting in a greater number of convictions of persons who share that characteristic compared to similarly situated persons who do not. See Commonwealth v. Bernardo B., 453 Mass. 158, 167-169 (2009). Selective enforcement refers to law enforcement practices that unjustifiably target an individual for investigation based on the individual's race or other protected class. See Commonwealth v. Lora, 451 Mass. 425, 436-437 (2008). Claims of discriminatory police investigative practices involve selective enforcement.
Prior to the Supreme Judicial Court's decision in Long, all equal protection challenges required review under a tripartite burden. In Long, 485 Mass. at 723-725, the Court revised the standard by which a defendant can establish a claim of selective enforcement as it applied to traffic stops, explaining that "it is clear that Lora has placed too great an evidentiary burden on defendants. The right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy." Id. at 721. In Van Rader, the Supreme Judicial Court held that the equal protection standard established in Long for traffic stops "applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices." 492 Mass. at 18. The Court has since clarified that the Long standard applies to allegations of discriminatory police actions in the investigatory phase of a case, including warrantless covert monitoring of social media accounts.
-4-
Commonwealth v. Dilworth, 494 Mass. at 587; Commonwealth v. Rodriguez, 496 Mass. 627,634 (2025).
The Court in Van Rader distinguished review of "street level police investigations" from decisions made by prosecutors which implicate "the discretionary authority of the executive branch to enforce the criminal laws" and enjoy a presumption of regularity that limits judicial scrutiny of certain executive branch decisions. 492 Mass. at 19. While the presumption of regularity applies to charging decisions by both police officers and prosecutors, it does not apply to street-level police investigations. Id.
In this case there are applications for wiretap warrants, which can only be made by the attorney general, an assistant attorney general specially designated by the attorney general, a district attorney, or an assistant district attorney specially designated by the district attorney. G.L. c. 272, § 99. That wiretap must then be issued by a judge of competent jurisdiction. Id. An application for a wiretap warrant must establish not only probable cause that a designated offense has been, is being, or is about to be committed and that intercepted communications would provide evidence of such offenses, but also that (1) such offense has been committed in connection with organized crime, and (2) that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried before resorting to a wiretap. G.L. c. 272, § 99(A). Organized crime "consists of a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." G. L. c. 272, § 99(A). A Superior Court judge determined that the standard was met here and issued the warrants. A second judge heard the defendants' challenge to the issuance of the warrants and decided that the requirements to issue the warrant were sufficiently met.
-5-
The decision to apply for a wiretap warrant is better categorized as a prosecutorial decision, not a street-level police action. Prosecutorial decisions enjoy a presumption of good faith. Bernardo B., 453 Mass. at 167. "Because we presume that criminal prosecutions are undertaken in good faith, without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement." Lora, 451 Mass. at 437. However, this discretion is not unbounded and a prosecutor's decision to proceed against a class of defendants based on membership in a protected class is prohibited. Id. at 167-168. The presumption that criminal prosecutions are undertaken in good faith and without intent to discriminate logically extends to a prosecutor's decision to apply for a wiretap warrant. Because that presumption applies, the defendant bears the initial burden of demonstrating selective prosecution as set forth in Commonwealth v. Franklin, 376 Mass. at 895.
To bring a claim of selective prosecution, the defendant bears the initial burden to "'present evidence which raises at least a reasonable inference of impermissible discrimination,' including evidence that 'a broader class of persons than those prosecuted violated the law, ... that failure to prosecute was either consistent or deliberate, ... and that the decision not to prosecute was based on an impermissible classification such as race, religion, or sex."' Lora, 451 Mass. at 437, quoting Franklin, 376 Mass. at 894. Once a defendant has made this prima facie showing, "the Commonwealth must rebut that inference or suffer dismissal of the underlying complaint." Id. at 438 quoting Franklin, 376 Mass. at 895.
The defendants' motion to suppress based on an equal protection violation is DENIED WITHOUT PREJUDICE. Defendants may still pursue a challenge for selective prosecution under the Franklin standard.
-6-
II. Defendant Zachary Laporte's Motion to Join Co-Defendant's Long Motion
In the event that the defendants pursue a challenge for selective prosecution, the issue of Laporte's standing to challenge the wiretaps under the theory of an equal protection violation remains. Regardless of the applicable standard for the equal protection standard, the challenge involves allegations of disproportionate targeting of Hispanic/Latino individual by the Middlesex District Attorney's Office. Laporte is not Hispanic/Latino or part of an identified protected class, and has moved to join asserting that the evidence of his culpability is the "fruit of the poisonous tree."
The fruit of the poisonous tree doctrine does not protect a defendant where the constitutional violation was against someone else. In Commonwealth v. Manning, the Court held that Defendants could not successfully rely upon the unlawful arrest of an informant, whose statements were then used in an affidavit for a search warrant of their apartment, to suppress evidence seized. 406 Mass. 425, 428 (1990). A constitutional violation against a third party does not trickle down to exclude evidence against the defendant, even if the violation led to evidence that was used against him.
ORDER
The Court finds that the appropriate standard when challenging wiretap warrants under equal protection grounds is the three-part test articulated in Commonwealth v. Franklin. The defendants may pursue such a motion under the Franklin standard. However, if such a motion is filed, Defendant Zachary Laporte does not have standing to join the motion.
Defendants' Motion to Suppress Evidence Seized as the Result of Equal Protection Violation is DENIED WITH OUT PREJUDICE and can be refiled under the Franklin
-7-
standard. The Court has not addressed the merits of Defendant's claim of an equal protection violation. Defendant Laporte 's Motion to Join is DENIED.
/s/Keren E. Goldenberg
Justice of the Superior Court
June 9, 2026