Does Commonwealth v. Long Apply to Massachusetts Wiretap Warrants? A Middlesex Superior Court Says No

A recent Middlesex Superior Court decision addresses an important and still-developing question in Massachusetts equal-protection law: does the framework established in Commonwealth v. Long, 485 Mass. 711 (2020), apply when defendants claim that prosecutors disproportionately targeted Hispanic or Latino suspects for wiretap surveillance?

In a June 9, 2026 decision involving defendants Anthony Flores, Hector Arriaga, Rafael Mejias, Luis Rosaly Febo, Juan Troncoso Garcia, and Zachary Laporte, Judge Keren E. Goldenberg concluded that it does not.

The court held that a prosecutor’s decision to apply for a wiretap warrant under G.L. c. 272, § 99 is better characterized as a prosecutorial decision than as a street-level police investigative act. As a result, the defendants could not proceed under the less demanding equal-protection framework announced in Long. Instead, they were required to proceed under the selective-prosecution standard set out in Commonwealth v. Franklin, 376 Mass. 885, 894-895 (1978).

That distinction matters because the two standards impose very different burdens on a criminal defendant.

The defendants challenged racial disparities in wiretap targeting

The case arose from a lengthy Lowell narcotics investigation that began in 2021 and eventually led to multiple wiretap warrants under G.L. c. 272, § 99.

Anthony Flores filed a motion to suppress on equal-protection grounds, supported by data that he argued suggested the Middlesex District Attorney’s Office disproportionately sought wiretaps against Hispanic or Latino suspects. The other defendants, with one exception, were Hispanic or Latino and sought to join the motion.

The defendants argued that the claim should be analyzed under Commonwealth v. Long, 485 Mass. 711 (2020), and later cases expanding Long beyond traffic stops. The Commonwealth argued that the claim was really one of selective prosecution and therefore governed by Commonwealth v. Franklin, 376 Mass. 885 (1978).

Judge Goldenberg agreed with the Commonwealth.

What is the Long standard in Massachusetts?

Long changed the way Massachusetts courts analyze certain equal-protection claims involving discriminatory police enforcement.

Under Long, a defendant does not initially have to prove the entire constitutional violation. Instead, the defendant must present evidence supporting a reasonable inference that the challenged police action was motivated at least in part by race or another protected characteristic. If that initial showing is made, the burden shifts to the Commonwealth to provide a race-neutral explanation. See Commonwealth v. Long, 485 Mass. 711, 723-725 (2020).

The Supreme Judicial Court later made clear that Long is not limited to traffic stops.

In Commonwealth v. Van Rader, 492 Mass. 1, 18 (2023), the SJC held that the framework applies to pedestrian stops, threshold inquiries, and other selective-enforcement claims involving police investigative practices. The Superior Court also relied on Commonwealth v. Dilworth, 494 Mass. 579, 587 (2024), and Commonwealth v. Rodriguez, 496 Mass. 627, 634 (2025), as examples of the continued application of Long to discriminatory police action during the investigative phase of a criminal case.

The defendants therefore argued that wiretap targeting was simply another form of police investigation and should be treated the same way.

Why the court applied Franklin instead of Long

The Superior Court drew the line at the decision to seek the wiretap itself.

Massachusetts law does not permit an ordinary police officer to apply directly for a wiretap warrant. Under G.L. c. 272, § 99, the application must be made by the Attorney General, a specially designated assistant attorney general, a district attorney, or a specially designated assistant district attorney. A judge must then determine whether the statutory requirements for the wiretap have been met.

Judge Goldberg concluded that this statutory structure makes the decision to seek a wiretap fundamentally different from a street-level police decision.

The court wrote that the decision to apply for a wiretap warrant is “better categorized as a prosecutorial decision, not a street-level police action.”

That characterization was decisive.

The SJC has recognized that prosecutorial decisions receive a presumption of regularity and good faith because they implicate executive-branch discretion in the enforcement of criminal laws. By contrast, that same presumption does not apply in the same way to ordinary street-level investigative decisions.

Because the court treated the wiretap application as prosecutorial rather than investigative, it held that the defendants had to proceed under Commonwealth v. Franklin, 376 Mass. 885, 894-895 (1978).

What is the Franklin selective-prosecution standard?

The Franklin framework imposes a more demanding initial burden.

A defendant claiming selective prosecution must present evidence supporting a reasonable inference of impermissible discrimination. That generally includes evidence that a broader group of similarly situated people violated the law, that the government consistently or deliberately declined to proceed against some of them, and that the difference in treatment was based on an impermissible classification such as race, religion, or sex.

Only after the defendant makes that prima facie showing does the burden shift to the Commonwealth.

That is why the distinction between Long and Franklin is so important. The question is not simply what label applies to the claim. The choice of framework can determine whether the defendant can realistically get the claim to an evidentiary hearing at all.

The Superior Court denied the defendants’ motion without prejudice, meaning they were still permitted to pursue an equal-protection challenge, but they would have to do so under Franklin rather than Long.

Does this decision limit Commonwealth v. Long?

Potentially, but only in a limited sense.

The case is significant because it identifies a possible boundary to the expansion of Long: police investigative decisions on one side, prosecutorial decision-making on the other.

But it is important not to overstate the ruling.

This is a Superior Court decision. It is not binding appellate precedent. Neither the Supreme Judicial Court nor the Appeals Court has established in this decision that Long can never apply to discriminatory wiretap targeting.

There is also a legitimate conceptual question about where the line should be drawn.

A wiretap is obviously an investigative tool. The information supporting a wiretap application is typically developed by police investigators, and the purpose of the wiretap is to gather additional evidence during an ongoing criminal investigation. The fact that Massachusetts law requires a prosecutor to formally authorize and submit the application does not necessarily mean every decision concerning wiretap targeting is purely prosecutorial.

Judge Goldberg nevertheless concluded that the prosecutor’s statutory role was sufficiently important to place the decision on the prosecutorial side of the line.

Whether the SJC would reach the same conclusion remains unresolved.

The court did not decide whether racial discrimination actually occurred

This is another important limitation.

The court did not decide whether the Middlesex District Attorney’s Office actually discriminated against Hispanic or Latino defendants in seeking wiretap warrants.

The decision concerned the legal standard the defendants must satisfy before that substantive question can be reached.

The defendants’ motion was denied without prejudice, leaving them free to pursue the same underlying equal-protection claim under the more demanding Franklin framework.

That distinction is important when describing the case. The decision does not hold that the defendants’ statistical evidence was wrong, that no racial disparity existed, or that the Commonwealth’s wiretap practices were constitutionally permissible. It holds that the defendants selected the wrong doctrinal framework for litigating that claim.

A separate standing issue for Zachary Laporte

The court also addressed whether defendant Zachary Laporte could join the equal-protection challenge.

Laporte was not Hispanic or Latino and did not claim membership in another protected class. His argument was essentially that the evidence against him resulted from wiretaps that were themselves obtained through unconstitutional discrimination against his codefendants.

Judge Goldenberg rejected that theory.

Relying on Commonwealth v. Manning, 406 Mass. 425, 428 (1990), the court held that a defendant ordinarily cannot obtain suppression based upon the violation of another person’s constitutional rights. The fruit-of-the-poisonous-tree doctrine does not give a defendant standing merely because evidence against him can be traced back to a constitutional violation committed against somebody else.

Laporte’s motion to join was therefore denied.

What the decision means for Massachusetts criminal defense cases

For Massachusetts criminal defense lawyers, the practical lesson is straightforward.

A defendant alleging racial discrimination in traditional police investigative activity may be able to proceed under the burden-shifting framework established in Commonwealth v. Long, 485 Mass. 711 (2020).

But where the challenged conduct involves a decision that a court views as prosecutorial—such as the formal decision to seek a wiretap warrant—this Middlesex Superior Court decision holds that the defendant must instead satisfy the selective-prosecution standard of Commonwealth v. Franklin, 376 Mass. 885 (1978).

That is a significantly more demanding threshold.

The larger question remains unresolved: how far does Long extend as modern criminal investigations increasingly involve prosecutors, police, digital surveillance, social media monitoring, cell-site information, and other investigative techniques that do not fit neatly into the old distinction between street policing and prosecutorial decision-making?

This Superior Court decision draws one line. Whether Massachusetts appellate courts ultimately draw it in the same place remains to be seen.

Benzaken, Sheehan & Wood, LLP represents individuals charged with serious criminal offenses throughout Massachusetts, including cases involving wiretaps, electronic surveillance, motions to suppress, equal-protection challenges, and unconstitutional police practices.