Opinion
22-P-264
12-27-2022
COMMONWEALTH v. LOUIS L., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile appeals from an interlocutory order of a Juvenile Court judge denying his motion to suppress a firearm seized during a protective sweep of a motor vehicle. Concluding that the police lacked specific articulable facts to support a reasonable suspicion that a weapon was in the vehicle, we reverse.
1. Standard of review. "In reviewing the denial of a motion to suppress, we ‘accept[ ] the judge's subsidiary findings of fact absent clear error, give[ ] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[ ] the correctness of the judge's application of constitutional principles to the facts found.’ " Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 158-159 (2019), quoting Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 100 (2018).
2. The protective sweep. A protective sweep of a motor vehicle is "justified where an officer would reasonably fear that the defendant may possess a weapon or that there is a weapon in the vehicle." Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020). The officer's "belief must be rooted in ‘specific and articulable facts.’ " Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 340 (2012), quoting Commonwealth v. Santos, 65 Mass. App. Ct. 122, 125 (2005). A protective sweep "must be ‘confined in scope to an intrusion reasonably designed to discover a weapon.’ " Commonwealth v. Douglas, 472 Mass. 439, 446 (2015), quoting Commonwealth v. Moses, 408 Mass. 136, 144 (1990). Additionally, it " ‘must be confined to the area from which the suspect might gain possession of a weapon,’ either because he is still within the vehicle or because he is likely to return to the vehicle at the conclusion of the officer's inquiry." Commonwealth v. Daniel, 464 Mass. 746, 752 (2013), quoting Commonwealth v. Almeida, 373 Mass. 266, 272 (1977).
Here, "the protective sweep of the automobile was not justified" because the Commonwealth failed to show that the officers had a "reasonable concern based on specific, articulable facts that there might be weapons in the vehicle." Johnson, 82 Mass. App. Ct. at 337, 342. Cf. Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 648, 655 (2006) ("protective sweep of the vehicle for weapons w[as] within constitutional limits" where dispatcher provided detailed descriptions of suspect car; dispatcher also provided detailed physical descriptions of suspects who "were seen fleeing the scene of the shooting on foot"); Commonwealth v. San, 63 Mass. App. Ct. 189, 193 (2005) ("Given the crime under investigation, a nighttime home invasion, and the inability otherwise to determine whether the van's occupants were armed, there existed a reasonable apprehension of danger that justified the protective sweep of the vehicle"). Without reasonable suspicion a person in the juvenile's motor vehicle was connected to the report of a possible gunshot, there was no reason to suspect that a weapon was in the vehicle.
The caller reported a "loud bang" that "could have been gunfire" but "not necessarily." Despite its equivocal nature, this may have been enough to allow the police reasonably to suspect that a gun had been fired. See Commonwealth v. Perez, 80 Mass. App. Ct. 271, 279 (2011). Cf. Commonwealth v. Ford, 100 Mass. App. Ct. 712, 717 (2022) (multiple "ShotSpotter alerts created an acoustic trail of breadcrumbs").
Nonetheless, nothing suggested that a motor vehicle was involved. Cf. Commonwealth v. Manha, 479 Mass. 44, 44-45, 49 (2018) (where police "learned that a driver had pointed what appeared to be a firearm at another motorist while traveling on the highway," officers "appropriately extended the protective sweep into the defendant's automobile"). There was no description of the possible shooter, and no indication that the shooter remained at the scene. Moreover, the juvenile and his friends were not the only civilians at the scene. Rather, an officer observed "two people fighting" on the main street. Cf. Commonwealth v. Privette, 100 Mass. App. Ct. 222, 229 (2021) (reasonable suspicion where defendant was "the only person seen on the street by three separate officers"). Accordingly, the juvenile's "geographical and temporal proximity" to the scene was not adequate by itself to provide reasonable suspicion that there would be a weapon in the vehicle. Commonwealth v. Meneus, 476 Mass. 231, 240 (2017).
The Commonwealth presented no other evidence to bridge the gap. The nervousness of the juvenile and his friends is of little moment considering that an officer smelled burnt marijuana and observed small bags of marijuana and bottles of alcohol before the protective sweep. See Commonwealth v. Cordero, 477 Mass. 237, 243-244 (2017) ("That the defendant exhibited signs of nervousness and evasiveness in the content of an involuntary police encounter cannot, without more, generate reasonable suspicion"). The juvenile and his friends did not make any furtive gestures but rather "stayed stationary." See Commonwealth v. Garner, 490 Mass. 90, 96 (2022). Cf. Commonwealth v. Rivera, 76 Mass. App. Ct. 304, 309-310 (2010) (that defendant was " ‘making movement side to side and slightly forward’ and was ‘fumbling with an object in his lap [and] manipulating that object between his legs’ " supported officer's reasonable suspicion). As indicated, the caller provided no physical description of the suspects. Cf. Manha, 479 Mass. at 45 (911 caller "described the gunman as a white male in his forties who was wearing glasses"); Ancrum, 65 Mass. App. Ct. at 648 (suspects described as "two black males, 5’ 8", 160 to 170 lbs., wearing ‘do-rag types’ on their heads").
The Commonwealth provided no evidence that the juvenile and his friends appeared to be underage or that the motor vehicle was being operated. In any event, even if the officers would have been justified in investigating underage drinking or marijuana use, such an investigation would not involve reasonable suspicion that a weapon was in the vehicle. See Commonwealth v. Washington, 449 Mass. 476, 483 (2007) ("we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes").
Accordingly, the Commonwealth failed to establish that the police had reasonable suspicion to conduct a protective sweep of the motor vehicle.
Because the protective sweep yielded the evidence that forms the basis of the prosecution, we need not reach whether the seizure or the pat frisk were proper. See Commonwealth v. Long, 485 Mass. 711, 734 n.20 (2020).
Order denying motion to suppress reversed.