Commonwealth v. Luis Matos.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-635

COMMONWEALTH

vs.

LUIS MATOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Luis Matos, appeals from his conviction of

carrying a loaded firearm without a license in violation of

G. L. c. 269, § 10 (n), and carrying a firearm without a license

in violation of G. L. c. 269, § 10 (a). The convictions

resulted from a stop of the defendant's vehicle by a Lowell

police detective, who then discovered a loaded gun under the

defendant's seat and learned that the defendant did not possess

a license to carry. 1 The defendant filed a motion to suppress

evidence seized as a result of the vehicle stop, claiming that

1The defendant was also charged with the offense of
discharging a firearm within five hundred feet of a building in
violation of G. L. c. 269, § 12E, which the trial court
dismissed at the request of the Commonwealth.
the stop, subsequent exit order, and search of the vehicle were

unconstitutional. A District Court judge denied the defendant's

motion to suppress, and the case proceeded to trial. The

defendant now appeals his convictions, arguing anew that there

was neither reasonable suspicion nor reasonable safety concerns

to justify the stop, exit order, and search. We disagree and

accordingly, affirm.

Background. 1. The incident. On the night of December 6,

2018, Lowell Police Detective Steven Dalessandro was surveilling

two 7-Eleven convenience stores in Lowell following a series of

armed robberies in the area, the most recent of which had taken

place the previous day. Dalessandro positioned his vehicle near

one of the 7-Elevens, a location on Princeton Boulevard.

Sometime after midnight, Dalessandro observed a black BMW pull

into the parking lot of the 7-Eleven and watched as an

individual inside the store leaned over the counter as if he was

reaching for something. The individual then left the store and

entered the BMW, which thereafter pulled out of the parking lot

and onto Princeton Boulevard. Dalessandro followed the BMW down

Princeton Boulevard until it turned right onto Dingwell Street.

Dalessandro remained on Princeton Boulevard near the

intersection with Dingwell Street, believing that Dingwell

Street was a dead-end. He observed no other traffic in the

area.

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Less than thirty seconds later, Dalessandro heard what he

believed to be a single gunshot. Dalessandro was familiar with

the sound of a gunshot through his duties as a police officer.

Indeed, he had heard a gun fire "thousands of times." Within

seconds of the sound, the BMW drove back onto Princeton

Boulevard and turned in the direction of the 7-Eleven.

Dalessandro followed the BMW and observed it take a "sharp" and

"unsafe" turn into a parking lot off Princeton Boulevard, at

which point Dalessandro followed the BMW into the lot and

initiated a stop by turning on his police cruiser lights. Two

passengers in the BMW then began to exit the car, one from the

front seat and one from the back seat. Using his public address

(PA) system, Dalessandro asked the two individuals to remain in

the BMW and they complied.

Dalessandro called for backup and approached the driver's

side of the BMW. He recognized a passenger in the back seat, a

person Dalessandro had previously arrested for a firearms

offense. Dalessandro asked the driver -- later identified as

the defendant -- to step out of the BMW and conducted a pat

frisk of his person. Dalessandro then searched the area around

the driver's seat and discovered a gun on the floor halfway

underneath the seat. Dalessandro found that the gun was loaded

with one round in the chamber and three rounds in the magazine,

all of which were marked with the letters "FC." Sergeant Joseph

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Murray arrived as backup and asked the defendant to produce his

license to carry the firearm. The defendant responded that he

did not have a license and the officers subsequently placed him

under arrest. Detective Dalessandro and Sergeant Murray then

returned to Dingwell Street, and discovered a shell casing

marked with the letters "FC" on an adjacent street.

2. The motion to suppress. In March of 2019, the

defendant filed a motion to suppress evidence seized as a result

of the stop, which the defendant argued violated both the

Federal Constitution and art. 14 of the Massachusetts

Constitution. After an evidentiary hearing, a District Court

judge denied the motion, concluding that there was a sufficient

basis for Dalessandro to stop the BMW once he heard the gunshot

and observed the BMW exit Dingwell Street seconds thereafter.

The judge noted that the stop, exit order, and search of the

vehicle were also justified because the circumstances of the

incident gave rise to officer safety concerns. 2

The defendant was tried, jury waived, in September of 2021.

The District Court judge found the defendant guilty of carrying

2 The defendant filed a second motion to suppress in October
of 2020, challenging a statement he made to the police. After
an evidentiary hearing, that motion was denied. The outcome of
the motion to suppress the defendant's statement is not at issue
in this appeal.

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a loaded firearm without a license and carrying a firearm

without a license. The defendant timely appealed.

Discussion. The defendant challenges the denial of his

motion to suppress, contending that detective Dalessandro lacked

reasonable suspicion to justify the stop of the BMW, the exit

order, and the search of the vehicle for weapons. 3 The defendant

makes several arguments, including (1) that Dalessandro did not

have reasonable suspicion that a shooting had occurred based on

"a singular sound at an unspecified distance that . . . [he]

merely 'thought' was a gunshot," (2) that even if a gun had been

fired, Dalessandro had no reason to suspect that any occupant of

the BMW was involved, (3) that the motion judge's finding that

Dalessandro issued the exit order after recognizing a passenger

in the BWM with a pending firearms charge was clearly erroneous,

and (4) that Dalessandro's knowledge of a passenger's criminal

record could not support reasonable suspicion that the defendant

was armed and dangerous.

3 Both the defendant and the Commonwealth briefed the
additional issue of whether the defendant's convictions for
carrying a firearm without a license and carrying a loaded
firearm without a license violated the Second Amendment of the
United States Constitution, in light of the United States
Supreme Court's decision in New York State Rifle & Pistol Ass'n
v. Bruen, 597 U.S. 1 (2022). However, the parties submitted a
joint status report agreeing to proceed only on the motion to
suppress arguments in light of the Supreme Judicial Court's
decisions in Commonwealth v. Guardado, 491 Mass. 666 (Guardado
I), S.C., 493 Mass. 1 (2023) (Guardado II).

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"In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of [the judge's] ultimate findings

and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642,

646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002). We "leave to the [motion] judge the responsibility of

determining the weight and credibility to be given . . .

testimony presented at the motion hearing." Commonwealth v.

Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v.

Wilson, 441 Mass. 390, 393 (2004). However, we "make an

independent determination of the correctness of the judge's

application of constitutional principles to the facts as found."

Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

Both the Fourth Amendment and art. 14 dictate that a police

officer may effect a stop and conduct a threshold inquiry where

they have "reasonable . . . suspicion that a person has

committed, is committing, or is about to commit a crime."

Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). See

Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Such

suspicion must be "'based on specific, articulable facts and

reasonable inferences therefrom' rather than on a 'hunch.'"

Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting

Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Reasonable

suspicion "is measured by an objective standard, . . . and the

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totality of the facts on which the seizure is based must

establish 'an individualized suspicion that the person seized by

the police is the perpetrator' of the crime." Meneus, 476 Mass.

at 235, quoting Commonwealth v. Warren, 475 Mass. 530, 534

(2016).

1. The stop. The defendant argues that "a singular sound

at an unspecified distance that Det. Dalessandro merely

'thought' was a gunshot" did not provide reasonable suspicion

for Dalessandro to stop the BMW. This contention ignores the

factual context in which Dalessandro was acting, including his

prior surveillance and the reasons for it, and also minimizes

the significance of an experienced detective hearing what he

believed to be gunfire. Those facts, considered in toto,

created reasonable suspicion to stop the defendant's vehicle.

Beginning with the context, on the night in question

Dalessandro was positioned in the area because armed robberies

had taken place in convenience stores in the city. He had just

watched the defendant's car pull into a 7-Eleven parking lot and

an individual inside the store lean over the counter (doing

something Dalessandro was too far away to identify), and then

exit the store and enter the BMW shortly before it drove away.

It was reasonable, under the circumstances, for Dalessandro to

be focused on the car as a possible source of criminal activity.

See Meneus, 476 Mass. at 238 (character of area as "high crime"

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may be considered in reasonable suspicion analysis where

inferences fairly drawn from that characterization demonstrate

reasonableness of stop).

The actions at the 7-Eleven were followed by (1) the car

turning down what Dalessandro believed was a dead-end street,

(2) within seconds, the sound of a gunshot, and (3) again within

seconds, the car returning and turning quickly into a parking

area. It was late at night, there were no other cars around,

and Dalessandro was experienced with firearms and the sound of

gunshots. Under the circumstances, Dalessandro had reasonable

suspicion that someone in the car had just fired a gun in a

residential neighborhood. See Commonwealth v. Perez, 80 Mass.

App. Ct. 271, 278 (2011), quoting Commonwealth v. Depina, 456

Mass. 238, 246-247 (2010), and Commonwealth v. Mubdi, 456 Mass.

385, 398 (2010) (courts may consider "'[t]he gravity of the

crime and the present danger of the circumstances'" in assessing

reasonable suspicion, including "the 'imminent threat' posed by

gunshots fired in a residential neighborhood").

Citing Commonwealth v. Ford, 100 Mass. App. Ct. 712, 716-

717 & n.8 (2022), the defendant argues that Dalessandro could

have mistaken the sound of fireworks or a car backfiring for a

gunshot. Ford is plainly distinguishable, however; it involved

a police officer's response to a ShotSpotter alert of gunfire,

which the police acknowledged is a tool that could mistake a

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similar noise for gunfire. Id. at 716 n.8. Here Dalessandro

did not rely on any intermediary tool in surmising that a gun

had been fired; he heard the sound of the gunshot himself.

Citing Meneus, 476 Mass. at 236, the defendant also attacks

the strength of Dalessandro's inference that the gunfire was

linked to occupants of the BMW. We are similarly unpersuaded.

In Meneus, the court concluded there was no reasonable suspicion

to stop the defendant where there was no confirmation that the

group he was with was the same group that reportedly fled the

location of shots fired, and where the woman who reported the

shots to the police had not indicated that the group was

involved in the shooting in the first place. Id. at 232-233,

236. Here, not only did Dalessandro observe the BMW travelling

toward the location of the gunshot and reemerge from that

location only seconds after the gun was fired, but he also

observed no other traffic in the area. See Commonwealth v.

Ling, 370 Mass. 238, 241 (1976) (reasonable suspicion where,

among other indicia, the only person observed in the area was

the defendant leaving the scene of a reported break-in);

Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 819-820 (2019)

(reasonable suspicion where the defendant and co-felon were the

only individuals fleeing the scene of a shooting). We discern

no error in the motion judge's conclusion that there was

reasonable suspicion for the stop.

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2. The exit order. The exit order was similarly justified

by the reasonable suspicion that the occupants of the BMW had,

mere minutes prior, fired a gun in a residential area, giving

rise to a reasonable concern for Dalessandro's safety.

Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) ("[t]he

justification for an exit order does not depend on the presence

of an 'immediate threat' at the precise moment of the order, but

rather on the safety concerns raised by the entire circumstances

of the encounter"). Moreover, at the time Dalessandro issued

the exit order, reasonable suspicion and concerns for his safety

had been bolstered by additional factors, including that two

passengers initially had exited the vehicle unsolicited and

Dalessandro was alone and outnumbered. Although the defendant

takes issue with the motion judge's finding that Dalessandro

first recognized the passenger with the pending charge and then

issued the exit order, we think the order of things matters

little under the circumstances. Dalessandro had reasonable

suspicion that someone in the car had fired a gun a few minutes

before. He had grounds for the exit order regardless of exactly

when he identified the passenger with the firearms charge.

3. Search of the vehicle. Finally, the defendant argues

that Detective Dalessandro's limited sweep of the vehicle for

weapons was similarly unsupported by reasonable suspicion. For

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the reasons discussed above, we do not agree. 4 Dalessandro acted

reasonably under the circumstances.

Judgments affirmed.

By the Court (Milkey, Shin &
Englander, JJ. 5),

Clerk

Entered: August 14, 2024.

4 The defendant argues that the patfrisk of his person was
not supported by reasonable suspicion that he was armed and
dangerous. Since the patfrisk yielded no evidence for the
defendant to later suppress, we need not address this issue.

5 The panelists are listed in order of seniority.

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