COMMONWEALTH v. ELAN E., a Juvenile.

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

24-P-578

COMMONWEALTH

vs.

ELAN E., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the Juvenile Court, the juvenile

was adjudicated delinquent on the charge of carrying a firearm

without a license in violation of G. L. c. 269, § 10 (a). On

appeal, the juvenile contends that the motion judge erred in

denying his motion to suppress and the trial judge erred in

allowing inadmissible hearsay into evidence at trial. We

affirm.

Background. For purposes of the juvenile's challenge to

the order denying his motion to suppress, we recite the facts as

found by the motion judge, "supplemented by additional

undisputed facts where they do not detract from the judge's

ultimate findings." Commonwealth v. Kaplan, 97 Mass. App. Ct.
540, 541 n.3 (2020), quoting Commonwealth v. Jessup, 471 Mass.

121, 127-128 (2015). We reserve some facts for later

discussion.

Around 1:45 A.M. on September 5, 2022, a State trooper

initiated a stop of a GMC Terrain sport utility vehicle after he

saw it engage in multiple traffic violations. After the driver

stopped the vehicle in a breakdown lane, the trooper approached

it with his flashlight and saw two individuals crouched in the

trunk. One was the juvenile, who made eye contact with the

trooper before putting his head down and sweatshirt hood up.

The trooper also saw bottles of alcohol in the vehicle. After

the trooper requested the driver's license and vehicle

registration, the driver produced his license but claimed that

the vehicle was a rental and he did not have the registration.

The trooper asked for identification from all of the vehicle

passengers, at which point the driver stated to him that all of

them were minors and none had identification.

After calling for back-up and running a query on the

driver's license, the trooper returned to the vehicle and asked

the driver to exit. After he observed a folding knife in the

driver's waistband, he requested permission to perform a

patfrisk, and the driver consented. The trooper told the driver

that he and a colleague were going to search the vehicle for

alcoholic beverages and asked if anyone in the vehicle had a

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weapon. The driver initially did not answer the question, then

stated that there might be another knife in the vehicle.

The troopers directed the passengers to exit the vehicle

and conducted a patfrisk on each as they did so. The two

passengers in the trunk were searched last. Once the juvenile

was outside the vehicle, the trooper asked whether he had

"anything on him," and the juvenile "mumbled an unintelligible

response . . . and put his head down." The trooper immediately

began a patfrisk of the juvenile and felt a hard metallic object

resembling a firearm. The second trooper approached and placed

the juvenile in handcuffs as the first trooper removed a firearm

that was tucked into the juvenile's waistband. The firearm had

a magazine inserted, and there were sixteen rounds of ammunition

in the magazine and one round in the chamber.

The juvenile was charged with carrying a firearm without a

license, G. L. c. 269, § 10 (a); carrying a loaded firearm

without a license, G. L. c. 269, § 10 (n); possession of a large

capacity feeding device, G. L. c. 269, § 10 (m); and possession

of ammunition without a firearm identification card, G. L.

c. 269, § 10 (h) (1). After the juvenile moved to suppress all

items seized as a result of the exit order and patfrisk,

including the firearm and ammunition, a judge (motion judge)

held an evidentiary hearing, then denied the motion in a written

memorandum of decision. Following a bench trial, a second judge

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(trial judge) adjudicated the juvenile delinquent on the charge

of carrying a firearm without a license in violation of G. L.

c. 269, § 10 (a), and not delinquent on the other charges.

Discussion. 1. Denial of motion to suppress. The

juvenile contends that the motion judge erred in denying his

motion to suppress because the trooper (1) unlawfully ordered

him to exit the car, and (2) conducted a patfrisk absent

reasonable suspicion that he was armed and dangerous. "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).1 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).

1 Here, the motion judge found the trooper's testimony to be
"truthful and accurate on all material points except where
otherwise noted."

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a. Exit order. "Our analysis begins with the validity of

the exit order because there is no dispute that the initial stop

of the . . . vehicle was valid." Commonwealth v. Monell, 99

Mass. App. Ct. 487, 489 (2021). See Commonwealth v. Santana,

420 Mass. 205, 207 (1995) ("Where the police have observed a

traffic violation, they are warranted in stopping a vehicle"

[citation omitted]). An exit order is justified where the

police "are warranted in the belief that the safety of the

officers or others is threatened" or "have reasonable suspicion

of criminal activity." Commonwealth v. Torres-Pagan, 484 Mass.

34, 38 (2020).

"[I]t does not take much for a police officer to establish

a reasonable basis to justify an exit order or search based on

safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664

(1999). "The 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." Commonwealth v.

Stampley, 437 Mass. 323, 328 (2002). "A police officer need

point only to some fact or facts in the totality of the

circumstances that would . . . warrant an objectively reasonable

officer in securing the scene in a more effective manner."

Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013).

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Here, the traffic stop occurred in the middle of the night,

and the two troopers on the scene were outnumbered by the seven

occupants of the vehicle. See Commonwealth v. Moses, 408 Mass.

136, 142 (1990). The driver carried a knife, which he did not

initially disclose, and he eventually informed the troopers that

there might be a second knife somewhere inside the vehicle. As

a result, the troopers had reason to suspect that one or more of

the passengers in the vehicle possessed or had access to a

weapon. Because these facts caused "a heightened awareness of

danger that would warrant an objectively reasonable police

officer" to fear for his safety, Monell, 99 Mass. App. Ct. at

490, quoting Stampley, 437 Mass. at 326, the exit order was

justified on this basis.

The order was also justified by reasonable suspicion. For

police to "expand a threshold inquiry of a motorist" stopped for

a traffic violation, they "must reasonably believe that there is

further criminal conduct afoot, and that belief must be based on

'specific and articulable facts and the specific reasonable

inferences which follow from such facts in light of the

officer's experience.'" Commonwealth v. Feyenord, 445 Mass. 72,

77 (2005), cert. denied, 546 U.S. 1187 (2006), quoting

Commonwealth v. King, 389 Mass. 233, 243 (1983). Here, the

motion judge credited the trooper's testimony that he saw

bottles containing liquor in the back passenger area, and we

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defer to that credibility determination. See Commonwealth v.

Tremblay, 480 Mass. 645, 655 (2018). The driver also told the

trooper that all of the passengers were minors. These facts

gave rise to reasonable suspicion that that the passengers were

minors in possession of alcohol, in violation of G. L. c. 138,

§ 34C. Particularly when these facts are considered in light of

the officers' reasonable safety concerns, the exit order was

"proportional to the suspicion that prompted the intrusion."

Commonwealth v. Bostock, 450 Mass. 616, 622 (2008).

b. Patfrisk. "In the context of a lawful motor vehicle

stop, [a] patfrisk is permissible only where an officer has

reasonable suspicion that the stopped individual may be armed

and dangerous" (quotations and citation omitted). Commonwealth

v. Crowder, 495 Mass. 552, 566 (2025), cert. denied, U.S.

Supreme Ct., No. 24-7498 (Oct. 6, 2025). "To determine whether

an officer indeed had the requisite reasonable suspicion to

engage in a patfrisk, we ask whether a reasonably prudent

[person] in the [officer's] position would be warranted in the

belief that the safety of the police or that of other persons

was in danger" (quotations and citation omitted). Id. That

reasonable suspicion "must be based on specific, articulable

facts and inferences reasonably drawn therefrom." Id. Even

"[a]n innocent explanation for an individual's actions 'does not

remove [those actions] from consideration in the reasonable

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suspicion analysis.'" Commonwealth v. Sweeting-Bailey, 488

Mass. 741, 744 (2021), cert. denied, 143 S. Ct. 135 (2022),

quoting Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007).

Viewed as a whole, the facts here amounted to "the

requisite reasonable [suspicion]" (quotation and citation

omitted). Commonwealth v. Johnson-Rivera, 104 Mass. App. Ct.

533, 539 (2024). The trooper initially saw the juvenile

crouched in the trunk of the vehicle. After the juvenile saw

the trooper, he lowered his head, put his sweatshirt hood up,

and attempted to avoid further eye contact. Combined with

circumstances suggesting that the juvenile may have been armed,

these facts "support[ed] a reasonable suspicion that [the]

officer's safety may be compromised." Commonwealth v. Brown, 75

Mass. App. Ct. 528, 534 (2009). See Johnson-Rivera, supra at

538, quoting DePeiza, 449 Mass. at 372 ("Although nervous or

furtive movements do not supply reasonable suspicion when

considered in isolation, they are properly considered together

with other details to find reasonable suspicion"). Even though

the motion judge did not credit the trooper's testimony that the

juvenile adjusted his sweatshirt over a bulged area in his

waistband, it is undisputed that the driver told the trooper

that there might be a second knife in the vehicle. Because the

troopers had reason to believe that there was a second knife,

but did not know where it was, it was reasonable to believe that

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the juvenile might present a danger the officers. See Crowder,

495 Mass. at 566; Commonwealth v. Guardado, 491 Mass. 666, 681,

S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024).

This suspicion was heightened after the troopers frisked the

other passengers without finding the knife. See Guardado, supra

("upon failing to find the firearm elsewhere," officer

"reasonably could have inferred that the firearm instead was

located on the defendant's person"). Accordingly, the patfrisk

of the juvenile was lawful.

2. Proof of the juvenile's age. Lastly, the juvenile

contends that his conviction for unlawful possession of a

firearm must be vacated because the trial judge relied on

inadmissible hearsay evidence of his proof of his age. Evidence

of the juvenile's age was necessary to support the inference

that, because he was under twenty-one at the time of the

offense, he did not possess a valid license to carry. See G. L.

c. 140, § 131 (d). Because the juvenile did not object to the

challenged testimony at trial, "we review his claims to

determine whether there was error, and, if so, whether the error

created a substantial risk of a miscarriage of justice."

Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804 (2024),

quoting Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 596

(2022). "In reviewing for a substantial risk of a miscarriage

of justice, we determine whether 'we have a serious doubt

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whether the result . . . might have been different had the error

not been made.'" Commonwealth v. Barros, 494 Mass. 100, 113

(2024), quoting Commonwealth v. Azar, 435 Mass. 675, 687

(2002), S.C., 444 Mass. 72 (2005).

The juvenile challenges the admission of statements by his

aunt that were captured on the trooper's body-worn camera video

footage, which was admitted into evidence at trial without

objection. Even if those statements were inadmissible hearsay,

however, "[t]he mistaken admission of hearsay evidence, if

merely cumulative of another witness's testimony, does not

constitute reversible error." Commonwealth v. Dunn, 56 Mass.

App. Ct. 89, 94 (2002), quoting Commonwealth v. O'Connor, 407

Mass. 663, 670 (1990). Here, there was other evidence of the

juvenile's age. The same body-worn camera video footage showed

that, after the juvenile was arrested, the trooper asked for his

date of birth, and the juvenile answered. This statement by the

juvenile was not hearsay, but rather admissible as the statement

of a party opponent. See Commonwealth v. Mendes, 441 Mass. 459,

467 (2004); Mass. G. Evid. § 801(d)(2)(A) (2025). The trooper

also testified without objection as to the juvenile's date of

birth and his belief that the juvenile was seventeen on the

night of the offense. Because there was sufficient evidence of

the juvenile's age beyond the statements of his aunt, we

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conclude that the admission of those statements did not create a

substantial risk of a miscarriage of justice.

Adjudication of delinquency
affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ.2),

Clerk

Entered: December 26, 2025.

2 The panelists are listed in order of seniority.

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