Commonwealth v. Mohamed Mohamed.

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

23-P-527

COMMONWEALTH

vs.

MOHAMED MOHAMED.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Mohamed Mohamed, was indicted on various

firearm and assault charges. 1 The defendant filed a motion to

suppress evidence and statements resulting from a stop and

search of his vehicle by Somerville police officers. After an

evidentiary hearing, a judge of the Superior Court allowed the

motion to suppress and denied the Commonwealth's motion for

reconsideration. The Commonwealth appeals, arguing that

1Two counts of possessing a large capacity feeding device
without a license, G. L. c. 269, § 10 (m); two counts of assault
by means of a dangerous weapon, G. L. c. 265, § 15B (b); one
count of unlawful possession of a firearm, G. L. c. 269,
§ 10 (a); and one count of possession of ammunition without a
firearm identification card, G. L. c. 269, § 10 (h).
officers had reasonable suspicion to stop the defendant's car

and conduct a protective sweep of the vehicle. We reverse.

Background. "We recite the facts as found by the motion

judge." Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 81

(2020). 2 On October 20, 2022, Somerville police officer Roger

Desrochers responded to several 911 calls regarding a fight in

progress at a Papa John's restaurant on Somerville Avenue. The

callers reported that a delivery driver was arguing with other

employees; yelling, screaming, and showing a gun. 3 On speaking

to witnesses at the Papa John's, Desrochers received a

description of the driver as a Middle Eastern male with dark

skin operating a white Toyota Corolla, license plate 29ZK58.

Witnesses reported that the driver had left the scene in the

2 Although the motion judge's factual findings were
sufficient to permit us to resolve the appeal, it would have
been helpful to have had findings on what testimony the motion
judge found credible and not just the one fact he declined to
find. See Commonwealth v. Rodriquez, 70 Mass. App. Ct. 904, 904
(2007) ("Although the motion judge's factual findings are
sparse, the essential dispositive facts are not contested and
permit us to resolve the appeal without remand for additional
factual findings").

3 Desrochers testified that the witnesses said that the
driver pulled a firearm out of the center console of his vehicle
and then a second time reached into the center console and took
out the gun. Desrochers also testified that he reported to his
fellow officers that the firearm would be in the center console.
The motion judge did not make any findings concerning this
testimony.

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white Toyota, heading east on Somerville Avenue. Desrochers

radioed this information to other officers on patrol.

"Shortly after dispatch relayed a description of the

vehicle," Officer Samir Messaoudi saw a white Toyota Camry with

license plate number 2NVX58 traveling east on Somerville Avenue

one mile away from Papa John's. 4 Based on these observations,

Messaoudi stopped the Toyota. 5 He ordered the driver, the

defendant, to get out of the vehicle and stand at the back of

the vehicle. Messaoudi did not handcuff or pat frisk the

defendant.

Officer Thomas Lambert arrived shortly after the stop and

handcuffed the defendant but did not pat frisk him. Lambert

conducted a "protective pat frisk of the driver area" of the

vehicle. During the vehicle search, he found a firearm in the

center console and a magazine with ammunition in the glovebox.

4 The motion judge found that the defendant's vehicle's
license plate was 29VX58. This appears to be a typographical
error. The Commonwealth and the defendant agree in their briefs
that the defendant's license plate was 2NVX58, which is
consistent with the testimony at the motion hearing. In the
absence of any conflict in the record, the motion judge's
finding regarding this portion of the sequence of events is
clear error. See Commonwealth v. Motta, 424 Mass. 117, 121
(1997), citing Commonwealth v. Bakoian, 412 Mass. 295, 297-298
(1992).

5 There was no testimony that the defendant matched a
physical description of the suspect or that he made any furtive
gestures while in the vehicle. There was testimony that he was
the only person in the vehicle, but the motion judge did not
make a finding on that issue.

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The motion judge found that "[n]either Officer Desrochers nor

Officer Messaoudi advised the defendant of his Miranda warnings.

[Officer] Lambert stated that another officer, who did not

testify, read the warnings to the defendant but I do not find

that the Miranda warnings were read to the defendant." 6 See

Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).

Discussion. "In reviewing a ruling on a motion to

suppress, we review independently the application of

constitutional principles to the facts found, but we accept the

judge's subsidiary findings of fact absent clear error"

(quotation and citation omitted). Commonwealth v. Kaplan, 97

Mass. App. Ct. 540, 542 (2020). The Commonwealth accepts the

findings of the motion judge but argues that the judge erred in

concluding that there was not reasonable suspicion (1) to

justify the stop of the defendant's vehicle, and (2) to conclude

that the defendant was armed and dangerous. We agree.

1. The stop. "Police may effect a motor vehicle stop

based on reasonable suspicion of criminal activity."

Commonwealth v. Barreto, 483 Mass. 716, 718 (2019). See

Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 651 (2006).

"When, as here, a police radio broadcast directs officers to

make an investigatory stop of a motor vehicle, the stop is

6 The defendant does not raise any Miranda issue on appeal.

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lawful only if the Commonwealth establishes both the indicia of

reliability of the transmitted information and the particularity

of the description of the motor vehicle." Commonwealth v.

Lopes, 455 Mass. 147, 155 (2009). 7 A dispatch description of a

motor vehicle may be sufficiently particular where it contains

information regarding the make, model, color, or license plate

registration number of the vehicle; or identifying

characteristics of the occupants. See Commonwealth v. Anderson,

461 Mass. 616, 621, cert. denied, 568 U.S. 946 (2012). A

vehicle's geographic and temporal proximity to a crime may also

be considered. See Commonwealth v. Robinson-Van Rader, 492

Mass. 1, 13 (2023); Commonwealth v. Acevedo, 73 Mass. App. Ct.

453, 458, S.C., 455 Mass. 1013 (2009); Ancrum, supra at 652-653.

Here, Messaoudi saw a white Toyota sedan traveling in the

direction reported by witnesses, on the same avenue, "shortly

after" the underlying events occurred. Though the defendant's

Toyota was a different model and his license plate number was

7 The defendant does not challenge the reliability of the
information reported to and then disseminated among the
responding officers. We note that the 911 calls leading to the
radio dispatches satisfy the basis of knowledge and veracity
requirements of the two-pronged Aguilar-Spinelli test.
Commonwealth v. Manha, 479 Mass. 44, 46 (2018). See Spinelli v.
United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S.
108 (1964). Given that the callers identified themselves to
police, were later interviewed by Desrochers, and witnessed the
altercation themselves, the witnesses had both a basis of
knowledge and satisfied the veracity prong. See Lopes, 455
Mass. at 156.

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not an exact match –- it shared the first number and last two

numbers, with the middle characters different -- "[r]easonable

suspicion does not require 'a full match-up of all parts of the

description.'" Lopes, 455 Mass. at 158, quoting Commonwealth v.

Emuakpor, 57 Mass. App. Ct. 192, 198 (2003). See Ancrum, 65

Mass. App. Ct. at 653 (reasonable suspicion still existed

despite differences in reported color of vehicle and number of

occupants); Anderson, 461 Mass. at 624 (sufficient corroboration

to justify stop even where license plate number off by one

number and color of car was reported as "silver or gold"). We

must also consider that the reported crime involved a person

threatening coworkers with a firearm. See Commonwealth v.

Stoute, 422 Mass. 782, 791 (1996) ("test for determining

reasonable suspicion should include consideration of the

possibility of the possession of a gun, and the government's

need for prompt investigation" [citation omitted]). In light of

the detail in the broadcast and the corroborating details

witnessed by Messaoudi, reasonable suspicion existed to stop the

defendant's vehicle.

2. The sweep of the vehicle. "During a stop for which

there is constitutional justification, a patfrisk is permissible

only where an officer has reasonable suspicion that the suspect

is armed and dangerous" (citation omitted). Commonwealth v.

Torres-Pagan, 484 Mass. 34, 36 (2020). That suspicion must be

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"based on specific articulable facts." Id. at 39. The motion

judge found that there was not a reasonable suspicion that the

defendant was armed and dangerous based on the defendant's

compliance and lack of furtive gestures while interacting with

police officers. The judge further concluded that the facts

that no officer performed a patfrisk of the defendant or read

him his Miranda rights "belie any belief the police suspected

the defendant was armed and dangerous."

The test for reasonable suspicion is objective.

Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 748 (2021),

cert. denied, 143 S. Ct. 135 (2022); Commonwealth v. Cruz, 459

Mass. 459, 462 n.7 (2011). Therefore, whether the individual

police officers were in fact afraid that the defendant was armed

and dangerous has no bearing on the inquiry. Rather, the

question is whether a "reasonably prudent" person in the

officer's position would have the requisite safety concerns.

See Commonwealth v. Silva, 366 Mass. 402, 406 (1974). Here, the

officers had responded to a report that a man who engaged in an

"argument" with several others at a Papa John's had displayed a

gun. While the defendant may have been compliant once

intercepted by police, a reasonably prudent officer would have

been justifiably concerned that the defendant still posed an

"imminent threat" to public safety. Ancrum, 65 Mass. App. Ct.

at 654. See id. at 655 (exit order and patfrisk justified where

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police reasonably believed suspects were involved in recent

shooting); Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 558

(2002) (patfrisk of defendant justified for officer safety where

police responding to reports of shots fired). Cf. Commonwealth

v. Alvarado, 423 Mass. 266, 270-271 (1996) (report of carrying

firearm without additional factor of threat to public safety

does not provide reasonable suspicion).

Accordingly, we conclude that the officers had reasonable

suspicion both to stop the defendant and to conduct a protective

sweep of the vehicle. We reverse the order allowing the motion

to suppress.

So ordered.

By the Court (Henry,
D'Angelo & Hodgens, JJ. 8),

Clerk

Entered: September 9, 2024.

8 The panelists are listed in order of seniority.

8