Commonwealth v. Sidney Pires Fonseca.

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-228

COMMONWEALTH

vs.

SIDNEY PIRES FONSECA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant pleaded guilty, conditionally, to one count

of carrying an unlicensed firearm, G. L. c. 269, § 10 (a), one

count of possessing a large capacity feeding device, G. L.

c. 269, § 10 (m), and one count of possessing ammunition without

a firearm identification card, G. L. c. 269, § 10 (h) (1). The

conditional guilty plea reserved the defendant's right to appeal

from an order of a judge of the Superior Court denying his

motion to suppress evidence recovered from a warrantless seizure

and subsequent search of his person. See Mass. R. Crim. P.

12 (b) (6), as appearing in 482 Mass. 1501 (2019); Commonwealth

v. Gomez, 480 Mass. 240, 241 (2018).
Before us, the defendant challenges only his seizure.1 We

accept the facts as found by the motion judge, absent clear

error, as supplemented with uncontradicted witness testimony,

which the judge explicitly or implicitly credited. Commonwealth

v. Jones-Pannell, 472 Mass. 429, 431 (2015).

Facts. On November 30, 2021, Sergeant Andrew Simmons was

assigned to conduct street level enforcement in New Bedford near

the Bay Village housing development. It was an area near which

the "South End Gang" operated. A rival gang, the "West End

Gang," operated near another housing development formally known

as "Temple Landing," which is widely referred to by its former

name, the "United Front."

In the weeks prior to the seizure at issue here, both areas

had seen an uptick in shootings. On the afternoon in question,

Sergeant Simmons was conducting street level enforcement near

Bay Village. As he explained, although he was in an

"undercover" vehicle, "most people know that they're cruisers"

and their occupants' status as police officers, he testified, is

probably just as "obvious."

Around 1 P.M., Sergeant Simmons observed two dark skinned

young men he didn't know, who turned out to be the defendant and

1 Although we express no opinion with respect, therefore, to
the subsequent patfrisk of the defendant, we do note that
additional evidence supporting that patfrisk developed during a
chase prior to the patfrisk but after the defendant was seized.

2
a juvenile. The two were "just walking" on the east side of

Purchase Street, heading south from Wing Street. The sergeant

saw them enter the backyard of 340 Purchase Street, an abandoned

and boarded-up house. In the past, the police had done searches

in the area of the yard on unrelated cases. In addition, the

police had previously found three "block guns," guns stored in

hidden locations where they could be accessed by more than one

person, in the Bay Village area.

The two young people stayed in the backyard at 340 Purchase

Street, behind the abandoned house, for "a couple of minutes,"

then emerged the same way they had gone in, exiting the property

onto Purchase Street, after which they walked north on Purchase

Street back the way they came, toward Wing Street. The sergeant

could see their hands, which appeared empty, and saw nothing

suspicious in how they were walking. Nonetheless, he decided to

keep an eye on them, following behind them in his car, not

"super slow, but fairly slow." At one point, he came within

fifteen to twenty feet of them.

The two individuals turned east onto Wing Street. They

looked back at the sergeant's location several times, and after

they noticed his car, they began running east. He saw them run

east across Acushnet Avenue before running south into the

courtyard area of the Bay Village housing development, where the

car could not follow. He saw them pop in and out between the

3
buildings of the development. They appeared to be on their cell

phones, looking around and peering around one of the buildings.

In response to a request by Sergeant Simmons that included

a description of the two individuals' clothing, Sergeant Jarrod

Gracia drove east on Wing Street past the housing development

looking between its buildings. He saw two "younger looking"

males matching the clothing descriptions given by Sergeant

Simmons, who said one was wearing light-colored clothing and the

other dark, pacing around frantically. From his vantage point,

he was unable to recognize these individuals. They seemed to be

talking to each other. He could not tell whether they were on

their cell phones, though he saw nothing in their hands.2

Sergeant Gracia lost sight of them.

Sergeant Simmons then went to check the yard he had seen

the two enter earlier. However, as soon as he returned to 340

Purchase Street, he saw the pair once again leaving the backyard

behind the abandoned house. Based on his knowledge of the area,

he concluded that they would have had to climb over a fence at

the property's rear to return to the backyard without his seeing

2 The motion judge made a finding that "the pair were in the
development and talking frantically on their phones." To the
extent that this is a description of what Sergeant Gracia
claimed to have seen, it is inaccurate, as he did not report
this behavior. We need not, however, determine whether the
judge's finding is clearly erroneous or adequately supported
because our decision does not depend upon it and would be the
same with or without this finding.

4
them. When they exited the yard, they appeared to be looking

around and walking hurriedly.

Sergeant Simmons noticed that both of their hands were in

their pockets this time, unlike before. The juvenile had one

hand in his jacket pocket, with the other across his body around

the pocket, as if he were clutching something against his body.

The defendant, by contrast, had both his hands in the front

"kangaroo pouch pocket" of his hooded sweatshirt located near

his waistband. Sergeant Simmons testified that it looked as if

the defendant was holding something in his hands against his

waist, in that instead of hanging down relaxed, creating

pressure on the outside of his pocket, his hands seemed to

direct pressure inwards, as though they were not relaxed in the

sweatshirt. He testified, however, that he could not tell how

much pressure they were applying or what they were holding, and,

given that it was late November, he acknowledged, "I guess he

could just be keeping his hands warm."

Having seen this, Sergeant Simmons radioed his colleagues

and asked them to stop the two individuals. Within seconds, an

unmarked police cruiser, driven by a third sergeant, Stephen

Gwozdz, pulled up behind them, and his partner, Detective

5
Nathaniel Almeida, got out of the front passenger seat.3 The two

individuals started running. Detective Almeida ran after them.

The motion judge concluded that the seizure occurred when

Detective Almeida began chasing the defendant and upheld it on

the ground that there was reasonable suspicion the defendant

unlawfully possessed a firearm, either individually or as a

joint venturer. See Commonwealth v. Britt, 465 Mass. 87, 100-

101 (2013), quoting Commonwealth v. Zanetti, 454 Mass. 449, 467

(2009).

Discussion. Under both the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights, individuals are protected from unreasonable seizures

at the hands of the government. A seizure, in a constitutional

sense, occurs when "an officer has, through words or conduct,

objectively communicated that the officer would use his or her

police power to coerce that person to stay." Commonwealth v.

Matta, 483 Mass. 357, 362 (2019). The Commonwealth bears the

burden of demonstrating that the police officers acted lawfully

in seizing the defendant. Commonwealth v. Williams, 422 Mass.

111, 115-116 (1996).

3 There were some findings about Almeida recognizing the
individuals and about some knowledge of their previous conduct,
but it is irrelevant to our decision.

6
The test for reasonableness in this context is well known.

The officers must have had reasonable suspicion, based upon

articulable facts, that the individual, in this case the

defendant, "has committed, is committing, or is about to commit

a crime." Commonwealth v. DeJesus, 72 Mass. App. Ct. 117, 119

(2008).

In this case, the parties correctly agree that the

defendant was seized when Detective Almeida got out of his

cruiser and began to chase him and the juvenile. See

Commonwealth v. Ware, 76 Mass. App. Ct. 53, 56 (2009). The

question, then, is whether at that point there was reasonable

suspicion, based on articulable facts, that the defendant had

committed, was committing, or was about to commit a crime.

As described briefly above, these events took place in a

high crime area. Given how many of our urban areas in the

Commonwealth fall into the "high crime area" category, and the

large number of innocent people who live in those areas,

ordinarily this factor is worth little weight in the reasonable

suspicion calculus. Commonwealth v. Meneus, 476 Mass. 231, 238

(2017). We do have cases, however, holding that where crime has

been particularly intense in a high crime area in the recent

past, that can add more weight to this factor. See Commonwealth

v. DePeiza, 449 Mass. 367, 372 (2007); Commonwealth v. Fisher,

54 Mass. App. Ct. 41, 43, 45 (2002).

7
In this case, there was no immediately recent criminal

conduct in the area comparable to the case in Fisher, where

police had within thirty minutes of the challenged patfrisk

responded to a gun-related call on the same block where they

eventually encountered the defendant. On the other hand, there

had been a shooting as recently as nine days prior to this, so

this factor can be given some additional weight compared to the

run-of-the-mill case.

In addition, the Commonwealth points out that the defendant

and the juvenile ran when they saw the police. Again, however,

we have been cautioned that merely running from the police,

particularly if one is a person of color, is of very little

value, if any, in determining whether an individual has engaged

in crime. Commonwealth v. Warren, 475 Mass. 530, 538-540

(2016). The Warren case indicates that in the City of Boston,

it should be given little weight in light of the fact that

"black males in Boston are disproportionately and repeatedly

targeted for" police encounters. Id. at 540. This took place

in New Bedford, not Boston, but for most of the reasons

articulated in Warren, we think, standing alone, this is a

factor that would be worth minimal weight. Nonetheless, all the

facts and circumstances have to be considered together, and, in

this case, immediately after running from the police, the

defendant and the juvenile did not continue to attempt to avoid

8
them. Rather, they almost immediately ran back, not on the

street but by a route that was not observable from the street,

to the very backyard from which they had initially been seen

emerging, a location that one might reasonably expect the police

immediately to return to as well, in order to see whether any

evidence, of crime or otherwise, could be found there explaining

the individuals' brief visit.

Sergeant Simmons saw the individuals again emerge from the

backyard as he returned to the abandoned house, so whatever

their purpose in going there, it took only a brief, few moments.

Therefore, they were not returning there to hide or to engage in

any other kind of conduct that might take any amount of time.

It is reasonable to suspect that they returned there to

retrieve something they had left and, given the surreptitious

route of their return, it was reasonable to suspect that that

"something" was contraband of some kind. Given that their

avoidance of the police was temporary, this also strengthens

somewhat the inference that they were running from the police

not out of caution or fear but to avoid being apprehended for a

crime.

As they emerged from the yard, the juvenile had one hand in

his jacket pocket and the other hand reaching across his body

and holding the outside of the pocket. It was reasonable to

suspect that what he was holding was the contraband, and

9
likewise, given the awkwardness of the position, and his use of

two hands, that it was something heavy, perhaps a firearm.

Because lawful owners of firearms ordinarily do not store them

in backyards behind vacant houses, there was reasonable

suspicion that any firearm possessed by the juvenile was

unlawfully possessed, even if the officers could not tell that

the juvenile was under eighteen.

The question, though, is whether there was reasonable

suspicion that the defendant, not the juvenile, had committed or

was committing a crime. The Commonwealth would rely on the

placement of the defendant's hands in the front pockets of his

hoodie to show suspicion that he himself possessed a second

firearm. The hands-in-the-hoodie-pocket presents a trickier

question. It is not clear that the testimony of the sergeant

indicated that his conclusion about what the defendant might be

doing or holding in his hoodie pocket was based on his training

and experience or was merely an inference he drew. But even if

it were the former, we would be loath to conclude that having

one's hands in one's hoodie pocket on a November afternoon,

whether they were resting, pressing the pocket outward, or

otherwise, creates reasonable suspicion that one is holding a

firearm in that pocket. Far too many people wear hoodies and

put their hands in their pockets in innumerable innocent

10
situations for it to be reasonable to suspect, without more

specific evidence, that the defendant was holding a firearm.

In any event, we think, ultimately, we need not rely on the

placement of the defendant's own hands because, even without the

evidence of how the defendant's hands were in his hoodie, there

was reasonable suspicion that the defendant was a joint venturer

with the juvenile in the possession of a firearm the police

reasonably suspected was in the juvenile's pocket. That is

enough to justify the seizure.

The defendant argues that there was insufficient evidence

to support a reasonable suspicion that the defendant was in

joint possession of the firearm. And that may be true. But

"'[t]he theory of "joint venture" liability finds its roots
in the concept of accessorial or accomplice liability.'
Thus, in order to establish liability for firearm
possession under a theory of joint venture, it is not
necessary that the Commonwealth prove that a defendant had
actual or constructive possession of a firearm, but only
that such a defendant 'was accessory to another identified
defendant in possessing a firearm.'"

Commonwealth v. Humphries, 465 Mass. 762, 767-768 (2013)

(citations omitted).

The facts known to the police at the time were sufficient

to support a reasonable suspicion that the defendant had aided

the juvenile in gaining possession of the firearm. The police

could reasonably have thought that the defendant had joined the

juvenile, and that together they had left the firearm in the

11
backyard, and that he then returned with the juvenile to the

backyard in order to assist him in retrieving it.

Of course, there need not be proof beyond a reasonable

doubt, or even a showing by a preponderance of the evidence,

that the defendant aided the juvenile, but only reasonable

suspicion. See Commonwealth v. Francis, 104 Mass. App. Ct. 593,

602 (2024) ("Evidence establishing joint venture [for firearm

possession] may include proof that the defendant 'agree[d] to

. . . provide aid or assistance in committing the crime, or in

escaping, if such help [became] necessary'" [citation omitted]).

Consequently, the order denying the motion to suppress is

affirmed.

Order denying motion to
suppress affirmed.

By the Court (Rubin, Shin &
Hodgens, JJ 4),

Clerk

Entered: May 22, 2025.

4 The panelists are listed in order of seniority.

12