Commonwealth v. Malik Cannon.

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-355

COMMONWEALTH

vs.

MALIK CANNON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a stop of the defendant's vehicle, the defendant

was charged with, inter alia, possession with intent to

distribute a class B substance, carrying a loaded firearm

without a license, and carrying a firearm without a license.1

The defendant filed a motion to suppress evidence obtained from

the traffic stop, which was denied. His motion for

reconsideration of that ruling was also denied. The defendant

then entered into a conditional plea agreement pursuant to Mass.

1The Commonwealth nol prossed additional charges for
possession with intent to distribute a class B drug as a
subsequent offense, possession of a large capacity firearm in a
felony, and possession of a loaded machine gun. At the request
of both parties, the judge dismissed a charge for possession of
ammunition without a firearm identification card.
R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019),

in which he agreed to plead guilty to the charges while

reserving the right to appeal from the order denying his motion

to suppress. He now argues on appeal that the traffic stop was

unsupported by reasonable suspicion. We agree.

Background. In December 2021, New Bedford police officers

were conducting undercover surveillance on a residential

building in New Bedford; the building consisted of three

apartments. The third-floor apartment had been the subject of

numerous complaints from the public, other tenants, and the

landlord regarding suspected drug activity. These complaints

led to a search warrant being issued for the third-floor

apartment; the warrant, which was never executed, had four

targets, including the defendant.2 Over the course of several

weeks, Detective Andrew Simmons witnessed several people

approach the apartment building, enter through the back door,

and come out within several minutes. When the police stopped

these individuals, they consistently found drugs in the

individuals' possession.

On December 29, 2021, Simmons observed a black Acura, in

which the defendant was a passenger, park in front of the

2 Neither the search warrant nor its supporting affidavit
was admitted in evidence, and these documents are not before us.

2
apartment building. Simmons did not recognize either the driver

or the defendant. He watched as the defendant exited the

vehicle, walked towards the back of the building, and entered

through the back door; he did not know where the defendant went

once inside the building. The driveway of the apartment

building was occupied, so the Acura drove a short distance along

the road and pulled over, obstructing another driveway. The

Acura moved to accommodate a car leaving this driveway, drove

around the block, parked on another street, and then pulled in

across the street from the apartment building into which the

defendant had gone. Within ten minutes, the defendant came back

out of the building and returned to the Acura, and the car drove

away. Simmons believed, based on these actions and his previous

observations of the apartment building, that a drug transaction

had occurred inside the third-floor apartment. He instructed

another detective, Nathaniel Almeida, to stop the Acura.

Almeida did so, then recognized the defendant as one of the

third-floor residents, whom Almeida testified was the target of

the search warrant for the apartment. Almeida knew that the

defendant claimed to be a gang member and was associated with

other individuals who had been arrested with firearms. He also

knew that two confidential informants had told New Bedford

police officers that the defendant was in possession of a

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firearm.3 Based on this information, Almeida ordered the

occupants out of the car and searched them. The search

uncovered a firearm under the jacket the defendant was wearing

and ultimately led to the discovery of crack cocaine between the

defendant's buttocks.

Discussion. "In reviewing a ruling on a motion to

suppress, we accept the judge's findings of fact absent clear

error but conduct an independent review of his ultimate findings

and conclusions of law." Commonwealth v. Kearse, 97 Mass. App.

Ct. 297, 299 (2020), quoting Commonwealth v. Montoya, 464 Mass.

566, 576 (2013). Before conducting an investigatory stop of a

vehicle, police must have "reasonable suspicion that [an

occupant of that vehicle] has committed, is committing, or is

about to commit a crime." Kearse, supra at 300, quoting

Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). "Reasonable

suspicion must be grounded in specific, articulable facts and

reasonable inferences [drawn] therefrom rather than on a hunch

(quotations and citation omitted)." Kearse, supra.

We agree with the defendant that at the time of the stop,

the police did not have reasonable suspicion to believe that he

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

3 We note that Detective Drew Frenette testified that one
confidential informant had told him that the defendant was
"possibly" in possession of a firearm.

4
Apart from the fact that one of the three apartments in the

building was suspected to be a hub for drug activity, the police

did not have any information to suggest that the defendant had

participated in a drug transaction. At the time of the stop,

neither Simmons nor Almeida knew who the occupants of the Acura

were, so any information about the defendant's identity plays no

role in our analysis.4 See Kearse, 97 Mass. App. Ct. at 301

("the timing of the stop constrains us to exclude from

consideration the crucial facts that [officers] later

discovered"). See also Commonwealth v. Barreto, 483 Mass. 716,

720 (2019) (no reasonable suspicion where neither defendant nor

pedestrian were known to officers conducting surveillance). Cf.

Commonwealth v. Gomes, 453 Mass. 506, 511 (2009) (reasonable

suspicion where, inter alia, officer "was familiar with the

defendant as an individual who previously had been arrested on

drug charges"). This includes information about the defendant's

possible possession of a firearm, his residency in the third-

floor apartment, his association with people who possessed

firearms, and his claimed gang membership.

4 The judge's finding that at the time of the stop, police
"had info re: the [defendant] possessing a firearm" -- the
basis for the stop of the Acura -- was not supported by the
record and thus clearly erroneous. See Kearse, 97 Mass. App.
Ct. at 299.

5
Excluding this information, we are left with Simmons's

observations of the defendant entering and then leaving a multi-

unit residential building known for drug activity, and the

continuing presence of the Acura. Simmons could not see inside

the building, so he did not know which of the three apartments,

if any, the defendant was visiting. He did not see the

defendant engage in any kind of suspicious transaction. See

Commonwealth v. Smith, 55 Mass. App. Ct. 569, 573 (2002) (no

reasonable suspicion where officer "did not observe any actual

transaction or furtive activity on the part of the defendant").

He did not observe the defendant carrying anything suggesting

contraband, either before or after he entered the building. Cf.

Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 52 (2000)

(reasonable suspicion where defendant left scene with paper bag

he did not have upon arriving at location). After checking the

license plate of the Acura, Simmons did not find anything

suspicious, nor do we discern any inherently suspect quality to

the fact that the driver of the Acura waited for the defendant

in the area of the apartment building. These movements by the

Acura, even when combined with the defendant's actions, do "not

meaningfully add to the [reasonable suspicion] calculus."

Kearse, 97 Mass. App. Ct. at 303.

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Because the information about suspected drug activity in

the apartment building was as vague and unspecific as

characterizing the neighborhood as being a "high crime area,"

the Commonwealth has failed to establish reasonable suspicion.

See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001) ("Just

being in a high crime area is not enough to justify a stop");

Kearse, 97 Mass. App. Ct. at 302, quoting Gomes, 453 Mass. at

512 ("[L]aw-abiding citizens live and work in high-crime areas.

Those citizens are entitled to the protections of the Federal

and State Constitutions, despite the character of the area");

Commonwealth v. Clark, 65 Mass. App. Ct. 39, 44 (2005). Absent

reasonable suspicion, the police are not permitted to stop every

person who enters a multi-unit residential building for a short

period of time, merely because a single unit is suspected or

known to be a hub for drug activity.

In light of our conclusion that the police lacked

reasonable suspicion to stop the Acura, we do not address the

propriety of the subsequent exit order and patfrisk of the

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defendant. See Clark, 65 Mass. App. Ct. at 45.

The orders denying the motion to suppress and the motion

for reconsideration are reversed, and the matter is remanded to

the District Court for further proceedings.

So ordered.

By the Court (Desmond, Hand &
Grant, JJ.5),

Clerk

Entered: June 27, 2024.

5 The panelists are listed in order of seniority.

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