Commonwealth v. Karrar A. Abdulhussein.

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-704

COMMONWEALTH

vs.

KARRAR A. ABDULHUSSEIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court on

consolidated complaints, the defendant was convicted of

possessing a firearm without a license, see G. L. c. 269,

§ 10 (a), and possessing ammunition without a firearm

identification (FID) card, see G. L. c. 269, § 10 (h) (1).1 On

appeal, the defendant argues that the judge should have granted

his motion to suppress the key evidence introduced against him

at trial, namely, the gun and ammunition. We affirm.

1The defendant was charged with a host of other crimes
arising from the same episode. Those other charges were all
dismissed, nol prossed, or resulted in a required finding of not
guilty in the defendant's favor.
Background. We recite the facts found by the motion judge

and supported by the record. At 9:33 A.M. on July 10, 2021, a

police dispatcher received a call from a woman who sounded

hysterical and very scared and was asking for police assistance.

The caller identified herself and said that she had been hit by

her baby's father, who had a gun and had tried to shoot them.

The caller identified her baby's father by name (the defendant's

name) and spelled it. She also provided a description of his

appearance, explaining that he was an "Arabic" male, twenty-one

years of age, wearing a grey hoodie with shorts. The caller

stated that the defendant had left an address on Russell Street

and was walking through backyards toward the high school.

Within one minute of the call, the dispatcher relayed the

information via radio, alerting officers of the alleged offenses

perpetrated by an "Arabic male . . . in his twenties . . . name

Karrar . . . walking toward the high school . . . from Russell

Street . . . gray hooded sweatshirt . . . shorts . . . does have

a firearm."

Detective Kelsey Grenham, who was on patrol in that sector,

received the radio dispatch and responded to the place where she

believed the suspect would be, given the description of the

direction the suspect was walking as relayed via dispatch.

Within minutes, Grenham encountered the defendant, who matched

the description. There was no one else walking in that area.

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Grenham radioed to dispatch and initiated an interaction

with the defendant, asking him to stop; the defendant complied.

Grenham asked the defendant if she could pat frisk him; the

defendant refused. As Grenham continued to approach, she

reached for a bag that was around the defendant's neck, draped

in front of his chest. The bag was about one foot wide, large

enough to hold a handgun, and composed of soft material. As

Grenham reached for the bag, the defendant pulled away. Within

a minute or so, two other officers arrived on the scene.

Grenham then proceeded to pat down the outer layer of the

defendant's clothing. Grenham felt a hard object in the

defendant's shorts and reached inside to remove the defendant's

cell phone. Grenham again attempted to search the bag, but the

defendant moved away and stated that his cell phone was in the

bag. Grenham reached for the bag a third time, unclasped it,

and removed herself to a nearby area. The bag was heavy, and

Grenham could tell something was inside it. Grenham opened the

bag, revealing a loaded firearm with a chambered round.

Discussion. In reviewing a ruling on a motion to suppress,

"we adopt the motion judge's factual findings absent clear

error," Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008),

and "conduct an independent review of his ultimate findings and

conclusions of law," Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002). The Commonwealth bears the burden of proof where there

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has been a warrantless stop, see Commonwealth v. Comita, 441

Mass. 86, 91 (2004), or search. See Commonwealth v. Henley, 488

Mass. 95, 100 (2021), citing Commonwealth v. Adallah, 475 Mass.

47, 51 (2016).

On appeal, the parties agree that the defendant was

lawfully stopped by the police, as there was at that moment at

least reasonable suspicion2 that the defendant had just engaged

in criminal conduct. See Commonwealth v. Resende, 94 Mass. App.

Ct. 194, 197 (2018) (reasonable suspicion justifying stop exists

where facts and circumstances give police reason to believe that

person is committing, has committed, or is about to commit a

crime).

The defendant argues, however, that the police should not

have opened the bag he had strapped around his body, where they

had no information that the suspect was carrying a bag and they

made no observation of a weapon or anything suggesting a

concealed weapon. See Commonwealth v. Karen K., 491 Mass. 165,

172 (2023). We disagree. There was reasonable suspicion to

2 Although we need not decide the issue, the recovery of the
gun and ammunition was likely justified as a search incident to
an arrest based on probable cause to believe the defendant had
committed various crimes, including assault with a gun. See
Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 234 (2006)
(probable cause may be based on report of identified victim of
crime with corroboration). See also Commonwealth v. Figueroa,
468 Mass. 204, 215 (2014) (search incident to arrest allows
search of area within defendant's immediate control at moment of
arrest, even though defendant may be secured at time of search).

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believe that the defendant had committed the crime of assault

with a gun, only minutes earlier, and we have little difficulty

in concluding that the police therefore had reason to believe

that the defendant was still armed and dangerous, justifying a

patfrisk of the defendant, as well as of the bag he wore around

his body. See Commonwealth v. Johnson-Rivera, 104 Mass. App.

Ct. 533, 536 (2024) (warrantless search of cross-body bag

justified where there was reasonable suspicion to believe that

defendant was unlawfully carrying firearm).

There is "narrowly drawn authority to permit a reasonable

search for weapons for the protection of the police officer,

where [s]he has reason to believe that [s]he is dealing with an

armed and dangerous individual." Commonwealth v. Torres-Pagan,

484 Mass. 34, 36 n.3 (2020), quoting Terry v. Ohio, 392 U.S. 1,

27 (1968). Relying on Commonwealth v. Pagan, 440 Mass. 62

(2003), the defendant contends that the police were not

permitted to search the bag because the exigency justifying the

search -- an armed and dangerous suspect -- had been dissipated

by the arrival of additional police officers and the removal of

the bag from the defendant. In Pagan, supra at 63-64, the

defendant was stopped on suspicion of breaking and entering. A

backpack was removed from him, opened, and searched in the

presence of several police officers. Id. The court held that

the police were not required to pat frisk the backpack before

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opening it where the process of removing the backpack from the

defendant made it clear that it contained heavy hard objects; a

patfrisk of the bag would have been superfluous. Id. at 71.

Likewise here, the process of removing the bag from the

defendant made it clear to Grenham that the bag contained a

hard, heavy item; there was no need for her to pat frisk the bag

prior to opening it. Although the court in Pagan, 440 Mass. at

67, recognized that sufficient police control over the defendant

and the bag might remove exigency, it did not decide the issue

in that case.3

In any event, the record discloses that two officers

arrived at the scene a few minutes after Grenham encountered the

defendant and that the gun was recovered within five minutes of

Grenham starting the interaction with the defendant. Although

two officers stood with the defendant while Grenham moved some

distance away and searched the bag, the defendant was not

handcuffed. Under the circumstances, we cannot say that the

situation was under control such that the police could be

assured that the gun might not accidentally discharge or the

3 The single Massachusetts case cited in Pagan, supra, for
the proposition that sufficient police control may dissipate
exigency to immediately search a bag, Commonwealth v. Madera,
402 Mass. 156, 160 (1988), did not actually decide that issue.
Madera involved a search incident to arrest, where the court
upheld the warrantless search of a bag even though police
presence was substantial and risk of defendant recovering bag
was minimal.

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defendant could not regain access to the gun.4 Compare Pagan,

440 Mass. at 67 (threat was not neutralized where additional

officers had only been on scene for three minutes prior to

search of bag and scene was in process of being secured). The

motion to suppress was properly denied.

Judgments affirmed.

By the Court (Massing,
Singh & Grant, JJ.5),

Clerk

Entered: December 12, 2024.

4 At the motion to suppress stage, the defendant's argument
was that the search of the bag was unlawful because a patfrisk
was required prior to the search. The claim that there was no
exigency justifying an immediate search once additional officers
arrived and the bag was removed from the defendant was not made.

5 The panelists are listed in order of seniority.

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