Commonwealth v. Jeremy E. Winam.

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-270

COMMONWEALTH

vs.

JEREMY E. WINAM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a 911 caller reported seeing a man with a gun, the

police stopped the defendant and recovered a gun and a bag of

cocaine from his person. The defendant moved to suppress this

evidence on the ground that the police did not have reasonable

suspicion of a crime to justify the stop. A District Court

judge denied the motion, and the defendant was then convicted,

after a jury-waived trial before a different judge, of carrying

a firearm without a license, defacing a serial number on a

firearm, and possessing a Class B substance. The defendant

appeals from his convictions on the sole ground that the motion

judge erred in denying his motion to suppress. We agree and

thus vacate the convictions.
Background. The motion judge credited the testimony of

Chelsea police Officer Daniel Arteaga, who was the only witness

who testified at the suppression hearing. We summarize the

motion judge's factual findings, supplemented by facts derived

from Officer Arteaga's uncontroverted testimony. See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008).

At approximately 3:45 P.M. on April 9, 2022, Chelsea police

received a 911 call about "a white male, with a camouflage top,"

"brandishing" a gun in the area of Route 16 and Garfield Street.

The caller specifically described seeing the man pull out a gun

and place it in his pants.

Officer Arteaga drove his marked cruiser to the area.

After seeing no one matching the caller's description, Officer

Arteaga entered a nearby convenience store and spoke to an

employee there. The employee stated that a man wearing a

camouflage shirt had come into the store, purchased some items,

and left.1

Soon after leaving the store, Officer Arteaga saw a man

matching the caller's description in the area of Sagamore

1 The motion judge clearly erred in finding that the police
had information that a man had brandished a firearm "at" or "in"
the store. There was no testimony to that effect. Rather,
Officer Arteaga testified that the reported incident occurred in
the area near the store.

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Street. Officer Arteaga approached and told the man, later

identified as the defendant, that the police were "investigating

someone . . . who had just . . . brandished a weapon" and asked

whether he "had seen anyone who could have done that." The

defendant "denied seeing anyone or being anyone that had done"

what Officer Arteaga described. The conversation ended, and

Officer Arteaga allowed the defendant to go on his way.2

While the defendant was still in his line of sight, Officer

Arteaga received a call from another officer who was with the

911 caller. When Officer Arteaga relayed that the defendant had

a "fresh haircut," the other officer confirmed that this

additional detail matched the man seen by the caller. Officer

Arteaga then communicated over his radio that he was going to

approach the defendant again. At this point the defendant was

between fifty and one hundred yards away from where Officer

Arteaga had spoken to him initially.

Officer Arteaga activated his cruiser lights and drove

toward the defendant. By the time he reached the defendant, two

other officers were already there, arriving in separate cruisers

with their lights on. The three officers got out of their

2 The motion judge clearly erred in finding that Officer
Arteaga asked the defendant during this initial encounter
whether he had been in the store and that the defendant admitted
he had. Officer Arteaga testified that a fellow officer asked
this question later, after the defendant was stopped.

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vehicles and surrounded the defendant. When one officer asked

the defendant if he had a gun, the defendant said he did not and

raised his hands, causing his shirt to lift up to reveal a gun

tucked into his waistband. The defendant was placed under

arrest after he admitted that he did not have a license to carry

a firearm. Later, during the booking process, a small bag of

cocaine was found on the defendant's person.

Discussion. When reviewing a decision on a motion to

suppress, we adopt the judge's factual findings absent clear

error but "independently determine the correctness of the

judge's application of constitutional principles to the facts as

found." Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004).

The burden was on the Commonwealth to establish that the stop of

the defendant was "within constitutional limits." Commonwealth

v. DePeiza, 449 Mass. 367, 369 (2007).

The defendant argues, and the Commonwealth does not

contest, that he was seized in a constitutional sense when

Officer Arteaga and the other two officers surrounded him. We

agree that, in these circumstances, the officers' act of

surrounding the defendant "objectively communicated that [they]

would use [their] police power to coerce [the defendant] to

stay." Commonwealth v. Matta, 483 Mass. 357, 362 (2019). The

defendant was thus seized by this point.

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The question then is whether, at the time of the seizure,

the officers had reasonable suspicion that the defendant "was

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

Matta, 483 Mass. at 365, quoting Commonwealth v. Martin, 467

Mass. 291, 303 (2014). Reasonable suspicion "must be based on

specific, articulable facts and reasonable inferences drawn

therefrom," rather than "a hunch." Commonwealth v. Barreto, 483

Mass. 716, 720 (2019), quoting Commonwealth v. Wren, 391 Mass.

705, 707 (1984).

Here, the facts known to the officers at the time of the

seizure supported, at most, a hunch that the defendant was

engaged in criminal activity. The 911 call did not alone create

reasonable suspicion because "[c]arrying a gun is not a crime."

Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996). See

Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498

U.S. 951 (1990). While acknowledging this point, the motion

judge appeared to conclude that the call still provided

reasonable suspicion because "[t]he information officers had was

that an individual brandished a firearm at the [store]" and "it

is a crime to brandish a firearm." As noted above, however, the

testimony does not support the motion judge's findings that the

911 caller reported a man brandishing a firearm "at" or "in" the

store or that the defendant admitted to being in the store prior

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to the stop. Furthermore, although Officer Arteaga used the

word "brandish" in describing the 911 call, he confirmed on

cross-examination that the caller did not report seeing the man

point the gun at anyone, wave it around, or otherwise use it in

a threatening manner. Rather, the caller reported only that a

man had pulled out a gun and put it in his pants. This did not

create reasonable suspicion of criminal conduct. See

Commonwealth v. Gomes, 458 Mass. 1017, 1019 (2010) (911 report

of man holding gun in air did not justify stop where "[t]here

was no evidence that the gun had been fired, pointed at another

person, or otherwise handled in a way that posed a threat to

someone, nor was there evidence that the defendant was a

dangerous person").

Absent any evidence that the defendant posed an imminent

threat to public safety, the Commonwealth had to show that the

police had reasonable suspicion that the defendant was carrying

the gun illegally, i.e., without a license, to justify the

seizure. See Alvarado, 423 Mass. at 269-271. The Commonwealth

points to two factors, in addition to the 911 call, that it says

created such suspicion: Officer Arteaga's observation of the

defendant "clutching his side while walking" away from their

initial encounter; and the defendant's "lying" to Officer

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Arteaga during their initial encounter that he was not carrying

a firearm.3 We are unpersuaded.

With regard to the defendant's clutching his side, Officer

Arteaga testified that he noticed that behavior after the stop

and did not see any odd, suspicious, or furtive movements from

the defendant when he was walking away from their initial

encounter. Thus, to the extent the motion judge found that the

defendant was clutching or leaning to his side as he walked

away, that finding is at odds with Officer Arteaga's testimony.

In any event, even were we to agree with the Commonwealth that

the testimony is ambiguous in this respect, the defendant's

manner of walking adds little to nothing to the reasonable

suspicion calculus where Officer Arteaga did not testify about

any conclusions he drew from his observations based on his

experience and training.4 Cf. DePeiza, 449 Mass. at 373 ("The

officers' suspicion that the odd way of walking was a sign of a

firearm was not a mere hunch, but was the result of the

3 The Commonwealth appropriately conceded at oral argument
that Officer Arteaga's testimony does not support the assertion
in the Commonwealth's brief that the defendant was "evasive"
during the initial encounter. The testimony was that the
defendant was evasive after the stop.

4 After he was stopped, the defendant explained to the
officers that he was leaning to his side because he had an
injury from falling off a ladder.

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application of their experience and training at the police

academy to their detailed observations of the defendant").

With regard to the Commonwealth's second argument, we need

not decide whether a person's lying about carrying a firearm can

create reasonable suspicion that that person is carrying the

firearm illegally because, assuming that it can, Officer

Arteaga's testimony does not show that the defendant lied.

Contrary to the Commonwealth's characterization, Officer Arteaga

did not testify that he asked the defendant if he was carrying a

firearm. Precisely, his testimony was, "So I just went off with

that party [the defendant] to kind of let him know that we're

investigating someone who -- who had just, you know, brandished

a weapon. To see -- asked him if he had seen anyone who could

have done that." Officer Arteaga further testified that the

defendant responded to his question by denying "seeing anyone or

being anyone that had done that." On cross-examination, Officer

Arteaga confirmed that the defendant's response was,

essentially, "[I]t wasn't him." Given the ambiguity inherent in

Officer Arteaga's question, the defendant's response, even if

somewhat evasive, did not give rise to reasonable suspicion that

he was carrying a firearm illegally. Cf. Commonwealth v.

Holley, 52 Mass. App. Ct. 659, 665 (2001) ("ambiguous gesture"

did not create reasonable suspicion to justify patfrisk).

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There are no other facts that would support a finding of

reasonable suspicion. The stop of the defendant was therefore

unlawful, and his motion to suppress should have been allowed.

Conclusion. The order denying the defendant's motion to

suppress evidence is reversed, the judgments are vacated, and

the findings are set aside. The case is remanded for entry of

an order allowing the defendant's motion to suppress.

So ordered.

By the Court (Sacks, Shin &
Hershfang, JJ.5),

Clerk

Entered: October 25, 2024.

5 The panelists are listed in order of seniority.

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