Commonwealth v. Nathaniel Greene.

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-1282

COMMONWEALTH

vs.

NATHANIEL GREENE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a Superior Court

judge allowing the defendant's motion to suppress. 1 The evidence

at issue is police body-worn camera (BWC) footage and

observations of the defendant, Nathaniel Greene, after a vehicle

stop and exit order. Following an evidentiary hearing at which

the responding officers testified, the judge found that the stop

was lawful but allowed the motion to suppress as to the exit

order, the patfrisk of the defendant, and a sweep of his

vehicle. We reverse.

1A single justice of the Supreme Judicial Court allowed the
Commonwealth's application, pursuant to Mass. R. Crim. P.
15 (a) (2), as amended, 476 Mass. 1501 (2017), for leave to
pursue an interlocutory appeal in the Appeals Court.
Background. We summarize the facts as found by the motion

judge, supplemented with "evidence from the record that is

uncontroverted and undisputed and where the judge explicitly or

implicitly credited the witness's testimony . . . so long as the

supplemented facts do not detract from the judge's ultimate

findings" (citation and emphasis omitted). Commonwealth v.

Garner, 490 Mass. 90, 94 (2022). At 1:21 A.M., members of the

Boston police department (BPD) issued an alert for shots fired

around the Dublin House (a bar) on Stoughton Street in the

Dorchester section of Boston. One minute later, police had

confirmed at least one person had been struck. Shortly after

the initial burst of shots, there was a second volley of

approximately fifteen more rounds.

At 1:27 A.M., BPD broadcast a description of a suspect

based on an image retrieved from Department of Homeland Security

(DHS) cameras in the immediate aftermath of the shooting. The

suspect was reported to be wearing a "dark blue jacket" and

"blue jeans with faded legs," possibly carrying a gun, and

running in the direction of Columbia Road. The broadcast

description did not contain any information as to the gender,

race, height, or weight of the suspect. The broadcast made no

reference to cars fleeing the scene.

As two responding police officers were approaching the

scene of the shooting, they saw a car (the defendant's) leaving

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Stoughton Street, turning briefly onto Pleasant Street before

turning right and accelerating onto a dead-end side street just

south of the intersection of Stoughton and Pleasant. As the car

approached the dead end, it stopped and reversed all the way

back to the main road before again heading south on Pleasant

Street. The dead-end street was approximately one-quarter of a

mile from the Dublin House. 2

A responding officer testified that the car caught his

attention because it was the only car travelling away from the

scene of the shooting at a high rate of speed. The officer

followed the defendant's vehicle on Pleasant Street for a short

distance before activating his emergency lights; the car stopped

without incident. The stop was based on the speeding violation

and the officer's concern that the car might contain a suspect,

witness, or victim related to the shooting. As the officer

stopped his cruiser, BWC footage recorded the time as 1:28 A.M.

(seven minutes after the initial broadcast reporting the

shooting).

When the officer first approached the vehicle, he saw that

the defendant, who was alone in the car, was wearing a dark

shirt and gray-wash jeans, and noted a dark colored "bubble

2 Stoughton Street intersects with Columbia Road on the
northwestern end and Pleasant Street on the southeastern end.
The Dublin House is the first building on the right when
entering Stoughton Street from Columbia Road.

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jacket" in the back seat. The officer noted the clothing as

being similar to the broadcast description of the suspect.

When the officer reached the vehicle, the defendant had in

his hand what appeared to be his license and registration. The

officer asked the defendant where he was coming from, and the

defendant said he had been at a club. The officer told the

defendant to shut off the car and the defendant complied. The

officer issued an exit order and, without pausing, opened the

defendant's door. The defendant asked why he was being ordered

to get out of the car. The officer explained that he was

responding to a report of a shooting.

After the defendant got out of his car, he was pat frisked

and moved to the rear of the car. The defendant continued to

protest the officer's actions and was not forthcoming when asked

for specifics on where he had been before being stopped. The

officer inspected the front seat area, including inside the

glove box and center console, and briefly looked in the back

seat. The examination of the vehicle was done quickly and did

not involve any manipulation of the car's interior. No

contraband was recovered. After the officers determined that

the defendant was not the man in the DHS video, the interaction

ended, and the defendant was allowed to leave.

The police later recovered a firearm near the scene of the

shooting. Security camera images connected a man to that gun.

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The investigators compared those later-acquired images to the

BWC footage of the defendant during the stop and concluded the

defendant was the man who left the gun on scene. The

identification rested primarily on the BWC footage of the

defendant's lower body after the exit order, and these images,

along with the officers' observations of the defendant once the

car door was opened, were the subject of the motion to suppress.

Discussion. "When reviewing a motion to suppress evidence,

we adopt the motion judge's subsidiary findings of fact absent

clear error, but we 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).

1. The exit order. "Our analysis begins with the validity

of the exit order because there is no dispute that the initial

stop of the defendant's vehicle was valid." Commonwealth v.

Monell, 99 Mass. App. Ct. 487, 489 (2021). See Commonwealth v.

Santana, 420 Mass. 205, 207 (1995) ("Where the police have

observed a traffic violation, they are warranted in stopping a

vehicle" [citation omitted]). An exit order is justified where

the police "are warranted in the belief that the safety of the

officers or others is threatened" or "have reasonable suspicion

of criminal activity." Commonwealth v. Torres-Pagan, 484 Mass.

34, 38 (2020). We address both rationales.

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"[I]t does not take much for a police officer to establish

a reasonable basis to justify an exit order or search based on

safety concerns . . . ." Commonwealth v. Gonsalves, 429 Mass.

658, 664 (1999). "The justification for an exit order does not

depend on the presence of an 'immediate threat' at the precise

moment of the order, but rather on the safety concerns raised by

the entire circumstances of the encounter." Commonwealth v.

Stampley, 437 Mass. 323, 328 (2002). "A police officer need

point only to some fact or facts in the totality of the

circumstances that would . . . warrant an objectively reasonable

officer in securing the scene in a more effective manner."

Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013).

Here, police officers saw the defendant only minutes after

the shooting and a short distance from the scene, speeding away

in a manner indicative of flight. As he approached the

defendant's car, the testifying officer noted that the

defendant's clothing matched the suspect's description. These

facts caused "'a heightened awareness of danger that would

warrant an objectively reasonable police officer'" to fear for

his safety. Monell, 99 Mass. App. Ct. at 490, quoting Stampley,

437 Mass. at 326. "The exit order [was] a reasonable measure to

prevent the harm that might have occurred as part of an attempt

by [the defendant] to escape by car." Commonwealth v. Bostock,

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450 Mass. 616, 622 (2008). Accordingly, the exit order was

lawful.

The order was also justified by reasonable suspicion. For

police to "expand a threshold inquiry of a motorist" stopped for

a traffic violation, they "must reasonably believe that there is

further criminal conduct afoot, and that belief must be based on

'specific and articulable facts and the specific reasonable

inferences which follow from such facts in light of the

officer's experience.'" Commonwealth v. Feyenord, 445 Mass. 72,

77 (2005), quoting Commonwealth v. King, 389 Mass. 233, 243

(1983). "In evaluating whether the police exceeded the

permissible scope of a stop, the issue is one of proportion.

The degree of suspicion the police reasonably harbor must be

proportional to the level of intrusiveness of the police

conduct" (quotation and citation omitted). Feyenord, supra.

"[W]hen the police reasonably believe that a motorist has

committed a crime, a motorist reasonably should expect that the

police may engage in greater intrusions than when the motorist

is suspected merely of a driving infraction." Bostock, 450

Mass. at 621.

Here, "the exit order was proportional to the suspicion

that prompted the intrusion." Bostock, 450 Mass. at 622. The

police were investigating a very recent shooting. The suspect

was still at large. This "indicated a potential ongoing risk to

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public safety, and therefore weighed in favor of reasonable

suspicion." Commonwealth v. Evelyn, 485 Mass. 691, 705 (2020).

See Commonwealth v. Depina, 456 Mass. 238, 247 (2010) ("The

gravity of the crime and the present danger of the circumstances

may be considered in the reasonable suspicion calculus").

The officers saw the defendant's vehicle speeding away from

the area of the shooting minutes after it occurred, only one-

quarter of a mile away. "Proximity is accorded greater

probative value in the reasonable suspicion calculus when the

distance is short and the timing is close." Commonwealth v.

Warren, 475 Mass. 530, 536 (2016). Although the broadcast was

of a suspect fleeing on foot in the opposite direction, this

does not necessarily weigh against reasonable suspicion when the

defendant could have gotten into a car and driven one-quarter of

a mile in the time following the incident. See, e.g., Depina,

456 Mass. at 240, 247 (reasonable suspicion for stop where

suspect reportedly fleeing on foot and defendant stopped

pedaling scooter within three blocks of crime scene); Bostock,

450 Mass. at 617-619 (reasonable suspicion for exit order where

defendant who matched witness description seen walking away from

scene of car burglary and found minutes later in nearby truck).

When he first approached the vehicle, the testifying

officer saw that the defendant's coat and jeans matched the

description of the suspect at large. Combined with the timing,

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proximity to the shooting, and observations about the

defendant's driving, this gave the officer reasonable suspicion

to believe that the defendant had recently engaged in criminal

activity. "[T]he value of a vague or general description in the

reasonable suspicion analysis may be enhanced if other factors

known to the police make it reasonable to surmise that the

suspect was involved in the crime under investigation."

Commonwealth v. Meneus, 476 Mass. 231, 237 (2017). The officer

was "permitted to take reasonable measures, such as ordering

[the defendant] out of the vehicle . . . , to ensure that he did

not attempt to escape before [the officer] could conduct a

threshold inquiry." Bostock, 450 Mass. at 622.

2. The patfrisk and the protective sweep. 3 "[T]o justify a

patfrisk, an officer needs more than safety concerns . . . ."

Torres-Pagan, 484 Mass. at 37. "[P]olice must have a reasonable

suspicion, based on specific articulable facts, that the suspect

is armed and dangerous." Id. at 38-39.

"Where an officer has issued an exit order based on safety

concerns, the officer may conduct a reasonable search for

3 The motion judge did not analyze the patfrisk because he
ruled that the exit order was improper. Because we understand
the patfrisk of the defendant to be relevant to the officers'
ability to see the back of his pants, which was in turn relevant
to the later identification of the defendant as the person who
dropped the gun, we assess the legality of the frisk in the
circumstances.

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weapons in the absence of probable cause to arrest."

Commonwealth v. Amado, 474 Mass. 147, 152 (2016). "We examine

the facts not in isolation, but as they reasonably and

objectively appeared in the context of the ongoing encounter."

Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013).

Here, the facts that supported the exit order also

supported the officer's suspicion that the defendant was armed

and dangerous. See Commonwealth v. Narcisse, 457 Mass. 1, 9

(2010) (suspicions that individual committed crime and was armed

and dangerous "may occur simultaneously"). The officers'

concern for their safety grew when the defendant became

argumentative and required repeated instruction to exit the

vehicle. See Commonwealth v. Johnson, 82 Mass. App. Ct. 336,

340 (2012) (that defendant was nervous and slow to obey

officers' commands were factors considered in reasonable

suspicion analysis).

"Once the defendant was removed from the car and no weapon

was discovered during the patfrisk of his person, the officers

were justified in their concern that a weapon might remain in

the car." Monell, 99 Mass. App. Ct. at 491. The BWC footage

shows that both the patfrisk and search of the car were brief.

"Such protective searches are reasonable if 'confined to what is

minimally necessary to learn whether the suspect is armed and to

disarm him once the weapon is discovered.'" Amado, 474 Mass. at

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152, quoting Commonwealth v. Almeida, 373 Mass. 266, 272 (1977).

The patfrisk of the defendant and sweep of his vehicle were

justified, not prolonged, and appropriately limited.

Order allowing motion to
suppress reversed.

By the Court (Englander,
Hershfang & Brennan, JJ. 4),

Clerk

Entered: January 29, 2025.

4 The panelists are listed in order of seniority.

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