COMMONWEALTH v. DENNIS ORTIZ (And Twelve Companion Cases).

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-211
24-P-214

COMMONWEALTH

vs.

DENNIS ORTIZ (and twelve companion cases).1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants were each charged with various firearms

offenses stemming from the discovery of two firearms in a

"natural void" under the front center console of a car of which

Defendant Erick Rivera was the driver and Defendant Dennis Ortiz

was the front seat passenger. The defendants filed motions to

suppress the firearms, which were allowed by a judge of the

Superior Court on the grounds that the exit order was not

justified. A single justice of the Supreme Judicial Court

granted the Commonwealth leave to file an interlocutory appeal

1Six against Dennis Ortiz and six against Erick Rivera. In
filings and in his brief, Defendant Erick Rivera has spelled his
name as "Eric Rivera." As is our custom, we spell the
defendant's name as it was spelled in the indictments.
and reported the matter to this court. See Mass. R. Crim. P.

15 (a) (2), as amended, 476 Mass. 1501 (2017). We conclude that

the exit order was justified by concern for officer safety and

that the limited protective search of the car that led to the

seizure of the firearms was based on a reasonable suspicion that

the defendants were armed and dangerous. Accordingly, we

reverse the order allowing the motions to suppress.

Background. We summarize the relevant facts from the

judge's findings on the motions to suppress as follows. On the

evening of November 22, 2020, Boston police Officers Christopher

Stevens and Dennis Layden, both of whom were assigned to the

Youth Violence Strike Force, were on patrol in Dorchester.2 Both

officers had extensive experience with firearm seizures and

arrests, and, as members of the strike force, their

responsibilities included keeping "abreast of gang affiliations

and associations through police resources [and] community

interactions."

At approximately 9:38 P.M., the officers received a

ShotSpotter notification of gunfire at a location in Dorchester.

The officers were near the location and proceeded toward that

address. Traffic in the area was light. About ten minutes

2 Another officer, Ramos, was in the cruiser with Stevens
and Layden, but it is unclear whether Ramos was assigned to the
strike force.

2
after receiving the ShotSpotter alert, the officers saw a gray

car with "excessively tinted windows."3 The officers activated

their vehicle's lights and siren and stopped the car about three

blocks from the location of the ShotSpotter.

Stevens approached the driver's side of the car and saw

Rivera, who was in the driver's seat, lean forward significantly

with his head near the side view mirror. Stevens was familiar

with Rivera from previous street encounters. At the same time,

Layden approached the passenger's side of the car and recognized

Ortiz, whom he knew had a previous conviction for possession of

a firearm and had recently suffered a gunshot wound. The

officers knew that there were several gangs in the area and the

defendants were affiliates of a gang that had been involved in a

feud with another gang. The officers ordered the defendants to

exit the car. The defendants complied, and the officers pat

frisked them. Meanwhile, additional police officers arrived at

the scene, resulting in approximately ten officers present.

Nothing was found on the defendants' persons during the

patfrisk. Stevens then conducted a patfrisk of the driver's

side area of the car and saw scratch or pry marks on a side

panel of the center console. Based on his training and

experience, Stevens knew that the area was a common place to

3 The window tint was later measured at below the thirty-
five percent minimum. See G. L. c. 90, § 9D.

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hide weapons due to a "natural void" that most cars have in that

location. Stevens used his flashlight to look "up under the

side panel" and saw a firearm. He then searched and found a

second firearm on top of the first firearm.

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

evidence, we accept the judge's subsidiary findings of fact

absent clear error . . . . We review independently the

application of constitutional principles to the facts found."

Commonwealth v. Cordero, 477 Mass. 237, 241 (2017), quoting

Commonwealth v. Amado, 474 Mass. 147, 151 (2016).

1. The traffic stop. "Where the police have observed a

traffic violation, they are warranted in stopping a vehicle"

(citation omitted). Commonwealth v. Santana, 420 Mass. 205, 207

(1995). Here, as the judge properly concluded, the stop was

lawful because the defendants were driving a vehicle that had

improperly tinted car windows. See G. L. c. 90, § 9D. The

defendants do not argue otherwise. Thus, our discussion focuses

on the legality of the exit order and the ensuing patfrisk of

the car.

2. Exit order. "[A]n exit order is justified during a

traffic stop where (1) police are warranted in the belief that

the safety of the officers or others is threatened; (2) police

have reasonable suspicion of criminal activity; or (3) police

are conducting a search of the vehicle on other grounds."

4
Commonwealth v. Torres-Pagan, 484 Mass. 34, 38 (2020), citing

Amado, 474 Mass. at 151-152.

"While a mere hunch is not enough . . . it 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). Here, the officers had "a reasonable suspicion of a

threat to safety," Torres-Pagan, 484 Mass. at 38, justifying the

exit order.

The officers stopped the car within ten minutes of the

ShotSpotter alert and within three blocks of the location of the

ShotSpotter itself. Although the police were not investigating

a report of a crime, an alert from a ShotSpotter also warrants

further inquiry. "We consistently have held that geographic and

temporal proximity to a recent crime weigh towards reasonable

suspicion in the [overall] analysis." Commonwealth v. Evelyn,

485 Mass. 691, 704 (2020) (reasonable suspicion bolstered by

police encountering defendant thirteen minutes after shooting,

one-half mile away); Commonwealth v. DePina, 456 Mass. 238, 246

(2010) (police stopping defendant ten minutes and three blocks

from report of shooting factor supporting reasonable suspicion).

Stevens's observation of Rivera leaning forward in the car

also raised legitimate safety concerns. Based on his training

and experience, Stevens believed that the gesture could be an

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attempt to store, hide, or access a weapon. Our case law has

recognized such gestures as suggestive of retrieving or

concealing an object. See, e.g., Commonwealth v. Stampley, 437

Mass. 323, 328 (2002) (defendant leaning forward twice "doing

something underneath the front seat"); Commonwealth v. Torres,

433 Mass. 669, 674 (2001) (passengers "bent over" and "messing

with something" on floor of stopped vehicle). The judge noted

that Rivera's movement was consistent with looking in the side

view mirror at the approaching officer, but an innocent

explanation for a person's actions "does not remove [those

actions] from consideration in the reasonable suspicion

analysis." Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744

(2021), quoting Commonwealth v. DePeiza, 449 Mass. 367, 373

(2007).

The officers' familiarity with the defendants was also

relevant to the reasonable suspicion calculus. While a person's

criminal history is not automatically "suspicious," it may be

considered in appropriate circumstances. Sweeting-Bailey, 488

Mass. at 751-752 (consideration of defendant's criminal history

appropriate when officers were familiar with defendant's history

of firearms-related charges and suspected that defendant

possessed illegal firearm). "Additionally, evidence of gang

membership may be considered as a factor in the determination of

reasonable suspicion, although, standing alone, it does not

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necessarily support a reasonable suspicion that a person may be

armed and dangerous." Id. at 752. Here, the officers knew that

there were several gangs in the area and that Rivera and Ortiz

were affiliated with a gang that had been feuding with a rival

gang. They also knew Ortiz had a prior conviction for a

firearms offense and had recently suffered a gunshot wound.

Viewed together with the temporal and geographic proximity to

the ShotSpotter activation and Rivera's gesture, evidence of the

defendants' gang affiliation and Ortiz's prior conviction for a

firearm offense are factors "that must be considered in the

context of the totality of the circumstances analysis." Id.

The fact that the officers did not order the defendants to

exit the car until six minutes after they effectuated the

traffic stop did not diminish the significance of the safety

concerns or the relation to the ShotSpotter activation, as the

defendants argue. The passage of such a short period of time

"[did] not lessen the danger posed by an officer's ongoing

encounter with someone who may be armed." Stampley, 437 Mass.

at 329. "The justification of 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." Id. at 328.

3. The patfrisk and protective sweep. As described above,

the officers were justified in ordering the defendants out of

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the car. To justify a patfrisk of the defendants, however,

officers "must have a reasonable suspicion, based on specific

articulable facts, that the suspect is armed and dangerous."

Torres-Pagan, 484 Mass. at 38-39. See Sweeting-Bailey, 488

Mass. at 754 ("The standard required to justify a patfrisk is

not the same as that which is required to justify an exit

order[;] however, the factors that justify an exit order also

may be part of the consideration in the patfrisk analysis").

Here, the totality of the circumstances justified the officers'

patfrisk of the defendants. The officers stopped the defendants

close in time and place to the location of the ShotSpotter

report. Rivera leaned forward as officers approached. The

officers recognized the defendants as gang affiliates and knew

Ortiz had a prior firearm conviction. These factors, when

considered together, were sufficient to establish a reasonable

suspicion that the defendants were armed and dangerous.

After pat frisking the defendants and finding no weapons,

the officers were justified in conducting a limited, protective

sweep of the car interior because the defendants could have

accessed a weapon after returning to the vehicle. See

Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020) (protective

sweep of car permitted where "defendant may access a weapon left

behind upon returning to the vehicle"); Commonwealth v.

Santiago, 53 Mass. App. Ct. 567, 571 (2002) (officer "not

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required to risk becoming a victim upon the suspect's reentry

into the vehicle").

Having seen "scratch or pry-marks" on the outside of the

center console, an area he knew was a common place to hide

weapons and a place the defendants could easily access, Stevens

was justified in looking inside, where he immediately saw a gun.

See Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 904-906

(2013) (officer justified in pulling out car radio panel after

noticing it was "slightly ajar"); Commonwealth v. Pena, 69 Mass.

App. Ct. 713, 714-719 (2007) (officer justified in removing car

seat cushion that was not "seated properly"). Here, the

officers were not required to put aside their training and allow

the defendants to return to the vehicle, where a gun or other

weapon would potentially be readily accessible. See Haynes,

supra at 906.

The totality of the circumstances justified the officers'

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concerns for their safety in issuing the exit order and

conducting a protective patfrisk of the car.4

Order allowing motions to
suppress reversed.

By the Court (Vuono,
Hershfang & Tan, JJ.5),

Clerk

Entered: March 31, 2025.

4 Probable cause existed to search the car for weapon-
related contraband once the officer found the first firearm,
justifying the recovery of the second firearm. See Commonwealth
v. Bostock, 450 Mass. 616, 624 (2008).

5 The panelists are listed in order of seniority.

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