COMMONWEALTH v. J.C., a Juvenile.

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-713

COMMONWEALTH

vs.

J.C., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a denial of a motion to suppress, the appellant,

Joshua Cohen,1 entered a conditional guilty plea to two counts

contained in a delinquency complaint, possession of a firearm

without a license, see G. L. c. 269, § 10 (a), and possession of

ammunition without a firearm identification (FID) card, see

G. L. c. 269, § 10 (h) (1). The parties agreed that Joshua

reserved his right to appeal from the denial of the motion to

suppress. See Mass. R. Crim. P. 12 (b) (6), as appearing in 482

Mass. 1501 (2019); Commonwealth v. Gomez, 480 Mass. 240, 252-253

(2018).

1 A pseudonym.
We accept the facts found by the motion judge based on

testimony, absent clear error, but independently review

documentary evidence such as video recordings. Commonwealth v.

Tremblay, 480 Mass. 645, 654-656 (2018). We may also supplement

the facts found by the motion judge with "uncontroverted and

undisputed" evidence adduced at the hearing "where the judge

explicitly or implicitly credited the witness's testimony."

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

Mass. 818 (2008). The application of constitutional law to

those facts is de novo. Commonwealth v. Catanzaro, 441 Mass.

46, 50 (2004).

Facts. On the night of the search, June 12, 2022, Joshua

was a fifteen year old boy who had never before been arrested or

faced criminal charges and had never been found or known to

possess a firearm.2 The charges in this case are the only

charges the child has ever faced.

The judge credited the testimony of the sole witness called

at the evidentiary hearing on the motion to suppress, Boston

Police Officer Santino D'Addieco. Officer D'Addieco worked for

the police department's youth violence strike force, which

2 Although there is no evidence from the evidentiary hearing
that the police were aware of it, the plea hearing reveals that
at the time of the warrantless stop in this case, Joshua was in
the ninth grade, and he had the second highest grade point
average in his class.

2
focuses on gangs and firearms. He had eight years of experience

as a police officer.

According to D'Addieco's testimony, on June 12, 2022,

D'Addieco and two other officers were on patrol in an unmarked

Ford Explorer in the Washington Street area of Boston. The

officers were not responding to any reported crimes.

D'Addieco was wearing plain clothes, but with a ballistics

vest with the words "Boston Police" on it, his badge on either

his vest or his hip, and a body camera. Although his car was

unmarked, he testified that it was readily identifiable as a

police vehicle.

While in his vehicle around 9 P.M. on that summer night, he

saw a group of people of varying ages standing around a bench at

the rear parking lot of a residential building. The officer saw

a bottle of tequila on the bench, some plastic cups, and a cloud

of smoke consistent with cigarette smoke. Some in the group

appeared to be over twenty-one years of age, others younger.

D'Addieco recognized the fifteen year old Joshua and a second

person, Connor Smith.3

The officer explained at the hearing that he knew Joshua

because of two encounters with him in the previous three months,

in both of which Joshua had been the subject of a field

3 Also a pseudonym.

3
interrogation observation (FIO) in which the police, without

suspicion, gathered personal information about him. See

Commonwealth v. Warren, 475 Mass. 530, 534 n.5, 536 (2016). The

most recent time, in April, about two months before the night in

question, he was walking with two other people, one of them

Connor Smith. Joshua was FIO'd by the police, that is, they

collected personal information from him. At the end of that

police interaction, one of the people he had been walking with

was arrested for a firearm-related offense. There is no

evidence in the record that it was Smith.

The officer testified that during that encounter there was

no suspicion of Joshua for any crime. The officer testified

that at that interaction, Joshua had been cordial. He also

testified that at that interaction, Joshua was wearing a Houston

Rockets hat. The officer testified that Houston Rockets hats

are often worn by members of the Ruggles Street Gang as an

identifying logo. He testified that at the previous

interaction, he "kind of asked [Joshua] if he could name any

[Houston Rocket] players, which he couldn't." He testified that

on the night of the stop at issue here, when Joshua was also

wearing his Rockets hat, "we kind of did the same thing on this

occasion, as well;" the body camera footage does show the

officer, after arresting Joshua, asking him whether he is still

4
a Rockets fan. The child responds that the hat "matches my

outfit."

The officer testified that about a month prior to that most

recent previous interaction, in March, the police, while

responding to a report of shots fired in the area, also FIO'd

Joshua. The officer provided no testimony about Joshua's

demeanor on that occasion but testified that one of the people

he was with at that time was ultimately arrested with a firearm.

Finally, the officer also testified that he was familiar

with Joshua because "I know [Joshua] from being present in music

videos with multiple . . . Ruggles Street associates." There

was no evidence that these videos included firearms, nor of what

the officer meant by "Ruggles Street associates."

The officer testified that on the night of Joshua's arrest,

as the police approached and while still in their car, the

officer saw two people walking away from the group. They walked

toward the rear entrance of the residential building. D'Addieco

was interested in those two people but he did not know them.

The officer exited his vehicle and began slowly approaching the

group near the bench. When he walked toward the group, the

fifteen year old Joshua began walking away from the group. He

walked toward the door to the residential building. At this

5
time, the second person D'Addieco knew, Connor Smith, began

yelling something to D'Addieco's partner.

Instead of approaching the group gathered around the bench,

when the child left the group, D'Addieco began following him.

The officer testified that he did so "just to make further

observations on why he's leaving the group." D'Addieco

testified that when Joshua turned and began walking toward the

residential building, D'Addieco saw a "bulge" under Joshua's

clothing on his right side.

Joshua was not running. He did not put his hands in his

pocket. He did not make any statements or threats to police.

He did not even look back toward the officer, who was about ten

feet behind him. He did not act belligerently, nor was he

acting confrontationally. He made no furtive moves.

In short, he was not engaged in any of the types of conduct

our courts have found support suspicion of possession of a

handgun, such as grabbing his waistband, Commonwealth v. Karen

K., 491 Mass. 165, 175-176 (2023), blading his stance,

Commonwealth v. Resende, 474 Mass. 455, 458-459, 461, S.C., 475

Mass. 1 (2016), holding his hand in his pocket and making

"retention checks" -- appearing to touch the location where a

heavy object is stored to make sure it stays in place -- id., or

6
walking with his arms stiff and straight, Commonwealth v.

DePeiza, 449 Mass. 367, 371 (2007).

As Joshua approached the entrance to the residential

building, he said something or motioned to the two other people

who had left the group and were walking ahead of him. He was

wearing a shirt that covered his hip and belt area. The officer

testified that at this point in time, he could see a "large

bulge" under Joshua's clothes. The officer testified that the

bulge was under Joshua's clothing both over and under Joshua's

waistline, "on his hip."

As the child began to enter the residential building, but

before he could go through the door, Officer D'Addieco grabbed

his left arm, physically stopping him in order to conduct a "pat

frisk." Joshua's back was to the officer. Having grabbed his

left arm, the officer turned him to stop him from continuing to

walk. As the officer was reaching for Joshua, the officer

stepped on Joshua's foot causing his shoe to fall off,

apparently accidentally. The officer performed a "pat frisk"

and felt the handle of a firearm, which he seized after putting

Joshua in handcuffs.

Discussion. Joshua was stopped in the constitutional sense

when the officer grabbed his arm. Commonwealth v. Shane S., 92

Mass. App. Ct. 314, 322 (2017). See Commonwealth v. Matta, 483

7
Mass. 357, 363 (2019) (seizure occurs when "a reasonable person

would believe that an officer would compel him or her to stay").

In order to engage in the patfrisk during which the gun was

found, the officer was required to have reasonable suspicion

based on articulable facts that Joshua was armed and dangerous.

Karen K., 491 Mass. at 175. In this case, the answer to whether

there was reasonable suspicion that Joshua was armed turns on

whether there was reasonable suspicion he was in possession of a

firearm.

The Commonwealth argues first that Officer D'Addieco's

substantial and specific firearm training and cumulative

experience provided him with reasonable suspicion that the bulge

at Joshua's right hip or waist area was a firearm. The officer

testified to the presence of a "bulge" or "large bulge" under

the defendant's clothing crossing his waistband in the area of

his right hip that was "protruding from his waist, his

waistline, like on his hip."

The officer testified that he was trained that "most people

who carry a firearm unlawfully are carrying it in their

waistline and they're not holstered. So there's, you could

clearly see, like, a bulge." He testified that when he saw the

bulge under Joshua's clothes it was significant to him because

it was "part of the characteristics of a person who's carrying

8
an unlawful firearm. That bulge, to me, shows that there's a

possible firearm right there. It's something to pay attention,

to make note of, especially with the behavior."

Over three decades ago, however, we opined that a bulge,

even "a bulge in the [person's] right hand pocket which seemed

shaped like a pistol," standing alone, could not provide

reasonable suspicion that a person is carrying a firearm.

Commonwealth v. Holmes, 34 Mass. App. Ct. 916, 917-918 (1993).

Too many other things could cause such a bulge, including items

worn on one's belt or in one's front pocket, like phones, water

bottles, and other lawful items.

The Commonwealth argues that the bulge can provide

reasonable suspicion because "Officer D'Addieco exhibited his

training and experience during his testimony when he explained

why neither a water bottle nor a cellphone would be reasonable

explanations for a bulge in that particular location on a

person's clothing." But in fact, the officer testified that he

had seen people carry water bottles in their "pant[s] pocket" as

well as their back pockets, and when asked whether "kids carry a

cell phone in their front pocket," he responded, "It could have

been."

He did also testify that "kids in this generation do not

carry cell phones on their hip." But how young people carry

9
cell phones -– and what else they may carry -– is not a matter

of special police knowledge or the kind of issue with respect to

which, as the Commonwealth argues, "[a] trained law enforcement

officer may draw inferences and make deductions that would elude

a lay person." Commonwealth v. King, 389 Mass. 233, 243 (1983),

S.C., 400 Mass. 283 (1987), citing United States v. Cortez, 449

U.S. 411 (1981). In Cortez, supra at 413, on which the

Commonwealth would ultimately rely for this proposition, the

evidence at issue, far from being a matter of common experience,

involved groups of footprints found in the desert near the

Mexican border including "one recurring shoeprint [that] bore a

distinctive and repetitive V-shaped or chevron design." In any

event, the officer in this case did not testify that his opinion

was drawn from his training or police experience. The police

may not stop and pat frisk any individual or any young person

they see solely because they have such a bulge under their

clothing.

Of course, a bulge at the waistband, "consistent with the

size of a firearm," Commonwealth v. Evelyn, 485 Mass. 691, 694-

695 (2020), can when combined with other facts in some

circumstances give rise to reasonable suspicion that the bulge

is caused by an unlawful firearm. The Commonwealth also argues

that the juvenile's "possible" or "suspected" gang association

10
"and previous police interactions surrounding firearm offenses"

add to suspicion about the bulge. Under Commonwealth v. Elysee,

77 Mass. App. Ct. 833, 841 (2010), of course, "gang membership"

is not irrelevant to determining whether there is reasonable

suspicion of a risk to officer safety, although that is not a

case about whether someone was armed. But there was no evidence

that Joshua was known or even believed to be a gang member at

all, and there was no testimony that his wearing a Houston

Rockets hat meant that he was. He was said to be in "music

videos" with "[gang] associates," not gang members. It is not

clear what qualifies one as a "gang associate," though in

neighborhoods with a great deal of gang activity that might

cover any number of nongang members. In any event, we think it

clear that police cannot without more pat frisk even every

possible gang member they encounter who has a bulge in their

waist or hip area.

As to previous firearms offenses, Joshua had committed

none. Given his involvement in Joshua's prior police

encounters, Officer D'Addieco was aware that Joshua had not been

arrested for possession of a firearm on either of these

occasions, and the FIOs would have revealed Joshua had no

criminal record of any kind. The Commonwealth describes him as

having been in the "proximity" of prior firearms offenses. But

11
proximity to even a recent crime doesn't provide reasonable

suspicion one committed it. Evelyn, 485 Mass. at 705.

Proximity to two crimes that one is known to have been innocent

of thus does not add much to the suspicion that one is now

guilty of the same crime. And, even combined with the Rockets

hat, without something additional suggesting the presence of a

firearm, it does not make the suspicion reasonable that a bulge

under clothing around someone's waistline near the right hip was

a firearm.

The Commonwealth also relies on Joshua's walking away from

the group when he saw the police approach. It argues that the

juvenile's almost-immediate departure from the area upon seeing

Officer D'Addieco "significantly contributed to his reasonable

suspicion of criminal activity." And it emphasizes that during

the April encounter, Joshua had not walked away but had

approached Officer D'Addieco. It argues that an "individual's

change in behavior towards an officer" compared to prior

encounters "may contribute to the officer's reasonable suspicion

that that individual is engaging in criminal activity."

The Supreme Judicial Court has cautioned us that, "[w]here

a suspect is under no obligation to respond to a police

officer's inquiry," even "flight to avoid that contact should be

given little, if any, weight as a factor probative of reasonable

12
suspicion." Warren, 475 Mass. at 539. Indeed, the Supreme

Judicial Court has said that where, as here, a Black man

deliberately avoids police in the city of Boston, such behavior

has even less weight than it otherwise would. Id. at 540. That

is, in part, because of a study showing:

"[B]lack men in the city of Boston were more likely to be
targeted for police-civilian encounters such as stops,
frisks, searches, observations, and interrogations. Black
men were also disproportionally targeted for repeat police
encounters. . . . [T]he finding that [B]lack males in
Boston are disproportionately and repeatedly targeted for
FIO encounters suggests a reason for flight totally
unrelated to consciousness of guilt. Such an individual,
when approached by the police, might just as easily be
motivated by the desire to avoid the recurring indignity of
being racially profiled as by the desire to hide criminal
activity." (Footnotes omitted.)

Id. at 540-41. And, although applicability of Warren does not

turn on it, of course this was the third time in less than four

months that Joshua had been approached for interrogation by this

very officer.

As described, the Commonwealth also argues that the change

in demeanor from Joshua's previous interactions with police was

suspicious. It argues that in the interaction with police

immediately preceding this one, Joshua approached Officer

D'Addieco's cruiser to speak with him and was cordial, whereas

this time, he walked away. Of course, with no information about

Joshua's participation in the first of his three encounters with

the police officer, it is not even clear that there was anything

13
new about his walking away. But, in any event, people have

"freedom to speak or not to speak to a police officer. A person

also may choose to walk away, avoiding altogether any contact

with police," and exercising the latter choice in the

circumstances of this case is entitled to less than little-to-

no-weight in the reasonable suspicion calculus. Warren, 475

Mass. at 538. It would be no choice at all if the decision to

speak cordially with police one time meant that walking away

another time would tip the scales of reasonable suspicion.

This is not a case like Commonwealth v. Sweeting-Bailey,

488 Mass. 741, 745 (2021), cert. denied, 143 S. Ct. 135 (2022),

where officers already interpreted the suspect's erratic

behavior as an effort to draw police attention away from a

vehicle and its contents, and where the court took into account

that the suspect's loud and confrontational behavior differed

from that in which the suspect had engaged during previous

encounters with the police, such that it properly compounded the

officers' previous suspicion. Here, Joshua walked quietly away

from police and engaged in no unusual or otherwise suspicious

behavior while walking to the back door of the residential

building.

Finally, the Commonwealth also argues that it was a "high

crime" area based upon the officer's testimony that "that area

14
on Washington Street, there's a few different neighborhoods that

typically feud with each other. So it's pretty active around

shots fired, person-with-a-gun calls, that type of thing." The

Supreme Judicial Court, however, has held that "we consider this

factor only if the 'high crime' nature of the area has a 'direct

connection with the specific location and activity being

investigated.'" Evelyn, 485 Mass. at 709, quoting Commonwealth

v. Torres-Pagan, 484 Mass. 34, 41 (2020). There, the court did

not consider the "high crime" factor where the officer

"testified that there had been an ongoing feud between gangs in

the area" and the Commonwealth introduced "the incident numbers

of other police reports of alleged gang-related crimes in the

vicinity in the months prior to the shooting," but "[t]he dates,

precise locations, and alleged perpetrators of those incidents

were not provided." Evelyn, supra. That decision controls the

issue here.

In all other cases of which we are aware, a bulge at the

waistband, "consistent with the size of a firearm," Evelyn, 485

Mass. at 694-695, has been found to support a finding of

reasonable suspicion of an unlawful firearm only when

accompanied by other behaviors that are indicative of unlawful

firearm possession, such as repeatedly looking back at the

police and adjusting the bulge while walking away, Commonwealth

15
v. Colon, 87 Mass. App. Ct. 398, 400-402 (2015); holding one's

waistband, or something in that area, while walking or running,

indicating one may be storing a firearm there, see Commonwealth

v. Ware, 76 Mass. App. Ct. 53, 54, 56 (2009), and Commonwealth

v. Nestor N., 67 Mass. App. Ct. 225, 227, 231 (2006); walking

with a straight arm, DePeiza, 449 Mass. at 371, or with a

limping gait, Nestor N., supra at 231; and awkwardly turning

one's body in order to hide the bulge from the police, Evelyn,

485 Mass at 708. Joshua engaged in none of these types of

behaviors here.

Taken together, the articulable facts known by the officer

did not support reasonable suspicion, rather than a hunch, that

the bulge was caused by a firearm. Without reasonable suspicion

of that, the pat frisk was not legally justified. Therefore,

the order denying the motion to suppress is reversed.

So ordered.

By the Court (Rubin,
Desmond & Singh, JJ.4),

Clerk

Entered: April 24, 2025.

4 The panelists are listed in order of seniority.

16