Commonwealth v. Marqus Mitchell.

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-302

COMMONWEALTH

vs.

MARQUS MITCHELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Superior Court jury convicted the

defendant on six counts: (1) possession of a large capacity

firearm without a license in violation of G. L. c. 269,

§ 10 (m);1 (2) possession of a large capacity feeding device,

also in violation of G. L. c. 269, § 10 (m); (3) possession of

ammunition without a firearm identification (FID) card in

violation of G. L. c. 269, § 10 (h) (1); (4) reckless operation

of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a);

(5) possession of cocaine in violation of G. L. c. 94C, § 34;

and (6) resisting arrest in violation of G. L. c. 268, § 32B.

1Another count of firearm possession was dismissed as
duplicative of the large capacity conviction.
The defendant appeals, arguing that his motion to suppress the

evidence discovered from a search of his vehicle was erroneously

denied and, further, that his motion to renew the motion to

suppress to add a claim of racial profiling was erroneously

denied. The defendant also argues that the evidence presented

at trial was insufficient to sustain a conviction of possession

of ammunition without an FID card. We see no error in the

denial of both the motion to suppress and the motion to renew

the motion to suppress. On the charge of possession of

ammunition without an FID card, the judgment is reversed, the

verdict is set aside, and judgment shall enter for the defendant

on that count. The remaining judgments are affirmed.

Discussion. 1. Motion to suppress. We summarize the

facts as found by the motion judge, supplemented by the

uncontested facts in the record that are consistent with his

findings. Commonwealth v. Jones-Pannell, 472 Mass. 429, 430

(2015). "In reviewing a ruling on a motion to suppress

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

absent clear error." Commonwealth v. Warren, 475 Mass. 530, 534

(2016), quoting Commonwealth v. Wilson, 441 Mass. 390, 393

(2004). Nevertheless, "[w]e review independently the

application of constitutional principles to the facts found."

Warren, supra, quoting Wilson, supra.

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On May 30, 2017, Sergeant Daniel Lamoreaux of the Auburn

police department, along with his partner, saw the defendant

conducting a transaction with another person in a parking lot

between a hotel and a restaurant. Lamoreaux noticed them

standing by two vehicles with out-of-State license plates, which

were parked along a tree line, near a dumpster, and away from

the main business parking area. The defendant handed money to

the other person in exchange for a black bag and shoes,

nervously looked around the parking lot, and placed the bag in

his vehicle. After twenty minutes, the other person left the

parking lot, and the defendant moved his vehicle to the main

parking lot of the restaurant with no other vehicles in close

proximity. Lamoreaux saw the defendant scanning the parking lot

every few seconds and moved his unmarked police vehicle behind

the defendant's vehicle. He then approached the passenger's

side, where the defendant's window was halfway down.

Lamoreaux's partner walked up to the driver's side. Both

officers were in uniform.

Upon approaching the defendant's vehicle, Lamoreaux saw the

defendant holding a marijuana cigarette, which the defendant

immediately dropped. Lamoreaux identified himself as a police

officer and asked the defendant what he was doing. Lamoreaux

had difficulty understanding the defendant's response, which led

him to believe the defendant was under the influence of some

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type of drug. He noticed that, in the car, the defendant had

two cell phones and ripped plastic baggies, which Lamoreaux

believed were consistent with the packaging of illegal drugs.

He also noted that the defendant was fidgeting excessively and

was sweating despite the cool temperature outside.

The defendant told Lamoreaux that he had been given shoes

and offered to show them to him. When the defendant got out of

his vehicle, Lamoreaux asked for his driver's license, which the

defendant furnished. Shortly thereafter, Lamoreaux asked to pat

frisk the defendant and obtained his consent to do so.

Lamoreaux discovered a plastic baggie on the defendant's person

containing a cocaine-like substance. He then searched the

defendant's backpack and discovered a firearm with magazines.

The defendant stated that he did not have a license to carry a

firearm, and the officers attempted to place him under arrest.

The defendant resisted the officers and managed to return to his

car and drive away, commencing a high-speed chase before losing

control of the vehicle, which then slid down an embankment. He

emerged from the vehicle carrying a firearm, at which time he

was subdued. Officers subsequently obtained a search warrant

for the vehicle and discovered additional magazines and

ammunition.

In evaluating the legality of the stop, we must determine,

first, at what point the stop occurred and, second, whether the

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officer had reasonable suspicion for the stop at that time. See

Commonwealth v. Matta, 483 Mass. 357, 360 (2019). To determine

whether a stop has occurred, we ask "whether, in the

circumstances, a reasonable person would believe that an officer

would compel him or her to stay." Id. at 363. That is, we

evaluate "whether an officer has, through words or conduct,

objectively communicated that the officer would use his or her

police power to coerce that person to stay." Id. at 362. "To

justify a police investigatory stop under the Fourth Amendment

[to the United States Constitution] or art. 14 [of the

Massachusetts Declaration of Rights], the police must have

'reasonable suspicion' that the person has committed, is

committing, or is about to commit a crime." Commonwealth v.

Robinson-Van Rader, 492 Mass. 1, 8 (2023), quoting Commonwealth

v. Costa, 448 Mass. 510, 514 (2007). "Reasonable suspicion

'must be based on specific and articulable facts and reasonable

inferences therefrom, in light of the officer's experience.'"

Robinson-Van Rader, supra, quoting Commonwealth v. Gomes, 453

Mass. 506, 511 (2009). "A hunch will not suffice" (citation

omitted). Commonwealth v. Barreto, 483 Mass. 716, 720 (2019).

The defendant argues that the stop began as soon as

Lamoreaux began asking questions. We are unpersuaded. The

facts in this case are comparable to those in Commonwealth v.

Resende, 474 Mass. 455, 461 (2016), in which the Supreme

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Judicial Court concluded that it was "not . . . a stop or

seizure in the constitutional sense" when two officers drove up

to the defendant, got out of their vehicle with their weapons

visible, and asked the defendant for his name. Similarly, in

Commonwealth v. Narcisse, 457 Mass. 1, 5-6 (2010), there was no

stop when police got out of a vehicle and asked the defendant

what he was doing in the vicinity.

Contrary to the defendant's contention, the police did not

seize the defendant when they walked up to him and asked him

what he was doing. "Not every encounter between a law

enforcement official and a member of the public constitutes an

intrusion of constitutional dimensions that requires

justification." Gomes, 453 Mass.at 510. However, once the

police officers requested and obtained the defendant's license,

he was seized. Commonwealth v. Lyles, 453 Mass. 811, 815

(2009). At that point, reasonable suspicion existed as the

officers had seen a cash transaction for unknown items,2 between

two people driving vehicles with out-of-State license plates, in

a remote section of a parking lot, while the defendant was

scanning the area and acting nervously. Upon approaching the

2 The defendant argues that the officers knew they had not
witnessed a drug deal, but there is no indication in the record
that they knew what was inside the black bag at the time they
initiated their interaction with the defendant. The fact that
Lamoreaux also saw that shoes were part of the exchange does not
preclude the possibility that the bag contained contraband.

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defendant, Lamoreaux also saw the defendant's nervousness, two

cell phones, and ripped plastic bags, which were consistent with

drug packaging in his experience.

Even if we decided that Lamoreaux's experience with drug

paraphernalia was inadequately established to form a basis for

reasonable suspicion alone, the totality of the circumstances

supports a finding of reasonable suspicion. Although none of

Lamoreaux's observations, standing alone, would likely have been

adequate to establish reasonable suspicion, see, e.g.,

Commonwealth v. Cordero, 477 Mass. 237, 243 (2017) ("nervousness

and evasiveness in the context of an involuntary police

encounter cannot, without more, generate reasonable suspicion"),

"'a combination of factors that are each innocent of themselves

may, when taken together, amount to the requisite reasonable

belief' that a person has, is, or will commit a particular

crime." Commonwealth v. Karen K., 491 Mass. 165, 175 (2023),

quoting Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert.

denied, 546 U.S. 1187 (2006). This is not a situation where the

officer added up "innocuous observations," i.e., "zeroes," to

produce a sum of reasonable suspicion. Barreto, 483 Mass. at

723. The out-of-the-way location of the original meeting, the

defendant's nervousness during the exchange of cash for unknown

items, and, when the police approached him, the observations of

a marijuana cigarette, multiple cell phones, and the torn

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plastic bags consistent with drug packaging add up to more than

a hunch. "That there may be innocent explanations for [these

facts] does not remove [them] from consideration in the

reasonable suspicion analysis." Commonwealth v. DePeiza, 449

Mass. 367, 373 (2007). The defendant was, accordingly, stopped

lawfully, and his motion to suppress was properly denied.3

2. Renewed motion to suppress. The defendant also argues

the judge erred in denying his motion to renew the motion to

suppress pursuant to Mass. R. Crim P. 13 (a) (5), as appearing

in 442 Mass. 1516 (2004), to permit him to argue under

Commonwealth v. Long, 485 Mass. 711, 713 (2020), that the

investigatory stop in this case was the result of impermissible

racial profiling.4 We review the denial of a motion to renew for

abuse of discretion. See Commonwealth v. Lahey, 80 Mass. App.

Ct. 606, 615 (2011), citing Commonwealth v. Haskell, 438 Mass.

790, 792-793 (2003). An abuse of discretion occurs only where a

judge's decision "contains an error of law or where we conclude

the judge made a clear error of judgment in weighing the factors

3 Because we find there was reasonable suspicion for the
stop, we need not address whether the defendant's subsequent
acts of resisting arrest and fleeing the scene constituted
intervening criminal acts.

4 The Commonwealth argues the defendant waived this issue by
failing to raise it in his renewed motion to suppress. We
assume without deciding that the argument is properly before us
and address the merits of the defendant's argument.

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relevant to the decision, . . . such that the decision falls

outside the range of reasonable alternatives" (quotation and

citation omitted). Commonwealth v. Jones, 481 Mass. 540, 558

(2019).

In denying the motion to renew, the judge determined that

the defendant had failed to make an adequate showing of racial

profiling based on the evidence at the motion hearing and in the

motion to renew, and that substantial justice therefore did not

require reconsideration of the motion to suppress. We cannot

say this constituted an abuse of discretion. As a threshold

matter, we note that Long changed the evidentiary standard for

the issue of racial profiling in traffic stops, while this case,

despite involving an automobile, resulted from a standard

investigatory stop. See 485 Mass. at 723 ("We conclude that our

past interpretations of a reasonable inference [of racial

profiling] do not control in the context of traffic stops").

Although the Supreme Judicial Court has since expanded the new

evidentiary standard to other police investigations, it had not

done so at the time the judge ruled on the defendant's motion to

renew. See Robinson-Van Rader, 492 Mass. at 18 ("We did not

address [in Long] whether this standard was to extend to all

claims of selective enforcement").

Even under the Long standard, however, the judge did not

abuse his discretion in concluding that the defendant made an

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inadequate showing to establish a "reasonable inference that a

. . . stop was motivated by racial bias." Long, 485 Mass. at

723. In his renewed motion, the defendant argued that "because

of the [defendant's] race the officers assumed that they had

just witnessed a drug sale and did not accept his explanation

that the transaction involved the sale of high-end sneakers."

The only supports for the contention that the officers were

motivated by racial bias were the fact that the defendant is

Black, the defendant's representation that "the racial

composition of the town of Auburn is overwhelmingly white," and

that the officers disbelieved the defendant's "reasonable

explanation" for the transaction they witnessed involving the

transfer of the black bags and some shoes. Recognizing that the

defendant was not required to present statistical evidence to

raise an inference of discrimination, see id. at 722, and

considering the limited evidence on which the defendant here

relied in seeking renewal, we cannot say that it was outside the

"range of reasonable alternatives," Jones, 481 Mass. at 558, for

the judge to determine that these facts failed to establish a

reasonable inference that this stop was motivated by racial

bias. Long, supra at 723.

3. Unlawful possession of ammunition. The defendant

argues that the Commonwealth failed to introduce sufficient

evidence that he possessed ammunition without an FID card to

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sustain a conviction under G. L. c. 269, § 10 (h) (1). We

evaluate the sufficiency of the evidence to determine "whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

(citation omitted). Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). "The evidence may be direct or circumstantial, and

we draw all reasonable inferences in favor of the Commonwealth."

Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting

Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

When evaluating for sufficiency, the evidence must be

reviewed with specific reference to the substantive elements of

the offense. See Latimore, 378 Mass. at 677–678. To convict

the defendant of unlawful possession of ammunition under G. L.

c. 269, § 10 (h) (1), the Commonwealth must establish that the

defendant "(1) possessed (2) ammunition designed for use in any

firearm, (3) without complying with the FID card requirements as

provided by the applicable statute." Commonwealth v. McCollum,

79 Mass. App. Ct. 239, 245 (2011). The absence of an FID is an

essential element of the crime of unlawful possession of

ammunition, and the Commonwealth must accordingly prove beyond a

reasonable doubt that a defendant was unlicensed to possess

ammunition. Commonwealth v. Guardado, 491 Mass. 666, 692

(2023), S.C., 493 Mass. 1 (2023).

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Lamoreaux testified that, after discovering ammunition in

the defendant's vehicle, he asked the defendant for his license

to carry (LTC) a firearm in Massachusetts, and the defendant

responded that he did not have one.5 The Commonwealth did not

offer any evidence about whether the defendant had an FID card,

and on appeal, does not dispute whether "[an LTC] is distinct

from an FID card." Commonwealth v. Powell, 459 Mass. 572, 588

(2011). The requirements are different, such that a person can

-- and often will -- legally obtain an FID card without

obtaining an LTC. See G. L. c. 140, §§ 129B, 131.

Although a jury may draw reasonable inferences in favor of

the Commonwealth, and evidence may be direct or circumstantial,

see Watson, 487 Mass. at 162, "[a] conviction cannot stand . . .

if it is based entirely on conjecture or speculation." Ayala,

481 Mass. at 51. As we held in Commonwealth v. Encarnacion, 105

Mass. App. Ct. 46, 55 (2024), testimony that a defendant

admitted to not having a LTC is insufficient to establish that a

defendant lacked an FID card. Accordingly, the evidence was

insufficient to sustain a conviction of unlawful possession of

ammunition under G. L. c. 269, § 10 (h) (1).

Conclusion. For the above reasons, there was no error in

the denial of the defendant's motion to suppress and the motion

5 On cross-examination, Lamoreaux repeated that he demanded
the defendant's LTC and that the defendant did not produce one.

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to renew the motion to suppress. On the charge of unlawful

possession of ammunition under G. L. c. 269, § 10 (h) (1), the

judgment is reversed, the verdict is set aside, and judgment

shall enter for the defendant on that count. The judgments are

otherwise affirmed.

So ordered.

By the Court (Ditkoff, Hand &
Walsh, JJ.6),

Clerk

Entered: May 27, 2025.

6 The panelists are listed in order of seniority.

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