Commonwealth v. Lorne D. Dyson.

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

22-P-217

COMMONWEALTH

vs.

LORNE D. DYSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

While responding to a ShotSpotter 1 activation, two police

officers stopped a car driven by the defendant, issued an exit

order, searched the occupants and an area of the car, and

discovered a firearm under the driver's seat. The defendant was

charged with carrying a loaded and unloaded firearm without a

license, G. L. c. 269, §§ 10 (a), (n), removing the serial

number of a firearm, G. L. c. 269, § 11C, and possession of

ammunition without an FID card, G. L. c. 269, § 10 (h) (1).

After his motion to suppress was denied, the defendant filed

this interlocutory appeal challenging the exit order, the

searches of his person and the car, and the admission of his

1 See Commonwealth v. Watson, 487 Mass. 156, 157 n.2 (2021)
("ShotSpotter uses sensors to detect a possible gunshot and
approximates its location").
pre-Miranda statement that he did not have a firearm license.

We affirm.

Background. We recite the facts from the motion judge's

findings, supplemented by other evidence in the record that

supports the judge's conclusion and that was either explicitly

or implicitly credited by the judge. See Commonwealth v. Jones-

Pannell, 472 Mass. 429, 437-438 (2015). Around 1:24 A.M., two

police officers were dispatched to a ShotSpotter activation.

When the officers were "approximately one mile" from the

activation site, they saw someone driving a car as if "in a

hurry"; the car's headlights were off. Noticing that the car

also had a brake light out, the officers initiated a traffic

stop at about 1:26 A.M.

From the cruiser, the officers shined a spotlight into the

driver's side mirror. One officer saw the driver (the

defendant) look back at the officers, lean down to his right

about a foot out of their view, and return, moments later, to a

seated position. At that point, the officers approached the car

and saw three men inside.

The officers asked the defendant where he was coming from

and where he was going. The defendant said he was driving from

Stash's Pizza (the restaurant) to his home in Avon. This

statement "struck a chord" with the officers, who knew that the

restaurant was a five-minute drive from where they stopped the

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defendant, that the restaurant had closed almost thirty minutes

earlier, and that the defendant was driving away from, rather

than toward, Avon.

The officers returned to their cruiser and, from that

vantage point, saw the defendant looking back at them in the

driver's side mirror and fidgeting in his seat while the other

passengers sat still. After learning that the two passengers

had prior convictions for possession of a firearm, the officers

returned to the car and asked if any of the occupants had

weapons. All three men shook their heads "no."

By that point, an additional officer had arrived on the

scene. The occupants were ordered out of the car. Although the

two passengers immediately got out, the defendant twice refused;

instead, he picked up a plate of food and began eating it.

After a third exit order, the defendant complied. He was pat

frisked and the officers found nothing on his person. An

officer then looked under the driver's seat and immediately

found a firearm. The three men were handcuffed, and one officer

demanded to see the defendant's license to carry. The defendant

stated that he did not have one.

The defendant moved to suppress the fruits of the search,

including all the statements he made and the physical items

recovered, arguing that the evidence was obtained in violation

of his rights under both the United States Constitution and art.

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14 of the Massachusetts Declaration of Rights. After an

evidentiary hearing, the judge denied the motion, finding that,

by the time the police issued the exit order, they had

reasonable suspicion to believe that a crime had been committed,

and even if not, they had a reasonable basis to believe their

safety may be in danger, justifying an exit order even if the

stop were viewed as a routine traffic stop. With respect to the

patfrisk, the motion judge found that the defendant's resistance

to the exit order added to the basis for the officers'

reasonable suspicion that the defendant was armed and dangerous.

These same facts, according to the motion judge, further

justified the limited search of the vehicle. Finally, relying

on Commonwealth v. Haskell, 438 Mass. 790, 796 (2003), the judge

found that the defendant's response to the demand to see his

license to carry was not the result of custodial interrogation.

The defendant moved, unsuccessfully, for reconsideration and

this appeal followed. 2

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

2 A single justice of the Supreme Judicial Court allowed the
defendant'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. See
Commonwealth v. Privette, 491 Mass. 501, 506 (2023).

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the judge's application of constitutional principles to the

facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50

(2004).

1. Exit Order. "Our analysis begins with the validity of

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

of the . . . vehicle was valid." Commonwealth v. Monell, 99

Mass. App. Ct. 487, 489 (2021). "[A]n exit order is justified

during a traffic stop where," among other reasons, "police are

warranted in the belief that the safety of the officers or

others is threatened" -- that is, "if officers have a reasonable

suspicion of a threat to safety." Commonwealth v. Torres-Pagan,

484 Mass. 34, 38 (2020). "We assess 'whether there were facts

and circumstances in the course of [the] particular traffic stop

that, viewed objectively, would give rise to a heightened

awareness of danger on the part of the [officer].'"

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

quoting Commonwealth v. Stampley, 437 Mass. 323, 326 (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." Rosado, supra. "[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).

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Here, safety concerns justified the exit order. The

officers saw the defendant driving as if "in a hurry," in the

early-morning darkness, without headlights, just one mile from

the ShotSpotter activation two minutes earlier. See

Commonwealth v. Warren, 475 Mass. 530, 536 (2016); Commonwealth

v. Ford, 100 Mass. App. Ct. 712, 716 (2022) (reasonable to infer

from ShotSpotter alerts that person responsible for gunshots

would be at or near location where ShotSpotter had last

activated). Aware that a shooter potentially remained at large,

the officers saw the defendant bend down in a manner that

reasonably could be perceived as retrieving or placing an object

near the driver's seat. See Commonwealth v. Heughan, 40 Mass.

App. Ct. 102, 104-105 (1996). Then, the officers heard the

defendant's claim to be coming from a nearby restaurant they

knew had closed thirty minutes earlier, and saw he was heading

in the opposite direction from his purported destination. 3 See

Commonwealth v. Henley, 488 Mass. 95, 103 (2021) (defendant's

3 "That there may be an innocent explanation for the defendant's
actions 'does not remove [those actions] from consideration in
the reasonable suspicion analysis.'" Commonwealth v. Gomes, 453
Mass. 506, 511 (2009), quoting Commonwealth v. DePeiza, 449
Mass. 367, 373 (2007). Moreover, we disagree with the
defendant's assertion that the officers' questions about where
he was coming from and going were improper because they crossed
the line into general investigative questioning. See
Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 372 n.13 (2010).
In any event, even without considering the defendant's
responses, we would still conclude there were sufficient safety
concerns to justify the exit order.

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implausible explanation to officers' questions contributed to

reasonable suspicion). The officers also saw the defendant

exhibit "non-standard" and nervous behavior, repeatedly glancing

at them and fidgeting in the front seat. See Commonwealth v.

Karen K., 491 Mass. 165, 179 (2023) (nervous movements may be

properly considered with other factors to find reasonable

suspicion). In the aggregate, these facts were enough to cause

"'a heightened awareness of danger that would warrant an

objectively reasonable police officer'" to fear for his safety.

Monell, supra at 490, quoting Stampley, 437 Mass. at 326.

2. Patfrisk. "[T]o justify a patfrisk, an officer needs

more than safety concerns." Torres-Pagan, 484 Mass. at 37.

"[The officer] must have a reasonable suspicion, based on

specific articulable facts, that the suspect is armed and

dangerous." Id. at 38-39. "The calculus of reasonable

suspicion examines 'the totality of the facts'" surrounding the

patfrisk, Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 8

(2023), quoting Commonwealth v. Meneus, 476 Mass. 231, 235

(2017), and "[r]easonable suspicion must be more than a hunch."

Robinson-Van Rader, 492 Mass. at 8.

Here, the totality of the facts provided reasonable

suspicion and supported the protective frisks of the defendant's

person and limited sweep of the car. The same facts justifying

the exit order, combined with the defendant's resistance to the

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officer's first two exit orders, provided reasonable suspicion

to believe that the defendant had attempted to retrieve or

conceal a weapon on or near his person. See Commonwealth v.

Narcisse, 457 Mass. 1, 9 (2010) (suspicions that defendant

committed crime and was armed and dangerous "may occur

simultaneously"); 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). Both passengers' histories of firearms

offenses, viewed in the context of the nearby ShotSpotter

activation, added to the reasonable suspicion that the defendant

was armed and dangerous. See Commonwealth v. Sweeting-Bailey,

488 Mass. 741, 750-751, 755-756 (2021); Commonwealth v. Wright,

85 Mass. App. Ct. 380, 384 (2014).

The officers' reasonable suspicion that the defendant was

armed and dangerous did not dissipate when no weapon was

discovered on his person; rather, the defendant's "[v]ery, very

hesitant, and not cooperative" demeanor during the patfrisk only

furthered the officers' "concern that a weapon might remain in

the car." Monell, supra at 491. Given that "gestures . . .

suggestive of the occupant's retrieving or concealing an object,

raise legitimate concerns to an officer conducting a traffic

stop," we are satisfied that officers were justified in

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performing a protective search of the area of the car where they

saw the defendant duck down. 4 Stampley, 437 Mass. at 327.

3. Length of stop. "A valid investigatory stop 'cannot

last longer than reasonably necessary to effectuate the purpose

of the stop.'" Commonwealth v. Tavares, 482 Mass. 694, 703

(2019), quoting Commonwealth v. Amado, 474 Mass. 147, 151

(2016). "The scope of a stop may only extend beyond its initial

purpose if the officer is confronted with facts giving rise to a

reasonable suspicion that 'further criminal conduct is afoot'"

(citation omitted). Tavares, supra, quoting Commonwealth v.

Cordero, 477 Mass. 237, 243 (2017).

Here, what began as a routine traffic stop was quickly

transformed into a situation potentially dangerous to the

officers. The officers saw the defendant's furtive movements

before he exited the cruiser and grew increasingly suspicious as

they spoke with him and continued to observe his behavior. See

Sweeting-Bailey, 488 Mass. at 748-749; see also Commonwealth v.

Cabrera, 76 Mass. App. Ct. 341, 346-347 (2010). Contrast

Cordero, 477 Mass.at 247 (where purpose of motor vehicle stop

was effectuated, and where no reasonable suspicion of additional

criminal activity existed, police "did not have a legitimate

4 Because the officer found the gun immediately upon looking at
the area where he saw the defendant duck down, and because
nothing was found elsewhere in the vehicle, we do not address
the propriety of the broader search.

9
basis to detain the defendant, and the defendant should have

been allowed to drive away").

4. License to carry. The defendant's statement that he

did not have a license to carry, made in response to the

officer's demand to see his license to carry a firearm, was not

obtained in violation of the defendant's Miranda rights. "The

Miranda warnings are designed to protect the integrity of a

suspect's privilege against self-incrimination." Haskell, 438

Mass. at 796. "Although this privilege protects a suspect's

testimonial communications, it does not permit a suspect to

refuse to produce real or physical evidence (such as a license)

when lawfully ordered to do so." Id. "It would serve no

purpose to advise a suspect that he has a right to remain silent

when the police are only demanding the production of physical

evidence that the suspect may not withhold. The police,

therefore, need not administer Miranda warnings before demanding

that a suspect in custody produce one of the documents listed in

[G. L. c. 140,] § 129C." Id.

Here, as the motion judge found, the defendant's inability

to produce a license to carry did not implicate the protections

of the Fifth Amendment. See Haskell, supra at 796 n.2., quoting

Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S.

549, 555 (1990) ("a person may not claim the [Fifth] Amendment's

protections based upon the incrimination that may result from

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the contents or nature of the thing demanded"). Although the

defendant was handcuffed and under arrest, the demand to produce

his license to carry did not constitute custodial interrogation

under Haskell.

Order denying motion to
suppress affirmed.

By the Court (Green, C.J.,
Shin & Hershfang, JJ. 5),

Clerk

Entered: August 9, 2023.

5 The panelists are listed in order of seniority.

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