Commonwealth v. Davaughn Gary.

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-398

COMMONWEALTH

vs.

DAVAUGHN GARY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a Boston Municipal Court judge's

order denying a motion to suppress evidence obtained after

police searched the defendant's car following a traffic stop.

The defendant argues that the motion should have been granted

because the Commonwealth failed to establish that the stop was

justified by the requisite reasonable suspicion. We agree and

reverse the order denying the motion to suppress.

Background. We recite the facts as found by the motion

judge, supplemented by undisputed testimony from the suppression

hearing that the motion judge appeared to credit. See

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). On

March 12, 2021, a 911 caller reported to the South Eastern

Massachusetts Regional Emergency Communication Center (SEMRECC)

that a vehicle was operating erratically on Route 1. The
caller, who stayed on the line for several minutes, stated that

the vehicle's three occupants were smoking marijuana, and that

one occupant brandished1 a firearm. The police report indicated

that "there was a very strong language barrier while

communicating with [the caller]." The caller identified the

vehicle as a black Chevrolet four-door sedan and provided the

license plate number. The license plate was from New York.

When Foxborough police officers queried the license plate, they

found that it was registered to a blue Chevrolet Malibu owned by

a private rental company. There is no evidence that the police

knew anything further about the rental company nor that any

officer attempted to contact the rental company to ascertain the

name or address of the renter of the car.

The 911 caller provided a name and phone number to the

dispatcher but did not answer when officers attempted to contact

him at the provided number later that day. Five days later, the

officer again attempted to contact the caller and left a

voicemail. A person identifying himself by name as the 911

caller responded to the voicemail about twenty-five minutes

1 The police report uses the term "brandished," however,
because the 911 call was not introduced into evidence, we do not
know if the caller used this word, or if this is a
characterization by police of the events the caller described to
the dispatcher.

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later and told the officer he had nothing further to add and

that he would not come to the station.

Based on the information the 911 caller provided, on that

same day SEMRECC issued a "be on the lookout" bulletin (BOLO) to

alert local law enforcement about the vehicle. Foxborough

police also drafted a police report describing the 911 call and

police efforts to investigate the alleged incident. The

Commonwealth introduced this report into evidence at the

suppression hearing, but did not introduce either the contents

of the BOLO bulletin nor a recording of the 911 call. The

motion judge instead heard testimony from Boston police officers

Ryan MacDonald and Brian Picarello regarding what information

they gleaned from the BOLO bulletin.

On March 25, thirteen days after the 911 call, while on

routine patrol, Officers MacDonald and Picarello queried a New

York license plate on a vehicle they encountered because Officer

Macdonald noticed that the plate was a different color than

other New York plates he had seen. The BOLO alert appeared

because the license plate matched the one given by the 911

caller. The judge found that the BOLO "indicat[ed] that a

person in that car with that license plate had brandished a

firearm in the course of some incident."

When questioned at the motion to suppress hearing regarding

the reason the officers stopped the defendant's vehicle, Officer

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MacDonald testified, "I was stopping the vehicle to exhaust or

satisfy the BOLO that was for the car. And because that was --

the BOLO stated that somebody in the vehicle brandished a

firearm at somebody." He further testified that at the time of

the stop he did not have access to the police report detailing

the 911 caller's allegations and that the BOLO bulletin "didn't

have any suspect information whatsoever."

At the time of the stop, the officers knew from the BOLO

that the vehicle was a rental vehicle, but had no further

information regarding who had rented the vehicle as of the date

of the incident or for how long. The officers did not know the

race of the driver. The defendant was the only person in the

car. Officer Picarello approached the front passenger's side of

the vehicle and immediately and loudly instructed the defendant

to "step out of the car."2 Officer MacDonald approached the

front driver's side and asked the defendant, "Is this your

rental?" The defendant responded, "Yes, it is." The officer

then asked, "How long have you had it?" The defendant

responded, "About a month." Both officers repeatedly instructed

the defendant to step out of the vehicle. Officer MacDonald

opened the front driver's side door and Officer Picarello opened

The entire encounter is captured on the officers' bodycams
2

and was reviewed by the motion judge and presented to this
court.

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the front passenger's side door. Before complying with the

officers' exit order, the defendant reached for a black backpack

that was in the front passenger's seat and said, "I'm taking my

bag." Officer Picarello responded, "Don't touch the bag . . . .

The bag's gonna stay in the car." The defendant then complied

with the exit order and Officer MacDonald escorted him to the

back of the vehicle where several other officers were standing.

Officer Picarello searched both the glove compartment and the

backpack. Inside the backpack, he discovered a firearm. The

defendant was arrested.3

The defendant moved to suppress the evidence on the grounds

that the officers did not have reasonable suspicion to stop his

vehicle. After the motion to suppress was denied, the defendant

pleaded guilty to unlawful possession of a firearm and unlawful

possession of ammunition on the condition that he be allowed to

appeal the judge's order denying his motion to suppress. See

Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501

(2019).

3 The defendant was charged with unlawful possession of a
firearm, G. L. c. 269, § 10 (a); unlawful possession of
ammunition, G. L. c. 269, § 10 (h); and unlawful carrying of a
loaded firearm, G. L. c. 269, § 10 (n). He was also charged
with possession of cocaine, G. L. c. 269 § 10 (a), which police
discovered on the defendant's person after he arrived at the
police station.

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Discussion. 1. Standard of review. "When reviewing the

denial of a motion to suppress, we accept the motion judge's

findings of fact absent clear error, but independently review

the judge's ultimate findings and conclusions of law."

Commonwealth v. Judge, 100 Mass. App. Ct. 817, 819 (2022),

quoting Commonwealth v. Tejada, 484 Mass. 1, 7, cert. denied,

141 S. Ct. 441 (2020). "We make an independent determination as

to the correctness of the judge's application of constitutional

principles to the facts as found." Commonwealth v. Watson, 455

Mass. 246, 250 (2009).

2. Reasonable suspicion. The defendant argues that the

motion judge erred in finding that the officers had reasonable

suspicion to stop the defendant's vehicle based on the

information contained in the BOLO. "Once a seizure has

occurred, the issue for the court is 'whether the stop was based

on an officer's reasonable suspicion that the person was

committing, had committed, or was about to commit a crime.'"

Commonwealth v. Meneus, 476 Mass. 231, 235 (2017), quoting

Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Reasonable

suspicion "is measured by an objective standard, and the

totality of the facts on which the seizure is based must

establish 'an individualized suspicion that the person seized by

the police is the perpetrator' of the crime under

investigation." Commonwealth v. Ford, 100 Mass. App. Ct. 712,

6
715 (2022), quoting Meneus, supra. When police officers are

investigating reports concerning an individual with a gun, the

reasonable suspicion analysis "should include . . . the

government's need for prompt investigation." Commonwealth v.

Stoute, 422 Mass. 782, 791 (1996), quoting United States v.

Bold, 19 F.3d 99, 102 (2d Cir. 1994).

The 911 caller provided only a limited description of the

three occupants of the car, describing them as three Black

males. See Commonwealth v. D.M., 100 Mass. App. Ct. 211, 217

(2021). He stated that one occupant had brandished a firearm,

but did not specify if the person who did so was the driver or a

passenger, or where in the car the person was seated. Although

further details would have been helpful, we assume for present

purposes that the information provided gave rise to a reasonable

suspicion that that the crimes of unlawful possession of a

firearm and negligent operation of a motor vehicle were

committed in the rental car, thirteen days before the defendant

was stopped by the police.

However, we cannot conclude on this record that there was

reasonable suspicion to stop the defendant driving the rental

car thirteen days after the brandishing incident took place.

The key point is that this was a rental car. Where "the

officers did not know the identity of the renter or the terms of

the rental arrangement" with respect to a rental car, we have

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held that "the absence of details about its rental weakened any

link between the shooter and the defendants" even when the car

was stopped just two days after a shooting. Commonwealth v.

Jordan, 469 Mass. 134, 146 (2014). The Commonwealth put no

information in the record from which one could conclude that it

was reasonable to think that, nearly two weeks after the

incident, the car would be in the hands of the same person who

was renting it at the time. Cf. Commonwealth v. Powell, 102

Mass. App. Ct. 755, 759 (2023). Moreover, we note that the

police could have investigated more either adding to the BOLO,

or prior to the stop, to bolster any link between the driver and

the suspect the 911 caller observed. See G. L. c. 90, § 32D

(motor vehicle rental records shall be made available to police

upon request).

We conclude based on the totality of the circumstances,

that, at the time of the stop, the police did not have

sufficiently individualized suspicion that the defendant had

committed a crime. As the car was a rental, it was not

reasonable, prior to stopping the car, to believe that the

defendant had any connection to the incidents that had occurred

in the car thirteen days earlier. The law of unreasonable

searches and seizures is "practical, and nontechnical,"

Commonwealth v. Murphy, 95 Mass. App. Ct. 504, 509 (2019), and

common sense tells us that a person driving a rental car

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thirteen days after a prior incident may very well not be the

same person who was driving it thirteen days earlier. The

police had means to further investigate the facts prior to the

stop, but did not. In light of the substantial gap in time,

where the police had no knowledge of additional facts indicating

that the car remained with the same person who had rented the

car at the time of the incident, the stop was unreasonable. See

Commonwealth v. Sertyl, 101 Mass. App. Ct. 836, 840 (2022). The

order denying the motion to suppress is reversed, and the matter

is remanded for further proceedings.

So ordered.

By the Court (Rubin,
Englander & D'Angelo, JJ.4),

Assistant Clerk

Entered: June 5, 2024.

4 The panelists are listed in order of seniority.

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