Commonwealth v. Ilm Jones.

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-262

COMMONWEALTH

vs.

ILM JONES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Superior Court judge's

order allowing the defendant's motion to suppress a firearm

recovered after a motor vehicle stop. The judge concluded that

the police exceeded the scope of a permissible protective sweep

when they used a knife to pry open the vehicle's locked glove

box, where they then found the firearm. We agree and thus

affirm.

Background. We summarize the judge's factual findings,

which are unchallenged on appeal, supplemented by uncontroverted

facts in the record, see Commonwealth v. Garner, 490 Mass. 90,

94 (2022), and by our independent observations of the video

evidence, see Commonwealth v. Clarke, 461 Mass. 336, 341 (2012).
Boston police officer Jonathan O'Brien was working alone in

a marked cruiser on September 25, 2020. Around 1 A.M., O'Brien

was dispatched to a nearby residence in response to a

homeowner's 911 call about a suspicious person in his driveway.

The homeowner reported that, after being alerted to activity on

his doorbell camera, he saw a man crouching behind the

homeowner's vehicle, seemingly hiding from another vehicle that

slowed as it passed the home. Shortly after the 911 call,

O'Brien arrived at the home, spoke to the homeowner, and watched

the doorbell camera footage. O'Brien saw that the passing

vehicle was a dark sedan with tinted windows, but he was unable

to determine its make or model.

After unsuccessfully looking for the man seen hiding in the

driveway, O'Brien drove in the same direction as the vehicle had

traveled on the video footage. Approximately twenty-five

minutes after the 911 call, O'Brien spotted a dark sedan with

heavily tinted windows. O'Brien ran the license plate and

discovered that the registered owner was the defendant, whom

O'Brien knew to have a significant firearm history and gang

affiliation. O'Brien ran a records search and learned that the

defendant had a conviction and several arrests for firearms-

related offenses, as well as an arrest for manslaughter.

O'Brien also learned that the defendant's driver's license was

expired.

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After following the vehicle for several minutes, O'Brien

decided to effectuate a traffic stop, which occurred without

incident. From his position behind the vehicle, O'Brien could

see only the silhouettes of the occupants, one in the driver's

seat and one in the front passenger's seat. O'Brien watched as

the passenger moved forward toward the dashboard area and then

settled back into the seat. O'Brien could not see the

passenger's hands, nor did he see any movements on the part of

the driver or any twisting motions on the part of either

occupant.

O'Brien approached the driver's side window and saw that

the occupants were two men, later determined to be Terrell

Browne, who was driving, and the defendant, who was in the

passenger's seat. Each complied with O'Brien's request for

their driver's licenses. When O'Brien asked Browne for the

vehicle registration, Browne leaned over, revealing a knife in a

sheath that was protruding from his back waistband area. After

running Browne's license information through the database in his

cruiser, O'Brien learned that Browne's license was suspended.

By this time approximately five officers were on the scene.

The officers ordered Browne out of the vehicle, pat frisked him,

and removed the knife from his person. No other weapons were

found on Browne. While this was happening, the defendant

avoided eye contact and was "glued" to his phone. After

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searching Browne, the officers ordered the defendant out of the

vehicle and pat frisked him, discovering nothing of

significance.

The defendant and Browne were moved to the sidewalk, where

they were guarded by some of the officers, while O'Brien and

other officers searched the vehicle. As the judge found, and we

have confirmed from viewing the body camera footage, this was "a

very thorough search that lasted several minutes." In the cup

holder, O'Brien found a key fob, which was missing the physical

key that should have been inside. O'Brien tried opening the

glove box, but it was locked. Based on the lack of pry marks on

the glove box, O'Brien believed that it had not been previously

opened by any means other than the key. After searching the

vehicle for several minutes, discovering nothing of

significance, O'Brien used a knife to open the glovebox by less

than an inch, revealing the base of a firearm magazine inside.

O'Brien then returned to the defendant and found the key to the

glove box, along with "house keys or other types of keys," on a

key ring in the defendant's pocket. O'Brien used the key to

open the glove box and saw a firearm inside.

During the search the officers discussed which canine

officer was on duty at the time, and O'Brien also discussed his

belief that the defendant's vehicle was the same one from the

doorbell camera footage. The tint on the vehicle's windows was

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eventually determined to be greater than the lawful threshold.

See G. L. c. 90, § 9D. Nevertheless, as the judge found, the

officers allowed an acquaintance of the defendant to drive the

vehicle away "with no assurance that the tint issue would be

addressed."

Discussion. The only issue on appeal is whether O'Brien

was justified in prying open the glove box to confirm the

presence or absence of a weapon. The defendant does not ask us

to affirm the judge's decision on alternative grounds; in

particular, he does not challenge the propriety of the traffic

stop, exit order, or initial protective search of the vehicle.

"An officer who does not have probable cause to search an

automobile for evidence of a crime or contraband may nonetheless

conduct a limited search for weapons if 'a reasonably prudent

[officer] in [the officer's] position would be warranted in the

belief that the safety of the police or that of other persons

was in danger.'" Commonwealth v. Daniel, 464 Mass. 746, 752

(2013), quoting Commonwealth v. Silva, 366 Mass. 402, 406

(1974). The scope of a protective search must be limited to

what is minimally necessary to dispel safety concerns. See

Commonwealth v. Amado, 474 Mass. 147, 152 (2016). In

determining whether the police action was minimally necessary,

"we must balance the need to make the stop and conduct the

search against the intrusion on the defendant." Commonwealth v.

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Bostock, 450 Mass. 616, 622 (2008), quoting Commonwealth v.

Torres, 433 Mass. 669, 672 (2001). "To be constitutional, an

officer's intrusions during [the] stop must be 'proportional to

the degree of suspicion that prompted the intrusion.'" Bostock,

supra, quoting Commonwealth v. Moses, 408 Mass. 136, 141 (1990)

(Moses).

Here, we agree with the judge's conclusion that the

intrusion into the glove box exceeded the legitimate scope of a

protective search. The sole legal justification for the stop,

as the Commonwealth acknowledges, was the excessive tint on the

windows. After patfrisks of the defendant and Browne uncovered

no weapons other than the knife previously seen on Browne, the

officers proceeded to conduct what the judge found to be a "very

thorough" search of the vehicle's interior. The body camera

footage, which we have reviewed, confirms this. The search

lasted several minutes and extended into the back seat, where

neither the defendant nor Browne had been sitting. See

Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 453-454 (2016)

(reasonable safety concerns justified search of area around

driver's seat, where defendant had been sitting, but not search

of backseat armrest). Despite the thoroughness of the search,

the officers did not find a weapon, nor did any additional facts

come to light that would have increased the perceived threat to

officer safety.

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Given the judge's factual findings, we see no error in her

conclusion that a reasonable officer would not have perceived a

safety threat substantial enough to justify using a knife to pry

open the glove box. As the judge stated, "[a]t some point the

scope of the search goes beyond what is permissible and is a

hunt for evidence that goes beyond what the situation calls

for." The touchstone, of course, is reasonableness, see

Commonwealth v. Rodriguez, 472 Mass. 767, 775 (2015), and here

the judge did not err in concluding that the intrusion was not

proportional to the need to protect officer safety, considering

that the stop was for a violation (the excessive tint)

punishable only by a fine, see G. L. c. 90, § 9D, and the

officers had already thoroughly searched the vehicle by the time

O'Brien pried open the glove box. That the officers discussed

which canine officer was on duty further suggests that the

search was investigatory, as the judge found. Although the

Commonwealth need not show that an officer subjectively felt

threatened, the officer's actions at the scene can be relevant

to determining whether he had an objectively reasonable safety

concern. See Daniel, 464 Mass. at 753 n.2. Cf. Commonwealth v.

Alvarado, 420 Mass. 542, 552 (1995) ("use of a canine to aid in

the search indicate[d] that the search was investigatory in

nature, and not an inventory search"); Commonwealth v. Ortiz, 88

Mass. App. Ct. 573, 577 (2015) (similar).

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In asking us to reverse the judge's order, the Commonwealth

improperly puts forward facts that were not found by the judge

and that detract from her ultimate conclusion. See Garner, 490

Mass. at 94. First, the Commonwealth assumes that the

defendant's vehicle was the same one recorded by the doorbell

camera and from that assumption argues that the officers could

reasonably believe that the defendant "was seemingly stalking

someone very afraid." But the judge made no findings that

support the Commonwealth's assumption; rather, she stated that

she was unable to make any observations about the vehicle in the

video footage other than that it "appear[ed] to be a sedan and

it appear[ed] to be dark colored." We agree with the judge's

assessment based on our own review of the footage.

Second, the Commonwealth asserts that the officers

reasonably inferred that the defendant locked the glove box "by

design" and "ensured that it would stay locked by breaking the

key off the key fob." But again, the Commonwealth improperly

seeks to supplement the facts to "tip the reasonable suspicion

calculus in the opposite direction." Garner, 490 Mass. at 96.

Although the judge found that O'Brien saw the defendant "move

forward towards the dashboard area and then [come] back to the

seat," she did not find that the defendant made any movement

consistent with locking the glove box, nor do her findings allow

us to draw that inference ourselves on appeal. In fact,

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O'Brien's testimony, which the judge credited, established that

he was unable to see the defendant's hands and he did not see

the defendant "reaching." And at no point did O'Brien testify

that he believed that the defendant broke the key off the key

fob, nor did the judge so find. Instead, O'Brien's

uncontroverted testimony was simply that the key, which

ordinarily might be stored inside the fob, was not in the fob.

We are also unpersuaded by the Commonwealth's contention

that the judge erred by declining to follow Commonwealth v.

Graham, 78 Mass. App. Ct. 127, 129-130 (2010), which held that

the police properly opened a locked glove box during a traffic

stop. We agree with the judge that the facts of Graham are

distinguishable. Specifically, there, the officers saw the

driver lock the glove box; the driver refused to stop reaching

down next to his seat after the officers told him to keep his

hands in sight; and, when the driver got out of the vehicle, he

left the glove box key on his seat where it was easily

accessible to the rear seat passenger, whom the officers knew to

be associated with firearms. See id. at 128-129. None of these

circumstances are present here. Furthermore, nothing in Graham

detracts from the judge's finding that the search in this case

was a "very thorough" one lasting several minutes, which went

"beyond what the situation call[ed] for."

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The Commonwealth's reliance on Moses is likewise

unavailing. There, the court held that the police properly

searched closed containers stored in the trunk of a vehicle, but

that search occurred after the initial protective search. See

Moses, 408 Mass. at 138-139. During the protective search the

police had discovered a loaded handgun and a packet of cocaine,

which gave rise to probable cause to search the entire vehicle,

including the closed containers in the trunk. See id. at 145.

The search of the containers, in other words, was part of the

investigative search supported by probable cause, not the

protective search. See id. Thus, as the Commonwealth never

claimed in this case that probable cause justified the search of

the glove box, Moses provides no basis to reverse the judge's

decision.

Order allowing motion to
suppress affirmed.

By the Court (Shin, Grant &
Hershfang, JJ.1),

Clerk

Entered: October 31, 2025.

1 The panelists are listed in order of seniority.

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