Commonwealth v. Powell

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22-P-693 Appeals Court

COMMONWEALTH vs. AARON POWELL.

No. 22-P-693.

Suffolk. March 7, 2023. – June 23, 2023.

Present: Sullivan, Sacks, & Ditkoff, JJ.

Firearms. Assault and Battery. Attempt. Search and Seizure,
Automobile, Protective frisk, Probable cause. Motor
Vehicle, Firearms. Constitutional Law, Search and seizure,
Stop and frisk, Probable cause. Probable Cause. Practice,
Criminal, Motion to suppress.

Indictments found and returned in the Superior Court
Department on December 19, 2019.

A pretrial motion to suppress evidence was heard by Daniel
J. O'Shea, J. and a conditional plea of guilty was accepted by
Anthony M. Campo, J.

Suzanne L. Renaud for the defendant.
Darcy A. Jordan, Assistant District Attorney, for the
Commonwealth.

SULLIVAN, J. The defendant, Aaron Powell, was indicted on

one count of assault and battery with a firearm, pursuant to

G. L. c. 265, § 15E; one count of attempted assault and battery
2

with a firearm, pursuant to G. L. c. 265, § 15F; two counts of

unlawful possession of a firearm, pursuant to G. L. c. 269, § 10

(a); two counts of unlawful possession of ammunition, pursuant

to G. L. c. 269, § 10 (h); and two counts of unlawfully carrying

a loaded firearm, pursuant to G. L. c. 269, § 10 (n). Following

the denial of a motion to suppress, the defendant entered a

conditional guilty plea on the charges of assault and battery

with a firearm; attempted assault and battery with a firearm;

two counts of carrying a firearm without a license, second

offense; and two counts of possession of a firearm.1 See

Commonwealth v. Gomez, 480 Mass. 240, 241 (2018); Mass. R. Crim.

P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019).2 On

appeal, the defendant contends that the police did not have

grounds to issue an exit order or conduct a patfrisk, and his

motion to suppress was denied in error. We reverse the order

denying the motion to suppress, concluding that the patfrisk was

not justified.

1 The charges of possessing ammunition without a license
were dismissed at the request of the Commonwealth.

2 In accordance with Mass. R. Crim. P. 12 (b) (6), "the
defendant may [but need not] withdraw the guilty plea . . . on
any of the specified charges. If the defendant withdraws the
guilty plea . . . , the judge shall dismiss the . . . indictment
on those charges, unless the prosecutor shows good cause to do
otherwise." Here, the parties jointly agreed that "reversal of
the ruling" on the motion to suppress "would render the
Commonwealth's case not viable on all charges."
3

Background. The facts as found by the motion judge,

supplemented with the uncontroverted evidence from the record

that is in accordance with his ruling, see Commonwealth v.

Garner, 490 Mass. 90, 91, 93-94 (2022), are as follows.

Detective Joseph Medina and others responded to a call regarding

a shooting in the Roxbury section of Boston in the area of Vine

and Mt. Pleasant streets around 2:22 P.M. on July 22, 2019.

When the police arrived, they found two spent shell casings from

a nine millimeter firearm, and met with two victims and a

witness. A witness provided a license plate number to a white

sedan that the witness said was involved in the shooting.

Detectives obtained videotape surveillance from a nearby

community center and saw a white car "turning onto Vine Street

from Dudley towards Mt. Pleasant where the shooting occurred."

Shortly after the car turned, the videotape showed both victims

running down the street. The police took still images from the

videotape and sent the information collected from their

investigation to the Boston Regional Intelligence Center (BRIC).

BRIC produced a BOLO (be on the lookout) flyer. The flyer

included a photograph of the car and the license plate. The

text stated: "BOLO[,]" "B2-MV of Interest in Shooting." The

flyer further stated that:

"Detectives are seeking information on the above pictured
MV [motor vehicle], a white 2017 Ford Fusion registered to
Kayla Evans. The occupants were possibly involved in a
4

shooting that occurred earlier today, 7/22/19, at
approximately 2:22 PM. in the area of Mt. Pleasant
Ave / Vine St. If encountered, please FIO the occupants
and tow the MV to B2. Officers are advised to use caution,
as this MV may have ties to Heath St.3

Following this, in red ink, the flyer continued: "A suspect is

not wanted at this time. If this MV is located, please stop and

hold and contact B2 Detectives."

Approximately thirty-four hours later, just after midnight

on July 24, 2019, Officer Driscoll (who was not involved in the

shooting investigation) was driving home through the South

Boston section of Boston after his shift. He saw a white Ford

Fusion pull up next to him and recognized the car and license

plate from the photograph and description in the BRIC flyer.

The car was driven by a woman whom he did not recognize. He

could not tell whether the passenger was a man or a woman. He

followed the Fusion and alerted a detective, who advised Officer

Driscoll to maintain surveillance and await backup.

The Fusion parked outside of a Chinese restaurant. The

defendant got out of the car, went into the restaurant, and got

back in the car with a bag of food. After backup arrived,4 the

responding officers approached the car, and without further

3 "FIO" refers to a "field interrogation and observation."
Commonwealth v. Evelyn, 485 Mass. 691, 700 (2020).

4 Between seven to ten officers were on the scene.
5

inquiry ordered the driver and the defendant to get out of the

car. Officers immediately conducted a patfrisk of the defendant

and found a semiautomatic firearm.

The encounter was captured on two body cameras and the

videotapes were admitted in evidence. Officer Driscoll, whom

the judge also credited, testified that he stood at a distance

and did not see the defendant engage in any furtive movements or

make any attempt to evade the officers. The videotapes did not

reveal any furtive movements or attempts to evade the police.5

The occupants got out of the car on command and submitted to the

patfrisk.6

The judge did not make any findings regarding the identity

of the suspects or ties to criminal activity; he had no evidence

upon which to make such findings. At the time the exit order

and patfrisk were conducted the police had no suspects in the

shooting, had no description of any suspect, and there was no

evidence that the responding officers knew who the driver or

passenger were. No evidence was offered at the suppression

hearing to explain the BRIC flyer's reference to Heath Street, a

We have reviewed the videotapes de novo. See Commonwealth
5

v. Tremblay, 480 Mass. 645, 656 (2018) ("As the recording is
documentary evidence, . . . we may review such evidence de
novo.)

The officers who conducted the stop and patfrisk did not
6

testify.
6

residential street. While this may have been intended as a

reference to ties to gang activity (i.e., "ties to Heath St.,"

see Commonwealth v. Gray, 463 Mass. 731, 733 [2012]) the flyer

did not say so; there was no evidence on this point, nor was

there evidence connecting the registered owner of the car to

criminal activity.

The judge ruled that the exit order was justified because

"there were specific and articulable facts creating reasonable

suspicion that the Fusion was involved in a recent shooting, and

the officers were justified in ordering both occupants out to

conduct a threshold inquiry." With respect to the patfrisk, the

motion judge recognized that the Commonwealth had the burden to

prove that police had a reasonable suspicion that the defendant

was armed and dangerous. The motion judge did not make any

further factual findings regarding the patfrisk, but ruled that:

"In this case the Commonwealth has produced a body camera
video which clearly depicts the scene of the stop, exit
order and patfrisk. After reviewing that video evidence
and hearing the credible testimony of the officers
involved, the court finds that no constitutional violation
of Mr. Powell's rights occurred with regard to the
discovery and seizure of the firearm, and the Motion to
Suppress must therefore be denied."
Discussion. The defendant challenges both the exit order

and the patfrisk. "In reviewing these claims, 'we adopt the

motion judge's subsidiary findings of fact absent clear error,

but we independently determine the correctness of the judge's
7

application of constitutional principles to the facts as

found.'" Commonwealth v. Bryan, 98 Mass. App. Ct. 238, 242

(2020), quoting 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). "An exit order is justified

during a traffic stop where (1) police are warranted in the

belief that the safety of the officers or others is threatened;

(2) police have reasonable suspicion of criminal activity; or

(3) police are conducting a search of the vehicle on other

grounds." Commonwealth v. Torres-Pagan, 484 Mass. 34, 38

(2020).

The Commonwealth maintains that the officers were entitled

to issue the exit order based on the first two grounds

enumerated in Torres-Pagan, a contention we reject for the

reasons discussed in connection with the patfrisk, infra.7

7 The second ground requires that there be a showing that
the officers had reasonable suspicion that the defendant was
engaged in criminal activity. See Commonwealth v. Cruz, 459
Mass. 459, 466-467 (2011). There being no information regarding
the occupants of the car at the time of the stop, and for the
reasons stated in the balance of this opinion regarding the lack
of a basis for the patfrisk, we do not rely on either grounds
one or two.
8

Whether the officers had grounds to issue the exit order under

the third ground enumerated in Torres-Pagan -- on the basis of

probable cause to search the car -- presents a close question.

The police had information that the car had been involved in a

shooting the day before. The BRIC flyer described the car with

particularity. Cf. Commonwealth v. Pinto, 476 Mass. 361, 364

(2017). Detective Medina testified to the circumstances of the

shooting the day before and the investigation subsequently

conducted which led to the identification of the car. See id.,

citing Commonwealth v. Lopes, 455 Mass. 147, 155 (2009) (when

relying on information in flyer, "Commonwealth must show basis

of knowledge of the source of information . . . and underlying

circumstances demonstrating source" was credible). The

Commonwealth maintains that the officers had a basis to search

the car based on probable cause "to believe that evidence [of

the shooting] might be found in the [car]." Commonwealth v.

Gentile, 437 Mass. 569, 573 (2002).8 Indeed, "when an automobile

is stopped in a public place with probable cause, no more

exigent circumstances are required . . . beyond the inherent

mobility of an automobile itself to justify a warrantless search

8 The BRIC flyer directed law enforcement to "FIO the
occupants and tow the [motor vehicle]". There is no evidence
that anything was found in the car, and no challenge has been
made to the search of the car on appeal.
9

of the vehicle." Commonwealth v. Sheridan, 470 Mass. 752, 756

(2015), quoting Commonwealth v. Motta, 424 Mass. 117, 124

(1997). See Commonwealth v. Davis, 481 Mass. 210, 222 (2019),

citing Motta, supra at 122-124 (when stopped with probable

cause, "police entitled to search areas of vehicle where fruits

of crime or evidence of crime might be found"); Commonwealth v.

Cast, 407 Mass. 891, 901 (1990) (search of car permissible where

there was "probable cause to believe that a motor vehicle on a

public way contains contraband or evidence of a crime").

Arguably, there was probable cause to believe that

evidence, such as fingerprints, might still be in the car,

although this argument was not made to the motion judge.9

Relying on Commonwealth v. Jordan, 469 Mass. 134, 145-147

(2014), the defendant argues that there was not probable cause

to believe that the gun would be found in the car over a day

later. However, Jordan is distinguishable in that it involved

the stop of a rental vehicle in which the shooter fled. See id.

(no probable cause to stop rental car in which shooter fled two

days prior where officers had no identifying information about

suspects involved or terms of rental agreement and "two days was

more than sufficient time to remove a gun from the [rental]

9 Our case law recognizes, on the basis of proffered
evidence, that fingerprints may remain for extended periods of
time. See Commonwealth v. French, 476 Mass. 1023, 1024 (2017).
10

vehicle"). At the end of the day, however, we need not decide

whether the exit order was valid, as we conclude that the

patfrisk was not.

2. Patfrisk. Even if the exit order was based on probable

cause to search the car, more was required to conduct a patfrisk

of the passenger. "The test for a patfrisk is more stringent

than for an exit order." Monell, 99 Mass. App. Ct. at 490. "A

patfrisk is permissible only where an officer has reasonable

suspicion that the suspect is armed and dangerous." Torres-

Pagan, 484 Mass. at 36. Although certitude is not required,

"[i]n the case of the self-protective search for weapons, [an

officer] must be able to point to particular facts from which he

reasonably inferred that the individual was armed and

dangerous." Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 746

(2021), quoting Sibron v. New York, 392 U.S. 40, 64 (1968).

"[W]e have required that the police officer's action be based on

specific and articulable facts and the reasonable inferences

which follow from such facts in light of the officer's

experience." Sweeting-Bailey, supra, quoting Commonwealth v.

Silva, 366 Mass. 402, 406 (1974).

Given the lack of evidence linking the defendant to the

report of shots fired, coupled with the amount of time that had

passed since the report, and the lack of any other facts that

would create a reasonable suspicion that the defendant was
11

armed, the judge erred in concluding, based on the very limited

evidence provided, that the Commonwealth had met its burden to

show a reasonable suspicion that the defendant was armed and

dangerous. The arresting officers had no suspect and no

description of a suspect. Both the registered owner and the

driver at the time of the stop were women, but the officers did

not know who the driver was, and did not find out before the

patfrisk was conducted. The Commonwealth offered no evidence at

the hearing to link the registered owner of the car to the

driver at the time of the stop, or to link the defendant to

criminal activity.10 The BRIC flyer referred to "ties to Heath

St.," a residential street, but no evidence was submitted at the

hearing that the reference was meant to describe gang activity,

or that the car was tied to gang activity. Cf. Pinto, 476 Mass.

at 364 (facts referred to in BOLO must be supported by evidence

at hearing); Lopes, 455 Mass. at 155-156 (same).

The fact that the car was used in a shooting did not

provide reasonable suspicion that an armed shooter or shooters

were still in the car thirty-four hours later. Temporal

"[p]roximity is accorded greater probative value in the

reasonable suspicion calculus when the distance is short and the

10We do not mean to suggest that a prior criminal record
alone would justify a patfrisk, although it may be a factor.
See Garner, 490 Mass. at 93.
12

timing is close." Commonwealth v. Warren, 475 Mass. 530, 535-

536 (2016) (no reasonable suspicion for stop where description

vague and general and "[t]he location and timing of the stop

were no more than random occurrences"). See Commonwealth v.

D.M., 100 Mass. App. Ct. 211, 219 (2021). Compare Commonwealth

v. Privette, 491 Mass. 501, 520-521 (2023) (defendant matched

description of suspect and was only person on street at 3:43

A.M. in the rain within seven minutes of robbery in location

consistent with reported flight path); Evelyn, 485 Mass. at 694-

695, 705, 708 (2020) (although no description of suspects,

reasonable suspicion to stop where defendant found thirteen

minutes after report of shooting and one and one-half miles away

and where "he appeared to be holding an object in his right

jacket pocket that was consistent with the size of a firearm").

In the absence of a description of suspects, the BRIC flyer, on

its own, was inadequate to create a reasonable suspicion that

the unidentified passenger in the car was armed and dangerous.

Cf. Commonwealth v. Karen K., 491 Mass 165, 176 (2023) ("stale"

tip by concerned caller that shots were fired the day before

considered to a "minimal extent"); id. at 184 (Budd, C.J.

concurring) ("Further, as the court acknowledges, the concerned

citizen's tip that resulted in the officers responding to the

area contributes little to the reasonable suspicion calculus due
13

to its staleness and lack of detail"). Cf. Jordan, 469 Mass. at

145-147.

This case is therefore distinguishable from those in which

there was greater temporal and geographic proximity and a better

description of the suspect(s). See, e.g., Commonwealth v.

Henley, 488 Mass. 95, 105 (2021) (patfrisk warranted where

defendant who matched detailed description was found two blocks

away from fatal shooting five minutes after radio transmission

describing shooter); Commonwealth v. Stoute, 422 Mass. 782, 791

(1996) (patfrisk warranted when officers had eyewitness

description of suspects, were in area with numerous reports of

firearm crimes, found defendant within moments of receiving

report of gun, and defendant sought to evade police);

Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 557-558 (2002)

(patfrisk warranted where officers had eyewitness description of

suspects, there were no other people in area, and officers found

defendant minutes after report of shots just fired and in close

proximity to location of shots.)11

11Temporal and geographic proximity have served as
important factors in assessing reasonable suspicion for a stop,
exit order, patfrisk, and probable cause to search under our
search and seizure cases. See, e.g., Evelyn, 485 Mass. at 705
(reasonable suspicion to stop where defendant found thirteen
minutes after report of shooting and one and one half miles
away, and officers made observations indicating defendant was
carrying a concealed weapon); Commonwealth v. Mendez, 476 Mass.
512, 517 (2017) (defendant ran to running car minutes after
shooting in same complex and trooper verified that registered
14

Furthermore, nothing occurred after the stop to create

reasonable suspicion that the defendant was armed and dangerous.

During the police encounter, the defendant obeyed officer

directives and made no suspicious movements. There was no

evidence (and consequently no finding) of furtive or evasive

behavior. See Commonwealth v. Gomes, 453 Mass. 506, 513 (2009)

("There was no evidence that the defendant made particular

gestures or used any body language that would cause the officers

to believe that he was carrying a weapon"). By contrast, in

Karen K., 491 Mass at 176, the court concluded that a patfrisk

was constitutionally permissible because in addition to a stale

tip that teenagers had been seen handling a gun outside a

housing complex, the defendant was found in that location and

exhibited behavior indicative of concealing a weapon. Contrast

also Commonwealth v. DePeiza, 449 Mass. 367, 373-374 & n.4

(2007) (defendant's straight arm gait and odd reaching gesture

contributed to officers' reasonable fear for their safety);

owner had history of crimes of violence); Commonwealth v.
Hernandez, 473 Mass. 379, 385-386 (2015) (probable cause to
search the trunk when vehicle matching exact description of the
vehicle used in an armed robbery was stopped on reported escape
route six hours after reported armed robbery); Lopes, 455 Mass.
at 154-161 (Brockton police had reasonable suspicion to stop and
search defendant's van two hours after murder in Boston based on
description of van provided by broadcast from Boston police);
Commonwealth v. Bostock, 450 Mass. 616, 622-625 (2008)
(reasonable suspicion to search suspect's truck when suspect who
matched description was found minutes after reported theft in
vicinity of theft).
15

Monell, 99 Mass. App. Ct. at 490–491 (facts that defendant

"'froze' while acting as if he was trying to conceal his right

hand" together with presence of gun holster, time of night, and

earlier fatal shooting "sufficient to establish a reasonable

suspicion that the defendant was armed and dangerous"). The

factors present in these cases are lacking here.

Conclusion. Absent specific articulable facts tending to

establish that this defendant was armed and dangerous, the

patfrisk violated constitutional norms. Accordingly, the order

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

remanded for further proceedings. See n.1, supra.

So ordered.