Commonwealth v. Karen K.

• Decision Date: 19 February 2021
• Docket Number: No. 19-P-1645,19-P-1645
• Parties: COMMONWEALTH v. KAREN K., a juvenile.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 216

164 N.E.3d 933

COMMONWEALTH

v.KAREN K., a juvenile.

No. 19-P-1645

Appeals Court of Massachusetts, Suffolk..

Argued October 15, 2020

Decided February 19, 2021

Eva G. Jellison, for the juvenile.

Kathryn Sherman, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Vuono, Milkey, Blake, & Henry, JJ.¹

BLAKE, J.

On November 1, 2018, members of the Boston Police Department's youth violence strike force were conducting surveillance at the Mildred C. Hailey Apartments² (housing complex) based in part on a call from a concerned citizen that "kids" were displaying a firearm. The officers stopped and pat frisked the juvenile and found a loaded firearm, ammunition, and a high capacity magazine concealed in the waistband of the juvenile's pants. The juvenile was charged with unlawful possession of a firearm, unlawful possession of ammunition without a firearm identification card (FID), unlawfully carrying a loaded firearm, and unlawfully possessing a large-capacity firearm.³ Following an evidentiary hearing, a Juvenile Court judge denied the juvenile's motion to suppress. Thereafter, the juvenile pleaded delinquent to all of the charges, conditioned on her right to appeal the denial of her motion to suppress. See Commonwealth v. Gomez, 480 Mass. 240, 104 N.E.3d 636 (2018). On appeal, the juvenile argues that her motion to suppress was improperly denied because the investigatory stop was not supported by reasonable suspicion and there was no justification for the patfrisk. We conclude otherwise and affirm the order denying the motion to suppress.

"When reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. Almonor, 482 Mass. 35, 40, 120 N.E.3d 1183 (2019). We also "accept the [motion] judge's ... determination of the weight and credibility [of the evidence]." Commonwealth v. Contos, 435 Mass. 19, 32, 754 N.E.2d 647 (2001), quoting Commonwealth v. Eckert, 431 Mass. 591, 592-593, 728 N.E.2d 312 (2000).

1. Facts. 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.⁴ See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). On November 1, 2018, a concerned citizen who lived at the housing complex called the Boston Police Department and reported that a group of "kids" was loitering and displaying a firearm outside the housing complex. Officer Samora Lopes, a member of the Boston Police Department's youth violence strike force, learned of the call at the start of his shift at approximately 4 or 5 P.M. and headed to the area. Lopes was very familiar with the housing complex as he had made multiple firearms arrests there in the past. He also knew that shots had been fired at the complex the day before, and that police had responded to multiple shots fired at the complex that week. When he arrived, Lopes learned that another group of officers was also in the area and that there was a group of six or seven kids "hanging around" on a pathway where kids had been seen in the past with firearms.

Lopes positioned his vehicle on the street so that he had a clear view of the group. From about sixty feet away, Lopes saw two people, including the juvenile, walk in the direction of the other officers. It appeared that once the two saw the officers, they "broke right" into an alley and headed back toward the housing complex. As the juvenile walked, she continuously looked back and forth over her shoulder at the officers before changing direction, adjusted her waistband, and turned her body away from view. During Lopes's testimony at the hearing on the motion to suppress, he stood and demonstrated the juvenile's behavior.⁵ The judge found that the juvenile "bladed" her body so as to conceal something on her person.⁶

Based on the training he had received from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) on common characteristics of an armed gunman, Lopes believed that the juvenile's movements were consistent with carrying an unholstered firearm in her waistband. Lopes and his partner, Officer Norman Teixeira, then got out of their vehicle and walked toward the juvenile and her companion. The juvenile and her companion turned left away from Lopes and toward the other officers. Once the juvenile saw the other group of officers, she abruptly turned around, left her companion behind, and walked quickly back in Lopes's direction. The juvenile tried to walk around Lopes, but he grabbed her arm. The juvenile immediately responded, "I'm a female. You can't search me." Lopes called for a female officer to conduct a patfrisk. As the patfrisk began, the juvenile turned to a woman who was in charge of a nearby youth program and said, "Tell my mom I love her." In the course of the patfrisk, the female officer found, among other things, three cell phones and a loaded gun in the juvenile's waistband.

2. Discussion. The motion judge ruled that Lopes had reasonable suspicion to conduct a threshold inquiry and a reasonable belief that the juvenile was armed and dangerous based on the following facts. At the time that Lopes stopped the juvenile, he knew that a concerned citizen had reported young people with a gun at the housing complex; shots had been fired at the housing complex the day before; and there were many prior firearm incidents in the area. And, based on his experience patrolling that area, Lopes also knew that people used the laundry room at the housing complex to hide guns, and as a result, expressed concern about "kids" hanging around that area. Lopes saw the juvenile twice change her direction to avoid the police; pivot her hip away from the officers’ view; continuously look over her shoulder as she walked; and adjust her waistband when she first encountered the police and continue to do so as she moved through the housing complex. And, Lopes knew, based on his training and experience, that people often carry illegal, unholstered guns in their waistbands and when doing so they will often touch the gun with their hands and pull up on the waistband, moving the firearm to the side in order to "make sure it's there, so it won't slide down [their] pants."

The juvenile does not challenge any of the judge's findings as clearly erroneous, save one.⁷ Rather, she contends that the investigatory stop was not supported by reasonable suspicion and that Lopes did not have reasonable suspicion that the juvenile was armed and dangerous.⁸ Here, the same findings of fact, none of which are clearly erroneous, support both the stop and patfrisk of the juvenile.

a. The stop. A police officer is legally permitted to stop someone under art. 14 of the Massachusetts Declaration of Rights if there is reasonable suspicion at the time of the stop that the person has committed, is committing, or is about to commit a crime. See Commonwealth v. Matta, 483 Mass. 357, 360, 133 N.E.3d 258 (2019) ; Commonwealth v. Pinto, 476 Mass. 361, 363-364, 67 N.E.3d 713 (2017). Here, it is uncontested that the juvenile was stopped when Lopes placed his hand on her arm. The question is whether Lopes had a reasonable suspicion, "grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom,’ " that the juvenile was committing the crime of carrying an unlicensed firearm. Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007), quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). At the time of the stop, Lopes was aware of the telephone call from a concerned citizen as well as reports of shots fired at the housing complex the day before the stop and in the recent past. He also made observations of the juvenile, which, based on his training and experience, were consistent with people who carry unholstered firearms. These facts, taken together and not in isolation, provided Lopes with constitutional justification to stop the juvenile.⁹

b. The patfrisk. In order to justify a patfrisk, a police officer needs more than a concern for his safety; he must also have a reasonable suspicion that the defendant is armed and dangerous. Commonwealth v. Torres-Pagan, 484 Mass. 34, 37-39, 138 N.E.3d 1012 (2020).¹⁰ "Without a more particularized fear that the suspect is presently armed and dangerous, the officer cannot take the more intrusive step of pat frisking the suspect." Id. at 37-38, 138 N.E.3d 1012, citing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).¹¹

Here, the confluence of the juvenile's movements, the presence of firearm activity at the housing complex both the day before and that week, along with Lopes's specialized knowledge regarding the indicia of someone carrying an unholstered firearm amounted to reasonable suspicion to patfrisk the juvenile.

We note that only people age twenty-one or over can be issued a license to carry firearms. See G. L. c. 140, § 131 (d ) (iv). It therefore follows that anyone under the age of twenty-one cannot lawfully carry one. As a member of the youth violence strike force, Lopes's duties, which included taking an active role in the community such as playing basketball with the "kids," and attending school meetings, required him to interact with local youth.

Here, Lopes could reasonably infer that the juvenile was under the age of twenty-one. Consequently, possession of a firearm by the juvenile was presumptively illegal. See Commonwealth v. Shane S., 92 Mass. App. Ct. 314, 323, 83 N.E.3d 837 (2017). See also Commonwealth v. Gunther G., 45 Mass. App. Ct. 116, 119, 695 N.E.2d 696 (1998) ("the possession of a firearm by a minor may be viewed as presumptively illegal"). Put another way, the juvenile was engaged in criminal activity simply by carrying a firearm. Commonwealth v. Costa, 448 Mass. 510, 513 n.7, 862 N.E.2d 371 (2007)...