NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
24-P-938 Appeals Court
COMMONWEALTH vs. KINGSLEY ATWERI.
No. 24-P-938.
Worcester. September 16, 2025. – March 11, 2026.
Present: Rubin, D'Angelo, & Toone, JJ.
Firearms. Controlled Substances. Motor Vehicle, Firearms. Search and Seizure, Motor vehicle, Reasonable suspicion, Plain view. Constitutional Law, Search and seizure, Reasonable suspicion. Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Worcester Division of the District Court Department on February 22, 2022.
A pretrial motion to suppress evidence was heard by Steven D. Power, J., a motion for reconsideration was considered by him, and the case was also heard by him.
David J. Rotondo for the defendant. Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.
RUBIN, J. After a District Court judge (motion judge)
denied the defendant's motion to suppress, the defendant,
Kingsley Atweri, was found guilty after a bench trial before the 2
same judge of carrying a loaded firearm without a license, G. L.
c. 269, § 10 (n), carrying a firearm without a license, G. L.
c. 269, § 10 (a), and possession of a class B drug, G. L.
c. 94C, § 34.1 On appeal, the defendant argues that an exit
order and the subsequent search of the vehicle from which he had
been removed were impermissible, and that the denial of a motion
to suppress he filed before trial was therefore in error. We
conclude that both the exit order and the protective search of
the car were justified, and thus we affirm.
Background. We summarize the facts found by the motion
judge, supplemented by uncontroverted testimony that the motion
judge implicitly or explicitly credited. See Commonwealth v.
Jones–Pannell, 472 Mass. 429, 431 (2015). When reviewing a
ruling on a motion to suppress, "we accept the judge's
subsidiary findings of fact absent clear error." Commonwealth
v. Wilson, 441 Mass. 390, 393 (2004). Nevertheless, "[w]e
review independently the application of constitutional
principles to the facts found." Id. At the October 6, 2023
hearing, the motion judge heard from Worcester Police Officers
Alexander Maracallo and Peter Bissonnette, and the motion judge
explicitly credited their testimony.
1 The defendant was also found responsible for failure to signal, G. L. c. 90, § 14B. 3
On the morning of February 18, 2022, Maracallo was on Main
Street in Worcester, near traffic lights at the intersection of
Main Street and King Street, facing toward downtown Worcester.
He was in plain clothes and in an unmarked vehicle.
At approximately 9:50 A.M., Maracallo observed a black
Hyundai motor vehicle pull up next to him. It had extremely
tinted windows, and he could not see into the car. The vehicle
abruptly turned onto King Street, parked in a no parking zone
for a few seconds, then abruptly did a three-point turn. Prior
to this, Maracallo had already decided to stop the motor vehicle
because of the tinted windows. Cf. G. L. c. 90, § 9D
(regulating permissible degree of tinting of motor vehicle
windows operated on public ways). Maracallo followed the
vehicle for some distance and noted that, on several occasions,
the operator did not signal when turning. Maracallo radioed
other officers. Officers Bissonnette and Rocky Ductan, among
others, responded that they would stop the vehicle in their
marked cruisers.
Bissonnette encountered the defendant's vehicle and
Maracallo's unmarked vehicle at the intersection of King Street
and Chandler Street and followed Maracallo's vehicle. After
Bissonnette activated the lights of the cruiser he was driving,
the defendant's vehicle pulled over in a parking lot near 221
Chandler Street. The area in which the vehicle was stopped, 4
like the area in which Maracallo first encountered it, was a
high crime area.
When Bissonnette and Ductan approached the vehicle,
Bissonnette could not see clearly into the vehicle due to the
tinted windows, but he could clearly see shadows of the
defendant, who was the operator, leaning his whole body over
toward the front passenger seat floor. Bissonnette saw the
defendant move specifically toward the front passenger seat
floor, not toward the glove box. Ductan approached the driver's
side of the vehicle, and Bissonnette approached the passenger's
side. The defendant did not follow a command to keep his window
down; instead, he raised and lowered the window once or twice.
Bissonnette described the defendant as moving in a "herky jerky"
manner, in the sense that he "wouldn't sit still," and appearing
nervous.2 Bissonnette was concerned for his safety and feared
that the defendant might be disguising or concealing a weapon.
Ductan and another officer who arrived later ordered the
defendant to exit the vehicle and step to its rear. At the same
time, Bissonnette, who was on the passenger's side of the
vehicle, opened the front passenger door of the vehicle and
2 The motion judge found as a fact that the defendant moved in a herky jerky manner and appeared nervous. Bissonnette was on the passenger's side of the vehicle and may have been able to see only shadows through the tinted window. The defendant does not challenge these findings of fact or argue that Bissonnette could not have seen these things. 5
looked at the front passenger seat floor area. Without
manipulating the seat or touching anything in the vehicle,
Bissonnette saw in plain view the barrel of a firearm sticking
out from underneath the passenger seat. He then alerted other
officers, and the defendant was handcuffed. Maracallo then pat
frisked the defendant and located narcotics on his person.
The defendant moved to suppress all the items seized from
his person and vehicle, including the firearm and the narcotics.
After the evidentiary hearing, the motion judge denied the
motion. The defendant filed a motion for reconsideration, which
was also denied. Following his conviction, he now appeals,
arguing only that his motion to suppress was erroneously denied.
The defendant challenges only the exit order and the search of
the vehicle. He makes no argument about the lawfulness of the
stop itself or about the patfrisk of his person. We therefore
need not address those two issues.
Discussion. 1. Exit order. The defendant first argues
that it was unreasonable for the officers to issue the exit
order during this routine vehicle stop.
"[A]n exit order is justified during a traffic stop if
officers have a reasonable suspicion of a threat to safety"
based on specific and articulable facts. Commonwealth v.
Torres-Pagan, 484 Mass. 34, 38 (2020). See Commonwealth v.
Monell, 99 Mass. App. Ct. 487, 489 (2021). "It is not necessary 6
to show that an individual police officer personally experienced
fear . . . ." Commonwealth v. Daniel, 464 Mass. 746, 753 n.2
(2013).
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
24-P-938 Appeals Court
COMMONWEALTH vs. KINGSLEY ATWERI.
No. 24-P-938.
Worcester. September 16, 2025. – March 11, 2026.
Present: Rubin, D'Angelo, & Toone, JJ.
Firearms. Controlled Substances. Motor Vehicle, Firearms. Search and Seizure, Motor vehicle, Reasonable suspicion, Plain view. Constitutional Law, Search and seizure, Reasonable suspicion. Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Worcester Division of the District Court Department on February 22, 2022.
A pretrial motion to suppress evidence was heard by Steven D. Power, J., a motion for reconsideration was considered by him, and the case was also heard by him.
David J. Rotondo for the defendant. Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.
RUBIN, J. After a District Court judge (motion judge)
denied the defendant's motion to suppress, the defendant,
Kingsley Atweri, was found guilty after a bench trial before the 2
same judge of carrying a loaded firearm without a license, G. L.
c. 269, § 10 (n), carrying a firearm without a license, G. L.
c. 269, § 10 (a), and possession of a class B drug, G. L.
c. 94C, § 34.1 On appeal, the defendant argues that an exit
order and the subsequent search of the vehicle from which he had
been removed were impermissible, and that the denial of a motion
to suppress he filed before trial was therefore in error. We
conclude that both the exit order and the protective search of
the car were justified, and thus we affirm.
Background. We summarize the facts found by the motion
judge, supplemented by uncontroverted testimony that the motion
judge implicitly or explicitly credited. See Commonwealth v.
Jones–Pannell, 472 Mass. 429, 431 (2015). When reviewing a
ruling on a motion to suppress, "we accept the judge's
subsidiary findings of fact absent clear error." Commonwealth
v. Wilson, 441 Mass. 390, 393 (2004). Nevertheless, "[w]e
review independently the application of constitutional
principles to the facts found." Id. At the October 6, 2023
hearing, the motion judge heard from Worcester Police Officers
Alexander Maracallo and Peter Bissonnette, and the motion judge
explicitly credited their testimony.
1 The defendant was also found responsible for failure to signal, G. L. c. 90, § 14B. 3
On the morning of February 18, 2022, Maracallo was on Main
Street in Worcester, near traffic lights at the intersection of
Main Street and King Street, facing toward downtown Worcester.
He was in plain clothes and in an unmarked vehicle.
At approximately 9:50 A.M., Maracallo observed a black
Hyundai motor vehicle pull up next to him. It had extremely
tinted windows, and he could not see into the car. The vehicle
abruptly turned onto King Street, parked in a no parking zone
for a few seconds, then abruptly did a three-point turn. Prior
to this, Maracallo had already decided to stop the motor vehicle
because of the tinted windows. Cf. G. L. c. 90, § 9D
(regulating permissible degree of tinting of motor vehicle
windows operated on public ways). Maracallo followed the
vehicle for some distance and noted that, on several occasions,
the operator did not signal when turning. Maracallo radioed
other officers. Officers Bissonnette and Rocky Ductan, among
others, responded that they would stop the vehicle in their
marked cruisers.
Bissonnette encountered the defendant's vehicle and
Maracallo's unmarked vehicle at the intersection of King Street
and Chandler Street and followed Maracallo's vehicle. After
Bissonnette activated the lights of the cruiser he was driving,
the defendant's vehicle pulled over in a parking lot near 221
Chandler Street. The area in which the vehicle was stopped, 4
like the area in which Maracallo first encountered it, was a
high crime area.
When Bissonnette and Ductan approached the vehicle,
Bissonnette could not see clearly into the vehicle due to the
tinted windows, but he could clearly see shadows of the
defendant, who was the operator, leaning his whole body over
toward the front passenger seat floor. Bissonnette saw the
defendant move specifically toward the front passenger seat
floor, not toward the glove box. Ductan approached the driver's
side of the vehicle, and Bissonnette approached the passenger's
side. The defendant did not follow a command to keep his window
down; instead, he raised and lowered the window once or twice.
Bissonnette described the defendant as moving in a "herky jerky"
manner, in the sense that he "wouldn't sit still," and appearing
nervous.2 Bissonnette was concerned for his safety and feared
that the defendant might be disguising or concealing a weapon.
Ductan and another officer who arrived later ordered the
defendant to exit the vehicle and step to its rear. At the same
time, Bissonnette, who was on the passenger's side of the
vehicle, opened the front passenger door of the vehicle and
2 The motion judge found as a fact that the defendant moved in a herky jerky manner and appeared nervous. Bissonnette was on the passenger's side of the vehicle and may have been able to see only shadows through the tinted window. The defendant does not challenge these findings of fact or argue that Bissonnette could not have seen these things. 5
looked at the front passenger seat floor area. Without
manipulating the seat or touching anything in the vehicle,
Bissonnette saw in plain view the barrel of a firearm sticking
out from underneath the passenger seat. He then alerted other
officers, and the defendant was handcuffed. Maracallo then pat
frisked the defendant and located narcotics on his person.
The defendant moved to suppress all the items seized from
his person and vehicle, including the firearm and the narcotics.
After the evidentiary hearing, the motion judge denied the
motion. The defendant filed a motion for reconsideration, which
was also denied. Following his conviction, he now appeals,
arguing only that his motion to suppress was erroneously denied.
The defendant challenges only the exit order and the search of
the vehicle. He makes no argument about the lawfulness of the
stop itself or about the patfrisk of his person. We therefore
need not address those two issues.
Discussion. 1. Exit order. The defendant first argues
that it was unreasonable for the officers to issue the exit
order during this routine vehicle stop.
"[A]n exit order is justified during a traffic stop if
officers have a reasonable suspicion of a threat to safety"
based on specific and articulable facts. Commonwealth v.
Torres-Pagan, 484 Mass. 34, 38 (2020). See Commonwealth v.
Monell, 99 Mass. App. Ct. 487, 489 (2021). "It is not necessary 6
to show that an individual police officer personally experienced
fear . . . ." Commonwealth v. Daniel, 464 Mass. 746, 753 n.2
(2013).
Movements of the vehicle's occupants that are "suggestive
of the occupant's retrieving or concealing" a weapon may
objectively raise legitimate safety concerns. Commonwealth v.
Stampley, 437 Mass. 323, 327 (2002). Here, Bissonnette saw the
defendant lean toward the floor area of the front passenger seat
after the vehicle was stopped. Taken together, all the facts
and circumstances, including this movement, the defendant's
failure to comply with the officers' order to keep the window
down, and the defendant's nervous behavior after he was stopped,
sufficed to provide an articulable basis for reasonable
suspicion that the defendant had hidden or retrieved a weapon,
and thus of a threat to officer safety. See Commonwealth v.
Goewey, 452 Mass. 399, 407 (2008) (listing defendant's
questionable identification, nervousness, and reaching movements
as factors supporting officer's fear for his safety). Contrast
Commonwealth v. Barreto, 483 Mass. 716, 722–723 (2019) (exit
order improper when based solely on defendant's nervousness
where defendant responded to officers' questions, complied with
officers' requests, and "made no movements consistent with
reaching for a weapon after he was stopped"). We therefore
conclude that the exit order was lawful. 7
2. Vehicle search. Next, the defendant challenges
Bissonnette's search of the vehicle, which was undertaken by the
officer's opening of its door and examination of the car's
previously hidden interior. Police are permitted to conduct a
warrantless limited Terry-type3 protective search of a car for
weapons without probable cause when there is a reasonable,
articulable suspicion that the suspect might gain control of a
weapon from within the car and use it against them. See Daniel,
464 Mass. at 752 ("limited search for weapons"); Commonwealth v.
Almeida, 373 Mass. 266, 270-271 (1977); Commonwealth v. Silva,
366 Mass. 402, 406 (1974). See also Commonwealth v. Douglas,
472 Mass. 439, 445 (2015) (calling it "protective sweep" of
car). Police may conduct such a protective search of a vehicle
even after the occupants have exited the vehicle in
circumstances in which occupants "may access a weapon left
behind upon returning to the vehicle" and use it against the
police then. Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020).
The intrusiveness of the protective search must be "proportional
to the degree of suspicion that prompted it" (citation omitted),
Daniel, supra, and the scope of the search must be "confined to
the area from which the suspect might gain possession of a
weapon" (citation omitted), Douglas, supra at 446.
3 See Terry v. Ohio, 392 U.S. 1 (1968). 8
The officers here had an articulable basis for reasonable
suspicion that the defendant had secreted a firearm in the car,
in the floor area of the front passenger seat, that it might be
used against them, and that the defendant might use it against
them upon his return to the vehicle. The limited search of the
defendant's vehicle was proportional to that suspicion.
Bissonnette merely opened the front passenger door and looked at
the floor area of the front passenger seat, the exact area
toward which the defendant had leaned. This area would have
been within the immediate reach of the defendant upon returning
to the vehicle. The limited protective search of the
defendant's vehicle, which revealed a firearm in plain view, was
thus constitutionally permissible.
Since both the exit order and the protective search were
permissible, the motion to suppress was properly denied.
Judgments affirmed.