Commonwealth v. Daryl Dirtion.

• Court: Massachusetts Appeals Court
• Decided: January 7, 2026
• Docket: 25-P-0299
• Status: Unpublished

Opinion

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

25-P-299

COMMONWEALTH

vs.

DARYL DIRTION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0.

A Superior Court judge convicted the defendant of unlawful

possession of a firearm. On appeal, the defendant argues a

motion to suppress the firearm, which had been recovered by

police pursuant to an allegedly investigatory stop, was wrongly

denied. We agree that the stop was impermissible, and

therefore, we vacate the judgment and set aside the guilty

finding.

Background. At approximately 6:15 A.M. on August 12, 2021,

an FBI agent received a phone call from a "confidential

informant" stating that "moments before the call they had

observed a black male, estimated age of twenty-two years,

wearing a white jumpsuit [and] riding a bicycle" near a certain restaurant in Roxbury, and that the man possessed a firearm

which he "had been showing . . . to people in a bank parking

lot" behind that restaurant. The FBI agent relayed the message

to the Boston police department, which dispatched officers to

that location within ten minutes.

Officer Askins and Officer Walsh were the first to arrive

and saw the defendant, matching the informant's description,

entering the restaurant. As Officer Askins entered the

restaurant, he "approached the defendant, grabbed the

defendant's arm, and attempted to guide him away." While

Officer Askins was "holding" the defendant, Officer Walsh

entered the restaurant, "recognized the defendant," and "was

aware that the defendant did not have a license to carry

firearms." The officers then removed the defendant from the

restaurant and Officer Askins conducted a patfrisk, finding and

retrieving "a pistol from the pocket in a secondary layer of

pants."

The defendant was charged with unlawful possession of a

firearm. A Superior Court judge held an evidentiary hearing and

denied the defendant's motion to suppress the firearm. After a

bench trial, the defendant was convicted of the lone charge.

Discussion. On appeal, the defendant claims that the

motion judge erred in denying his motion to suppress, asserting

that his seizure by police was unconstitutional for the

2 independent reasons that the informant's tip was unreliable,

that the tip did not substantiate reasonable articulable

suspicion of illegality, and that the officers' actions in

detaining the defendant were beyond the scope permissible under

the circumstances.

"In reviewing a decision on a motion to suppress, we accept

the judge's subsidiary findings absent clear error but conduct

an independent review of [the] ultimate findings and conclusions

of law" (quotations and citation omitted). Commonwealth v.

Goncalves-Mendez, 484 Mass. 80, 83 (2020). To assess the

propriety of the police officers' seizure of the defendant, we

must determine "whether the facts known to the police at the

time of the seizure establish[ed] reasonable suspicion that the

defendant had committed, was committing, or was about to commit

a crime." Commonwealth v. Meneus, 476 Mass. 231, 234 (2017).

"Reasonable suspicion must be based on specific and articulable

facts and reasonable inferences therefrom, in light of the

officer's experience" (quotation and citation omitted).

Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 8 (2023). This

can be satisfied by an informant's reliable tip, the reliability

of which may be bolstered by independent police corroboration.

See Commonwealth v. Lyons, 409 Mass. 16, 19 (1990). The

suspicion, however, "must be reasonable before the [seizure]

begins" (citation omitted). Commonwealth v. DeJesus, 72 Mass.

3 App. Ct. 117, 121 (2008). Lastly, "[c]arrying a gun is not a

crime," Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996), and

so "[a]n anonymous tip that someone is carrying a gun does not,

without more, constitute reasonable suspicion to conduct a stop

and frisk of that individual." Commonwealth v. Barros, 435

Mass. 171, 177 (2001).

The informant's report of a person holding a firearm in

public, standing alone, was insufficient grounds for a

reasonable articulable suspicion of illegality. The informant

stated that a man "was in possession of a firearm and had been

showing that firearm to a group of individuals." The motion

judge described this statement as a report that the defendant

was "brandishing a gun" (emphasis added). However, there is

nothing in the record to support anything more than the

defendant displaying the firearm to the group of people. And in

Massachusetts, public exhibition of a firearm does not transform

gun possession into illegal conduct justifying seizure. See,

e.g., Commonwealth v. Gomes, 458 Mass. 1017, 1019 (2010)

("report of [defendant] holding a gun in the air" did not

justify seizure); Barros, 435 Mass. at 172, 177 (tip that

defendant "t[ook] a handgun from his waistband and show[ed] it

to others who were with him" did not justify seizure); see also

Commonwealth v. Morales, 106 Mass. App. Ct. 270, 271, 276 (2025)

(report of defendant "waving a gun" while walking by himself did

4 not justify seizure). In short, articulable reasonable

suspicion of illegality cannot arise merely from possession

alone. See Alvarado, 423 Mass. at 269. Although Officer Walsh

did recognize the defendant and "knew [he] did not have a

license to carry," the Commonwealth concedes that this

recognition only "occurred after [his] seizure," and does not,

therefore, add to the reasonable suspicion calculus.

Lastly, while reasonable suspicion "may arise where there

is an indication (in the tip or otherwise) of . . . an imminent

threat to public safety" (quotation and citation omitted),

Gomes, 458 Mass. at 1019, no facts here support such a finding.

As in Gomes, "[t]here was no evidence that the gun had been

fired, pointed at another person, or otherwise handled in a way

that posed a threat to someone, nor was there evidence that the

defendant was a dangerous person." Id. Neither "holding a gun

in the air," id., nor "show[ing] it to others" around him,

Barros, 435 Mass. at 172, constitutes a threat which per se

justifies an investigatory stop. Thus, without any preseizure

observations by the police tending to suggest illegality, a

report of a man "showing a gun to other people, outside, in a

bank parking lot just before 6:30 in the morning" likewise

cannot justify an investigatory stop. The seizure and patfrisk

5 were unjustified, and the recovered firearm must be

suppressed.1,2

Judgment vacated.

Finding set aside.

By the Court (Neyman, D'Angelo & Allen, JJ.3),

Clerk

Entered: January 7, 2026.

1 Because we hold that the stop was unjustified regardless of the reliability of the tip, we need not and do not resolve questions raised as to that reliability or as to the constitutionality of the manner of arrest.

2 We do not agree with the defendant's contention that a required finding of not guilty should now enter. See Kater v. Commonwealth, 421 Mass. 17, 18 (1995). Thus, it is in the Commonwealth's discretion whether to retry or dismiss the case.

3 The panelists are listed in order of seniority.