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
23-P-713
COMMONWEALTH
vs.
J.C., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a denial of a motion to suppress, the appellant,
Joshua Cohen,1 entered a conditional guilty plea to two counts
contained in a delinquency complaint, possession of a firearm
without a license, see G. L. c. 269, § 10 (a), and possession of
ammunition without a firearm identification (FID) card, see
G. L. c. 269, § 10 (h) (1). The parties agreed that Joshua
reserved his right to appeal from the denial of the motion to
suppress. See Mass. R. Crim. P. 12 (b) (6), as appearing in 482
Mass. 1501 (2019); Commonwealth v. Gomez, 480 Mass. 240, 252-253
(2018).
1 A pseudonym. We accept the facts found by the motion judge based on
testimony, absent clear error, but independently review
documentary evidence such as video recordings. Commonwealth v.
Tremblay, 480 Mass. 645, 654-656 (2018). We may also supplement
the facts found by the motion judge with "uncontroverted and
undisputed" evidence adduced at the hearing "where the judge
explicitly or implicitly credited the witness's testimony."
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008). The application of constitutional law to
those facts is de novo. Commonwealth v. Catanzaro, 441 Mass.
46, 50 (2004).
Facts. On the night of the search, June 12, 2022, Joshua
was a fifteen year old boy who had never before been arrested or
faced criminal charges and had never been found or known to
possess a firearm.2 The charges in this case are the only
charges the child has ever faced.
The judge credited the testimony of the sole witness called
at the evidentiary hearing on the motion to suppress, Boston
Police Officer Santino D'Addieco. Officer D'Addieco worked for
the police department's youth violence strike force, which
2 Although there is no evidence from the evidentiary hearing that the police were aware of it, the plea hearing reveals that at the time of the warrantless stop in this case, Joshua was in the ninth grade, and he had the second highest grade point average in his class.
2 focuses on gangs and firearms. He had eight years of experience
as a police officer.
According to D'Addieco's testimony, on June 12, 2022,
D'Addieco and two other officers were on patrol in an unmarked
Ford Explorer in the Washington Street area of Boston. The
officers were not responding to any reported crimes.
D'Addieco was wearing plain clothes, but with a ballistics
vest with the words "Boston Police" on it, his badge on either
his vest or his hip, and a body camera. Although his car was
unmarked, he testified that it was readily identifiable as a
police vehicle.
While in his vehicle around 9 P.M. on that summer night, he
saw a group of people of varying ages standing around a bench at
the rear parking lot of a residential building. The officer saw
a bottle of tequila on the bench, some plastic cups, and a cloud
of smoke consistent with cigarette smoke. Some in the group
appeared to be over twenty-one years of age, others younger.
D'Addieco recognized the fifteen year old Joshua and a second
person, Connor Smith.3
The officer explained at the hearing that he knew Joshua
because of two encounters with him in the previous three months,
in both of which Joshua had been the subject of a field
3 Also a pseudonym.
3 interrogation observation (FIO) in which the police, without
suspicion, gathered personal information about him. See
Commonwealth v. Warren, 475 Mass. 530, 534 n.5, 536 (2016). The
most recent time, in April, about two months before the night in
question, he was walking with two other people, one of them
Connor Smith. Joshua was FIO'd by the police, that is, they
collected personal information from him. At the end of that
police interaction, one of the people he had been walking with
was arrested for a firearm-related offense. There is no
evidence in the record that it was Smith.
The officer testified that during that encounter there was
no suspicion of Joshua for any crime. The officer testified
that at that interaction, Joshua had been cordial. He also
testified that at that interaction, Joshua was wearing a Houston
Rockets hat. The officer testified that Houston Rockets hats
are often worn by members of the Ruggles Street Gang as an
identifying logo. He testified that at the previous
interaction, he "kind of asked [Joshua] if he could name any
[Houston Rocket] players, which he couldn't." He testified that
on the night of the stop at issue here, when Joshua was also
wearing his Rockets hat, "we kind of did the same thing on this
occasion, as well;" the body camera footage does show the
officer, after arresting Joshua, asking him whether he is still
4 a Rockets fan. The child responds that the hat "matches my
outfit."
The officer testified that about a month prior to that most
recent previous interaction, in March, the police, while
responding to a report of shots fired in the area, also FIO'd
Joshua. The officer provided no testimony about Joshua's
demeanor on that occasion but testified that one of the people
he was with at that time was ultimately arrested with a firearm.
Finally, the officer also testified that he was familiar
with Joshua because "I know [Joshua] from being present in music
videos with multiple . . . Ruggles Street associates." There
was no evidence that these videos included firearms, nor of what
the officer meant by "Ruggles Street associates."
The officer testified that on the night of Joshua's arrest,
as the police approached and while still in their car, the
officer saw two people walking away from the group. They walked
toward the rear entrance of the residential building. D'Addieco
was interested in those two people but he did not know them.
The officer exited his vehicle and began slowly approaching the
group near the bench. When he walked toward the group, the
fifteen year old Joshua began walking away from the group. He
walked toward the door to the residential building. At this
5 time, the second person D'Addieco knew, Connor Smith, began
yelling something to D'Addieco's partner.
Instead of approaching the group gathered around the bench,
when the child left the group, D'Addieco began following him.
The officer testified that he did so "just to make further
observations on why he's leaving the group." D'Addieco
testified that when Joshua turned and began walking toward the
residential building, D'Addieco saw a "bulge" under Joshua's
clothing on his right side.
Joshua was not running. He did not put his hands in his
pocket. He did not make any statements or threats to police.
He did not even look back toward the officer, who was about ten
feet behind him. He did not act belligerently, nor was he
acting confrontationally. He made no furtive moves.
In short, he was not engaged in any of the types of conduct
our courts have found support suspicion of possession of a
handgun, such as grabbing his waistband, Commonwealth v. Karen
K., 491 Mass. 165, 175-176 (2023), blading his stance,
Commonwealth v. Resende, 474 Mass. 455, 458-459, 461, S.C., 475
Mass. 1 (2016), holding his hand in his pocket and making
"retention checks" -- appearing to touch the location where a
heavy object is stored to make sure it stays in place -- id., or
6 walking with his arms stiff and straight, Commonwealth v.
DePeiza, 449 Mass. 367, 371 (2007).
As Joshua approached the entrance to the residential
building, he said something or motioned to the two other people
who had left the group and were walking ahead of him. He was
wearing a shirt that covered his hip and belt area. The officer
testified that at this point in time, he could see a "large
bulge" under Joshua's clothes. The officer testified that the
bulge was under Joshua's clothing both over and under Joshua's
waistline, "on his hip."
As the child began to enter the residential building, but
before he could go through the door, Officer D'Addieco grabbed
his left arm, physically stopping him in order to conduct a "pat
frisk." Joshua's back was to the officer. Having grabbed his
left arm, the officer turned him to stop him from continuing to
walk. As the officer was reaching for Joshua, the officer
stepped on Joshua's foot causing his shoe to fall off,
apparently accidentally. The officer performed a "pat frisk"
and felt the handle of a firearm, which he seized after putting
Joshua in handcuffs.
Discussion. Joshua was stopped in the constitutional sense
when the officer grabbed his arm. Commonwealth v. Shane S., 92
Mass. App. Ct. 314, 322 (2017). See Commonwealth v. Matta, 483
7 Mass. 357, 363 (2019) (seizure occurs when "a reasonable person
would believe that an officer would compel him or her to stay").
In order to engage in the patfrisk during which the gun was
found, the officer was required to have reasonable suspicion
based on articulable facts that Joshua was armed and dangerous.
Karen K., 491 Mass. at 175. In this case, the answer to whether
there was reasonable suspicion that Joshua was armed turns on
whether there was reasonable suspicion he was in possession of a
firearm.
The Commonwealth argues first that Officer D'Addieco's
substantial and specific firearm training and cumulative
experience provided him with reasonable suspicion that the bulge
at Joshua's right hip or waist area was a firearm. The officer
testified to the presence of a "bulge" or "large bulge" under
the defendant's clothing crossing his waistband in the area of
his right hip that was "protruding from his waist, his
waistline, like on his hip."
The officer testified that he was trained that "most people
who carry a firearm unlawfully are carrying it in their
waistline and they're not holstered. So there's, you could
clearly see, like, a bulge." He testified that when he saw the
bulge under Joshua's clothes it was significant to him because
it was "part of the characteristics of a person who's carrying
8 an unlawful firearm. That bulge, to me, shows that there's a
possible firearm right there. It's something to pay attention,
to make note of, especially with the behavior."
Over three decades ago, however, we opined that a bulge,
even "a bulge in the [person's] right hand pocket which seemed
shaped like a pistol," standing alone, could not provide
reasonable suspicion that a person is carrying a firearm.
Commonwealth v. Holmes, 34 Mass. App. Ct. 916, 917-918 (1993).
Too many other things could cause such a bulge, including items
worn on one's belt or in one's front pocket, like phones, water
bottles, and other lawful items.
The Commonwealth argues that the bulge can provide
reasonable suspicion because "Officer D'Addieco exhibited his
training and experience during his testimony when he explained
why neither a water bottle nor a cellphone would be reasonable
explanations for a bulge in that particular location on a
person's clothing." But in fact, the officer testified that he
had seen people carry water bottles in their "pant[s] pocket" as
well as their back pockets, and when asked whether "kids carry a
cell phone in their front pocket," he responded, "It could have
been."
He did also testify that "kids in this generation do not
carry cell phones on their hip." But how young people carry
9 cell phones -– and what else they may carry -– is not a matter
of special police knowledge or the kind of issue with respect to
which, as the Commonwealth argues, "[a] trained law enforcement
officer may draw inferences and make deductions that would elude
a lay person." Commonwealth v. King, 389 Mass. 233, 243 (1983),
S.C., 400 Mass. 283 (1987), citing United States v. Cortez, 449
U.S. 411 (1981). In Cortez, supra at 413, on which the
Commonwealth would ultimately rely for this proposition, the
evidence at issue, far from being a matter of common experience,
involved groups of footprints found in the desert near the
Mexican border including "one recurring shoeprint [that] bore a
distinctive and repetitive V-shaped or chevron design." In any
event, the officer in this case did not testify that his opinion
was drawn from his training or police experience. The police
may not stop and pat frisk any individual or any young person
they see solely because they have such a bulge under their
clothing.
Of course, a bulge at the waistband, "consistent with the
size of a firearm," Commonwealth v. Evelyn, 485 Mass. 691, 694-
695 (2020), can when combined with other facts in some
circumstances give rise to reasonable suspicion that the bulge
is caused by an unlawful firearm. The Commonwealth also argues
that the juvenile's "possible" or "suspected" gang association
10 "and previous police interactions surrounding firearm offenses"
add to suspicion about the bulge. Under Commonwealth v. Elysee,
77 Mass. App. Ct. 833, 841 (2010), of course, "gang membership"
is not irrelevant to determining whether there is reasonable
suspicion of a risk to officer safety, although that is not a
case about whether someone was armed. But there was no evidence
that Joshua was known or even believed to be a gang member at
all, and there was no testimony that his wearing a Houston
Rockets hat meant that he was. He was said to be in "music
videos" with "[gang] associates," not gang members. It is not
clear what qualifies one as a "gang associate," though in
neighborhoods with a great deal of gang activity that might
cover any number of nongang members. In any event, we think it
clear that police cannot without more pat frisk even every
possible gang member they encounter who has a bulge in their
waist or hip area.
As to previous firearms offenses, Joshua had committed
none. Given his involvement in Joshua's prior police
encounters, Officer D'Addieco was aware that Joshua had not been
arrested for possession of a firearm on either of these
occasions, and the FIOs would have revealed Joshua had no
criminal record of any kind. The Commonwealth describes him as
having been in the "proximity" of prior firearms offenses. But
11 proximity to even a recent crime doesn't provide reasonable
suspicion one committed it. Evelyn, 485 Mass. at 705.
Proximity to two crimes that one is known to have been innocent
of thus does not add much to the suspicion that one is now
guilty of the same crime. And, even combined with the Rockets
hat, without something additional suggesting the presence of a
firearm, it does not make the suspicion reasonable that a bulge
under clothing around someone's waistline near the right hip was
a firearm.
The Commonwealth also relies on Joshua's walking away from
the group when he saw the police approach. It argues that the
juvenile's almost-immediate departure from the area upon seeing
Officer D'Addieco "significantly contributed to his reasonable
suspicion of criminal activity." And it emphasizes that during
the April encounter, Joshua had not walked away but had
approached Officer D'Addieco. It argues that an "individual's
change in behavior towards an officer" compared to prior
encounters "may contribute to the officer's reasonable suspicion
that that individual is engaging in criminal activity."
The Supreme Judicial Court has cautioned us that, "[w]here
a suspect is under no obligation to respond to a police
officer's inquiry," even "flight to avoid that contact should be
given little, if any, weight as a factor probative of reasonable
12 suspicion." Warren, 475 Mass. at 539. Indeed, the Supreme
Judicial Court has said that where, as here, a Black man
deliberately avoids police in the city of Boston, such behavior
has even less weight than it otherwise would. Id. at 540. That
is, in part, because of a study showing:
"[B]lack men in the city of Boston were more likely to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. Black men were also disproportionally targeted for repeat police encounters. . . . [T]he finding that [B]lack males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity." (Footnotes omitted.)
Id. at 540-41. And, although applicability of Warren does not
turn on it, of course this was the third time in less than four
months that Joshua had been approached for interrogation by this
very officer.
As described, the Commonwealth also argues that the change
in demeanor from Joshua's previous interactions with police was
suspicious. It argues that in the interaction with police
immediately preceding this one, Joshua approached Officer
D'Addieco's cruiser to speak with him and was cordial, whereas
this time, he walked away. Of course, with no information about
Joshua's participation in the first of his three encounters with
the police officer, it is not even clear that there was anything
13 new about his walking away. But, in any event, people have
"freedom to speak or not to speak to a police officer. A person
also may choose to walk away, avoiding altogether any contact
with police," and exercising the latter choice in the
circumstances of this case is entitled to less than little-to-
no-weight in the reasonable suspicion calculus. Warren, 475
Mass. at 538. It would be no choice at all if the decision to
speak cordially with police one time meant that walking away
another time would tip the scales of reasonable suspicion.
This is not a case like Commonwealth v. Sweeting-Bailey,
488 Mass. 741, 745 (2021), cert. denied, 143 S. Ct. 135 (2022),
where officers already interpreted the suspect's erratic
behavior as an effort to draw police attention away from a
vehicle and its contents, and where the court took into account
that the suspect's loud and confrontational behavior differed
from that in which the suspect had engaged during previous
encounters with the police, such that it properly compounded the
officers' previous suspicion. Here, Joshua walked quietly away
from police and engaged in no unusual or otherwise suspicious
behavior while walking to the back door of the residential
building.
Finally, the Commonwealth also argues that it was a "high
crime" area based upon the officer's testimony that "that area
14 on Washington Street, there's a few different neighborhoods that
typically feud with each other. So it's pretty active around
shots fired, person-with-a-gun calls, that type of thing." The
Supreme Judicial Court, however, has held that "we consider this
factor only if the 'high crime' nature of the area has a 'direct
connection with the specific location and activity being
investigated.'" Evelyn, 485 Mass. at 709, quoting Commonwealth
v. Torres-Pagan, 484 Mass. 34, 41 (2020). There, the court did
not consider the "high crime" factor where the officer
"testified that there had been an ongoing feud between gangs in
the area" and the Commonwealth introduced "the incident numbers
of other police reports of alleged gang-related crimes in the
vicinity in the months prior to the shooting," but "[t]he dates,
precise locations, and alleged perpetrators of those incidents
were not provided." Evelyn, supra. That decision controls the
issue here.
In all other cases of which we are aware, a bulge at the
waistband, "consistent with the size of a firearm," Evelyn, 485
Mass. at 694-695, has been found to support a finding of
reasonable suspicion of an unlawful firearm only when
accompanied by other behaviors that are indicative of unlawful
firearm possession, such as repeatedly looking back at the
police and adjusting the bulge while walking away, Commonwealth
15 v. Colon, 87 Mass. App. Ct. 398, 400-402 (2015); holding one's
waistband, or something in that area, while walking or running,
indicating one may be storing a firearm there, see Commonwealth
v. Ware, 76 Mass. App. Ct. 53, 54, 56 (2009), and Commonwealth
v. Nestor N., 67 Mass. App. Ct. 225, 227, 231 (2006); walking
with a straight arm, DePeiza, 449 Mass. at 371, or with a
limping gait, Nestor N., supra at 231; and awkwardly turning
one's body in order to hide the bulge from the police, Evelyn,
485 Mass at 708. Joshua engaged in none of these types of
behaviors here.
Taken together, the articulable facts known by the officer
did not support reasonable suspicion, rather than a hunch, that
the bulge was caused by a firearm. Without reasonable suspicion
of that, the pat frisk was not legally justified. Therefore,
the order denying the motion to suppress is reversed.
So ordered.
By the Court (Rubin, Desmond & Singh, JJ.4),
Clerk
Entered: April 24, 2025.
4 The panelists are listed in order of seniority.