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
24-P-493
COMMONWEALTH
vs.
LEVI L., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile was arrested and charged with, as relevant
here, carrying a firearm without a license, possession of
ammunition without a firearms identification card, and
possession of a large capacity firearm. After moving
unsuccessfully to suppress the evidence of the firearm and
ammunition, the juvenile tendered a conditional guilty plea to
those charges, see Mass. R. Crim. P. 12 (b) (6), as appearing in
482 Mass. 1501 (2019), and then appealed from the denial of his
motion. We affirm.
Background. We briefly summarize the facts as the judge
found them, supplementing them with other evidence that the judge either explicitly or implicitly credited,1 see Commonwealth
v. Jones-Pannell, 472 Mass. 429, 436 (2015), and with our
independent review of body-worn video footage that was part of
the evidence at the suppression hearing. See Commonwealth v.
Yusuf, 488 Mass. 379, 380-381 (2021). We reserve certain
details for later discussion.
At approximately 8 P.M. on June 21, 2022, members of the
Massachusetts State police and the Boston police department's
"Youth Violence Strike Force" (officers) were on "directed
patrol" near the Villa Victoria housing complex in Boston's
South End. The directed patrol was a response to community
concerns about increased "gang activity, drug activity, and
firearm activity in the area of Shawmut Avenue." The officers
were aware that approximately an hour earlier, other Boston
police officers had dispersed a group of Lenox Street gang
members who were loitering and drinking in another location near
Shawmut Avenue. Accordingly, approximately six officers, split
across two cars on directed patrol, went to the Villa Victoria
housing complex, an area frequented by Lenox Street gang
1 The judge expressly and without restriction credited the testimony of the Commonwealth's witnesses, Officers Ryan Fullam and Jose Sanchez.
2 associates and to which the officers had recently responded to
calls about gangs, drugs, and gun activity.
When the officers, including Officer Ryan Fullam, arrived
in the Villa Victoria parking lot, they saw a group of up to
eight youths standing around a car on which there were cups and
containers of alcohol. The police recognized the youths, knew
that most of the people in the group were gang affiliated, and
knew that some were not of legal drinking age. The officers
spoke with the members of the group, informing them that they
could be arrested for drinking in public.
Although the interaction between the police and the group
was relatively calm, Fullam knew that one of the members of the
group, whom we shall call Paul, had an open firearms charge.
Additionally, Fullam knew that three firearms arrests had been
made at Villa Victoria within the past two years and that two
other firearms arrests had been made in the general area of
Shawmut Avenue within approximately a month of June 21 -- one
within one-quarter mile of Villa Victoria.
After the police talked with the group and Fullam pat
frisked another member of the group without finding contraband,
another officer drew Fullam's attention to a youth who appeared
to be avoiding the officers' attention by remaining quiet,
avoiding eye contact with the officers, and leaning down toward
3 a nearby car "with his head down and [his] hood over his head."
It was not until this officer drew Fullam's attention to the
youth and the distinctive Gucci sling bag he was wearing, which
the police knew belonged to Paul, that Fullam recognized the
individual to be the juvenile.
Fullam was familiar with the juvenile from the juvenile's
prior police interactions and knew that he had previously been
arrested for a firearms offense. Fullam had seen the juvenile
before June 21, 2022, including an encounter on the street three
days earlier; in those earlier interactions, the juvenile had
been "confrontational, taunting, loud, obnoxious, [and]
unpleasant," and had specifically drawn attention to his claim
to be a gang member.
Based on the juvenile's uncharacteristic behavior, his
possession of Paul's sling bag, and Fullam's awareness that the
juvenile and Paul had each been previously charged with
possession of a firearm, Fullam suspected that the juvenile had
a firearm in the bag. Thus, based on concerns for his own
safety and that of the other officers present, Fullam patted
down the sling bag the juvenile wore and discovered a handgun
inside.
Discussion. 1. Admission of Officer Jose Sanchez's
testimony about the juvenile's prior firearms arrest. On the
4 first day of the motion hearing, defense counsel made an oral
motion to limit or preclude Officer Jose Sanchez from testifying
that he had been present in August 2021 when a firearm was found
in the juvenile's possession. Defense counsel argued that
because evidence of that gun was later suppressed in a separate
case stemming from that arrest, the exclusionary rule rendered
Sanchez's testimony about it inadmissible at the trial in this
case. The judge did not agree and permitted Sanchez to testify.
We are not persuaded by the juvenile's argument on appeal
that the judge's ruling constituted an abuse of discretion
requiring reversal. See Commonwealth v. Evelyn, 485 Mass. 691,
706 (2020) (abuse of discretion standard applies to judge's
determination of whether to admit evidence). The legality of
the patfrisk turned on the existence of reasonable safety
concerns, and it is therefore not clear to us that exclusion of
Sanchez's testimony about the juvenile's prior possession of a
firearm would have served the purpose of the exclusionary
rule -- "to deter police misconduct and preserve judicial
integrity by dissociating courts from unlawful conduct."
Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011). Even if
we were to conclude that Sanchez's testimony should have been
excluded, we discern no prejudice stemming from the admission of
that testimony where the same information about the juvenile's
5 prior firearms arrest came in without objection through Fullam.
See Commonwealth v. Berube, 105 Mass. App. Ct. 357, 363-364
(2025) (error in admission of testimony was nonprejudicial where
testimony was "cumulative" of other evidence admitted without
objection).
2. Lawfulness of patfrisk.
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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
24-P-493
COMMONWEALTH
vs.
LEVI L., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The juvenile was arrested and charged with, as relevant
here, carrying a firearm without a license, possession of
ammunition without a firearms identification card, and
possession of a large capacity firearm. After moving
unsuccessfully to suppress the evidence of the firearm and
ammunition, the juvenile tendered a conditional guilty plea to
those charges, see Mass. R. Crim. P. 12 (b) (6), as appearing in
482 Mass. 1501 (2019), and then appealed from the denial of his
motion. We affirm.
Background. We briefly summarize the facts as the judge
found them, supplementing them with other evidence that the judge either explicitly or implicitly credited,1 see Commonwealth
v. Jones-Pannell, 472 Mass. 429, 436 (2015), and with our
independent review of body-worn video footage that was part of
the evidence at the suppression hearing. See Commonwealth v.
Yusuf, 488 Mass. 379, 380-381 (2021). We reserve certain
details for later discussion.
At approximately 8 P.M. on June 21, 2022, members of the
Massachusetts State police and the Boston police department's
"Youth Violence Strike Force" (officers) were on "directed
patrol" near the Villa Victoria housing complex in Boston's
South End. The directed patrol was a response to community
concerns about increased "gang activity, drug activity, and
firearm activity in the area of Shawmut Avenue." The officers
were aware that approximately an hour earlier, other Boston
police officers had dispersed a group of Lenox Street gang
members who were loitering and drinking in another location near
Shawmut Avenue. Accordingly, approximately six officers, split
across two cars on directed patrol, went to the Villa Victoria
housing complex, an area frequented by Lenox Street gang
1 The judge expressly and without restriction credited the testimony of the Commonwealth's witnesses, Officers Ryan Fullam and Jose Sanchez.
2 associates and to which the officers had recently responded to
calls about gangs, drugs, and gun activity.
When the officers, including Officer Ryan Fullam, arrived
in the Villa Victoria parking lot, they saw a group of up to
eight youths standing around a car on which there were cups and
containers of alcohol. The police recognized the youths, knew
that most of the people in the group were gang affiliated, and
knew that some were not of legal drinking age. The officers
spoke with the members of the group, informing them that they
could be arrested for drinking in public.
Although the interaction between the police and the group
was relatively calm, Fullam knew that one of the members of the
group, whom we shall call Paul, had an open firearms charge.
Additionally, Fullam knew that three firearms arrests had been
made at Villa Victoria within the past two years and that two
other firearms arrests had been made in the general area of
Shawmut Avenue within approximately a month of June 21 -- one
within one-quarter mile of Villa Victoria.
After the police talked with the group and Fullam pat
frisked another member of the group without finding contraband,
another officer drew Fullam's attention to a youth who appeared
to be avoiding the officers' attention by remaining quiet,
avoiding eye contact with the officers, and leaning down toward
3 a nearby car "with his head down and [his] hood over his head."
It was not until this officer drew Fullam's attention to the
youth and the distinctive Gucci sling bag he was wearing, which
the police knew belonged to Paul, that Fullam recognized the
individual to be the juvenile.
Fullam was familiar with the juvenile from the juvenile's
prior police interactions and knew that he had previously been
arrested for a firearms offense. Fullam had seen the juvenile
before June 21, 2022, including an encounter on the street three
days earlier; in those earlier interactions, the juvenile had
been "confrontational, taunting, loud, obnoxious, [and]
unpleasant," and had specifically drawn attention to his claim
to be a gang member.
Based on the juvenile's uncharacteristic behavior, his
possession of Paul's sling bag, and Fullam's awareness that the
juvenile and Paul had each been previously charged with
possession of a firearm, Fullam suspected that the juvenile had
a firearm in the bag. Thus, based on concerns for his own
safety and that of the other officers present, Fullam patted
down the sling bag the juvenile wore and discovered a handgun
inside.
Discussion. 1. Admission of Officer Jose Sanchez's
testimony about the juvenile's prior firearms arrest. On the
4 first day of the motion hearing, defense counsel made an oral
motion to limit or preclude Officer Jose Sanchez from testifying
that he had been present in August 2021 when a firearm was found
in the juvenile's possession. Defense counsel argued that
because evidence of that gun was later suppressed in a separate
case stemming from that arrest, the exclusionary rule rendered
Sanchez's testimony about it inadmissible at the trial in this
case. The judge did not agree and permitted Sanchez to testify.
We are not persuaded by the juvenile's argument on appeal
that the judge's ruling constituted an abuse of discretion
requiring reversal. See Commonwealth v. Evelyn, 485 Mass. 691,
706 (2020) (abuse of discretion standard applies to judge's
determination of whether to admit evidence). The legality of
the patfrisk turned on the existence of reasonable safety
concerns, and it is therefore not clear to us that exclusion of
Sanchez's testimony about the juvenile's prior possession of a
firearm would have served the purpose of the exclusionary
rule -- "to deter police misconduct and preserve judicial
integrity by dissociating courts from unlawful conduct."
Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011). Even if
we were to conclude that Sanchez's testimony should have been
excluded, we discern no prejudice stemming from the admission of
that testimony where the same information about the juvenile's
5 prior firearms arrest came in without objection through Fullam.
See Commonwealth v. Berube, 105 Mass. App. Ct. 357, 363-364
(2025) (error in admission of testimony was nonprejudicial where
testimony was "cumulative" of other evidence admitted without
objection).
2. Lawfulness of patfrisk. Whether the patfrisk was
legally justified presents a more difficult question. When we
conduct our review of the judge's denial of the motion to
suppress, we "accept the motion judge's findings of fact unless
they are clearly erroneous and assess the correctness of the
judge's legal conclusions de novo." Commonwealth v. Henley, 488
Mass. 95, 100 (2021), quoting Commonwealth v. Weidman, 485 Mass.
679, 683 (2020). In assessing whether an officer has reasonable
suspicion to justify a patfrisk, we ask whether a reasonably
prudent person in the officer's position would be warranted in
believing that the defendant is armed and dangerous. See
Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744 (2021),
cert. denied, 143 S. Ct. 135 (2022); Commonwealth v. Torres-
Pagan, 484 Mass. 34, 36-39 (2020). "The officer's reasonable
suspicion must be based on specific, articulable facts and
inferences reasonably drawn therefrom." Commonwealth v.
Crowder, 495 Mass. 552, 566, cert. denied, 146 S. Ct. 169
(2025). Our inquiry is both objective and "highly fact-
6 specific." Id. Here, we conclude that the evidence met the
required threshold to justify the patfrisk.
First, Fullam knew at the time of the patfrisk that the
juvenile had previously been arrested for unlawful possession of
a firearm. "Knowledge that a suspect's criminal record includes
weapons-related offenses may factor into the reasonable
suspicion calculus" as to whether a suspect is armed and
dangerous. Commonwealth v. Garner, 490 Mass. 90, 92 (2022).
The police also knew that the juvenile claimed to be gang
affiliated and that he was carrying a distinctive sling bag
belonging to another gang member, Paul, who himself had a prior
firearms arrest.2 See Sweeting-Bailey, 488 Mass. at 752
("evidence of gang membership may be considered as a factor in
the determination of reasonable suspicion").
Second, the judge found that the encounter between the
juvenile and the police took place in a location "where the
officers had recently responded to calls concerning gang
activity, drug activity, and gun activity." The encounter was
also within one-quarter mile of a recent firearms arrest. This
2 The judge credited the prosecution's testimony about the sling bag but did not consider it because the judge concluded that "[t]he reasonable suspicion necessary to conduct a patfrisk was present before the bag was identified by the officer." We are not bound by the judge's legal conclusion. See, e.g., Henley, 488 Mass. at 100.
7 evidence bore on the existence of reasonable suspicion that the
juvenile was armed. See Sweeting-Bailey, 488 Mass. at 752-753
(judge's finding about previous firearm arrest "approximately
one-half mile away" from location of stop contributed to
reasonable suspicion analysis); Torres-Pagan, 484 Mass. at 41-42
(where evidence showed "direct connection" between specific
location and activity being investigated, characterization of
neighborhood as "high crime" area may be relevant factor when
assessing reasonable suspicion of safety threat).3 We also
consider the evidence that for most, if not all, of the
encounter leading up to the patfrisk, the officers were
outnumbered by the group of juveniles. See Crowder, 495 Mass.
at 568 (fact that trooper was "outnumbered four to one" during
nighttime roadside stop was factor in reasonable suspicion
calculus).
Third, Fullam described the marked difference between the
juvenile's quiet, retiring behavior when Fullam encountered him
3 The judge did not use the term "high crime area" in his findings. To the extent that we read the words the judge used as a finding that the patfrisk occurred in a high crime area, we are not persuaded that the finding was clearly erroneous. See Commonwealth v. Karen K., 491 Mass. 165, 169 (2023) (defining clear error); Commonwealth v. DePeiza, 449 Mass. 367, 372 (2007) (finding no clear error in judge's determination that area patrolled based on recent increase in firearms violence was "high crime area").
8 on June 21 and the juvenile's brash and attention-seeking
conduct -- including his claim to gang membership -- three days
earlier, suggesting to Fullam that the juvenile was attempting
to hide something from the police. Based on the juvenile's
efforts to avoid police attention and to conceal not only his
face but also the bag he was wearing across the front of his
body, the police could reasonably have suspected that the
juvenile was attempting to prevent Fullam and the other officers
present from noticing the sling bag. See Sweeting-Bailey, 488
Mass. at 749-750 (officers' fact-based inference that individual
was behaving uncharacteristically to divert officers' attention
away from car was properly considered in determining whether
police had reasonable suspicion of weapon inside).
While we agree with the juvenile that none of these factors
considered in isolation would support reasonable suspicion that
he was armed and dangerous, our task is to consider whether the
totality of the circumstances, presented through the evidence
the judge credited, justified the patfrisk. See Sweeting-
Bailey, 488 Mass. at 745. Having done so, we are satisfied that
the events that unfolded on June 21, 2022, gave rise to an
objectively reasonable suspicion that the juvenile was
"armed" -- that is, concealing a firearm in the sling bag he
wore -- and "dangerous" because his possession of the firearm in
9 the bag was presumptively illegal, given the juvenile's age.
See G. L. c. 140, § 131 (d) (iv), as amended by St. 2014,
c. 284, § 48; Commonwealth v. Karen K., 491 Mass. 165, 179
(2023) (evidence that "juvenile did not legally possess the
firearm that [officer] suspected her to be carrying . . .
contributed significantly" to reasonable suspicion that juvenile
was armed and dangerous, justifying patfrisk); Commonwealth v.
DePeiza, 449 Mass. 367, 374 (2007) (officers' reasonable belief
that juvenile was carrying "concealed, unlicensed firearm"
provided reasonable suspicion that juvenile "was therefore armed
and dangerous"); Commonwealth v. Johnson-Rivera, 104 Mass. App.
Ct. 533, 536, 538 & n.5 (2024) (facts providing reasonable
suspicion that juvenile was carrying firearm also gave rise to
reasonable suspicion that juvenile was armed and dangerous).
Accordingly, the patfrisk was lawful, and the juvenile's motion
10 to suppress the evidence obtained as a result of the frisk was
properly denied.
Order denying motion to suppress affirmed.
By the Court (Massing, Hand & Allen, JJ.4),
Clerk
Entered: March 5, 2026.
4 The panelists are listed in order of seniority.