Commonwealth v. Lovant Wheeler.

• Court: Massachusetts Appeals Court
• Decided: July 8, 2026
• Docket: 25-P-0964
• Status: Unpublished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-964

COMMONWEALTH

vs.

LOVANT WHEELER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Superior Court judge's

order allowing the defendant's motion to suppress evidence

discovered during the warrantless search of a car following a

traffic stop. The judge found that the search of the car was

unconstitutional because it immediately followed an illegal

seizure of the defendant and the defendant's subsequent consent

to search was not freely and voluntarily given. We affirm.

Background. We summarize the judge's findings, following

an evidentiary hearing, supplemented by our independent

observations of the video evidence from the officers' body-worn

cameras (BWCs). See Commonwealth v. Yusuf, 488 Mass. 379, 381-

382 (2021). See also Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995) ("we are in the same position as the [motion] judge

in viewing the videotape").

In March 2024, Boston police Officer Sean Burke was on

patrol with two other officers in a police cruiser in a South

Boston neighborhood. At around 8:30 P.M., they observed a car

drive through a stop sign without slowing down or stopping.

Officer Burke activated the police cruiser's lights, made a U-

turn, and executed a traffic stop.

Another officer ran a Criminal Justice Information System

query on the car's license plate and found that it was

registered to the defendant, who lived in that neighborhood.

Officer Burke was familiar with the defendant. They had

interacted four or five times over the past four years that

Burke had been assigned to that police district. Officer Burke

knew that the defendant had a prior conviction for illegal

possession of a firearm, but at the time of the stop he could

not remember exactly how long ago that conviction had occurred.

He testified that he knew it was at least four years prior to

the stop.1

The defendant pulled over quickly and without any issues.

After the defendant stopped, he immediately got out of the car

1 At the suppression hearing, Office Burke testified that he had since learned that the defendant's firearm conviction had occurred in 2014, ten years before this traffic stop.

2 and stood at the driver's side with the driver's door open

behind him. Officer Burke testified that this behavior was

"very, very rare," and that it caused the officers to have

safety concerns.

All three of the officers got out of their car and

approached the defendant simultaneously. They were in plain

clothes and were armed. As they approached, the defendant

appeared nervous, frustrated, and animated. Officer Burke asked

the defendant for his driver's license and registration, and the

defendant confirmed that he had both documents. The defendant

then leaned toward the interior of his car. Officer Burke

blocked the defendant from accessing the interior by putting his

right arm between the defendant and the open door. The

defendant then put both hands in the air as the officers

surrounded him. Officer Burke stood between the defendant and

the car while a second officer approached from the other side,

immediately grabbed the defendant's right arm, and pulled it

backwards. The third officer stood behind the defendant.

As the Commonwealth conceded at oral argument, the officers

did not have reasonable suspicion to believe that the defendant

was armed and dangerous as they approached him. Nevertheless,

immediately after his partner pulled the defendant's arm

backwards, Officer Burke pat frisked the defendant's front

sweatshirt pocket. After Officer Burke touched the defendant,

3 but before he had reached inside the sweatshirt pocket, the

defendant said, "You could pop, lemme, look, I'mma pop

everything, you can search everything." Officer Burke proceeded

with the patfrisk, telling the defendant multiple times that the

police did not want to search the car, and to relax. The

defendant offered again to open the trunk of his car and allow

officers to search it. The officers again declined, reiterating

to the defendant that they were not interested in searching his

car. Officer Burke completed his patfrisk, finding no weapons

or contraband on the defendant's person.

Officer Burke then searched the car. He opened multiple

small, closed containers within the center console area, and

eventually found suspected narcotics inside one of these

containers. The officers then arrested the defendant.

After an evidentiary hearing, the judge found that the

initial patfrisk was not supported by reasonable suspicion, and

that the defendant had not given valid consent to search the

vehicle, because the "search everything" statement (statement)

was made in immediate response to an illegal search and seizure.

Discussion. "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. Jones-Pannell, 472 Mass. 429, 431

4 (2015). "The Commonwealth bears the burden of demonstrating

that the actions of the police officers . . . were within

constitutional limits." Commonwealth v. Gomes, 453 Mass. 506,

509 (2009).

1. Seizure. On appeal, the Commonwealth concedes that

Officer Burke's patfrisk was illegal, acknowledging that it was

not supported by reasonable suspicion that the defendant was

armed and dangerous.2 Instead, the Commonwealth argues that the

judge erred by finding that the defendant made the statement at

the same time that Officer Burke began the illegal patfrisk.

The Commonwealth suggests that because the defendant made the

statement before Officer Burke ever placed his hands on him, his

initial consent to search the vehicle was not a product of

police coercion. We are not persuaded.

In fact, the defendant had already been seized, for

constitutional purposes, before he consented to a search of his

car and before the illegal patfrisk began. A person is seized

for purposes of the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights when, "in light of the surrounding circumstances, a

reasonable person in the situation would not feel free to

2 This concession establishes that the seizure of cash from the defendant's pocket during the patfrisk was illegal.

5 leave." Gomes, 453 Mass. at 510. "The pertinent inquiry is

whether 'an officer has, through words or conduct, objectively

communicated that the officer would use his or her police power

to coerce that person to stay.'" Commonwealth v. Daveiga, 489

Mass. 342, 347 (2022), quoting Commonwealth v. Matta, 483 Mass.

357, 362 (2019).

After careful review of the BWC footage, we conclude that

the officers seized the defendant before he told them they could

"search everything," and prior to the patfrisk. To be sure, the

initial traffic stop was reasonable because the officers had

personally witnessed the defendant committing a traffic

violation. See Commonwealth v. Santana, 420 Mass. 205, 207

(1995). But after the defendant got out of the car, three armed

police officers approached and surrounded him, blocking any path

of egress. One officer then grabbed the defendant's right arm

and pulled it backwards, in an apparent attempt to move him away

from the car. "[W]here [a] police officer's conduct impeded the

defendant's freedom of movement, he was seized for

constitutional purposes." Commonwealth v. Meneus, 476 Mass 231,

235 (2017).

2. Lack of justification. A seizure must be supported by

an officer's "reasonable suspicion that the person seized has

committed, is committing, or is about to commit a crime."

Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). The fact

6 that the defendant got out of the car and appeared nervous and

frustrated was insufficient to justify "enlarging a routine

traffic stop into an investigation." See Commonwealth v.

Gonsalves, 429 Mass. 658, 660 (1999) (defendant's "extremely

nervous" behavior did not establish reasonable suspicion);

Commonwealth v. Torres, 424 Mass. 153, 159 (1997) (getting out

of vehicle after traffic stop is "not unnatural" and does not

alone support extension of traffic stop into more serious

inquiry). Accordingly, the initial seizure was not supported by

a reasonable suspicion that the defendant "has committed, is

committing, or is about to commit a crime," DePeiza, supra, and

therefore was illegal.

3. Consent to search vehicle. Warrantless searches "are

per se unreasonable [under both the Fourth Amendment and art.

14] -- subject to only a few . . . exceptions" (citation

omitted). Commonwealth v. Cast, 407 Mass. 891, 901 (1990).

Under the consent exception to the warrant requirement, police

may conduct a warrantless search with the free and voluntary

consent of a person possessing the ability and apparent

authority to consent. See Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973); Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996).

Whether consent is free and voluntary is determined from all of

the surrounding circumstances. See Commonwealth v. Barnes, 20

Mass. App. Ct. 748, 754 (1985).

7 The Commonwealth argues that the defendant's statement was

valid consent justifying the officers' warrantless search of the

defendant's car. We disagree.

The Commonwealth has the burden of proving that the

defendant's consent was freely and voluntarily given, rather

than "mere acquiescence to a claim of lawful authority"

(quotation omitted). Commonwealth v. Walker, 370 Mass. 548,

555, cert. denied, 429 U.S. 943 (1976), quoting Bumper v. North

Carolina, 391 U.S. 543, 548 (1968). Contrary to the

Commonwealth's claim, the BWC footage establishes that the

defendant made the statement immediately after three officers

had surrounded him, an officer had grabbed his right hand and

pulled his arm backwards, and Officer Burke began pat frisking

him.3

"Where consent is obtained as a result of the exploitation

of a prior illegality that follows close in time, then consent

is not considered to be freely given." Commonwealth v.

Yehudi Y., 56 Mass. App. Ct. 812, 817 (2002), citing

Commonwealth v. Midi, 46 Mass. App. Ct. 591, 595 (1999). Given

that the defendant's statement immediately followed an

Again, regardless of whether Officer Burke began the 3

patfrisk before, while, or after the defendant made the statement, the defendant had already been seized at that point when the three officers surrounded him and one officer grabbed his right arm.

8 unconstitutional seizure, it cannot be characterized as free and

voluntary consent.

4. Fruit of poisonous tree. Under the "fruit of the

poisonous tree" doctrine, the exclusionary rule bars the use of

evidence derived from an unconstitutional search or seizure.

Wong Sun v. United States, 371 U.S. 471, 488 (1963) (defining

"fruit of the poisonous tree" as evidence discovered after

exploitation of unlawful search or seizure). See Commonwealth

v. Damiano, 444 Mass. 444, 453 (2005).

Because the search of the car followed immediately after an

illegal seizure of the defendant, the suspected narcotics that

Officer Burke discovered during the search were properly

suppressed as the fruit of the poisonous tree. See Commonwealth

v. Loughlin, 385 Mass. 60, 63 (1982).4

Order allowing motion to suppress affirmed.

By the Court (Desmond, Tan & Wood, JJ.5),

Clerk

Entered: July 8, 2026.

4 Because we find that the police lacked valid consent to search the car, we need not reach the Commonwealth's other arguments regarding the scope and withdrawal of that consent.

5 The panelists are listed in order of seniority.