Commonwealth v. Lorne D. Dyson. ( 2023 )

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
22-P-217
COMMONWEALTH
vs.
LORNE D. DYSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
While responding to a ShotSpotter 1 activation, two police
officers stopped a car driven by the defendant, issued an exit
order, searched the occupants and an area of the car, and
discovered a firearm under the driver's seat. The defendant was
charged with carrying a loaded and unloaded firearm without a
license, G. L. c. 269, §§ 10 (a), (n), removing the serial
number of a firearm, G. L. c. 269, § 11C, and possession of
ammunition without an FID card, G. L. c. 269, § 10 (h) (1).
After his motion to suppress was denied, the defendant filed
this interlocutory appeal challenging the exit order, the
searches of his person and the car, and the admission of his
1 See Commonwealth v. Watson, 487 Mass. 156, 157 n.2 (2021)
("ShotSpotter uses sensors to detect a possible gunshot and
approximates its location").
pre-Miranda statement that he did not have a firearm license.
We affirm.
Background. We recite the facts from the motion judge's
findings, supplemented by other evidence in the record that
supports the judge's conclusion and that was either explicitly
or implicitly credited by the judge. See Commonwealth v. Jones-
Pannell, 472 Mass. 429, 437-438 (2015). Around 1:24 A.M., two
police officers were dispatched to a ShotSpotter activation.
When the officers were "approximately one mile" from the
activation site, they saw someone driving a car as if "in a
hurry"; the car's headlights were off. Noticing that the car
also had a brake light out, the officers initiated a traffic
stop at about 1:26 A.M.
From the cruiser, the officers shined a spotlight into the
driver's side mirror. One officer saw the driver (the
defendant) look back at the officers, lean down to his right
about a foot out of their view, and return, moments later, to a
seated position. At that point, the officers approached the car
and saw three men inside.
The officers asked the defendant where he was coming from
and where he was going. The defendant said he was driving from
Stash's Pizza (the restaurant) to his home in Avon. This
statement "struck a chord" with the officers, who knew that the
restaurant was a five-minute drive from where they stopped the
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defendant, that the restaurant had closed almost thirty minutes
earlier, and that the defendant was driving away from, rather
than toward, Avon.
The officers returned to their cruiser and, from that
vantage point, saw the defendant looking back at them in the
driver's side mirror and fidgeting in his seat while the other
passengers sat still. After learning that the two passengers
had prior convictions for possession of a firearm, the officers
returned to the car and asked if any of the occupants had
weapons. All three men shook their heads "no."
By that point, an additional officer had arrived on the
scene. The occupants were ordered out of the car. Although the
two passengers immediately got out, the defendant twice refused;
instead, he picked up a plate of food and began eating it.
After a third exit order, the defendant complied. He was pat
frisked and the officers found nothing on his person. An
officer then looked under the driver's seat and immediately
found a firearm. The three men were handcuffed, and one officer
demanded to see the defendant's license to carry. The defendant
stated that he did not have one.
The defendant moved to suppress the fruits of the search,
including all the statements he made and the physical items
recovered, arguing that the evidence was obtained in violation
of his rights under both the United States Constitution and art.
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14 of the Massachusetts Declaration of Rights. After an
evidentiary hearing, the judge denied the motion, finding that,
by the time the police issued the exit order, they had
reasonable suspicion to believe that a crime had been committed,
and even if not, they had a reasonable basis to believe their
safety may be in danger, justifying an exit order even if the
stop were viewed as a routine traffic stop. With respect to the
patfrisk, the motion judge found that the defendant's resistance
to the exit order added to the basis for the officers'
reasonable suspicion that the defendant was armed and dangerous.
These same facts, according to the motion judge, further
justified the limited search of the vehicle. Finally, relying
on Commonwealth v. Haskell, 438 Mass. 790, 796 (2003), the judge
found that the defendant's response to the demand to see his
license to carry was not the result of custodial interrogation.
The defendant moved, unsuccessfully, for reconsideration and
this appeal followed. 2
Discussion. "When reviewing a motion to suppress evidence,
we adopt the motion judge's subsidiary findings of fact absent
clear error, but we independently determine the correctness of
2 A single justice of the Supreme Judicial Court allowed the
defendant's application, pursuant to Mass. R. Crim. P.
15 (a) (2), as amended, 476 Mass. 1501 (2017), for leave to
pursue an interlocutory appeal in the Appeals Court. See
Commonwealth v. Privette, 491 Mass. 501, 506 (2023).
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the judge's application of constitutional principles to the
facts as found." Commonwealth v. Catanzaro, 441 Mass. 46, 50
(2004).
1. Exit Order. "Our analysis begins with the validity of
the exit order because there is no dispute that the initial stop
of the . . . vehicle was valid." Commonwealth v. Monell, 99
Mass. App. Ct. 487, 489 (2021). "[A]n exit order is justified
during a traffic stop where," among other reasons, "police are
warranted in the belief that the safety of the officers or
others is threatened" -- that is, "if officers have a reasonable
suspicion of a threat to safety." Commonwealth v. Torres-Pagan,
484 Mass. 34, 38 (2020). "We assess 'whether there were facts
and circumstances in the course of [the] particular traffic stop
that, viewed objectively, would give rise to a heightened
awareness of danger on the part of the [officer].'"
Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 212 (2013),
quoting Commonwealth v. Stampley, 437 Mass. 323, 326 (2002). "A
police officer need point only to some fact or facts in the
totality of the circumstances that would . . . warrant an
objectively reasonable officer in securing the scene in a more
effective manner." Rosado, supra. "[I]t does not take much for
a police officer to establish a reasonable basis to justify an
exit order or search based on safety concerns." Commonwealth v.
Gonsalves, 429 Mass. 658, 664 (1999).
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Here, safety concerns justified the exit order. The
officers saw the defendant driving as if "in a hurry," in the
early-morning darkness, without headlights, just one mile from
the ShotSpotter activation two minutes earlier. See
Commonwealth v. Warren, 475 Mass. 530, 536 (2016); Commonwealth
v. Ford, 100 Mass. App. Ct. 712, 716 (2022) (reasonable to infer
from ShotSpotter alerts that person responsible for gunshots
would be at or near location where ShotSpotter had last
activated). Aware that a shooter potentially remained at large,
the officers saw the defendant bend down in a manner that
reasonably could be perceived as retrieving or placing an object
near the driver's seat. See Commonwealth v. Heughan, 40 Mass.
App. Ct. 102, 104-105 (1996). Then, the officers heard the
defendant's claim to be coming from a nearby restaurant they
knew had closed thirty minutes earlier, and saw he was heading
in the opposite direction from his purported destination. 3 See
Commonwealth v. Henley, 488 Mass. 95, 103 (2021) (defendant's
3 "That there may be an innocent explanation for the defendant's
actions 'does not remove [those actions] from consideration in
the reasonable suspicion analysis.'" Commonwealth v. Gomes, 453
Mass. 506, 511 (2009), quoting Commonwealth v. DePeiza, 449
Mass. 367, 373 (2007). Moreover, we disagree with the
defendant's assertion that the officers' questions about where
he was coming from and going were improper because they crossed
the line into general investigative questioning. See
Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 372 n.13 (2010).
In any event, even without considering the defendant's
responses, we would still conclude there were sufficient safety
concerns to justify the exit order.
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implausible explanation to officers' questions contributed to
reasonable suspicion). The officers also saw the defendant
exhibit "non-standard" and nervous behavior, repeatedly glancing
at them and fidgeting in the front seat. See Commonwealth v.
Karen K., 491 Mass. 165, 179 (2023) (nervous movements may be
properly considered with other factors to find reasonable
suspicion). In the aggregate, these facts were enough to cause
"'a heightened awareness of danger that would warrant an
objectively reasonable police officer'" to fear for his safety.
Monell, supra at 490, quoting Stampley, 437 Mass. at 326.
2. Patfrisk. "[T]o justify a patfrisk, an officer needs
more than safety concerns." Torres-Pagan, 484 Mass. at 37.
"[The officer] must have a reasonable suspicion, based on
specific articulable facts, that the suspect is armed and
dangerous." Id. at 38-39. "The calculus of reasonable
suspicion examines 'the totality of the facts'" surrounding the
patfrisk, Commonwealth v. Robinson-Van Rader, 492 Mass. 1, 8
(2023), quoting Commonwealth v. Meneus, 476 Mass. 231, 235
(2017), and "[r]easonable suspicion must be more than a hunch."
Robinson-Van Rader, 492 Mass. at 8.
Here, the totality of the facts provided reasonable
suspicion and supported the protective frisks of the defendant's
person and limited sweep of the car. The same facts justifying
the exit order, combined with the defendant's resistance to the
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officer's first two exit orders, provided reasonable suspicion
to believe that the defendant had attempted to retrieve or
conceal a weapon on or near his person. See Commonwealth v.
Narcisse, 457 Mass. 1, 9 (2010) (suspicions that defendant
committed crime and was armed and dangerous "may occur
simultaneously"); Commonwealth v. Johnson, 82 Mass. App. Ct.
336, 340 (2012) (that defendant was nervous and slow to obey
officers' commands were factors considered in reasonable
suspicion analysis). Both passengers' histories of firearms
offenses, viewed in the context of the nearby ShotSpotter
activation, added to the reasonable suspicion that the defendant
was armed and dangerous. See Commonwealth v. Sweeting-Bailey,
488 Mass. 741, 750-751, 755-756 (2021); Commonwealth v. Wright,
85 Mass. App. Ct. 380, 384 (2014).
The officers' reasonable suspicion that the defendant was
armed and dangerous did not dissipate when no weapon was
discovered on his person; rather, the defendant's "[v]ery, very
hesitant, and not cooperative" demeanor during the patfrisk only
furthered the officers' "concern that a weapon might remain in
the car." Monell, supra at 491. Given that "gestures . . .
suggestive of the occupant's retrieving or concealing an object,
raise legitimate concerns to an officer conducting a traffic
stop," we are satisfied that officers were justified in
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performing a protective search of the area of the car where they
saw the defendant duck down. 4 Stampley, 437 Mass. at 327.
3. Length of stop. "A valid investigatory stop 'cannot
last longer than reasonably necessary to effectuate the purpose
of the stop.'" Commonwealth v. Tavares, 482 Mass. 694, 703
(2019), quoting Commonwealth v. Amado, 474 Mass. 147, 151
(2016). "The scope of a stop may only extend beyond its initial
purpose if the officer is confronted with facts giving rise to a
reasonable suspicion that 'further criminal conduct is afoot'"
(citation omitted). Tavares, supra, quoting Commonwealth v.
Cordero, 477 Mass. 237, 243 (2017).
Here, what began as a routine traffic stop was quickly
transformed into a situation potentially dangerous to the
officers. The officers saw the defendant's furtive movements
before he exited the cruiser and grew increasingly suspicious as
they spoke with him and continued to observe his behavior. See
Sweeting-Bailey, 488 Mass. at 748-749; see also Commonwealth v.
Cabrera, 76 Mass. App. Ct. 341, 346-347 (2010). Contrast
Cordero, 477 Mass.at 247 (where purpose of motor vehicle stop
was effectuated, and where no reasonable suspicion of additional
criminal activity existed, police "did not have a legitimate
4 Because the officer found the gun immediately upon looking at
the area where he saw the defendant duck down, and because
nothing was found elsewhere in the vehicle, we do not address
the propriety of the broader search.
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basis to detain the defendant, and the defendant should have
been allowed to drive away").
4. License to carry. The defendant's statement that he
did not have a license to carry, made in response to the
officer's demand to see his license to carry a firearm, was not
obtained in violation of the defendant's Miranda rights. "The
Miranda warnings are designed to protect the integrity of a
suspect's privilege against self-incrimination." Haskell, 438
Mass. at 796. "Although this privilege protects a suspect's
testimonial communications, it does not permit a suspect to
refuse to produce real or physical evidence (such as a license)
when lawfully ordered to do so." Id. "It would serve no
purpose to advise a suspect that he has a right to remain silent
when the police are only demanding the production of physical
evidence that the suspect may not withhold. The police,
therefore, need not administer Miranda warnings before demanding
that a suspect in custody produce one of the documents listed in
[G. L. c. 140,] § 129C." Id.
Here, as the motion judge found, the defendant's inability
to produce a license to carry did not implicate the protections
of the Fifth Amendment. See Haskell, supra at 796 n.2., quoting
Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S.
549, 555 (1990) ("a person may not claim the [Fifth] Amendment's
protections based upon the incrimination that may result from
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the contents or nature of the thing demanded"). Although the
defendant was handcuffed and under arrest, the demand to produce
his license to carry did not constitute custodial interrogation
under Haskell.
Order denying motion to
suppress affirmed.
By the Court (Green, C.J.,
Shin & Hershfang, JJ. 5),
Clerk
Entered: August 9, 2023.
5 The panelists are listed in order of seniority.
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