Commonwealth v. Luis Matos. ( 2024 )

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-635
COMMONWEALTH
vs.
LUIS MATOS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Luis Matos, appeals from his conviction of
carrying a loaded firearm without a license in violation of
G. L. c. 269, § 10 (n), and carrying a firearm without a license
in violation of G. L. c. 269, § 10 (a). The convictions
resulted from a stop of the defendant's vehicle by a Lowell
police detective, who then discovered a loaded gun under the
defendant's seat and learned that the defendant did not possess
a license to carry. 1 The defendant filed a motion to suppress
evidence seized as a result of the vehicle stop, claiming that
1The defendant was also charged with the offense of
discharging a firearm within five hundred feet of a building in
violation of G. L. c. 269, § 12E, which the trial court
dismissed at the request of the Commonwealth.
the stop, subsequent exit order, and search of the vehicle were
unconstitutional. A District Court judge denied the defendant's
motion to suppress, and the case proceeded to trial. The
defendant now appeals his convictions, arguing anew that there
was neither reasonable suspicion nor reasonable safety concerns
to justify the stop, exit order, and search. We disagree and
accordingly, affirm.
Background. 1. The incident. On the night of December 6,
2018, Lowell Police Detective Steven Dalessandro was surveilling
two 7-Eleven convenience stores in Lowell following a series of
armed robberies in the area, the most recent of which had taken
place the previous day. Dalessandro positioned his vehicle near
one of the 7-Elevens, a location on Princeton Boulevard.
Sometime after midnight, Dalessandro observed a black BMW pull
into the parking lot of the 7-Eleven and watched as an
individual inside the store leaned over the counter as if he was
reaching for something. The individual then left the store and
entered the BMW, which thereafter pulled out of the parking lot
and onto Princeton Boulevard. Dalessandro followed the BMW down
Princeton Boulevard until it turned right onto Dingwell Street.
Dalessandro remained on Princeton Boulevard near the
intersection with Dingwell Street, believing that Dingwell
Street was a dead-end. He observed no other traffic in the
area.
2
Less than thirty seconds later, Dalessandro heard what he
believed to be a single gunshot. Dalessandro was familiar with
the sound of a gunshot through his duties as a police officer.
Indeed, he had heard a gun fire "thousands of times." Within
seconds of the sound, the BMW drove back onto Princeton
Boulevard and turned in the direction of the 7-Eleven.
Dalessandro followed the BMW and observed it take a "sharp" and
"unsafe" turn into a parking lot off Princeton Boulevard, at
which point Dalessandro followed the BMW into the lot and
initiated a stop by turning on his police cruiser lights. Two
passengers in the BMW then began to exit the car, one from the
front seat and one from the back seat. Using his public address
(PA) system, Dalessandro asked the two individuals to remain in
the BMW and they complied.
Dalessandro called for backup and approached the driver's
side of the BMW. He recognized a passenger in the back seat, a
person Dalessandro had previously arrested for a firearms
offense. Dalessandro asked the driver -- later identified as
the defendant -- to step out of the BMW and conducted a pat
frisk of his person. Dalessandro then searched the area around
the driver's seat and discovered a gun on the floor halfway
underneath the seat. Dalessandro found that the gun was loaded
with one round in the chamber and three rounds in the magazine,
all of which were marked with the letters "FC." Sergeant Joseph
3
Murray arrived as backup and asked the defendant to produce his
license to carry the firearm. The defendant responded that he
did not have a license and the officers subsequently placed him
under arrest. Detective Dalessandro and Sergeant Murray then
returned to Dingwell Street, and discovered a shell casing
marked with the letters "FC" on an adjacent street.
2. The motion to suppress. In March of 2019, the
defendant filed a motion to suppress evidence seized as a result
of the stop, which the defendant argued violated both the
Federal Constitution and art. 14 of the Massachusetts
Constitution. After an evidentiary hearing, a District Court
judge denied the motion, concluding that there was a sufficient
basis for Dalessandro to stop the BMW once he heard the gunshot
and observed the BMW exit Dingwell Street seconds thereafter.
The judge noted that the stop, exit order, and search of the
vehicle were also justified because the circumstances of the
incident gave rise to officer safety concerns. 2
The defendant was tried, jury waived, in September of 2021.
The District Court judge found the defendant guilty of carrying
2 The defendant filed a second motion to suppress in October
of 2020, challenging a statement he made to the police. After
an evidentiary hearing, that motion was denied. The outcome of
the motion to suppress the defendant's statement is not at issue
in this appeal.
4
a loaded firearm without a license and carrying a firearm
without a license. The defendant timely appealed.
Discussion. The defendant challenges the denial of his
motion to suppress, contending that detective Dalessandro lacked
reasonable suspicion to justify the stop of the BMW, the exit
order, and the search of the vehicle for weapons. 3 The defendant
makes several arguments, including (1) that Dalessandro did not
have reasonable suspicion that a shooting had occurred based on
"a singular sound at an unspecified distance that . . . [he]
merely 'thought' was a gunshot," (2) that even if a gun had been
fired, Dalessandro had no reason to suspect that any occupant of
the BMW was involved, (3) that the motion judge's finding that
Dalessandro issued the exit order after recognizing a passenger
in the BWM with a pending firearms charge was clearly erroneous,
and (4) that Dalessandro's knowledge of a passenger's criminal
record could not support reasonable suspicion that the defendant
was armed and dangerous.
3 Both the defendant and the Commonwealth briefed the
additional issue of whether the defendant's convictions for
carrying a firearm without a license and carrying a loaded
firearm without a license violated the Second Amendment of the
United States Constitution, in light of the United States
Supreme Court's decision in New York State Rifle & Pistol Ass'n
v. Bruen, 597 U.S. 1 (2022). However, the parties submitted a
joint status report agreeing to proceed only on the motion to
suppress arguments in light of the Supreme Judicial Court's
decisions in Commonwealth v. Guardado, 491 Mass. 666 (Guardado
I), S.C., 493 Mass. 1 (2023) (Guardado II).
5
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of [the judge's] ultimate findings
and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642,
646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002). We "leave to the [motion] judge the responsibility of
determining the weight and credibility to be given . . .
testimony presented at the motion hearing." Commonwealth v.
Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). However, we "make an
independent determination of the correctness of the judge's
application of constitutional principles to the facts as found."
Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
Both the Fourth Amendment and art. 14 dictate that a police
officer may effect a stop and conduct a threshold inquiry where
they have "reasonable . . . suspicion that a person has
committed, is committing, or is about to commit a crime."
Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). See
Commonwealth v. Martin, 467 Mass. 291, 303 (2014). Such
suspicion must be "'based on specific, articulable facts and
reasonable inferences therefrom' rather than on a 'hunch.'"
Commonwealth v. Lyons, 409 Mass. 16, 19 (1990), quoting
Commonwealth v. Wren, 391 Mass. 705, 707 (1984). Reasonable
suspicion "is measured by an objective standard, . . . and the
6
totality of the facts on which the seizure is based must
establish 'an individualized suspicion that the person seized by
the police is the perpetrator' of the crime." Meneus, 476 Mass.
at 235, quoting Commonwealth v. Warren, 475 Mass. 530, 534
(2016).
1. The stop. The defendant argues that "a singular sound
at an unspecified distance that Det. Dalessandro merely
'thought' was a gunshot" did not provide reasonable suspicion
for Dalessandro to stop the BMW. This contention ignores the
factual context in which Dalessandro was acting, including his
prior surveillance and the reasons for it, and also minimizes
the significance of an experienced detective hearing what he
believed to be gunfire. Those facts, considered in toto,
created reasonable suspicion to stop the defendant's vehicle.
Beginning with the context, on the night in question
Dalessandro was positioned in the area because armed robberies
had taken place in convenience stores in the city. He had just
watched the defendant's car pull into a 7-Eleven parking lot and
an individual inside the store lean over the counter (doing
something Dalessandro was too far away to identify), and then
exit the store and enter the BMW shortly before it drove away.
It was reasonable, under the circumstances, for Dalessandro to
be focused on the car as a possible source of criminal activity.
See Meneus, 476 Mass. at 238 (character of area as "high crime"
7
may be considered in reasonable suspicion analysis where
inferences fairly drawn from that characterization demonstrate
reasonableness of stop).
The actions at the 7-Eleven were followed by (1) the car
turning down what Dalessandro believed was a dead-end street,
(2) within seconds, the sound of a gunshot, and (3) again within
seconds, the car returning and turning quickly into a parking
area. It was late at night, there were no other cars around,
and Dalessandro was experienced with firearms and the sound of
gunshots. Under the circumstances, Dalessandro had reasonable
suspicion that someone in the car had just fired a gun in a
residential neighborhood. See Commonwealth v. Perez, 80 Mass.
App. Ct. 271, 278 (2011), quoting Commonwealth v. Depina, 456
Mass. 238, 246-247 (2010), and Commonwealth v. Mubdi, 456 Mass.
385, 398 (2010) (courts may consider "'[t]he gravity of the
crime and the present danger of the circumstances'" in assessing
reasonable suspicion, including "the 'imminent threat' posed by
gunshots fired in a residential neighborhood").
Citing Commonwealth v. Ford, 100 Mass. App. Ct. 712, 716-
717 & n.8 (2022), the defendant argues that Dalessandro could
have mistaken the sound of fireworks or a car backfiring for a
gunshot. Ford is plainly distinguishable, however; it involved
a police officer's response to a ShotSpotter alert of gunfire,
which the police acknowledged is a tool that could mistake a
8
similar noise for gunfire. Id. at 716 n.8. Here Dalessandro
did not rely on any intermediary tool in surmising that a gun
had been fired; he heard the sound of the gunshot himself.
Citing Meneus, 476 Mass. at 236, the defendant also attacks
the strength of Dalessandro's inference that the gunfire was
linked to occupants of the BMW. We are similarly unpersuaded.
In Meneus, the court concluded there was no reasonable suspicion
to stop the defendant where there was no confirmation that the
group he was with was the same group that reportedly fled the
location of shots fired, and where the woman who reported the
shots to the police had not indicated that the group was
involved in the shooting in the first place. Id. at 232-233,
236. Here, not only did Dalessandro observe the BMW travelling
toward the location of the gunshot and reemerge from that
location only seconds after the gun was fired, but he also
observed no other traffic in the area. See Commonwealth v.
Ling, 370 Mass. 238, 241 (1976) (reasonable suspicion where,
among other indicia, the only person observed in the area was
the defendant leaving the scene of a reported break-in);
Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 819-820 (2019)
(reasonable suspicion where the defendant and co-felon were the
only individuals fleeing the scene of a shooting). We discern
no error in the motion judge's conclusion that there was
reasonable suspicion for the stop.
9
2. The exit order. The exit order was similarly justified
by the reasonable suspicion that the occupants of the BMW had,
mere minutes prior, fired a gun in a residential area, giving
rise to a reasonable concern for Dalessandro's safety.
Commonwealth v. Stampley, 437 Mass. 323, 328 (2002) ("[t]he
justification for an exit order does not depend on the presence
of an 'immediate threat' at the precise moment of the order, but
rather on the safety concerns raised by the entire circumstances
of the encounter"). Moreover, at the time Dalessandro issued
the exit order, reasonable suspicion and concerns for his safety
had been bolstered by additional factors, including that two
passengers initially had exited the vehicle unsolicited and
Dalessandro was alone and outnumbered. Although the defendant
takes issue with the motion judge's finding that Dalessandro
first recognized the passenger with the pending charge and then
issued the exit order, we think the order of things matters
little under the circumstances. Dalessandro had reasonable
suspicion that someone in the car had fired a gun a few minutes
before. He had grounds for the exit order regardless of exactly
when he identified the passenger with the firearms charge.
3. Search of the vehicle. Finally, the defendant argues
that Detective Dalessandro's limited sweep of the vehicle for
weapons was similarly unsupported by reasonable suspicion. For
10
the reasons discussed above, we do not agree. 4 Dalessandro acted
reasonably under the circumstances.
Judgments affirmed.
By the Court (Milkey, Shin &
Englander, JJ. 5),
Clerk
Entered: August 14, 2024.
4 The defendant argues that the patfrisk of his person was
not supported by reasonable suspicion that he was armed and
dangerous. Since the patfrisk yielded no evidence for the
defendant to later suppress, we need not address this issue.
5 The panelists are listed in order of seniority.
11