COMMONWEALTH v. KEWARD K., a Juvenile.

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-1302

COMMONWEALTH

vs.

KEWARD K., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, the juvenile was adjudicated

delinquent on charges of carrying a firearm without a license,

in violation of G. L. c. 269, § 10 (a), and unlawful possession

of a loaded firearm, in violation of G. L. c. 269, § 10 (n).1 On

appeal, he argues that the judge erred in denying his motion to

suppress the firearm, which was recovered during what the

juvenile claims was an unlawful patfrisk. We agree with the

juvenile that the facts known to the officers involved did not

establish a reasonable suspicion that he was armed and dangerous

1The juvenile initially was charged as a youthful offender,

but those charges were dismissed at the conclusion of the trial

because the Commonwealth failed to present evidence of the

juvenile's age.

and, consequently, the motion to suppress should have been

allowed.2 We therefore reverse the order denying the motion to

suppress, vacate the adjudications of delinquency, and set aside

the findings.

Background. We recount the facts as found by the motion

judge, who was also the trial judge, following an evidentiary

hearing at which State Trooper Ryan Walczak was the sole

witness.3 The judge also viewed video footage from the body-worn

cameras of Trooper Walczak and Trooper DaSilva (the record does

not reveal a first name), both of whom were in Brockton on

August 4, 2022, assisting Plymouth County juvenile probation

officer Bonnie Vonasek in conducting "a warrant sweep of

juveniles with active warrants."

2 The juvenile also argues that the Commonwealth's evidence

was insufficient to prove that he knew the firearm was loaded.

"It appears doubtful that the Commonwealth has enough evidence

to reprosecute the [juvenile], but we will leave the final

decision on that matter to the district attorney." Commonwealth

v. Darosa, 94 Mass. App. Ct. 635, 637 n.5 (2019), quoting

Commonwealth v. Torres, 424 Mass. 153, 164 (1997). Although

perhaps not dispositive, based on our review of the video

footage of the body cameras, we agree that evidence of the

juvenile's reaction to Walczak's handling of the gun and his

statement that he was concerned the gun would discharge was

sufficient to meet the Commonwealth's burden on the element of

knowledge under Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979).

3 In this case we have supplemented our summary of the facts

with uncontroverted and undisputed testimony from the hearing

that the judge implicitly credited. See Commonwealth v. Isaiah

I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

2

At approximately 9:40 A.M., Walczak, DaSilva and Vonasek

were conducting surveillance of a residence located at 124

Laureston Street because Vonasek believed that a juvenile with

an active warrant was staying at that address.4 The residence

was known to Walczak as "a target of prior gun violence." The

troopers and Vonasek were in a cruiser parked about 200 yards

away when two people drove by on a moped and turned into the

driveway of the residence.5 Neither person was wearing a helmet

(a motor vehicle infraction), and both were wearing sweatsuits,

hoodies, and masks despite it being an extremely hot day. As

the moped passed by, the back passenger, later identified as the

juvenile, looked back at the cruiser several times. The

troopers approached the moped and effectuated a stop. Walczak

asked the juvenile if he had any weapons on him. The juvenile

did not respond and looked away without making eye contact.

Then, "[s]imultaneously and immediately before trooper Walczak

reached for the [juvenile's] hand, the [juvenile] turned his

back on the trooper." As Walczak reached for the juvenile's

4 The judge's findings state that the time was 9:40 P.M. It

was clear, however, from the testimony and exhibits that the

reference to "P.M." is a typographical error.

5 It is not clear whether the cruiser was unmarked. Walczak

described it as a "state police issued cruiser" and in her

closing remarks the prosecutor referred to the car as "an

unmarked cruiser."

3

hand, Vonasek identified the juvenile by name and stated that he

was supposed to be on home confinement. Walczak asked the

juvenile again if he had any weapons, to which there was no

answer, and then placed the juvenile in handcuffs. Walczak

proceeded to pat frisk the area of the juvenile's waist and

discovered a loaded firearm in the juvenile's waistband.

Based on these findings, the judge concluded that the stop

and patfrisk were justified. The judge correctly ruled that the

stop was proper as the juvenile had committed a motor vehicle

violation by riding a moped without a helmet. Relying on

Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010), the judge

further concluded that Walczak had "a reasonable apprehension of

danger that the [juvenile] was armed." The judge noted that

"officers are allowed to take reasonable precautions for their

own, and other people's safety when there is a reasonable fear a

suspect may be armed." In denying the motion to suppress, the

judge determined that the following facts supported the

officers' reasonable fear: (1) the location of the stop, which

according to Walczak, had been "subject to previous gun-

violence;" (2) the juvenile did not respond to Walczak's

question whether he had a weapon; (3) the juvenile did not make

eye contact with Walczak and, in a subtle motion, turned away

from the trooper; (4) the juvenile was dressed inappropriately

4

for the weather; (5) there were two people stopped, the juvenile

and the driver, and only two police officers, who also were

charged with protecting Vonasek; and (6) Walczak knew the

juvenile was supposed to be on home confinement.

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

(2015).

1. Facts. The juvenile argues that two of the judge's

factual findings on which she based her legal conclusion are

clearly erroneous. First, he argues there is no support for the

finding that he turned his body away from Walczak. Second, he

claims that Vonasek did not announce that he was on home

confinement until after the patfrisk had begun. Thus, according

to the juvenile, neither fact can be relied on to establish a

reasonable suspicion that he was armed and dangerous. While we

agree that the sequence of events as depicted on the video

footage is not entirely clear, we need not resolve the

juvenile's argument that these findings are clearly erroneous,

because even if we assume without deciding that the judge did

5

not err, we conclude that the facts as found do not establish a

reasonable suspicion that the juvenile was armed and dangerous.

2. Application of the law. In her thoughtful decision and

order, the motion judge correctly determined that the juvenile

was lawfully stopped for a motor vehicle infraction. See

Commonwealth v. Santana, 420 Mass. 205, 207 (1995) ("[w]here the

police have observed a traffic violation, they are warranted in

stopping a vehicle" [citation omitted]). Thus, the legal

question becomes whether Walczak had a "reasonable suspicion

that the [juvenile was] armed and dangerous." Commonwealth v.

Torres-Pagan, 484 Mass. 34, 36 (2020).6 The judge acknowledged

6 The Commonwealth's primary argument on appeal is not the

one it made below. It contends, for the first time, that the

troopers had probable cause to arrest the juvenile for violating

the conditions of his home confinement and therefore the

patfrisk was justified as a search incident to an arrest. Apart

from the fact the juvenile was not arrested for violating the

conditions of his home confinement, the Commonwealth waived this

argument. See Commonwealth v. Alexis, 481 Mass. 91, 101 (2018).

See also Commonwealth v. Bettencourt, 447 Mass. 631, 634 (2006)

("Our system is premised on appellate review of that which was

presented and argued below"). We reject as untenable the

Commonwealth's assertion that the record is sufficient for us to

affirm the order denying the motion to suppress on the theory

that the troopers had probable cause. Commonwealth v. Vick, 90

Mass. App. Ct. 622 (2016), on which the Commonwealth relied at

oral argument, and Commonwealth v. Va Meng Joe, 425 Mass. 99

(1997), cited in the Commonwealth's brief, are not to the

contrary. In both of those cases the record provided a

sufficient basis to support the claim raised by the Commonwealth

for the first time on appeal. Here, by contrast, the record is

devoid of any information regarding the terms or conditions of

the juvenile's home confinement. As a result, it is unclear

whether the juvenile was actually subject to arrest despite the

6

that the question whether the facts known to Walczak justified

the patfrisk is a close one, and we too view the question as

close. That said, as noted above, we conclude the facts, as

found by the judge, while significant, do not justify the

patfrisk.

In Torres-Pagan, 484 Mass. at 39, the Supreme Judicial

Court explained that "the only legitimate reason for an officer

to subject a suspect to a patfrisk is to determine whether he or

she has concealed weapons on his or her person. We therefore do

not allow such an intrusion absent reasonable suspicion that the

suspect is dangerous and has a weapon" (citation omitted). That

said, as the judge observed, automobile stops may pose safety

concerns to the officers and the public. See Commonwealth v.

Brown, 75 Mass. App. Ct. 528, 531 (2009) ("That an automobile

stop may pose a danger to the officer involved is a fact beyond

contention"). However, general safety concerns without more

will not justify a patfrisk. See Torres-Pagan, supra. Our

cases require specific articulable facts supporting an officer's

reasonable suspicion that a person is armed and dangerous (such

that the safety of the public and officers are at risk). Brown,

Commonwealth's assertion that the juvenile had committed an

arrestable offense.

7

supra at 531-532. Here, the Commonwealth's evidence falls short

of establishing such a basis.

To begin with, we attribute little to no significance to

the location of the stop. Walczak testified that 124 Laureston

Street had, at some point, been the "target of gunshot

violence," and that another street, which runs perpendicular to

Laureston, "was also a high crime area with past instances of

violent crime." The fact that there was no evidence of any

connection between the juvenile and the address in question, let

alone any connection between the juvenile and any reported

violence at that residence, renders what was already a vague

observation even less compelling.7 Next, like the judge, we

place little weight on the fact that the juvenile did not answer

Walczak's question whether he had a weapon. As the judge

correctly noted, the juvenile was not required to respond.

Additionally, although the juvenile looked away from Walczak and

did not make eye contact with him, Walczack did not testify, and

7 We note that Walczak candidly responded to questions posed

by defense counsel and the judge that he had only "generalized

knowledge" of gun violence in the area and that he learned of

such violence at some unspecified point after he joined the

Statewide gang unit in December 2018, approximately three and

one-half years earlier.

8

the judge did not find, that the juvenile was nervous.8

Contrast, e.g., Commonwealth v. DePeiza, 449 Mass. 367, 369

(2007) (nervousness properly considered, in combination with

other factors, where defendant was "looking from left to right

and shifting his weight from side to side, actions which, in the

officers' experience, were signs that the defendant was nervous

and likely to run"). Nor can the act of turning away in a

subtle manner be considered a furtive gesture and, as such, it

adds little to the analysis. See Torres-Pagan, 484 Mass. at 40

(defendant's exit of motor vehicle in full view of approaching

officers, while unexpected, "can hardly be considered

'furtive'"). Contrast Commonwealth v. Sweeting-Bailey, 488

Mass. 741, 749 n.8 (2021) (furtive behavior where passenger took

"a bladed stance," appeared to be preparing "to attack [one

officer]," and had "a closed, clenched fist"); Commonwealth v.

Resende, 474 Mass. 455, 459 (2016) (reasonable suspicion

defendant was illegally carrying gun where he kept his right

hand in his pocket and held it close to his body at waistband

area, turned his body away from officer, and made multiple

"retention checks").

8 Walczak testified that the juvenile's hands were sweaty,

and while he did not suggest the juvenile was nervous and noted

it was a hot day, he described the sweaty hands as "uncommon."

9

Furthermore, the juvenile's apparent violation of his

conditions of home confinement does not mean that he was armed

and dangerous. To be sure, that fact did provide a basis for

inquiry, but none was made here.9 In the absence of any evidence

that the juvenile had a prior history of violence or possession

of a weapon, the mere fact that, as the judge found, he was

"violating a court order," was not sufficient to establish

reasonable suspicion that he was armed and dangerous at that

moment. Our conclusion in this regard is buttressed by the fact

that the troopers were conducting a "warrant sweep" and were not

investigating a report of a crime, let alone a crime involving a

weapon.10 Contrast Commonwealth v. Karen K., 491 Mass. 165, 180-

181 (2023) (patfrisk of juvenile justified in part based on

report of "multiple kids hanging around, displaying a firearm").

The remaining significant factor concerns the juvenile's

attire. While we agree that the juvenile was overdressed and

that his clothing was inconsistent with the hot weather, we

cannot conclude that wearing a sweatsuit, hoodie, and mask while

riding a moped, combined only with the observations discussed

9 Indeed, as we noted in footnote 6, supra, this fact may

have provided Walczak with probable cause to arrest, but the

record was not sufficiently developed for us to determine if

that is so.

10We note that there is no evidence that the juvenile was a

target of or included in any way in the "warrant sweep."

10

above, reasonably supports a suspicion that the juvenile was

concealing a weapon.11 As previously noted, the absence of any

furtive movements or gestures is significant and distinguishes

this case from others in which the Supreme Judicial Court has

found that a patfrisk was justified. See Karen K., 491 Mass. at

177 (one factor giving rise to reasonable suspicion that

juvenile was concealing firearm was her repeated gestures in

area of her waistband); Commonwealth v. Goewey, 452 Mass. 399,

407 (2008) (patfrisk justified where during routine traffic stop

defendant appeared to "hide or retrieve something");

Commonwealth v. Stampley, 437 Mass. 323, 327 (2002) (reasonable

to suspect defendant was retrieving weapon when he twice pulled

arms inside vehicle and appeared to be reaching down to floor or

seat of car).

Here, Walczak said "no" when asked if he had seen "either

the operator of the moped or the person on the back seat [the

juvenile] make any movements with their hands to their waist

11We note that in response to a question posed by defense

counsel, Walczak acknowledged that the juvenile's clothing could

have been worn to protect him from injuries. Defense counsel

asked: "would you agree that . . . if somebody is riding a

moped or motorcycle, . . . despite the weather, they may wear

clothes that would protect them if they fell?"; to which Walczak

replied: "I don't disagree with that, no, I think that's fair."

11

area?" In short, the facts and circumstances present here did

not justify the patfrisk.

Order denying motion to

suppress reversed.

Adjudications of delinquency

vacated; findings set

aside.

By the Court (Vuono, Singh &

Hershfang, JJ.12),

Clerk

Entered: March 12, 2025.

12 The panelists are listed in order of seniority.

12