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25-P-500 Appeals Court
COMMONWEALTH vs. VIHAAN V.,1 a juvenile.
No. 25-P-500.
Suffolk. July 7, 2026. - September 30, 2026.
Present: Ditkoff, Hand, & Grant, JJ.
Delinquent Child. Juvenile Court, Delinquent child. Search and
Seizure, Protective frisk, Reasonable suspicion. Firearms.
Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on May 17, 2021.
A pretrial motion to suppress evidence was heard by Peter M. Coyne, J., and the case was also heard by him.
Taylor Henley, Committee for Public Counsel Services, for the juvenile.
Lindsey Conkey, Assistant District Attorney, for the Commonwealth.
GRANT, J. Adjudicated delinquent after a bench trial in
the Juvenile Court of carrying a firearm without a license,
G. L. c. 269, § 10 (a), and possession of ammunition without a
1 A pseudonym.
2
firearms identification card, G. L. c. 269, § 10 (h) (1), the
juvenile appeals. He argues that the motion judge, who was also
the trial judge, erred in denying his motion to suppress
evidence, including the firearm police found during a
warrantless search. Because the Commonwealth did not establish
that the police had "a reasonable suspicion, based on specific
articulable facts, that the [juvenile was] armed and dangerous,"
Commonwealth v. Torres-Pagan, 484 Mass. 34, 39 (2020), the
patfrisk of the juvenile was unlawful and the evidence should
have been suppressed.
Background. We set forth the facts as found by the judge
based on the evidence at the suppression hearing, supplemented
by our own review of the documentary evidence including the
police body-worn camera video footage. See Commonwealth v.
Palmer, 498 Mass. 117, 118 (2026); Commonwealth v. Robinson, 497
Mass. 156, 161 (2026).
At 6:33 P.M. on May 16, 2021, a woman caller (caller)
telephoned Boston police, identified herself by name and
telephone number, and said she lived at a certain address in the
Dorchester section of Boston. The caller stated that she was
not then at home, but her children were. The caller reported
that there were a lot of people on her property playing dice,
smoking "weed," and riding mopeds.
3
In a second 911 call at 6:40 P.M., the caller reported that
someone at her home had said that "three guys with guns" were
"actually inside [her] backyard." When the dispatcher asked the
caller for the males' descriptions, the caller's son could be
heard stating that "[a]ll of them are [B]lack" and "skinny," and
after checking with her son again, the caller reported that one
of them was wearing a "black Nike sweater," black jeans "down to
his knees," and black Nike Air Force shoes. Asked what another
of the males was wearing, the caller's son described "[a]ll
black" clothing. The caller reported that some of the people
were in a gray Mercedes-Benz.
A few minutes later, the dispatcher called the caller back,
said that police were on the scene, and asked if the males with
guns were still in her backyard. The caller again spoke to
someone and then reported to the dispatcher that the males were
still in her backyard, and one of them with a gun "took off" on
a moped. The caller told the dispatcher, "He says to look
inside of the guy's bag with the orange sweater." The caller
also told the dispatcher that her son was looking out the window
and giving her information, but she did not want her son to
speak to the police. Based on the 911 calls, the judge found
that the caller reported to the dispatcher "information that had
been provided to her by her son who was present at the location
4
of the incident and reported the events to [the caller] as they
happened."
Officers Kyle Ryan and Matthew O'Loughlin testified about
responding to that address, and the judge credited their
testimony in its entirety. Three days before, Officer
O'Loughlin had responded to a report of shots fired in the same
area. When Officers Ryan and O'Loughlin arrived at the address
in response to the 911 calls, a large group of people were
congregated who were "pretty upset and hostile" to the police;
they included a man in an orange sweatshirt. The officers saw a
gray Mercedes-Benz, but no one was in it. Police pat frisked
several people in the area and found nothing.
Officer Ryan's attention was drawn to a green Honda Accord
with four people sitting in it, because the passenger in the
back seat on the driver's side was wearing black Nike Air Force
shoes and all black clothing, and thus matched a description
given by the caller. Officer Ryan did not notice anyone else in
the Honda who matched the descriptions given by the caller. The
juvenile was sitting in the front passenger seat, wearing a navy
blue zip-up Nike hoodie and a red face mask. The police ordered
all of the occupants out of the Honda. Officer Ryan pat frisked
the juvenile and found a handgun in his waistband.
Discussion. The juvenile argues that the firearm should
have been suppressed because the police did not have reasonable
5
suspicion to order him out of the Honda and pat frisk him.
Passing over the question whether the police had reasonable
suspicion to order the juvenile out of the Honda, we conclude
that they did not meet the more stringent test for a patfrisk
required by Torres-Pagan, 484 Mass. at 38-39.2
"In reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent clear
error and leave to the judge the responsibility of determining
the weight and credibility to be given . . . testimony presented
at the motion hearing." Commonwealth v. Sertyl, 101 Mass. App.
Ct. 836, 838-839 (2022), quoting Commonwealth v. Meneus, 476
Mass. 231, 234 (2017). However, "we conduct a de novo review as
to both any findings based entirely on a video recording and the
application of constitutional principles to the facts as found"
(quotations and citation omitted). Palmer, 498 Mass. at 122.
"The Commonwealth bears the burden of demonstrating that the
actions of the police officers were within constitutional
limits." Meneus, supra.
2 Deciding as we do, we do not reach the juvenile's argument that the information in the 911 call was unreliable because the caller was not present at her home, and her son did not identify himself or make any report directly to the police. Cf. Commonwealth v. Westgate, 101 Mass. App. Ct. 548, 549-553 (2022) (deeming reliable statements made by driver of car overheard on passenger's 911 call despite her failure to identify herself to police).
6
Citing Commonwealth v. Feyenord, 445 Mass. 72, 76 (2005),
cert. denied, 546 U.S. 1187 (2006), the judge concluded that,
once the police determined that the back seat passenger matched
the description given by the 911 caller, it was reasonable for
police to order the rest of the occupants out of the Honda in
order to ascertain whether they also matched the description.
Even assuming that it was reasonable for the police to order the
juvenile out of the Honda, however, the Commonwealth has not met
the higher burden required to justify the patfrisk of the
juvenile.
In Torres-Pagan, 484 Mass. at 38-39, the court clarified
the distinction between the standard required for a passenger
exit order during a traffic stop and that required for a
patfrisk. A lawful patfrisk "requires more" than an exit order;
"that is, police must have a reasonable suspicion, based on
specific articulable facts, that the suspect is armed and
dangerous." Id. See Commonwealth v. Monell, 99 Mass. App. Ct.
487, 490 (2021) ("The test for a patfrisk is more stringent than
for an exit order").
Neither of the police witnesses who testified at the
suppression hearing articulated any basis for believing that the
juvenile was armed and dangerous. Indeed, Officer Ryan
testified that the juvenile "was pretty calm; he didn't act in
any particular way that was kind of alarming." Thus the police
7
did not articulate, and the judge did not find, any facts to
support a reasonable suspicion that the juvenile was armed.
Contrast Commonwealth v. Karen K., 491 Mass. 165, 172 (2023)
(deferring to motion judge's findings crediting police testimony
that juvenile's conduct, including angling her body, sudden
changes in direction to avoid police, and adjusting waistband,
gave rise to reasonable suspicion she was carrying firearm);
Commonwealth v. Johnson-Rivera, 104 Mass. App. Ct. 533, 537
(2024) (deferring to motion judge's finding crediting police
testimony that juvenile's cross-body bag was potential indicator
he was carrying firearm, and that he was nervous and had open
charges). The officers did not testify that they believed that
the argumentative bystanders, including the man in the orange
sweatshirt, were trying to distract them. Contrast id. at 539,
citing Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 745-750
(2021), cert. denied, 143 S. Ct. 135 (2022).
The mere fact that the juvenile was sitting in the Honda
with the back seat passenger, whose clothing matched a
description given by the caller, did not amount to reasonable
suspicion that the juvenile was armed and dangerous.3 Cf.
3 The juvenile acknowledges in his brief that the back seat passenger was wearing black Nike Air Force shoes and all black clothing, like the description given by the 911 caller, and so we assume, without deciding, that the police had reasonable suspicion that the back seat passenger was one of the males described by the caller and her son.
8
Commonwealth v. Demos D., 497 Mass. 78, 85-86 (2026) (that
juvenile was in car with known gang associate added only
"minimally" to reasonable suspicion calculus).
Nor did Officer Ryan's previous response to shots fired in
the area give rise to reasonable suspicion for a patfrisk. An
unconnected report of shots fired in the area "alone is
insufficient to forge the key connection" that there was
reasonable suspicion that this juvenile was armed and dangerous.
Sertyl, 101 Mass. App. Ct. at 843. Contrast Monell, 99 Mass.
App. Ct. at 490-491 (constitutional grounds for patfrisk existed
where, two hours after fatal shooting, police stopped car in
which defendant was sole occupant, saw holster on car floor, and
noted defendant "froze" and tried to conceal hand).
The Commonwealth argues that reasonable suspicion to pat
frisk the juvenile arose from three factors, none of which
persuades us. First, the Commonwealth argues that the caller's
tip involved a firearm, which is inherently dangerous. But "a
tip suggesting a concealed firearm, with nothing more, [cannot]
provide reasonable suspicion for a stop" (quotation and citation
omitted). Commonwealth v. D.M., 100 Mass. App. Ct. 211, 218
(2021). At oral argument, the Commonwealth elaborated on this
point by noting, as the trial prosecutor had, that Officer Ryan
had testified that a handgun can be easily transferred from one
person to another. The hypothetical possibility that a firearm
9
could be transferred from one person to another did not amount
to reasonable suspicion that it was in the juvenile's
possession, absent some indication that a transfer actually
occurred here. Cf. Commonwealth v. White, 475 Mass. 583, 590
(2016) (detective's belief, based on training and experience in
similar cases, that cell phone would contain evidence of crime
did not establish existence of evidence).
Second, the Commonwealth notes that the juvenile was "part
of a group of young males roughly matching the reported age
range," and was wearing navy blue pants similar enough to the
"[a]ll black" clothing of the second male described by the
caller's son. "The fact that an individual matches a broad,
general description does not alone amount to reasonable
suspicion, particularly if that description could fit many
people in the area where the stop takes place." Palmer, 498
Mass. at 127, quoting Commonwealth v. Robinson-Van Rader, 492
Mass. 1, 9 (2023). Given the vagueness of the descriptions in
the 911 calls, the commonness of the clothing described, and
Officer Ryan's testimony that he did not notice anyone in the
Honda other than the back seat passenger who matched any
description in the dispatch, we conclude that the police had
little more than information that the juvenile was "a random
[B]lack male in dark clothing." Commonwealth v. Warren, 475
Mass. 530, 540 (2016). Contrast Palmer, supra (police seized
10
defendant based not solely on witness's generalized description
of suspect, but also on detective's review of surveillance video
footage and still images and her observations of defendant).
Finally, the Commonwealth argues that because the police
had pat frisked multiple people and not found a firearm, that
gave them reason to keep pat frisking people, including the
juvenile. We are not persuaded by that argument, which comes
perilously close to saying that everyone in the area should be
subject to police search. Cf. Commonwealth v. Johnson, 454
Mass. 159, 163 (2009) ("so-called high crime areas are inhabited
and frequented by many law-abiding citizens who are entitled to
be protected against being stopped and frisked just because of
the neighborhood where they live, work, or visit"). See Palmer,
498 Mass. at 127-128.
We conclude that the Commonwealth did not meet its burden
to justify a patfrisk of the juvenile because it did not show
that the police had reasonable suspicion to believe that the
juvenile was armed and dangerous, and therefore the firearm and
ammunition should have been suppressed. Accordingly, the
adjudications of delinquency are reversed, the findings of
delinquency are set aside, and the complaint shall be dismissed.
So ordered.