Commonwealth v. Shawn Gavell - Brief of The Defendant-Appellant

Massachusetts Appeals Court Case: 2018-P-1658 Filed: 4/22/2019 1:12 PM
Commonwealth of Massachusetts
Appeals Court
Suffolk County
NO. 2018 - P - 1658
COMMONWEALTH OF MASSACHUSETTS
APPELLEE
v.
SHAWN GAVELL
DEFENDANT - APPELLANT
ON APPEAL FROM THE CENTRAL DIVISION

OF THE BOSTON MUNICIPAL COURT DEPARTMENT
BRIEF OF DEFENDANT-APPELLANT
SHAWN GAVELL
J. WHITFIELD LARRABEE
ATTORNEY FOR THE
DEFENDANT-APPELLANT
14 Searle Avenue
Brookline, Massachusetts 02445
(857) 991-9894
MASS. BBO # 553499
jw.larrabee@verizon.net
APRIL, 2019
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TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. MOTION TO SUPPRESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. THE LOWER COURT ERRED IN DENYING

GAVELL’S MOTION TO SUPPRESS WHERE THE
POLICE STOPPED AND SEARCHED GAVELL
WITHOUT REASONABLE SUSPICION THAT
HE WAS ENGAGED IN CRIMINAL ACTIVITY AND
CONDUCTED A SEARCH OF GAVELL’S OUTER
CLOTHING WITHOUT REASONABLE SUSPICION
THAT HE WAS BOTH ARMED AND DANGEROUS.. . . . . . . 21
II. THE DEFENDANT'S TWO CONVICTIONS OF

UNLAWFUL POSSESSION OF AMMUNITION, UNDER
G. L. C. 269, § 10 (H), WERE DUPLICATIVE OF HIS
CONVICTION OF UNLAWFUL POSSESSION OF A
LOADED FIREARM UNDER G. L. C. 269, § 10 (N). THE
MULTIPLE PUNISHMENTS UNDER § 10 (N) AND
§ 10 (H) VIOLATED OF THE DOUBLE JEOPARDY
CLAUSE OF THE FIFTH AMENDMENT AND THE
COMMON LAW BECAUSE GAVELL WAS PUNISHED
THREE TIMES FOR POSSESSING AMMUNITION
ONCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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CERTIFICATE OF COMPLIANCE WITH RULES PERTAINING TO

THE FILING OF BRIEFS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ADDENDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
TABLE OF AUTHORITIES
CASES Page(s)
Brady v. Maryland,
373 U.S. 83 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
California v. Hodari D.,

499 U.S. 621 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Cochrane v. Quattrocchi,
949 F. 2d 11 (1st Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Commonwealth v. Alvarado,
423 Mass. 266 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Commonwealth v. Borges,
395 Mass. 788 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
Commonwealth v. Carrington,
20 Mass. App. Ct. 525 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Commonwealth v. Dilworth,
No. 14-P-569, Mass. App. Court, Rule 1:28 (2016) . . . . . . . . . . . . . . . . . 42
Commonwealth v. Rivet,
30 Mass. App. Ct. 973 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Commonwealth v. Couture,
407 Mass. 178, cert. denied, 498 U.S. 951 (1990).. . . . . . . . . . . . . . . . . . 26
Commonwealth v. Ellison,
376 Mass. 1 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Commonwealth v. Fisher,
54 Mass. App. Ct. 41 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
-3-
Commonwealth v. Fraser,
410 Mass. 541 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 38
Commonwealth v. Gomes,
453 Mass. 506 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Commonwealth v. Holley,
52 Mass. App. Ct. 659 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Commonwealth v. Jasmin,
396 Mass. 653 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Commonwealth v. Johnson,
461 Mass. 44 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 40
Commonwealth v. King,
445 Mass. 217 (2005)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Commonwealth v. Knowles,
451 Mass. 91 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38
Commonwealth v. Lam Hue To,

39 Mass. 301 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Commonwealth v. Lyles,
453 Mass. 811 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Commonwealth v. Martin,
457 Mass. 14 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Commonwealth v. Morgan,
476 Mass. 768 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Commonwealth v. Narcisse,
457 Mass. 1 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Commonwealth v. Pagan,
63 Mass. App. Ct. 780 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Commonwealth v. Rabb,
31 Mass. 123 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-4-
Commonwealth v. Sefranka,
382 Mass. 108 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Commonwealth v. Traylor,
472 Mass. 260 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Commonwealth v. Vick,
454 Mass. 418 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 43, 44
Commonwealth v. Vinnie,
428 Mass. 161 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Commonwealth v. Wilson,
381 Mass. 90 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Commonwealth v. Woods,
466 Mass. 707 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
District of Columbia v. Heller,

554 U.S. 570 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 37
DeLorenzo v. State,
921 So. 2d 873 (Fla. 4th DCA 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Illinois v. Wardlow,
528 U.S. 119 (2000)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Kenney v. Floyd,
700 F. 3d 604 (1st Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Kolender v. Lawson,
461 U.S. 352 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Morelli v. Webster,
552 F.3d 12 (1st Cir.2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Northrup v. City of Toledo Police Dep’t,

785 F.3d 1128 (6th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
State v. Serna,
235 Ariz. 270 (2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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Terry v. Ohio,
392 U.S. 1 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 35
United States v. Agurs,

427 U.S. 97 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Burton,

228 F. 3d 524 (4th Cir 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Dubose,

579 F. 3d 117 (1st Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Hensley,

469 U.S. 221 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v. House,

463 F. App’x 783, 789 (10th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States v. Lyons,

687 F.3d 754 (6th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v Montero-Camargo,

208 F3d 1122 (9th Cir 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Waterman,

569 F.3d 144 (3d Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
STATUTES
G.L. ch. 269, § 10 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
G.L. ch. 269, § 10 (h)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
G.L. ch. 269, § 10 (n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 40
G.L. ch. 269, § 10 (o).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 41, 43
UNITED STATES CONSTITUTIONAL PROVISIONS
Second Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27, 37
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Fourth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28, 36
Fifth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40
Fourteenth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
OTHER AUTHORITIES
American Civil Liberties Union, Black, Brown and Targeted,

A report on Boston Police Department Street Encounters from
2007-2010, (October 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Fagan, Jeffrey, et. al., An Analysis of the New York City Police
Department’s “Stop-and-Frisk” Policy in the Context of Claims
of Racial Bias, Journal of the American Statistical Association,
Vol. 102, No. 479 (September 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Grasso, J., McEvoy, C., Suppression Matters Under

Massachusetts Law, § 10-4(a) (2004-2005 Edition). . . . . . . . . . . . . . . . . . . . . . . 28
Harris, David A., Superman’s X-Ray Vision and the

Fourth Amendment: The New Gun Detection Technology,
69 Temp. L. Rev. 1, 58 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Mass. Guide to Evidence, § 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
ISSUES PRESENTED
1. The police may not search for and seize a weapon and ammunition
from an individual when engaged in a consensual encounter or an investigative
stop unless they have reasonable suspicion of criminal activity based on specific
and articulable facts and reasonable suspicion that the person is both armed and
dangerous. After stopping the defendant without reasonable suspicion of criminal
activity, the police seized a firearm that they observed protruding from the right
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pocket of his jacket. They then searched his jacket and found ammunition in the
defendant’s left pocket. Prior to seizing the firearm and ammunition, the police
did not know whether or not the defendant was licensed to carry the firearm and
they had no reasonable suspicion that he was dangerous. Did the lower court err in
denying defendant’s motion to suppress the firearm and ammunition where the
police had no reasonable suspicion that he was engaged in criminal activity and
they had no reasonable suspicion that he was inclined to use the firearm prior to
detaining him, searching his jacket, seizing his firearm and seizing his
ammunition?
2. Possession of ammunition without a valid firearm identification card is
a lesser included offense of carrying a loaded firearm without a license. The
defendant was convicted of carrying a loaded firearm without a license and two
counts of possession of ammunition without a valid firearm identification card
based on his possession of a loaded .38 caliber firearm in his right pocket and
possession of two five-round bundles of .38 caliber ammunition in his left pocket.
Did the defendant’s several convictions and punishments for possession of
ammunition without a valid firearm identification card violate his right not be
subjected to multiple punishments under the double jeopardy clause of the 5th
Amendment to the Constitution of the United States?
STATEMENT OF THE CASE
On March 30, 2017, the defendant-appellant, Shawn Gavell, (hereinafter
“Gavell”) was charged in a four count complaint. App. 13. Count 1 charged
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Gavell with carrying a loaded firearm without a license in violation of G.L. ch.
269, § 10 (a) and § 10 (n). Ibid. Count 3 charged Gavell with carrying a firearm
without a license in violation of G.L. ch. 269, § 10 (a). Ibid. Counts 2 and 4
charged Gavell with possession of ammunition without a firearm identification
card in violation of G.L. ch. 269, § 10 (h)(1). Ibid. The complaint alleges that all
of the offenses occurred on March 29, 2017. Ibid. The language of the Counts 2
and 4, alleging unlawful possession of ammunition without a firearm
identification card, used identical language. Ibid.1
On June 29, 2017, Gavell filed a motion to suppress evidence. App. 4, 16-
18. Gavell was represented by Attorney Todd Fronk throughout the course of the
proceedings. App. 3. On October 2, 2017, an evidentiary hearing was held on
Gavell’s motion to suppress. (Sinnot, Eleanor, J., presiding). App. 5. The motion
to suppress was denied on October 2, 2017. App. 5.
On September 11, 2018, after Gavell waived his right to by tried by a jury,
a bench trial was conducted. (Shopteese, Debra, J., presiding). Tr. 7-8, App. 10-
12. At the conclusion of the Commonwealth’s case, Gavell’s motion for a
required finding of not guilty was denied. App. 11; Tr. 45. Gavell’s renewed
motion to dismiss and for a required finding of not guilty on Counts 2 and 4,
alleging possession of ammunition without a firearm identification card, as
duplicative of his conviction on Count 1, was also denied. Tr. 48-51. After Gavell
1.The record appendix is cited by page as “App. _”. The transcript of the trial is
in one volume and is cited by page as “Tr. ”. The transcript of the motion to
suppress hearing is in one volume and is cited by page as “Mot. _”.
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rested without presenting any testimony or evidence, the trial judge found Gavell
guilty on all counts. Tr. 51; App. 11-12. On Count 1, the judge imposed a
sentence of 18 months to the House of Correction. Tr. 57; App. 11; On Count 2,
the judge imposed 2 years probation, from and after the sentences imposed on
Counts 1 and 3. App. 12. On Count 3, the judge imposed a sentence of 18 months
to the House of Correction concurrent with Count 1. Tr. 57; ; App. 12. On Count
4, the judge imposed 2 years probation, from and after the sentences imposed on
Counts 1 and 3. App. 12.
Gavell filed a notice of appeal on September 11, 2018. App. 12, 28. The
case was entered in this court on December 10, 2018.
STATEMENT OF THE FACTS
I. MOTION TO SUPPRESS.
On March 29, 2017 at about 7:00 p.m. Boston police officer Robert
Charbonnier (“Charbonnier”) was working from his unmarked car in the vicinity
of the West Broadway Housing Development in South Boston. Mot. 18-20.
Charbonnier observed Gavell leave his residence on 7th Street in the
development and walk to another residential building in the development at 30
Orton Marrotta Way. Mot. 12-13, 30. It was just a coincidence that Charbonnier
happened to be near Gavell’s residence on that night when he saw Gavell leave
his residence. Mot. 28. Charbonnier believed that Gavell was on his phone as he
walked from 7th Street to 30 Orton Marrotta Way. Mot. 24. Charbonnier observed
Gavell walk in a door at 30 Orton Marrotta Way. Mot. 32. Charbonnier could only
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see Gavell’s back when he entered the building. Mot. 33. After entering the
building, Gavell stepped forward out of Charbonnier’s sight for 10-15 seconds.
Mot. 33. Charbonnier did not see Gavell with any other persons at the time that he
was inside 30 Orton Marrotta Way. Mot. 33. Charbonnier did not see Gavell hand
anything to anyone or accept anything from anyone at any time. Mot. 33. There
was no testimony whatsoever that Charbonnier or any other officer observed
Gavell in an exchange of any object or the passing of any currency. Mot. 8-77.
There was no testimony whatsoever that Charbonnier or any other officer
observed Gavell holding any contraband or weapon of any sort while at 30 Orton
Marrotta Way. Mot. 8-77. Gavell exited 30 Orton Marrotta Way via the same
door as he entered after no more than a minute. Mot. 23, 33.
Gavell was not on the phone when he exited 30 Orton Marrotta Way. Mot.
24. Gavell had his hand in his right pocket and was looking around after he
exited. Mot. 23. The right pocket on Gavell’s coat was hanging lower than it was
when he went into 30 Orton Marrotta Way. Mot. 23-24. The coat was swaying
when he went in and was not when he came out. Mot. 23-24. Gavell had his hand
in his right pocket and his other hand holding the coat on the left. Mot. 24.
Charbonnier did not testify as to whether or not Gavell put his phone in his right-
hand pocket. Mot. 8-36. There was no testimony concerning the temperature at the
time and date that the police observed Gavell. Mot. 7-77. There was no testimony
weather or not Gavell was wearing gloves or mittens. Mot. 7-77. There was no
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testimony that Gavell frequently checked his pockets, waist or hips or tried to
adjust anything in his pockets, waist or hips. Mot. 7-77.
Charbonnier testified that he called to other officers whom he was working
with and advised them that he believed Gavell “did a drug transaction or received
something” and he asked them to talk with him and further investigate. Mot. 24-
25. Charbonnier testified that one factor that led him to suspect a drug transaction
was “nervous state.” Mot. 25. He did not testify whether he was referring to his
own nervous state or that of Gavell. Mot. 25. Charbonnier radioed that he wanted
Gavell stopped and spoken to. Mot. 45.
Charbonnier was employed by the Boston Police Department for 22 years.
Mot. 9. He has worked for the South Boston Drug Control Unit for four years as a
patrolman and three years as a detective. Mot. 12. He has attained the rank of
detective. Id. He has experience in drug control and received training in drug
control from the FBI, including street level narcotics distribution. Mot. 10. He
also took a course in the characteristics of an armed gunman. Mot. 10. He
testified that, in the course he was taught to look for people who don’t have
holsters, who carry a gun in their waist, hips or coat. Mot. 11-12. If they have
loose coats or outer garments, its going to hang lower. Mot. 11-12. The armed
gunmen are typically checking on it all the time, trying to adjust it. Mot. 11-12 .
Boston Housing Authority police officer Joseph Kintigos (“Kintigos”),
who was detailed to work with Charbonnier and other members of the South
Boston Drug Control Unit, received a radio call from Charbonnier telling him to
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stop Gavell. Mot. 41, 49-51. The police officers were carrying firearms. Mot. 11,
48, 58. Kintigos then pulled up behind Gavell in an unmarked car and said to
Gavell, “I want to speak to you.” Mot. 45. Gavell turned, hesitated briefly and
walked to the curb. Mot. 46. Gavell’s demeanor was fine when he was stopped by
Kintigos. Mot. 47. Gavell seemed a little bit surprised when he was stopped by
Kintigos. P. 54. Gavell was not confrontational and cooperated fully with
Kintigos. Mot. 47, 52-53. Kintigos was not in fear that Gavell had a weapon of
any kind when he first approached him. Mot. 53. Kintigos “absolutely” did not
see anything that made him think Gavell might have a weapon. Mot. 53. Kintigos
did not draw his firearm or have his hand on his firearm. Mot. 48. Kintigos was
operating an unmarked Crown Victoria police car, was in plain clothes and did not
have his badge displayed when he stopped Gavell. Mot. 42, 45. Kintigos did not
demand Gavell’s license to carry a firearm. Mot. 48. He was present when another
officer demanded one. Mot. 48. Kintigos did not recall Gavell’s response. Mot.
48.
In his testimony at the motion to suppress hearing, when Kintigos was
asked specifically about what he said to Gavell, he failed disclose that he had
asked Gavell to remove his hands from his pockets. Mot. 45, 46 lines 8 to 9. At
trial, Kintigos testified that Gavell initially had his hands in his pockets when
approached by Kintigos. Tr. 28. Kintigos asked Gavell to take his hands out of his
pockets. Tr. 28. Gavell complied with Kintigos request that he remove his hands
from his pockets. Tr. 28. Kintigos then began speaking to Gavell. Tr 28.
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Officers Serge Sanon (“Sanon”) and Golden arrived on scene after
Kintigos had been speaking to Gavell for about one minute. Mot. 29. With the
arrival of officers Golden and Sanon, Gavell was outnumbered by armed police
officers at least three to one. Mot. 29, 47. After spoke Gavell with Kintigos,
Sanon and Golden approached and spoke with Gavell. Mot. 29-30, 47. Sanon
testified that as he approached, Gavell was standing “bladed.” He described
bladed as “tilting.” Mot. 61. Gavell was tilting as he was standing. Mot. 70-71.
Based on his training and experience, Sanon believed that Gavell could have been
hiding something or it could have been nothing. Mot. 72. Sanon said he noticed
something bulky in the pockets of Gavell’s vinyl jacket that he described to be a
“windbreaker.” Mot. 62. Sanon said that he noticed what looked like the butt of
firearm protruding from the pocket of Gavell’s jacket as he got closer. Mot. 63.
When Sanon saw what he believed to be the butt of the firearm, he decided to try
to seize the firearm and then, after that, ascertain if Gavell had a license to carry.
Mot. 63-64. After seeing what he believed to be the butt of a firearm Sanon
testified that he next grabbed the jacket, removed the firearm and handed it to
police officer Golden. Mot. 62. Sanon claimed that then pat frisked Gavell and
found a box with ammunition in Gavell’s left jacket pocket. Id. He handed those
items to officer Golden. Id. Kintigos testified that they found a firearm when they
patted Gavell down for any contraband he might have. Mot. 47. Kintigos testified
that Bullets wrapped in a plastic band were also seized from Gavell. Mot. 48.
-14-
Kintigos partially contradicted Sanon, testifying that they found a firearm when
they patted Gavell down for any contraband he might have. Mot. 47.
At some point after the gun and ammunition were seized from Gavell,
someone demanded Gavell’s license to carry a firearm. Mot. 63-64. Gavell said he
did not have one. Mot. 64.
Charbonnier testified that about two weeks to a month prior to the
incident, Charbonier received information from the State Police requesting their
assistance in monitoring Gavell activities in an ongoing investigation they were
doing concerning buying and selling heroin and crack cocaine. Mot. 18, 26. There
were no specific facts offered to explain why the state police wanted local police
to monitor Gavell for drug activity. Mot. 8-77. In the radio calls leading up to the
stop of Gavell there was no suggestion that he might be armed or dangerous. Mot.
70-71. The officers were concerned with a possible drug transaction. Mot. 70-71.
The West Broadway Housing Development is owned by the Boston
Housing Authority. Mot. 40. There are numerous buildings within the
development. Exhibit 2. During the seven years that Charbonnier worked work for
the C-6 drug control unit in South Boston, the police have made numerous arrests
at the development for firearms, drugs, violent attacks and other crimes. Mot. 12-
13. Charbonnier estimated that there were in the ballpark of at least 30 arrests in
the development in the six months leading up to March 2017. Mot. 13. Charbonier
did not say whether or not he participated in these arrests. Mot. 13-14.
Charbonnier testified that development is a high crime area. Mot. 29-30. There
-15-
was no standard enunciated or definition provided as to what amounted to a “high
crime area” in the view of the officers. Mot. 8-77. There were no statistics offered
comparing the crime rates in the West Broadway Housing Development with
crime rates other areas of either South Boston, the City of Boston or other areas of
the Commonwealth. Mot. 8-77. There was no testimony concerning the
population residing in the development or the crime rate in relation to that
population. Mot. 8-77. There was uncontradicted testimony tending to show a
heavy police presence the development and that the police are there every day.
Mot. 13, 39-41. In identifying the area as a high crime area, there was no
testimony concerning what comparator or comparators the police used. Mot. 8-77.
Drug transactions have occurred in numerous areas of the development. Mot. 29.
One of the areas within the development where drug transactions occur is 30
Orton Marrotta Way. Mot. T. 15. There have been search warrants executed for
drugs and drug transactions have occurred at this building. Mot. T. 15.
Charbonnier said that the hallway at 30 Orton Marrotta way was used to do “a lot
of transactions.” Mot. 15. No time frame was provided for how recently drug
transactions occurred in the hallway. Mot. 15-17. There was no testimony linking
Gavell or any associate of Gavell with any drug transaction or other criminal
activity prior to the date of his arrest at 30 Orton Marrotta Way or anywhere else
in the West Broadway Development.
The motion judge substantially credited the testimony of the police in oral
findings of fact that she made on the record in open court. Mot. 87-93; App. 1927.
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II. TRIAL.
The testimony at trial was for the most part similar to the testimony at the
motion to suppress. It established that Kintigos stopped Gavell on Flaherty Way at
the request of Charbonnier at around 7:00 p.m. on March 29, 2018. Tr. 25, 28.
Kintigos pulled up in his car and told Gavell he wanted to speak with him. Tr. 28.
Kintigos asked Gavell to take his hands out of his pockets. Tr. 28. Sanon and
Golden appeared on the scene about a minute after Kintigos had a conversation
with Gavell. Tr. 29. Sanon and Golden then had some conversation with Kintigos.
Tr. 29. Sanon testified that reached over and seized a .38 caliber revolver when he
saw the butt of it partially protruding from Gavell’s right jacket pocket. Tr. 31, 41.
Sanon kept searching and found ammunition in Gavell’s left pocket. Tr. 42. After
he recovered the firearm and ammunition, Sanon asked Gavell if he had a license
to carry. Tr. 42. Gavell said no. Tr. 42. The firearm and ammunition were
admitted in evidence. Tr. 44.
It was stipulated that Firearms Examiner Detective Tyrone Camper
(“Camper”) from the Boston Police Department Firearms Analysis Unit found the
firearm recovered at Flaherty Way on March 29, 2017 to be a Smith & Wesson,
Model 36, caliber 38 Special revolver. App. 14, ¶ 1. Camper found the firearm to
be in working order and fit the definition of a working firearm under G. L. Ch.
140 § 121. App. 14, ¶ 1. Camper found the five rounds of ammunition recovered
from the firearm fit the definition of ammunition as defined by G. L. Ch. 140 §
121. App. 14, ¶ 3. Camper found the two bundles of five rounds (total of ten)
-17-
round nosed 38 special ammunition found on Gavell fit the definition of
ammunition as defined by G. L. Ch. 140 §121. App. 14, ¶ 4.
Defense counsel moved for a required finding of not guilty at the
conclusion of the Commonwealth’s case. Tr. 45. The court denied the motion. Tr.
45. The defendant rested without offering any additional testimony or evidence.
Tr. 45. Before the Court reached its verdict, defense counsel requested that at least
one of the charges of possession of ammunition be dismissed as being duplicative.
Tr. 48-50. The court denied the defendant’s oral motion to dismiss and found
Gavell guilty of all 4 counts in the complaint. Tr. 50-51.
SUMMARY OF THE ARGUMENT
The lower court erroneously denied Gavell’s motion to suppress where the
police stopped Gavell without reasonable suspicion that he was engaged in
criminal activity and searched him without reason to believe he was both armed
and dangerous. Gavell Brief 21-39. By ordering Gavell to remove his hands from
his pockets after asking to speak with him and by reaching into his pocket and
removing a firearm, before they knew whether or not he was licensed to carry, the
police promptly escalated what began as a consensual encounter into an
investigative stop, frisk, search and seizure. Gavell Brief 21-23. The lower court
erred in finding reasonable suspicion for the stop based on information that Gavell
may have been engaged in drug activity. Gavell Brief 27-29. The information
about drug activity received by local police from the State Police was unreliable
because there was no evidence that the information provided by the State Police
-18-
was based on specific and articulable facts that could give rise to a reasonable
suspicion. Gavell Brief 27-29. Testimony that Gavell was observed in a “high
crime”area where he briefly entered a building, and then left, possibly with
something in his pocket, was insufficient to establish reasonable suspicion to stop
Gavell. Gavell Brief 29-34. Other innocuous observations of Gavell including
testimony that he was looking around, vague testimony about “nervous state,”
observations that he was standing with one foot in front of the other while leaning,
were not sufficiently probative or specific to give rise to reasonable suspicion.
Gavell Brief, 33-35. The observation of a firearm protruding from Gavell’s pocket
did not give rise to a reasonable suspicion of criminal activity because the police
did not know whether or not Gavell was licensed to carry. Gavell Brief, 35-39.
The mere possession of a handgun, without other indications that an individual is
dangerous, is insufficient under our Constitutions and laws to establish that an
individual is dangerous so as to justify a search. Gavell Brief, 35-37. Prior to
searching Gavell, the police had no reason to believe he was inclined to use the
firearm they observed in his pocket. Gavell Brief, 35-36. The search of Gavell was
improper because the police lacked evidence that Gavell was dangerous. Gavell
Brief, 35-39.
The lower court erroneously denied Gavell’s motion to dismiss and motion
for a required finding of not guilty where it convicted him of two counts of
possession of ammunition without a firearm I.D. card when these were lesser
included offenses of possessing a loaded firearm without a license. Gavell Brief,
-19-
40-42. Gavell possessed ammunition as defined by § 10 (o) on a single occasion
such that his multiple convictions for violating § 10 (h) were not based on distinct
acts as required by our laws. Gavell Brief, 43-44.
STANDARD OF REVIEW
In reviewing the denial of Gavell’s motion to suppress, the Court must
accept “the judge's subsidiary findings of fact absent clear error, ‘but conduct an
independent review of [her] ultimate findings and conclusions of law.’”
Commonwealth v. Woods, 466 Mass. 707, 717 (2014), quoting from
Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “The Commonwealth bears
the burden of demonstrating that the actions of the police officers in stopping and
frisking the defendant were within constitutional limits.” Commonwealth v.
Gomes, 453 Mass. 506, 509 (2009).
In reviewing the denial of Gavell’s motion for a required finding of not
guilty, the Court must determine whether, after viewing the evidence in the light
most favorable to the Commonwealth, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979).
In reviewing Gavell’s motion to dismiss, because the defendant objected at
trial, the Court reviews to determine whether there was prejudicial error. See
Commonwealth v. Vinnie, 428 Mass. 161, 164 n.3, cert. denied, 525 U.S. 1007
(1998) (issue preserved by objection at trial).
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With regard to any unpreserved errors, the Court must review them “to
determine if there was error and, if so, then to determine if a substantial risk of a
miscarriage of justice occurred. Commonwealth v. King, 445 Mass. 217, 225
(2005). A duplicative conviction in violation of the prohibition on double
jeopardy amounts to an error that gives “rise to a substantial risk of a miscarriage
of justice.” Commonwealth v. Johnson, 461 Mass. 44, 54 (2011).
ARGUMENT
I. THE LOWER COURT ERRED IN DENYING GAVELL’S MOTION TO

SUPPRESS WHERE THE POLICE STOPPED AND SEARCHED
GAVELL WITHOUT REASONABLE SUSPICION THAT HE WAS
ENGAGED IN CRIMINAL ACTIVITY AND CONDUCTED A
SEARCH OF GAVELL’S OUTER CLOTHING WITHOUT
REASONABLE SUSPICION THAT HE WAS BOTH ARMED AND
DANGEROUS.
Although Gavell’s contact with the police began as a consensual
encounter, it quickly escalated to an investigative stop when, after telling Gavell
he wanted to speak with him, officer Kintigos made a show of authority by telling
Gavell to remove his hands from his pockets. Tr. 28. United States v. Dubose, 579
F. 3d 117, 119 (1st Cir. 2009) (Court held that a Terry stop occurred where an
officer said “Excuse me, sir, can I talk to you for a second?,” then told the suspect
to remove his hand from his pocket, causing the suspect to comply); United States
v. Waterman, 569 F.3d 144, 144-46 (3d Cir. 2009) (holding that a show of
authority occurred when two police officers approached a house and commanded
that people on the porch show their hands). United States v. Burton, 228 F. 3d 524
(4th Cir 2000) (Reasonable suspicion of criminal activity required for Terry Stop
-21-
where officer told suspect to remove his hand from his pocket leading to seizure
of gun.); DeLorenzo v. State, 921 So. 2d 873, 876 (Fla. 4th DCA 2006)
(“Ordering an individual to take his hand out of his pocket ordinarily turns a
consensual encounter into a stop”). Gavell complied with Kintigos’ instruction to
remove his hands from his pockets. Tr. 28. A seizure occurs “when the officer, by
means of physical force or show of authority, has in some way restrained the
liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 13, 19 n. 4 (1968). Kintigos
instruction to Gavell to remove his hands from his pockets was a show of
authority. When Gavell submitted to that show of authority by removing his hands
from his pockets, the encounter escalated into a Terry stop. California v. Hodari
D., 499 U.S. 621, 626 (1991) (Seizure "requires either physical force ... or, where
that is absent, submission to the assertion of authority.").
Testimony that Kintigos asked Gavell to remove his hands from his
pockets when he initially approached Gavell was exculpatory and should have
been disclosed at the motion to suppress hearing. Tr. 28; Mot. 45-46. This
evidence supported Gavell’s contention that the gun and ammunition should be
suppressed. Ibid. Due process requires that the prosecution timely disclose
exculpatory material evidence in its possession. See United States v. Agurs, 427
U.S. 97, 103-114 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963);
Commonwealth v. Lam Hue To, 39 Mass. 301, 308 (1984); Commonwealth v.
Wilson, 381 Mass. 90, 107 (1980). Exculpatory evidence includes "evidence
which provides some significant aid to the defendant's case, whether it furnishes
-22-
corroboration of the defendant's story, calls into question a material, although not
indispensable, element of the prosecution's version of the events, or challenges the
credibility of a key prosecution witness." Commonwealth v. Ellison, 376 Mass. 1,
22 (1978). In his testimony at the motion to suppress hearing, when Kintigos was
asked specifically about what he said to Gavell, he failed disclose that he had
asked Gavell to remove his hands from his pockets. Mot. 45, 46 lines 8 to 9. As
evidence that Kintigos asked Gavell to remove his hands from his pockets would
have been of significant and decisive aid to Gavell’s case, Kintigos should have
disclosed this information when he was specifically asked about what he said to
Gavell. Mot. 45-46. Fundamental fairness and due process require that Kintigos
testimony at trial be considered, on this appeal, in determining whether the gun
and ammunition should have been suppressed, since the evidence was improperly
withheld from the motion judge’s consideration in the lower court.
The presence of multiple armed police officers is a factor that contributed
the creation of conditions in which Gavell was not free to leave. After Kintigos
told Gavell that he wanted to speak with him and told him to remove his hands
from his pockets, officers Sanon and Golden arrived on scene and spoke to
Gavell. Tr. 29; Mot. 29-30, 47. A reasonable man would not consider himself free
to leave when told that a police officer wanted to speak with him, told to remove
his hands from his pockets, and then was approached, surrounded by and spoken
to by other police officers. Tr. 29; Mot. 29-30, 47. Where multiple police officers
outnumber a lone civilian on a city street, an intimidating condition is established.
-23-
Once an officer notifies the civilian that he or she wants to speak with the civilian,
and orders the civilian to remove the civilian’s hands from their pockets, police
control is established. In this context, the presence of multiple officers, together
with Kintigos’ statements to Gavell, created an intimidating and coercive
condition where Gavell was not free to leave.
The police further escalated their seizure of Gavell when officer Sanon
grabbed Gavell’s jacket, removed a firearm and handed it to police officer
Golden. Mot. 62. This additional show of authority contributed to escalate what
began as a consensual encounter into an investigatory stop and frisk. Mot. 62.
Police officers may approach individuals and ask to question them without having
to justify the encounter; however, adequate constitutional justification is required
to escalate a consensual encounter into a seizure. Commonwealth v. Lyles, 453
Mass. 811, 814-815 (2009); Commonwealth v. Martin, 457 Mass. 14, 19 n.7
(2016). “[P]olice officers may not escalate a consensual encounter into a
protective frisk absent a reasonable suspicion that an individual has committed, is
committing, or is about to commit a criminal offense and is armed and
dangerous.” Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). Ordering Gavell
to remove his hands from his pockets, grabbing Gavell’s jacket, reaching into his
pockets and extracting the firearm and ammunition involved the use of force and a
show of authority. In Commonwealth v. Borges, the Supreme Judicial Court
found that a defendant was seized when the police asked him to step outside of a
store and remove his shoes. Commonwealth v. Borges, 395 Mass. 788, 794
-24-
(1985). In the instant case, the police forcefully grabbed Gavell’s jacket and
searched it. Mot. 62. The amount physical force used by the police in the instant
case was a considerably greater intrusion upon Gavell than was the verbal request
at issue in Borges. Borges at 794. The police undoubtedly stopped and detained
Gavell, searched his jacket and seized his property.
In Fraser the SJC held that a police officer had reason to frisk a civilian
because, among other reasons, the civilian kept his hands in his pockets when
asked to remove them by the officer. Commonwealth v. Fraser, 410 Mass. 541,
545 (1991). If the police can frisk a civilian for refusing to remove his or hands
from their pockets, then civilians are not free to refuse such a request by the
police. Since civilians are not free to decline such a request, Kintigos’ request to
speak with Gavell combined with his request that Gavell remove his hands from
his pockets was a sufficient show of authority to convert the consensual encounter
into an investigative stop and seizure that required reasonable suspicion of
criminal activity.
The lower court erred in concluding that there was justification for the
stop, search and seizure of Gavell and his property. Mot. 93. An investigatory stop
requires “articulable facts giving rise to a reasonable suspicion that a suspect may
be involved in criminal activity.” Morelli v. Webster, 552 F.3d 12, 20 (1st
Cir.2009) (citations omitted). “Reasonable suspicion is less than probable cause
and more than a hunch.” Kenney v. Floyd, 700 F. 3d 604, 608 (1st Cir. 2012). At
the point where the Kintigos asked Gavell to remove his hands from his pockets,
-25-
there was no reasonable suspicion of criminal activity. There was still no
reasonable suspicion of criminal activity when the police observed the butt of a
gun protruding from Gavell’s jacket pocket and seized it. The mere carrying of a
firearm is not a crime. Observations suggesting an individual is carrying firearm,
without knowledge of whether the individual is licensed to do so, do not provide
reasonable suspicion for a stop. Commonwealth v. Alvarado, 423 Mass. 266, 269
(1996); Commonwealth v. Couture, 407 Mass. 178, 183, cert. denied, 498 U.S.
951 (1990). Since the police did not learn that Gavell lacked a license to carry or
a firearm identification card until after they had stopped him, searched through his
jacket, and seized a firearm and ammunition, Sanon’s observation of the butt of a
firearm in Gavell’s pocket did not give rise to a reasonable suspicion for the stop.
Ibid.; Mot. 63-64.
The lower court’s ruling upholding the seizure of the firearm and
ammunition from Gavell violated the 4th Amendment because it conflicts with the
2nd Amendment. Individuals have a right to keep and bear arms under the 2nd
Amendment. District of Columbia v. Heller, 554 U.S. 570 (2008). In a state such
as Massachusetts, which permits the carrying of a firearm, so long as the person
has a licensed to carry, it is inconsistent with the 2nd Amendment and Heller to
permit police to seize firearms merely upon observing that an individual is
carrying a firearm. A rule of search and seizure, that will inevitably lead to the
violation of individuals’ rights under the 2nd Amendment who are lawfully
carrying a firearm, is unsupportable. The assumption that all individuals who
-26-
carry a firearm are doing so illegally and are subject to being searched is
unreasonable under the 4th Amendment due to the conflict with the 2nd
Amendment.
There was no reasonable suspicion of a criminal drug violation to justify
the stop & search of Gavell. Mot. 93. Prior to being stopped and searched by the
police on March 29, 2017, the police did not observe Gavell engage in any
interaction with another person, let alone an exchange, that resembled a drug
transaction. Mot. 32-33. Charbonnier testified that he did not see Gavell with any
other individuals while Gavell was at 30 Orton Marrotta Way. Mot. 33. He
testified that he could only see Gavell’s back when he entered the building. Ibid.
Charbonnier said that he lost sight of Gavell for a period of time after Gavell
entered the building. Id. Shortly after entering the building, Gavell exited it. Mot.
23, 33. 30 Orton Marrotta Way is part of a residential development where
residents have a right to live and associate with other residents. Mot. 12-13, 30,
40. There are too many possibly innocent reasons for Gavell to briefly enter the
building for the police observations to give rise to a reasonable suspicion. From
the evidence at the motion hearing, it’s possible that Gavell entered the building,
knocked on a neighbor’s door, heard no reply, and decided to leave. No inference
of criminal activity can be reasonably drawn from Gavell’s brief entry and exit
from 30 Orton Marrotta Way.
The information provided by the State Police to the local police
concerning Gavell did not provide support for the lower court’s conclusion that
-27-
there was a reasonable suspicion of illegal drug activity because there was no
testimony or evidence that the information provided by the State Police was itself
based on specific and articulable facts. When police are working in collaboration,
“the knowledge of one officer – provided it is first-hand knowledge – is
attributable to all.” Grasso, J., McEvoy, C., Suppression Matters Under
Massachusetts Law, § 10-4(a) (2004-2005 Edition). Commonwealth v.
Carrington, 20 Mass. App. Ct. 525, 529 (1985); Commonwealth v. Rivet, 30
Mass. App. Ct. 973, 975 (1991). When the Commonwealth bases a claim of
reasonable suspicion on information provided by a fellow officer, it must establish
that the information provided by the fellow officer was based on specific and
articulable facts. United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012) (“the
collective knowledge doctrine may apply whenever a responding officer executes
a stop at the request of an officer who possesses the facts necessary to establish
reasonable suspicion.”) In United States v. Hensley, 469 U.S. 221, 232 (1985), the
Supreme Court ruled that a Terry stop based on reasonable suspicion that came
from a police bulletin or flyer from other officials is permissible to whatever
extent the bulletin itself was based on articulable facts that would support
reasonable suspicion — "if a flyer or bulletin has been issued on the basis of
articulable facts supporting a reasonable suspicion that the wanted person has
committed an offense, then reliance on that flyer or bulletin justifies a stop." Id.
On the other hand, "[i]f the flyer has been issued in the absence of a reasonable
suspicion, then a stop in the objective reliance upon it violates the Fourth
-28-
Amendment." Id. Charbonnier testified that about two weeks to a month prior to
the incident he received information from the State Police requesting their
assistance in monitoring Gavell’s activities in an ongoing investigation of buying
and selling heroin and crack cocaine. Mot. 18, 26. Charbonnier did not disclose
the basis for this request from the State Police. Mot. 18, 26. There were no
specific facts offered to explain why the state police wanted local police to
monitor Gavell for drug activity. Mot. 8-77. The request of the State Police may
have been made based on an unreliable and unverified anonymous tip, a hunch or
other reasons than specific and articulable facts creating reasonable suspicion.
The request of the State Police to monitor Gavell for drug activity, without any
disclosed factual support, did not aid the Commonwealth in establishing
reasonable suspicion.
The generic allegation, that the West Broadway Development or 30 Orton
Marrotta Way are high crime areas, did not aid the Commonwealth to establish a
reasonable suspicion to stop Gavell. Mot. 29-30. Mere presence in an area known
for high crime does not give rise to reasonable suspicion for a stop. Brown v.
Texas, 443 U.S. 47, 52 (1979). The “high crime area” factor “must be considered
with some caution because many honest, law-abiding citizens live and work in
high-crime areas. Those citizens are entitled to the protections of the Federal and
State Constitutions, despite the character of the area." Commonwealth v. Holley,
52 Mass. App. Ct. 659, 663 (2001). The police testified that Gavell resided in the
area where the relevant events took place. Mot. 19-20; App. 13. Where an
-29-
individual lives in a “high crime area,” their presence in the area does not
normally give rise to any reasonable suspicion because their presence is explained
by the entirely innocent reason that they live in the area. Gavell would be
expected to go about his business in the alleged “high crime area” whether or not
he was engaged in criminal activity. Far from appearing to be engaged in criminal
activity, Gavell was quite cooperative when he was approached by officer
Kintigos. Mot. 47, 52-53. The instant case is unlike those cases where a suspect
was observed fleeing from the police deep in the night in high crime area. Illinois
v. Wardlow, 528 U.S. 119, 125-126 (2000). Reasonable suspicion for a search or
stop must be “individualized.” Cochrane v. Quattrocchi, 949 F. 2d 11, 13-14 (1st
Cir. 1991). The testimony that the West Broadway Development was “high crime
area,” even in combination with other evidence, was a too generic and
insufficiently individualized to aid the Commonwealth to establish reasonable
suspicion of criminal activity to justify the police stopping Gavell to investigate.
The opinions and evidence offered to prove that the West Broadway
Development and 30 Orton Marrotta way were “high crime areas” was not
probative because the testimony was not based on sufficient facts or evidence, it
was not the product of reliable principles or methods, and the judge and the
witnesses did not reliably apply the principles and methods to the facts of the case.
Our Guide to Evidence provides:
A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an
opinion or otherwise if
-30-
(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine
a fact in issue;
(b) the testimony is based on sufficient facts or data;
© the testimony is the product of reliable principles and methods;

and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Mass. Guide to Evidence, § 702 (2018).
The opinion testimony of the police did not properly establish that the West
Broadway Development was a high crime area because their opinions were not
based on sufficient facts or data and were not the product of reliable principles or
methods as required by § 702. There was a complete lack of statistical evidence
that the areas described by the police were “high crime areas.” Mot. 8-77.
Designating a location as a “high crime area” begs the question — high in
comparison to what? Without of testimony or statistics comparing the West
Broadway Development with other areas of the City of Boston or Commonwealth
of Massachusetts, the testimony alleging the development was a “high crime area”
lacked any probative weight and did not aid the Commonwealth in meeting its
burden of proof. Mot. 8-77.
The lower court erroneously relied upon mere war stories and anecdotes to
conclude that the events in question took place in a high crime area. Mot. 87.
“[M]ore than mere war stories [from police testimony] are required to establish
the existence of a high-crime area.” United States v Montero-Camargo, 208 F3d
-31-
1122, 1139 n. 32 (9th Cir 2000). See also United States v Bonner, 363 F3d 213,
218–19 (3d Cir 2004) (Smith concurring) (discussing possible burdens of proof
for establishing that an area is “high crime”). Courts must “examine with care the
specific data underlying any such assertion.” United States v Montero-Camargo,
supra. There was evidence of a constant police presence in West Broadway
Development and intense police scrutiny of the residents. Mot. 13, 39-41. The
multiple arrests and searches described by the police may been the product of
intensive policing rather than high criminal activity by residents or visitors.
Testimony and evidence designating locations as “high crime areas” must
be strictly scrutinized to avoid violations of the 14th and 4th Amendments by
creating invidious classifications based race, class or income. Fagan, Jeffrey, et.
al., An Analysis of the New York City Police Department’s “Stop-and-Frisk”
Policy in the Context of Claims of Racial Bias, Journal of the American Statistical
Association, September 2007, Vol. 102, No. 479. (“The Fagan Study”); American
Civil Liberties Union, Black, Brown and Targeted, A report on Boston Police
Department Street Encounters from 2007-2010, (October 2014) (“The ACLU
Report”).2 The Fagan Study found that "Recent studies by police departments and
researchers confirm that police stop persons of racial and ethnic minority groups
more often than whites relative to their proportions in the population.” The Fagan
The ACLU Report may be downloaded at the following URL.

https://www.aclum.org/sites/default/files/wp-content/uploads/2015/06/reports-bla
ck-brown-and-targeted.pdf
-32-
study found that "persons of African and Hispanic descent were stopped more
frequently than whites, even after controlling for precinct variability and
race-specific estimates of crime participation." Ibid. The ACLU Report found
that the same type of discriminatory policing as existed in New York existed in
Boston. The ACLU Report, pp. 5-9. The report found that the Boston Police
Department’s own reports reflected widespread targeting of “Blacks,” that racial
bias in street encounters persists even after accounting for crime. The ACLU
Report, pp. 5-9. Excessive use of the generic “high crime area” designation will
contribute to creating a two-tier standard of constitutional rights, one for people
living in rich low crime areas, and a second class & lower level of protection for
poor and minorities living in “high crime areas.” People living in “bad
neighborhoods” (poor and minority) get searched at the whim of the police, while
people living in “good neighborhoods” (white and wealthy) get to go about their
business freely and unmolested by the police.
The testimony concerning Gavell’s stance while he was questioned did not
tend to establish reasonable suspicion of criminal activity. Sanon’s testimony that,
as he approached, Gavell was standing “bladed,” only indicated that Gavell had
one foot in front of the other. Mot. 61. Sanon also testified that Gavell was tilting
as he was standing. Mot. 70-71. Gavell would be expected to favor one foot if he
were standing with one foot in front of the other. He would naturally lean to some
extent. Sanon discounted the importance of this factor, in testifying that, based on
his training and experience, he believed that Gavell could have been hiding
-33-
something or it could have been nothing. Mot. 72. This equivocal testimony was
too vague and inconclusive to support reasonable suspicion.
The testimony, that the right pocket on Gavell’s coat was hanging lower
when he exited than it was when he went entered into 30 Orton Marrotta Way did
not aid the Commonwealth in establishing reasonable suspicion. So long as
Gavell had a license to carry, he could keep the weapon in his pocket, sock, belt,
hat or anywhere else on his person. While the coat hanging lower tended to show
that Gavell had something in his pocket, it had no bearing or whether or not
Gavell had a license to carry. The police speculated that it was drugs, “or
something,” prior to the stop. Mot. 24-25. For all the police knew, Gavell may
have put his phone in his pocket. The police speculation or belief that Gavell had
something in his pocket did not provide reasonable suspicion of criminal activity.
Charbonnier’s claim that Gavell was looking around did not contribute to
reasonable suspicion. Mot. 25. Gavell’s looking around, under the
circumstances, was not a suspicious activity. Nearly everyone, possibly excluding
the blind, looks around. If looking around gives rise to reasonable suspicion,
anyone may be subject to being stopped by the police at almost any time.
Charbonnier’s vague testimony about “nervous state” did not contribute to
reasonable suspicion. Mot. 25. Charbonnier failed to articulate any specific facts
to support his “nervous state” testimony. Id. A nervous state hints at the internal
workings of Gavell’s mind. These would not be observable by the police. There
was a lack of testimony that Charbonnier was close enough to Gavell that he
-34-
could see him trembling, or hear him speak with a shaky voice. The record, at best
shows that Charbonnier may have had an unsupported hunch that Gavell’s was in
a nervous state without any reason to suspect he was nervous due to criminal acts.
Although the police had reason to believe that Gavell was armed when
officer Sanon observed the butt of a gun protruding from the pocket of Gavell’s
jacket, they lacked any reasonable suspicion that Gavell was dangerous as
required by our Constitutions and laws. A lawful stop does not necessarily carry
with it the authority to conduct a pat-down search. Terry, 392 U.S. at 27. A pat
down for weapons can only occur where the police officer has reason to believe
that he or she is dealing with “an armed and dangerous individual.” Ibid. ("Our
evaluation of the proper balance that has to be struck in this type of case leads us
to conclude that there must be a narrowly drawn authority to permit a reasonable
search for weapons for the protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous individual . . ."). When an
individual is engaged in a consensual encounter with the police, the police may
not conduct a pat frisk unless they have “a reasonable belief that [the] individual
has a weapon and appears inclined to use it.” Narcisse, 457 Mass. at 9. Gavell’s
cooperative demeanor with the police tended to show that he was not inclined to
use his weapon. Mot. 47, 52-53.
There was an absence of evidence, except for the fact that he possessed a
gun, from which the police could conclude that Gavell posed a danger to them at
the time he was stopped. The mere possession of a handgun, without other
-35-
indications that an individual is dangerous, is insufficient under our Constitutions
and laws to establish that an individual is dangerous. Commonwealth v. Narcisse,
supra; Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128, 1132 (6th Cir.
2015) (the stop of an individual and seizure of the individual’s handgun solely on
the basis that the individual was openly carrying a weapon violated the 4th
Amendment) ; State v. Serna, 235 Ariz. 270, 331 P.3d 405, 410 (2014) (“[W]hen
officers consensually engage citizens on the street without having any evidence of
wrongdoing, the mere presence of a weapon does not afford officers constitutional
permission to search weapons-carrying individuals.”) “To allow a search based on
the hunch that a citizen walking down the street is illegally carrying a firearm,
without more, serves to erode the precious protections of the Second and Fourth
Amendments.” United States v. House, 463 F. App’x 783, 789 (10th Cir. 2012),
See also, David A. Harris, Superman’s X-Ray Vision and the Fourth Amendment:
The New Gun Detection Technology, 69 Temp. L. Rev. 1, 58 (1996) (arguing that
police cannot “assume the existence of danger just because a person carries a
gun”). Other than the mere possession of a gun, the police had no reason to
suspect that Gavell was inclined to use violence and he thus posed no particular
threat to the officers’ safety. The police had insufficient grounds to seize the gun
and search Gavell’s jacket for the ammunition under these circumstances.
Commonwealth v. Narcisse, supra. ("[P]olice officers may not escalate a
consensual encounter into a protective frisk absent a reasonable suspicion that an
-36-
individual has committed, is committing, or is about to commit a criminal offense
and is armed and dangerous.").
The present case has significant similarities to Commonwealth v.
Knowles, 451 Mass. 91, 99 (2008). In Knowles, based on the lack of a reasonable
suspicion that the defendant was armed and dangerous, the court suppressed drugs
seized from a defendant’s trunk where the area was not a high crime area and “the
officer was not investigating the report of a crime of violence, he was not
outnumbered, it was not late at night, and Knowles did nothing to suggest that he
might be attempting to secure or draw a weapon.” Ibid. The police in the present
case were not outnumbered, it was not late at night, the police were not
investigating a crime of violence and Gavell did nothing to suggest he might be
attempting to draw his gun. The generic claim of the police, that the West
Broadway Development was a high crime area, does not tip the scales in the
Commonwealth’s favor because the police knew defendant lived in the
development and had good reason be present there. Mot. 19-20; App. 13.
Furthermore, even if this court upholds the lower court’s finding that the area was
a high crime area, individuals who live in high crime areas have a greater need to
arm themselves to for their own protection. The assumption that they are doing so
unlawfully has a tendency to discriminate against minorities and the poor and
tends to unreasonably interfere with the rights of individuals in these groups to
keep and bear arms under the 2nd Amendment. District of Columbia v. Heller, 554
U.S. 570, 602 (2008).
-37-
Gavell did nothing to evade the police or reach for his gun, distinguishing
the present case from several others where our courts have upheld searches by the
police. Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 43-44 (2002) (two
officers patrolling "high crime area" where "firearm offenses were common"
properly conducted a protective frisk of individual, who on seeing police did
U-turn and walked away quickly, and who, when police approached to inquire
further, made "quick movement into his waist area"). Commonwealth v. Pagan, 63
Mass. App. Ct. 780, 783 (2005) (defendant reached for waistband indicating he
"might be drawing or concealing a weapon"). In Commonwealth v. Fraser, 410
Mass. 541 (1991), the SJC held that a patdown of the defendant's coat was
permissible. “In that case, two officers were responding to a radio transmission
about "a man with a gun" inside an automobile parked at a specific location in a
"high crime area" of Boston. Id. at 542. When the officers arrived at the location,
the automobile that the man had presumably been in was gone, but a group of
young men had gathered. Id. As the officers got out of their vehicle to question the
men, the defendant bent down behind a parked truck "as though to pick something
up or put something down." Id. As one of the officers approached the defendant,
he stood up with his hands in his coat pockets. The officer asked him to remove
his hands from his pockets. Id. When the defendant did not remove his hands, the
officer pat frisked him and found a loaded handgun. Id. at 542-543 & n.2.”
-38-
Knowles, 451 Mass. at 97.3 The defendants’ actions in Fraser were more
menacing than the Gavell’s actions. Gavell had not bent down behind a parked car
where he could have picked up a weapon. The defendant in Fraser had his hand in
his pocket, apparently on a weapon. Fraser’s refusal to remove his hand from his
pocket in these circumstances was analogous to reaching toward his waist as if for
a handgun. At the motion to suppress hearing, there was no evidence that Gavell
refused to remove his hands from his pocket when Kintigos asked to speak with
him. At trial, we learned that he in fact did remove his hands from his pockets
when asked to do so by Kintigos. Tr. 28. Sanon, who testified that he saw the
butt of a firearm protruding from Gavell’s pocket, made no mention that Gavell’s
hand was in his pocket. Tr. 28. If Gavell’s hand were in the right pocket of his
jacket, it likely would have obscured the butt of the firearm and prevented Sanon
from making the observations he claimed to have made.
The only evidence that Gavell might be dangerous, his possession of a
firearm, was not an adequate basis on which the lower court could conclude that
Gavell posed a danger to the safety of the police. An automatic conclusion, as
made by the lower court, that individuals who are armed with firearms are also
dangerous goes too far. Florida v. J. L., 529 U.S. 266, 272 (2000). “Firearms are
dangerous, and extraordinary dangers sometimes justify unusual precautions. Our
decisions recognize the serious threat that armed criminals pose to public safety;
Fraser was criticized, and to some extent disavowed, in Commonwealth v.

Narcisse, supra at 7-9.
-39-
Terry’s rule, which permits protective police searches on the basis of reasonable
suspicion rather than demanding that officers meet the higher standard of probable
cause, responds to this very concern. But an automatic firearm exception to our
established reliability analysis would rove too far.” Ibid.
II. THE DEFENDANT'S TWO CONVICTIONS OF UNLAWFUL

POSSESSION OF AMMUNITION, UNDER G. L. C. 269, § 10 (h),
WERE DUPLICATIVE OF HIS CONVICTION OF UNLAWFUL
POSSESSION OF A LOADED FIREARM UNDER G. L. C. 269, § 10
(n). THE MULTIPLE PUNISHMENTS UNDER § 10 (n) AND
§ 10 (h) VIOLATED OF THE DOUBLE JEOPARDY CLAUSE OF THE
FIFTH AMENDMENT AND THE COMMON LAW BECAUSE
GAVELL WAS PUNISHED THREE TIMES FOR POSSESSING
AMMUNITION ONCE.
The defendant’s two convictions for unlawful possession of ammunition
were duplicative of his conviction for unlawful possession of a loaded firearm
because possession of ammunition is a lesser included offense of unlawful
possession of a loaded firearm under G. L. c. 269, § 10 (n). The SJC ruled that
separate convictions for unlawful possession of a loaded firearm under G. L. c.
269, § 10 (n) and unlawful possession of ammunition under § 10 (h) were
duplicative where all of the ammunition was in a loaded firearm in
Commonwealth v. Johnson, 461 Mass. 44, 53-54 (2011). The only ammunition
seized from the defendant was either contained in the firearm that was in his right
pocket or contained in his left pocket. Tr. 31, 41-42. Gavell could not have
committed three violations of § 10 (h) under any rational view of our laws. The
two convictions of for violating § 10 (h) along with the conviction of possession
of a loaded firearm, that includes another violation of § 10 (h) as a lesser included
-40-
offense, mean that Gavell sustained three convictions for possession of
ammunition. Under the holding in Johnson, there is no doubt that at least one of
the defendant’s convictions for unlawful possession of ammunition was
duplicative. Ibid.
Both convictions for unlawful possession of ammunition in violation of §
10 (h) were duplicative of Gavell’s conviction of carrying a loaded firearm and
must be vacated based on the double jeopardy clause of the Fifth Amendment to
the United States Constitution and Massachusetts common law. The double
jeopardy clause and our common law protect defendants against the imposition of
multiple punishments for the same offense. Commonwealth v. Vick, 454 Mass.
418, 431, 433 n.15 (2009). It is clear from the plain meaning of § 10 (o), defining
ammunition, that Gavell was punished multiple times for the same offense. The
common meaning of the word ammunition, as well as the applicable statutory
definition set forth at G. L. c. 269, § 10 (o), is a stock or supply of bullets, primer,
powder, casings or cartridges. G. L. c. 269, § 10 (o) provides: “For purposes of
this section, ''ammunition'' shall mean cartridges or cartridge cases, primers
(igniter), bullets or propellant powder designed for use in any firearm, rifle or
shotgun.” The legislatures’ repeated use of plural nouns to describe the various
types of ammunition shows its intent to refer collectively to a stock or supply, not
individually to each unit of ammunition. There is no indication from the language
of § 10 (h) or § 10 (o) that the legislature intended that ammunition possessed by a
person could be divided up into subsets, as occurred in the instant case, in order to
-41-
charge and punish defendants for multiple violations of § 10 (h). The convictions
for violation of § 10 (h) in counts 2 and 4 of the complaint must be reversed.
In explicitly defining ammunition in plural terms in G. L. c. 269, § 10 (o) ,
the legislature indicated that the appropriate “unit of prosecution” was the supply
of ammunition possessed by the accused, not a subset or subsets of the
ammunition possessed. When a prosecutor attempts to divide evidence into
distinct segments in order to secure multiple convictions for violations of the
same statute, it is necessary to determine what unit of prosecution was intended by
the legislature as the punishable act. Commonwealth v. Rabb, 431 Mass. 123,
128-130 (2000). If the legislature intended to multiple punishments for
possession of ammunition, it would have specified the unit of prosecution more
precisely. For example, possessing multiple firearms can be punished separately
because legislature used the singular to specify that possessing a firearm was the
unit of punishment. Commonwealth v. Dilworth, No. 14-P-569, Mass. App.
Court, Rule 1:28 (2016) ("Had the Legislature intended to punish possession of
any number of firearms as a single offense, it would have used the word
"firearms.") Since there is no indication from the language of § 10 (h) that the
legislature intended multiple punishments by dividing ammunition possessed by a
defendant into additional units, the plain language of the statute and the rule of
lenity require that Gavell’s convictions under § 10 (h) be reversed. Id. at 128.
The lower court’s construction of the statute to allow for the prosecution
and punishment of the defendant for multiple violations of § 10 (h) based on the
-42-
possession of ammunition on his person on a single occasion violated Gavell’s
right to due process because the statute did not provide him with fair warning that
he could face multiple punishments. Fourteenth Amendment to the U.S.
Constitution. Fair warning is part of the due process doctrine of vagueness, which
"requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement."
Kolender v. Lawson, 461 U.S. 352, 357 (1983). See Smith v. Goguen, 415 U.S.
566, 572 (1974); Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986);
Commonwealth v. Sefranka, 382 Mass. 108, 110 (1980). Because § 10 (h) does
not clearly indicate that Gavell could be penalized more than once for a single
instance of possession of ammunition, Gavell was denied notice of the penalties
he was subjected to and he was not given fair warning.
Gavell possessed ammunition as defined by § 10 (o) on a single occasion
such that his multiple convictions for violating § 10 (h) were not based on distinct
acts as required by our laws. The SJC stated:
to sustain multiple convictions of the same offense,

the Commonwealth generally must establish that the
convictions are "premised on ... distinct criminal
act[s]." Commonwealth v. Vick, 454 Mass. 418,
435 (2009). The logic underlying decisions holding
that multiple indictments and multiple punishments
are appropriate where a single criminal transaction
harms multiple victims, for instance, is that the
single transaction gives rise to "separate and
distinct" crimes of violence as to each victim.
Commonwealth v. Levia, supra at 351. By contrast,
-43-
where "multiple convictions and sentences" are not

based on distinct criminal acts, the convictions are
permissible only where "the Legislature has
explicitly authorized cumulative punishments."
Commonwealth v. Vick, supra. That rule accords
with the rule of lenity, which demands that we
construe criminal statutes "strictly against the
Commonwealth," and that any "ambiguity
concerning the [statute's] ambit ... [is] resolved in
favor of lenity" (quotation and citation omitted).
Commonwealth v. Donovan, supra at 29.
Commonwealth v. Traylor, 472 Mass. 260, 269 (2015).
In convicting Gavell for two counts of possession of ammunition in violation of §
10 (h), the trial judge convicted and punished Gavell for two crimes that consist of
the very same act that served as an element of possession of a loaded firearm for
which he was also convicted and punished. Where the legislature did not
explicitly authorize cumulative punishments for possession of a supply of
ammunition and the convictions are based on possession of ammunition on the
Gavell’s person at a single time and place, the offenses are not distinct. The
convictions for violations of § 10 (h) must be reversed because they were not
based on distinct acts as required by Vick and Traylor. Supra.
Convicting defendants of multiple offenses based on possession of a set of
ammunition on their person potentially allows for absurd, untenable and unjust
results. Whenever possible, our courts read statutes in a commonsense way so as
to avoid absurd results. Commonwealth v. Morgan, 476 Mass. 768, 778 (2017).
By the lower court’s reasoning, if a defendant were to load ammunition into a
firearm, then unload the ammunition to clean the firearm, and then reload the
-44-
ammunition into the firearm, the defendant could be convicted of two counts of
possession of a loaded firearm and four counts of possession of ammunition. A
defendant who regularly loads and unloads a firearm to clean it could easily
commit dozens of violations over the course of a year. The lower court’s decision,
upholding Gavell’s convictions under § 10 (h), seems to rest on the assumption
that a single supply of ammunition, if held in different pockets or locations on a
defendant’s person, can result in multiple convictions. If a defendant keeps twelve
bullets in one pocket, that is a single offense. If a defendant keeps three bullets in
four different pockets, that results in a least four offenses by a defendant. The
interpretation given to § 10 (h) by the lower court leads to absurd results.
The lower court’s interpretation could create incentives and unintended
consequences that are against good public policy. The interpretation given by the
lower court to our laws could create incentives for people to take actions that
reduce public safety such as keeping their firearms fully loaded and/or acquiring
higher capacity clips or magazines. If people are punished for keeping part of their
ammunition supply on their persons outside of their firearms and rifles, they will
have an incentive to load their firearms to the maximum capacity.
Most people would reasonably view multiple convictions and sentences
for a person’s possession of a supply of ammunition on his or her person as
amounting to multiple punishments for the same offense in violation of the
Double Jeopardy Clause and our common law. The lower court’s harsh treatment
of Gavell with multiple punishments, and the likely harsh treatment of others who
-45-
will be so treated if the lower court’s decision were to be affirmed, could tend to
breed disrespect for the law among the defendants so punished and with the
general public who become aware of these practices.
CONCLUSION
For the reasons stated above, the judgments on all counts must be
reversed. The case should be remanded to the Central Division of the Boston
Municipal Court with an order that judgments not guilty be entered on all counts.
Respectfully submitted,
ATTORNEY FOR THE
DEFENDANT-APPELLANT
14 Searle Avenue
Brookline, Massachusetts 02445
(857) 991-9894
MASS. BBO # 553499
jw.larrabee@verizon.net
APRIL, 2019
-46-
CERTIFICATION OF COMPLIANCE WITH RULES

PERTAINING TO THE FILING OF BRIEFS
I, J. Whitfield Larrabee, hereby certify that, to the best of my knowledge and

belief, the above brief complies with the rules of court pertaining to the filing of
briefs, including but not limited to Mass. R. A. P. 16(a)(6),Mass. R. A. P.
16(e),Mass. R. A. P. 16(f), Mass. R. A. P. 16(h), Mass. R. A. P. 18, and Mass. R. A.
P. 20. The brief complies with Rule 20 length requirements as it is composed 12
point proportionally spaced Times New Roman font with 10,596 non-excluded
words as counted by Wordperfect version 7 program.
CERTIFICATE OF SERVICE
I, J. Whitfield Larrabee, counsel for the Defendant-Appellant in the above

captioned matter, hereby certify that, on April 22, 2019, I filed the Brief of the
Defendant-Appellant, through the electronic filing service provider Odyssey File and
Serve, which is charged with responsibility for electronic service on Commonwealth-
Appellee’s counsel:
John P. Zanini, Appellate Unit Chief

Office of the District Attorney/Suffolk
One Bulfinch Place
Boston, MA 02114
Respectfully submitted this 22nd day of April, 2019.
Attorney for the Defendant/Appellant
14 Searle Avenue
Brookline, MA 02445
Tel. (857) 991-9894
BBO#553499
-47-
ADDENDUM
TABLE OF CONTENTS
Page
G.L. ch. 269, § 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
G.L. ch. 269, § 10(h)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
G.L. ch. 269, § 10(n) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
G.L. ch. 269, § 10(o). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Second Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Fourth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Fifth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Fourteenth Amendment, Constitution of the

United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
-48-
Massachusetts General Laws
Chapter 269, § 10(a)
Section 10. (a) Whoever, except as provided or exempted by

statute, knowingly has in his possession; or knowingly has under
his control in a vehicle; a firearm, loaded or unloaded, as defined in
section one hundred and twenty-one of chapter one hundred and
forty without either:
(1) being present in or on his residence or place of business; or
(2) having in effect a license to carry firearms issued under section

one hundred and thirty-one of chapter one hundred and forty; or

one hundred and thirty-one F of chapter one hundred and forty; or
(4) having complied with the provisions of sections one hundred

and twenty-nine C and one hundred and thirty-one G of chapter
one hundred and forty; or
(5) having complied as to possession of an air rifle or BB gun with

the requirements imposed by section twelve B; and whoever
knowingly has in his possession; or knowingly has under control in
a vehicle; a rifle or shotgun, loaded or unloaded, without either:
(1) being present in or on his residence or place of business; or

one hundred and thirty-one of chapter one hundred and forty; or

one hundred and thirty-one F of chapter one hundred and forty; or
(4) having in effect a firearms identification card issued under

section one hundred and twenty-nine B of chapter one hundred and
forty; or
(5) having complied with the requirements imposed by section one

hundred and twenty-nine C of chapter one hundred and forty upon
ownership or possession of rifles and shotguns; or
-49-
(6) having complied as to possession of an air rifle or BB gun with

the requirements imposed by section twelve B; shall be punished
by imprisonment in the state prison for not less than two and
one-half years nor more than five years, or for not less than 18
months nor more than two and one-half years in a jail or house of
correction. The sentence imposed on such person shall not be
reduced to less than 18 months, nor suspended, nor shall any
person convicted under this subsection be eligible for probation,
parole, work release, or furlough or receive any deduction from his
sentence for good conduct until he shall have served 18 months of
such sentence; provided, however, that the commissioner of
correction may on the recommendation of the warden,
superintendent, or other person in charge of a correctional
institution, grant to an offender committed under this subsection a
temporary release in the custody of an officer of such institution for
the following purposes only: to attend the funeral of a relative; to
visit a critically ill relative; or to obtain emergency medical or
psychiatric service unavailable at said institution. Prosecutions
commenced under this subsection shall neither be continued
without a finding nor placed on file.
No person having in effect a license to carry firearms for any

purpose, issued under section one hundred and thirty-one or section
one hundred and thirty-one F of chapter one hundred and forty
shall be deemed to be in violation of this section.
The provisions of section eighty-seven of chapter two hundred and

seventy-six shall not apply to any person 18 years of age or older,
charged with a violation of this subsection, or to any child between
ages fourteen and 18 so charged, if the court is of the opinion that
the interests of the public require that he should be tried as an adult
for such offense instead of being dealt with as a child.
The provisions of this subsection shall not affect the licensing

requirements of section one hundred and twenty-nine C of chapter
one hundred and forty which require every person not otherwise
duly licensed or exempted to have been issued a firearms
identification card in order to possess a firearm, rifle or shotgun in
his residence or place of business.
Whoever, by means of a dangerous weapon, commits an assault upon

another shall be punished by imprisonment in the state prison for not
more than five years or by a fine of not more than one thousand
-50-
dollars or imprisonment in jail for not more than two and one-half
years.
Chapter 269, § 10(h)(1)
(h)(1) Whoever owns, possesses or transfers a firearm, rifle,

shotgun or ammunition without complying with the provisions of
section 129C of chapter 140 shall be punished by imprisonment in
a jail or house of correction for not more than 2 years or by a fine
of not more than $500. Whoever commits a second or subsequent
violation of this paragraph shall be punished by imprisonment in a
house of correction for not more than 2 years or by a fine of not
more than $1,000, or both. Any officer authorized to make arrests
may arrest without a warrant any person whom the officer has
probable cause to believe has violated this paragraph.
Chapter 269, § 10(n)
(n) Whoever violates paragraph (a) or paragraph (c), by means of a

loaded firearm, loaded sawed off shotgun or loaded machine gun
shall be further punished by imprisonment in the house of
correction for not more than 21/2 years, which sentence shall begin
from and after the expiration of the sentence for the violation of
paragraph (a) or paragraph (c).
Chapter 269, § 10(o)
(o) For purposes of this section, ''loaded'' shall mean that

ammunition is contained in the weapon or within a feeding device
attached thereto.
For purposes of this section, ''ammunition'' shall mean cartridges or

cartridge cases, primers (igniter), bullets or propellant powder
designed for use in any firearm, rifle or shotgun.
Constitution of the United States
Second Amendment
A well regulated Militia, being necessary to the security of a free

State, the right of the people to keep and bear Arms, shall not be
infringed.
-51-
Fourth Amendment
The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Fourteenth Amendment, Section 1
All persons born or naturalized in the United States and subject to

the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
-52-

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Massachusetts Appeals Court Case: 2018-P-1658 Filed: 4/22/2019 1:12 PM

ON APPEAL FROM THE CENTRAL DIVISION

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. THE LOWER COURT ERRED IN DENYING

II. THE DEFENDANT'S TWO CONVICTIONS OF

CERTIFICATE OF COMPLIANCE WITH RULES PERTAINING TO

California v. Hodari D.,

Commonwealth v. Lam Hue To,

District of Columbia v. Heller,

Northrup v. City of Toledo Police Dep’t,

United States v. Agurs,

United States v. Burton,

United States v. Dubose,

United States v. Hensley,

United States v. House,

United States v. Lyons,

United States v Montero-Camargo,

United States v. Waterman,

G.L. ch. 269, § 10 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

G.L. ch. 269, § 10 (h)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

G.L. ch. 269, § 10 (n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 40

G.L. ch. 269, § 10 (o).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 41, 43

UNITED STATES CONSTITUTIONAL PROVISIONS

Second Amendment, Constitution of the

Fourth Amendment, Constitution of the

Fifth Amendment, Constitution of the

Fourteenth Amendment, Constitution of the

American Civil Liberties Union, Black, Brown and Targeted,

Grasso, J., McEvoy, C., Suppression Matters Under

Harris, David A., Superman’s X-Ray Vision and the

Mass. Guide to Evidence, § 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

from an individual when engaged in a consensual encounter or an investigative

dangerous. After stopping the defendant without reasonable suspicion of criminal

2. Possession of ammunition without a valid firearm identification card is

a lesser included offense of carrying a loaded firearm without a license. The

counts of possession of ammunition without a valid firearm identification card

Did the defendant’s several convictions and punishments for possession of

Amendment to the Constitution of the United States?

STATEMENT OF THE CASE

On March 30, 2017, the defendant-appellant, Shawn Gavell, (hereinafter

charged Gavell with possession of ammunition without a firearm identification

and 4, alleging unlawful possession of ammunition without a firearm

identification card, used identical language. Ibid.1

proceedings. App. 3. On October 2, 2017, an evidentiary hearing was held on

to suppress was denied on October 2, 2017. App. 5.

12. At the conclusion of the Commonwealth’s case, Gavell’s motion for a

alleging possession of ammunition without a firearm identification card, as

Counts 1 and 3. App. 12.

case was entered in this court on December 10, 2018.

STATEMENT OF THE FACTS

of the West Broadway Housing Development in South Boston. Mot. 18-20.

Charbonnier observed Gavell leave his residence on 7th Street in the

development and walk to another residential building in the development at 30

was no testimony whatsoever that Charbonnier or any other officer observed

There was no testimony whatsoever that Charbonnier or any other officer

door as he entered after no more than a minute. Mot. 23, 33.

adjust anything in his pockets, waist or hips. Mot. 7-77.

Charbonnier testified that he called to other officers whom he was working

Gavell stopped and spoken to. Mot. 45.

Charbonnier was employed by the Boston Police Department for 22 years.

also took a course in the characteristics of an armed gunman. Mot. 10. He