Commonwealth v. Alphonso Weah Weah

In May 2024, this Court presided over the trial before a jury in this matter. The jury returned verdicts of guilty against defendant Alphonso Weah Weah on indictments charging him with unlawful possession of a firearm,[1] unlawful possession of a loaded firearm, and unlawful possession of a large capacity feeding device.[2] Now before the Court is Defendant's Motion For New Trial (Paper No. 65) (“Motion”) for which the Court conducted a nonevidentiary hearing on July 31, 2026. In the Motion, Weah Weah requests the Court to vacate his convictions and order a new trial on the grounds that his trial attorney provided ineffective assistance of counsel by failing to pursue a motion to suppress evidence. As is explained below, after thorough consideration of the parties’ submissions and arguments of counsel, the Motion is DENIED. -------------------------------------------- [1] The jury found Weah Weah guilty of unlawful possession of a firearm. Thereafter, he waived his right to a trial and pled guilty of having been previously convicted of one serious drug offense, a sentencing enhancement under the Armed Career Criminal Act, G.L. c. 269, § 10G (“ACCA”). [2] In Case No. 2477CR00024, Weah Weah was charged in a single indictment with unlawful possession of a firearm after having been previously convicted of two predicate crimes under the ACCA. However, the Commonwealth filed a nolle prosequi of the indictment after the trial. -1- BACKGROUND The Evidence During Trial[3] The evidence during the trial showed that on May 7, 2022, at approximately 10:20 P.M., detective Christopher Hagerty (“Det. Hagerty”) of the Lynn Police Department (“LPD”), who was in plain clothes and was operating an unmarked vehicle (a Ford Crown Victoria), was patrolling a particular area of Lynn where there had been shootings during the previous few weeks.[4] While doing so, he observed a gray Honda HRV (“Honda”) being operated by a female and a male in the front passenger seat, who was later identified as Weah Weah. Traffic was busy in the area. Det. Hagerty became suspicious and began to follow the Honda after he had observed the driver and the passenger turn (“snap”) their heads toward him as they drove past. While doing so, Det. Hagerty ran the Honda’s registration and learned that there was an active warrant for the arrest of the registered owner, Angela Godfrey Everett (“Ms. Godfrey”),[5] a female, for motor vehicle-related offenses.[6] -------------------------------------------- [3] In summarizing the relevant evidence that was presented during the trial, the Court has relied on the transcripts of the trial proceedings filed by Weah Weah in support of the Motion. See Exhibit M. [4] At the time, Det. Hagerty had been a police officer for 27 years and had conducted hundreds of motor vehicle stops. [5] The evidence reflects some confusion regarding the correct name of the driver. During the trial, the Commonwealth and its witnesses referred to the driver (and registered owner) of the Honda as Angela Godfrey Everett, and the defense referred to her as “Ms. Godfrey.” In his police report (Exhibit C), Det. Hagerty referred to the driver as Angela Everett-Godfrey. For the sake of simplicity, the Court refers herein to the driver as “Ms. Godfrey.” [6] The warrant was for operating an uninsured vehicle in violation of G.L. c. 90, § 34J, and operating a vehicle with a suspended registration in violation of G.L. c. 90, § 23. Both of these criminal offenses are misdemeanors. -2- After a short distance, the Honda stopped on Sheridan Street across from a multi-family house located at 23 Sheridan Street (“House”).[7] Det. Hagerty drove up behind the Honda and activated his vehicle’s blue lights (and briefly sounded the siren). The area was fairly well lit. While calling the stop into police dispatch, Det. Hagerty observed the passenger door open and a male wearing a baseball hat and hood on his head exit the Honda and walk quickly towards the front of the Honda. In response, Det. Hagerty exited his vehicle, announced “Lynn police,” and yelled, “Get back in the vehicle.” The man continued to walk into the middle of Sheridan Street and Det. Hagerty continued to tell him to “Get back in the vehicle.” The man responded, “Hagerty, why you guys always harassing me for?” Det. Hagerty did not recognize him. The man picked up his pace and walked across Sheridan Street (away from Det. Hagerty). Det. Hagerty followed him. The man stopped briefly on the sidewalk in front of the House and said, “Why are you guys always harassing me for?” Det. Hagerty walked toward the man while continuing to tell him get back in the Honda and the man very quickly walked down the driveway adjacent to the House and out of Det. Hagerty’s line of sight. As Det. Hagerty approached the driveway he heard a loud metallic-sounding bang[8] and he believed that the man “could have just discarded a firearm.” Upon entering the driveway, Det. Hagerty observed the man walking up the driveway towards -------------------------------------------- [7] According to Detective John Bernard (“Det. Bernard”), there was a driveway on the right side of the House that led to a small backyard. Flemings’ tow yard was located adjacent to the backyard. There was a chain link fence between the tow yard and the House, which was approximately twelve feet from the rear of the House. [8] Det. Hagerty described the sound as, “it sounded like a heavy metal object hitting another metal object.” -3- him. He recognized the man to be Weah Weah, someone he knew from “working in the neighborhood.” Weah Weah had been out of Det. Hagerty’s view for just a few seconds. Det. Hagerty approached Weah Weah, handcuffed him, and told him that he was being detained while they waited for officers to arrive on scene to search for the source of the loud bang. Shortly thereafter, numerous members of the LPD arrived and searched the backyard and adjacent tow yard, including Det. Bernard, officer Ben Craven, and Seargeant Gary Hagerty (“Sgt. Hagerty”), all of whom testified at the trial. During the search, Sgt. Hagerty found a green and black firearm (a Glock 9MM with a 15-round magazine) laying openly on the ground in the tow lot next to a snowplow blade. The police arrested Ms. Godfrey on the outstanding arrest warrant and they arrested Weah Weah for illegally carrying the firearm. Relevant Procedural History Weah Weah was arraigned in this matter in Superior Court on September 21, 2022. On December 1, 2022, Weah Weah’s then-counsel, Nathan Spinney, filed a motion to suppress evidence in which he argued that Weah Weah had been subjected to an unlawful exit order9 and that the police had unlawfully seized him without reasonable suspicion or probable cause to believe that he had committed a crime. See Motion To Suppress (Paper No. 12). In the motion, Weah Weah requested the suppression of all evidence and statements that were fruit of the unlawful police conduct. An evidentiary hearing on the motion was scheduled for January 23, 2023. -------------------------------------------- [9] There is no dispute that the police never ordered Weah Weah to exit the Honda. -4- Thereafter, the hearing was continued several times at the request of one or both of the parties. On August 30, 2023, Weah Weah and counsel were before the court (Lang, J.) for an evidentiary hearing on the motion to suppress. However, the hearing was not conducted. Rather, attorney Spinney moved to withdraw as Weah Weah’s counsel, which the court allowed. On September 8, 2023, attorney Jeffrey Sweeney entered an appearance on behalf of Weah Weah and ultimately represented Weah Weah through the trial, which began on May 22, 2024.[10] On May 28, 2024, the fourth day of trial, the jury returned guilty verdicts on the previously mentioned indictments. DISCUSSION In the Motion, Weah Weah argues that he was denied effective assistance of counsel because attorney Sweeney failed to pursue the motion to suppress. Weah Weah contends that his motion to suppress the firearm would likely have been successful because Det. Hagerty’s command to stop and return to the Honda was a seizure in the constitutional sense, which was not supported by reasonable suspicion that Weah Weah was engaged in criminal activity or posed a danger to Det. Hagerty. -------------------------------------------- [10] According to the docket entries, no hearing on the motion to suppress was scheduled after August 30, 2023. -5- For its part, the Commonwealth denies that attorney Sweeney provided ineffective assistance and argues that Weah Weah would not have succeeded in suppressing the firearm because: as a passenger, he was in a lawfully stopped vehicle, subject to a lawful order to return to the Honda; he lacked a reasonable expectation of privacy in the tow yard; he lacked a reasonable expectation of privacy in the firearm because he abandoned it; and even if he was unlawfully seized, the recovery of the firearm was attenuated from the illegal seizure. The Court will address the parties’ arguments after setting forth the applicable legal standards. I. THE LEGAL FRAMEWORK A trial court may grant a new trial “at any time if it appears that justice may not have been done.” Mass. R. Crim. P. 30(b). Nevertheless, “[m]otions for a new trial are granted only in extraordinary circumstances.” Commonwealth v. Comita, 441 Mass. 86, 93 (2004) (citation omitted); see also Commonwealth v. Lopez, 96 Mass. App. Ct. 34 , 38 (2019) (“‘A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly.’”) (citations omitted). “The defendant has the burden of proving facts upon which he relies in support of his motion for a new trial.” Commonwealth v. Chatman, 466 Mass. 327, 333 (2013) (citation omitted). “A trial judge is entitled to rely on her knowledge of what occurred at trial when ruling on a motion for a new trial.” Id. at 333 – 334. -6- “A judge may rule on a motion for a new trial based on the affidavits or other supporting material, without an evidentiary hearing, if no ‘substantial issue’ is raised.” Commonwealth v. Alemany, 488 Mass. 499 , 517 (2021). “To determine whether the defendant raised a substantial issue regarding his counsel’s failure to file a motion to suppress, [courts] look to see whether such a motion was likely to succeed.” Commonwealth v. Simon, 91 Mass. App. Ct. 1115 , 2017 Mass. App. Unpub. LEXIS 361 at *2 (Apr. 6, 2017) (Rule 1:28 Decision) (citations omitted). Nevertheless, the SJC has observed that an evidentiary hearing is not necessary when the trial evidence is sufficient to “determine[] whether motions to suppress would have succeeded.” Comita, 441 Mass. at 92 n.9; see e.g., Commonwealth v. Buckman, 461 Mass. 24 , 39 - 41 (2011) (affirming denial of motion for new trial without evidentiary hearing where defendant argued trial counsel should have moved to suppress photographs taken inside his residence – a homicide crime scene - before search warrant issued because photographs of items in plain view were taken during ongoing emergency); Commonwealth v. Dargon, 457 Mass. 387 , 403 - 404 (2010) (rejecting defendant’s argument that trial counsel was ineffective for failing to move to suppress evidence on grounds of unlawful stop after concluding that “the record [from the trial] establishe[d] that the Commonwealth could have shown that [officer] had reasonable suspicion, considering the totality of the circumstances, to stop the defendant.”). The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights guarantee the right of a defendant to effective assistance of counsel. Commonwealth v. Mosso, 496 Mass. 768 , 775 - 776 (2025) -7- “‘Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.’” Id. at 779 (citation omitted). “[U]nder [the] familiar [Saferian] test for claims of ineffective assistance of counsel under art. 12, . . . a defendant [must] show that [(1)] ‘counsel’s performance fell measurably below that which might be expected from an ordinary fallible lawyer, and [(2)] that his performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’” Id. at 776 (quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)) (quotation omitted). To meet the first part of the Saferian test in the context of a claim of ineffective assistance of counsel for failing to file a motion to suppress evidence seized during a warrantless stop, the defendant must prove that “[he] had a potentially viable basis for a motion to suppress.” Comita, 441 Mass. at 92 . As for the second part of the Saferian test, “the defendant also must prove that, had such a motion been timely filed, the Commonwealth would not have been able to prove that a warrantless stop was constitutional.” I d. at 93. With these general principles in mind, the Court will address the merits of the Motion. II. WEAH WEAH FAILED TO MEET HIS BURDEN TO SHOW THAT THE MOTION TO SUPPRESS WOULD LIKELY HAVE BEEN SUCCESSFUL A. Det. Hagerty Lawfully Stopped (i.e., “Seized”) The Honda The Court begins its analysis by ruling that it was permissible under Article 14 of the Massachusetts Declaration of Rights for Det. Hagerty to stop the Honda to determine if the female driver was the registered owner who was the subject of an active arrest warrant. -8- The SJC has long ruled that: [T]he police may, in the absence of any contrary evidence, reasonably conclude that a vehicle is likely being driven by its registered owner . . . While it is certainly possible that someone other than a vehicle’s registered owner may be operating the vehicle on any given occasion, the likelihood that the operator is the owner is strong enough to satisfy the reasonable suspicion standard. Commonwealth v. Deramo, 436 Mass. 40 , 43 - 44 (2002) (citations omitted) (ruling “[e]ven if [officer] had recognized only the vehicle without making a specific identification of the defendant prior to the stop,” officer had reasonable suspicion to effectuate stop of vehicle registered to defendant where officer learned during call two months before that defendant’s license had been revoked); Commonwealth v. Owens, 414 Mass. 595, 599 (1993) (ruling detective had reasonable suspicion to stop vehicle to conduct threshold investigation to determine whether driver was registered owner “who was wanted for serious felony charges”). B. Weah Weah Was Permissibly Seized In The Constitutional Sense When Det. Hagerty Lawfully Stopped The Honda The Court next rules that Weah Weah was permissibly seized in the constitutional sense when Det. Hagerty pulled behind the Honda and activated his vehicle’s lights and siren. In Brendlin v. California, 551 U.S. 249 (2007), the United States Supreme Court held that, “[w]hen a police officer makes a traffic stop, [a passenger] of the car is seized within the meaning of the Fourth Amendment . . . and so may challenge the constitutionality of the stop.” Id. at 251 . Like the driver, a passenger is seized “from the moment [a car stopped by the police comes] to a halt on the side of the road.” Id. at 263 ; s ee a lso Arizona v. Johnson, 555 U.S. 323, 327 (2009) (under Fourth Amendment, -9- “[f]or the duration of a traffic stop, . . . a police officer effectively seizes ‘everyone in the vehicle,’ the driver and all passengers.”) (citation omitted)); Commonwealth v. Chalue, 486 Mass. 847 , 882 (2021) (ruling “[b]ecause the defendant was a passenger in [driver’s] vehicle, this effectively stopped the defendant as well”); Commonwealth v. Ramirez, 92 Mass. App. Ct. 742, 747 (2018) (observing “that every motor vehicle stop inevitably results in an initial stop of its passengers.”). In fact, the Supreme Court “has observed” that “‘most traffic stops . . . resemble, in duration and atmosphere, the kind of brief detention authorized in Terry.” Johnson, 555 U.S. at 330 (quotations and citation omitted). C. Under The Fourth Amendment, Weah Weah Was Not Free To Exit The Honda And Leave Until Det. Hagerty Completed The P urpose Of The Stop The Court further rules that Det. Hagerty’s commands for Weah Weah to reenter the Honda did not violate Weah Weah’s rights under the Fourth Amendment to the United States Constitution because, under the Fourth Amendment, police may detain a passenger in a lawfully stopped vehicle until they complete the purpose of the stop. Johnson, 555 U.S. at 327 . Thus, under the Fourth Amendment, Weah Weah was not free to exit the Honda and leave until Det. Hagerty determined if the driver was the subject of an outstanding arrest warrant and, if so, arrested her. Id. In Johnson, which “concern[ed] the authority of police officers to ‘stop and frisk’ a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction,” i d. at 326, the Supreme Court held that, under the Fourth Amendment, police may detain a passenger in a lawfully stopped motor vehicle until the police have -10- accomplished the purpose of the stop, id. at 327 . “The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.”[11] I d. Given the holding in Johnson, Det. Hagerty’s repeated commands for Weah Weah to get back in the Honda were permissible under the Fourth Amendment and did not amount to a stop (seizure) in the constitutional sense. See United States v. Williams, 419 F.3d 1029 , 1030 - 1031 (9th Cir. 2005) (holding “an officer may order a passenger who voluntarily gets out of a lawfully stopped vehicle back into the automobile without violating the passenger’s Fourth Amendment rights.”) (original emphasis)); Young v. County of Los Angeles, 655 F.3d 1156 , 1169 - 1170 (9th Cir. 2011) (“hold[ing] that, consistent with this court's reasoning in Williams, a police officer issuing a traffic citation does not violate the Fourth Amendment by ordering a driver to reenter his vehicle for the duration of a traffic stop”). D. Our Appellate Courts Have Not Determined Under Art. 14 Whether A Passenger Is Free To Exit A Lawfully Stopped Vehicle And Leave Before The Police Have Completed The Purpose Of The Stop This Court is not aware, and the parties have not cited, any appellate decision that addresses whether under art. 14 police may detain a passenger in a lawfully stopped vehicle until they have accomplished the purpose of the stop without having any independent grounds to do so, such as reasonable suspicion that the passenger has committed a crime. -------------------------------------------- [11] The Supreme Court further held that, “[t]o justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Id. -11- In fact, in Commonwealth v. Perkins, 465 Mass. 600 (2013), the SJC left “for another day” the issue of whether art. 14, like the Fourth Amendment, allows police to “‘temporarily detain all passengers in a properly-stopped vehicle with no further justification necessary beyond the initial stop.’” Id. at 603 n.3 (quoting Johnson, 555 U.S. at 327 ); see Ramirez, 92 Mass. App. Ct. at 746 – 747 (observing in dicta that, “while [the Appeals Court] ha[s] not ruled directly on the constitutionality of continued detention of passengers during a valid motor vehicle stop, . . . , [it] acknowledge[d] that every motor vehicle stop inevitably results in an initial stop of its passengers.”). The Court is aware of two unpublished decisions in which the Appeals Court applied the principles of Arizona v. Johnson, but did not address whether the principles would apply under art. 14. In Commonwealth v. Camacho, 2010 Mass. App. Unpub. LEXIS 28 at *2 (2010) (Rule 1:28 Decision), the Appeals Court applied the principles of Johnson in determining whether it was proper for police to ask a passenger in a lawfully stopped vehicle for identification.12 The facts in Camacho were as follows: The police had just observed the car speed away from a suspected drug transaction, and upon the vehicle’s coming to a stop, they saw the defendant[, who was a passenger,] make a furtive gesture, leaning forward in his seat with just the top of his head and his shoulder visible. The driver provided to police a license to operate, but said that the vehicle was registered to a different person, the passenger’s girlfriend. I d. at *4 - *5. -------------------------------------------- [12] The decision in Camacho describes neither the arguments made by the defendant on appeal nor the significance of the police request that the defendant provide an identification. -12- In ruling that the motion judge had not erred in denying the defendant’s motion to suppress,[13] the Appeals Court observed that “[Johnson] makes clear that a passenger in a lawfully stopped motor vehicle is not ‘free to leave’ until the purpose of the original motor vehicle stop has concluded.” Id. at *3. “Applying the principles of Johnson to the facts, [the Appeals Court] discern[ed] nothing improper in [the officer’s] asking the defendant for identification,” id. at *4, because “the motor vehicle stop was not complete when the police learned that the defendant had given them a false name . . . [and that he was] wanted for questioning as a suspect in a shooting,” id. at *5. In Commonwealth v. Mayo, 82 Mass. App. Ct. 1121 , 2012 Mass. App. Unpub. LEXIS 1149 , (Nov. 13, 2012) (Rule 1:28 Decision), the defendant appealed his conviction for drug possession and “the sole appellate claim [wa]s that the motion judge erred in concluding that the police had probable cause to arrest and search him and in denying the defendant’s motion to suppress evidence.” Id. at *1. The defendant was one of four passengers in a vehicle, which the police attempted to stop for a defective exhaust system. Id. at *1 - *2. The driver refused to stop the vehicle, operated the vehicle erratically while doing so and collided with a parked car, and then the defendant and the other four occupants immediately ran away. Id. The Appeals Court observed that: The actions of the defendant and other occupants of the vehicle were not the ordinary or expected response of those signaled to stop for a civil motor vehicle infraction. Indeed, their actions suggested much more -- fear that evidence of a more serious criminality might -------------------------------------------- [13] The Appeals Court reversed the defendant’s firearms-related convictions on the grounds that “admission of the ballistics certificate over the defendant's objection violated the defendant's right under the Sixth Amendment to the United States Constitution to confront and cross- examine the witnesses against him.” Id. at *1. Nevertheless, “[b]ecause the admissibility of the gun and the ammunition w[ould] be determinative on retrial, [the Appeals Court] address[ed] the defendant's suppression claim.” Id. at *2. -13- be uncovered during the stop. What began as a routine motor vehicle stop for a defective exhaust system quickly escalated into evasive and dangerous operation, collision with a parked vehicle, and flight helter-skelter from the vehicle. Such behavior fundamentally altered the nature of the encounter and suggested a criminality serious enough to warrant further investigation. I d. at *2. The Appeals Court concluded that the “circumstances provided a basis to frisk the defendant once he was stopped by area residents.” Id. at *3. In affirming the denial of the motion to suppress, the Appeals Court in Mayo cited Johnson for the proposition that, “[a]s a passenger in a lawfully stopped motor vehicle, the defendant was not free to leave until the police had accomplished the purposes of that stop.” Id. at *3 (citing Johnson, 555 U.S. at 332 – 333). “His flight, and the fact that his four companions remained at large, created a reasonable apprehension of danger that supported a frisk by the officer, who was alone.” Id. In sum, while Weah Weah’s motion to suppress would have certainly been denied under the Fourth Amendment, the question for the Court remains whether he has shown that the motion would have been successful under art. 14, something that the Court addresses next. E. The SJC Would Likely Hold That When The Police Stop A Vehicle Because They Reasonably Believe The Driver Is The S ubject Of An Outstanding Arrest Warrant, It Is Permissible Under Art. 14 To Detain A Passenger Inside The Vehicle Until They Have Made Such A Determination The dispositive issue that remains is whether Weah Weah has shown that the SJC would hold that when the police stop a vehicle because they reasonably believe the driver is the subject of an outstanding arrest warrant, art. 14, unlike the Fourth Amendment, d oes not permit the police to detain a passenger inside the vehicle. If the answer to this question is yes, then Weah Weah has met his burden to show that his -14- trial counsel provided ineffective assistance of counsel, i.e., that “[he] had a potentially viable basis for a motion to suppress,” and “that, had such a motion been [pursued by his trial counsel], the Commonwealth would not have been able to prove that a warrantless stop was constitutional.” Comita, 441 Mass. at 92, 93 .[14] As is explained below, the answer to this question is no. 1. The Fourth Amendment And Art. 14 The Court begins by pointing out that our appellate courts have observed that “[the SJC’s] interpretation of art. 14 frequently aligns with the United States Supreme Court’s interpretation of the Fourth Amendment.”[15] C ommonwealth v. Buckley, 478 Mass. 861, 867 (2018) (citations omitted). For example, as pertinent here, “the general constitutional principle, reflected in both art. 14 and Fourth Amendment jurisprudence, [is] that ‘police conduct is to be judged under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.’” Id. at 867 (citations omitted). “Regardless of how finely the law of search and seizure is parsed and labeled, the ultimate touchstone of art. 14 and the Fourth Amendment is whether a search or seizure was reasonable in the circumstances.” Commonwealth v. Moore, 54 Mass. App. Ct. 334, 340 (2002). -------------------------------------------- [14] In other words, if an order to stay inside the Honda (“stay put order”) would not have violated Weah Weah’s rights under art. 14, then Det. Hagerty’s order to get back into the Honda would also be permissible and would not amount to a stop in the constitutional sense. See Ramirez, 92 Mass. App. Ct. at 744 (observing that “when the police issue commands to stay put, they seize whomever they address”). [15] The Court pauses here to point out that, as pertinent here, art. 14 states that, “[e]very subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions[,]” while the Fourth Amendment states that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, . . . ” -15- Nevertheless, it is axiomatic that the SJC “ha[s] expressly granted . . . protections to drivers and occupants of motor vehicles under art. 14 in a variety of areas, and [has] done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment.” Commonwealth v. Gonsalves, 429 Mass. 658, 662 (1999) (citing examples); see Commonwealth v. Phillips, 452 Mass. 617 , 624 n.7 (2008) (“Because art. 14 of the Massachusetts Declaration of Rights provides greater substantive protection to a criminal defendant [during a Terry stop] than does the Fourth Amendment to the United States Constitution, we view the contested detention under those more stringent standards.”); Commonwealth v. Stoute, 422 Mass. 782 , 785 - 786 (1996) (ruling art. 14 “provides more substantive protection to a person than does the Fourth Amendment in defining the moment at which a person’s personal liberty has been significantly restrained by the police, so that he may be said to have been ‘seized’ within the meaning of art. 14.” Cf. Buckley, 478 Mass. at 865 n.8 (noting that “in some circumstances, ‘art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause.’”) (citation omitted); Commonwealth v. Amado, 474 Mass. 147, 154 (2016) (“Although the United States Supreme Court requires only reasonable suspicion to initiate strip searches under the Fourth Amendment, we have concluded that ‘probable cause is the appropriate standard that must be met for a strip or visual body cavity search to be constitutionally permissible’ under art. 14.”) (citation omitted). For example, under the Fourth Amendment, an officer may, as a matter of course, order a driver and passenger out of a vehicle that has been lawfully stopped for a traffic violation. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding police -16- may, as matter of course, order driver of lawfully stopped vehicle to exit vehicle); Maryland v. Wilson, 519 U.S. 408, 415 (1997) (extending Mimms to exit order of passengers). However, in Gonsalves, the SJC declined to adopt the Supreme Court’s holdings in Mimms and Wilson under art. 14. Rather, the SJC “conclude[d] that art. 14 requires that a police officer, in a routine traffic stop, must have a reasonable belief that the officer’s safety, or the safety of others, is in danger before ordering a driver [or passenger] out of a motor vehicle.” Gonsalves, 429 Mass. at 662 – 663. In so holding in Gonsalves, the SJC “rule[d] that[, under art. 14,] once a stopped driver has produced the necessary papers and they are found to be in order, he and his passengers are to be promptly released.” Id. at 668 . Thus, unlike the Fourth Amendment, “[u]nder art. 14 of the Massachusetts Declaration of Rights, police may not issue an exit order based solely on a traffic violation.” Commonwealth v. Robinson, 497 Mass. 156 , 161 (2026). In concluding that the holdings in Mimms and Wilson were “incompatible with the rights guaranteed Massachusetts citizens under art. 14,” Gonsalves, 429 Mass. at 663 , the SJC explained: A routine traffic stop, like the one in this case, presents a situation where citizens, both the vehicle’s driver and any passenger or passengers in the vehicle, expect a police officer to get the government’s business done quickly, so those detained can go on their way. This expectation is a reasonable one. A passenger in the stopped vehicle may harbor a special concern about the officer’s conduct because the passenger usually had nothing to do with the operation, or condition, of the vehicle which drew the officer’s attention in the first place. Citizens do not expect that police officers handling a routine traffic violation will engage, in the absence of justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an arrestable -17- crime . . . Such an intrusion into a driver or a passenger's privacy is not minimal. . . . “Mimms [and Wilson] rested on the logic, which we do not contest, that there is danger for a police officer inherent in any auto stop. . . . However, to permit an officer, in the absence of any specific and articulable facts, to order the driver of a vehicle [and a passenger or passengers] to step out of the vehicle would be to invite random and unequal treatment of motorists.” . . . It could be argued plausibly that automatic exit orders might increase the chance of confrontation when already upset citizens are compelled to stand outside a vehicle while a police officer disposes of the minor traffic violation, especially if circumstances indicate that the officer’s conduct may be a pretext. The rule we adopt also provides that the police will act in a reasoned way. I d. at 663 – 665 (citations omitted). As Weah Weah has argued, two Superior Court judges have relied on the teachings of Gonsalves regarding exit orders and ruled that under art. 14, an order to stay inside a vehicle during a routine vehicle stop requires the police to have a reasonable safety concern. See Commonwealth v. Fabian, Superior Court No. 0885CR01043, Findings of Fact, Rulings of Law and Order on Defendant’s Motion to Suppress (Paper No. 6) (Dec. 4, 2009) (Page, J.), and Commonwealth v. Cardin, 2006 Mass. Super. LEXIS 255 (2006) (Fabricant, J.). However, as is explained below, unlike the judges in those decisions, the Court is not persuaded that because the SJC decided that art. 14 requires reasonable safety concerns to order a passenger out of a vehicle, it would hold that the same concerns apply to an order that a passenger remain in (or reenter) the vehicle, especially in the circumstances here, where the officer lawfully stopped the vehicle to execute an outstanding arrest warrant on the driver. -18- At bottom, the Court rules that the SJC would hold that under art. 14 when the police stop a vehicle because they reasonably believe the driver is the subject of an outstanding arrest warrant, they may detain a passenger inside the vehicle until they have made such a determination and, if applicable, have executed the warrant. The Court reaches this conclusion for four reasons. 2. A Stay Put Order Is Less Intrusive Than An Exit Order, And Is Consistent With Citizens’ Reasonable Expectations First, a stay put order during a routine traffic stop, unlike an exit order, simply maintains the status quo while the officer addresses the reason for the stop with the driver. Thus, a stay put order is not nearly as intrusive as an exit order. On this topic, the SJC in Gonsalves described the level of intrusiveness of an exit order as follows: Such an intrusion into a driver or a passenger’s privacy is not minimal. As was expressed by a dissent in Mimms, “[a] woman stopped at night may fear for her own safety; a person in poor health may object to standing in the cold or rain; another who left home in haste to drive children or spouse to school or to the train may not be fully dressed; an elderly driver who presents no possible threat of violence may regard the police command as nothing more than an arrogant and unnecessary display of authority.” Gonsalves, 429 Mass. at 663 (citations omitted); see also Commonwealth v. Daveiga, 489 Mass. 342 , 350 - 351 (2022) (observing that “[a] passenger in the stopped vehicle may harbor a special concern about the officer's conduct because the passenger usually had nothing to do with the operation, or condition, of the vehicle which drew the officer’s attention in the first place.”) (quotation and citations omitted). Here, a stay put order, unlike an exit order, would not subject an occupant to standing outside in the cold or rain (or not fully dressed). -19- Relatedly, a stay put order, unlike an exit order, is not contrary to “citizens’ expectations” or likely to be used as a “stalling tactic[] . . . to prolong the seizure.” Gonsalves, 429 Mass. at 663 . The SJC’s decision in Commonwealth v. Bostock, 450 Mass. 616 (2008), is instructive on this point. In Bostock, the Commonwealth appealed an “order of a judge in the Superior Court suppressing evidence obtained after police ordered the defendant, William Bostock, out of a vehicle and searched his bags.” Id. at 617 . “The judge concluded that there was reasonable suspicion to believe that Bostock had committed, was committing, or was about to commit a crime[, i.e., breaking into cars,] but found that [the officer’s] exit order violated art. 14 of the Massachusetts Declaration of Rights because the police did not have a reasonable belief that they were in danger.” Id. at 618 . On appeal, Bostock argued that under Gonsalves, police need a reasonable belief that their safety is at risk to issue an exit order even when the police separately have reasonable suspicion of criminal activity. Id. at 622 . The SJC rejected the defendant’s argument, holding that, “[b]ecause the police acted on reasonable suspicion of criminality, the judge erred in applying our holding in Gonsalves to the present case.” I d. at 621. In rejecting Bostock’s argument, the SJC explained that “[t]he underlying policies of Gonsalves urge us not to extend its holding to a case where the police have reasonable suspicion of criminal activity.” Id. at 620 . The SJC further explained: Gonsalves bases its holding in part on reasonable expectations. More specifically, motorists have a reasonable expectation that the police will conduct a routine traffic stop quickly and with minimal intrusion . . . This reasonable expectation, however, exists only “in the absence of justification” for the police to act in a more intrusive -20- manner . . . A reasonable suspicion of criminal activity is justification to act in a more intrusive manner. I d. at 620 – 621 (citations omitted). In fact, a stay put order is reasonable and far less intrusive than police conduct involving passengers that our appellate courts have found objectionable under art. 14. See e.g., Commonwealth v. Torres, 424 Mass. 153 , 158 - 159 (1997) (ruling that “‘the unusual behavior of [passenger] in exiting the passenger side of the vehicle without being asked to do so’ . . . [was] insufficient to support the continued detention” of driver and passenger after police had issued speeding ticket); Commonwealth v. King, 389 Mass. 233, 244 (1983) (ruling that, after trooper performed well-being check and determined that passenger and driver in a parked vehicle were properly licensed, “[t]he[] facts were insufficient to justify a further intrusion on the rights of the occupants of the vehicle.”); Commonwealth v. Ferrara, 376 Mass. 502, 502 (1978) (“hold[ing] that once the driver produced a valid license and registration, the police had . . . no basis for further interrogation” of passengers); Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 531, 534 (1998) (holding trooper cannot ask passenger in car stopped for traffic offense for identification without plausible non-investigatory reason and cannot interrogate passenger without reasonable suspicion passenger is involved in criminal activity). 3. The Issuance Of A Stay Put Order To A Passenger To Allow Police To Execute An Arrest Warrant For The Driver Is Reasonable And Proportional Second, an order for a passenger to stay put in a vehicle, which the police have stopped for the purpose of executing an arrest warrant on the driver, is proportional to the suspicion that the driver is the subject of a warrant and a flight risk. -21- “Where a law enforcement officer performs an investigatory stop, that officer's level of intrusiveness must be in proportion to the officer’s suspicion or concern for safety . . . If an officer exceeds the scope of an investigatory stop, the seizure becomes an arrest.” Commonwealth v. Manha, 479 Mass. 44 , 48 – 49 (2018) (citations omitted). In the context of a Terry stop (of a vehicle or otherwise), “[t]he pertinent inquiry is whether the degree of intrusion is reasonable in the circumstances. The degree of intrusiveness that is permitted is that which is ‘proportional to the degree of suspicion that prompted the intrusion.’” Commonwealth v. Moses, 408 Mass. 136, 141 (1990). In Bostock, the defendant argued that, “[e]ven if the Gonsalves holding d[id] not apply, . . . the police conducted an unconstitutional seizure when they ordered him out of the vehicle. He [argued] that the exit order was disproportionate to the level of suspicion that prompted it.” Bostock, 450 Mass. at 621 – 622. In response, the SJC stated: To be constitutional, an officer’s intr