NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-355

COMMONWEALTH

vs.

MALIK CANNON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a stop of the defendant's vehicle, the defendant

was charged with, inter alia, possession with intent to 

distribute a class B substance, carrying a loaded firearm 

without a license, and carrying a firearm without a license.1

The defendant filed a motion to suppress evidence obtained from 

the traffic stop, which was denied. His motion for 

reconsideration of that ruling was also denied. The defendant 

then entered into a conditional plea agreement pursuant to Mass. 

1 The Commonwealth nol prossed additional charges for 

possession with intent to distribute a class B drug as a 

subsequent offense, possession of a large capacity firearm in a 

felony, and possession of a loaded machine gun. At the request 

of both parties, the judge dismissed a charge for possession of 

ammunition without a firearm identification card.
2

R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019), 

in which he agreed to plead guilty to the charges while 

reserving the right to appeal from the order denying his motion 

to suppress. He now argues on appeal that the traffic stop was 

unsupported by reasonable suspicion. We agree.

Background. In December 2021, New Bedford police officers 

were conducting undercover surveillance on a residential 

building in New Bedford; the building consisted of three 

apartments. The third-floor apartment had been the subject of 

numerous complaints from the public, other tenants, and the 

landlord regarding suspected drug activity. These complaints 

led to a search warrant being issued for the third-floor 

apartment; the warrant, which was never executed, had four 

targets, including the defendant.2 Over the course of several 

weeks, Detective Andrew Simmons witnessed several people 

approach the apartment building, enter through the back door, 

and come out within several minutes. When the police stopped

these individuals, they consistently found drugs in the

individuals' possession.

On December 29, 2021, Simmons observed a black Acura, in 

which the defendant was a passenger, park in front of the 

2 Neither the search warrant nor its supporting affidavit 

was admitted in evidence, and these documents are not before us.
3

apartment building. Simmons did not recognize either the driver 

or the defendant. He watched as the defendant exited the 

vehicle, walked towards the back of the building, and entered 

through the back door; he did not know where the defendant went 

once inside the building. The driveway of the apartment 

building was occupied, so the Acura drove a short distance along 

the road and pulled over, obstructing another driveway. The 

Acura moved to accommodate a car leaving this driveway, drove 

around the block, parked on another street, and then pulled in 

across the street from the apartment building into which the

defendant had gone. Within ten minutes, the defendant came back 

out of the building and returned to the Acura, and the car drove 

away. Simmons believed, based on these actions and his previous 

observations of the apartment building, that a drug transaction 

had occurred inside the third-floor apartment. He instructed 

another detective, Nathaniel Almeida, to stop the Acura.

Almeida did so, then recognized the defendant as one of the 

third-floor residents, whom Almeida testified was the target of 

the search warrant for the apartment. Almeida knew that the 

defendant claimed to be a gang member and was associated with 

other individuals who had been arrested with firearms. He also 

knew that two confidential informants had told New Bedford 

police officers that the defendant was in possession of a 
4

firearm.3 Based on this information, Almeida ordered the 

occupants out of the car and searched them. The search 

uncovered a firearm under the jacket the defendant was wearing

and ultimately led to the discovery of crack cocaine between the 

defendant's buttocks.

Discussion. "In reviewing a ruling on a motion to 

suppress, we accept the judge's findings of fact absent clear 

error but conduct an independent review of his ultimate findings 

and conclusions of law." Commonwealth v. Kearse, 97 Mass. App. 

Ct. 297, 299 (2020), quoting Commonwealth v. Montoya, 464 Mass. 

566, 576 (2013). Before conducting an investigatory stop of a 

vehicle, police must have "reasonable suspicion that [an 

occupant of that vehicle] has committed, is committing, or is 

about to commit a crime." Kearse, supra at 300, quoting 

Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007). "Reasonable 

suspicion must be grounded in specific, articulable facts and 

reasonable inferences [drawn] therefrom rather than on a hunch 

(quotations and citation omitted)." Kearse, supra.

We agree with the defendant that at the time of the stop, 

the police did not have reasonable suspicion to believe that he 

had committed, was committing, or was about to commit a crime. 

3 We note that Detective Drew Frenette testified that one 

confidential informant had told him that the defendant was 

"possibly" in possession of a firearm.
5

Apart from the fact that one of the three apartments in the 

building was suspected to be a hub for drug activity, the police 

did not have any information to suggest that the defendant had 

participated in a drug transaction. At the time of the stop, 

neither Simmons nor Almeida knew who the occupants of the Acura 

were, so any information about the defendant's identity plays no 

role in our analysis.4 See Kearse, 97 Mass. App. Ct. at 301 

("the timing of the stop constrains us to exclude from 

consideration the crucial facts that [officers] later 

discovered"). See also Commonwealth v. Barreto, 483 Mass. 716, 

720 (2019) (no reasonable suspicion where neither defendant nor 

pedestrian were known to officers conducting surveillance). Cf.

Commonwealth v. Gomes, 453 Mass. 506, 511 (2009) (reasonable 

suspicion where, inter alia, officer "was familiar with the 

defendant as an individual who previously had been arrested on 

drug charges"). This includes information about the defendant's

possible possession of a firearm, his residency in the thirdfloor apartment, his association with people who possessed 

firearms, and his claimed gang membership.

4 The judge's finding that at the time of the stop, police 

"had info re: the [defendant] possessing a firearm" -- the 

basis for the stop of the Acura -- was not supported by the 

record and thus clearly erroneous. See Kearse, 97 Mass. App. 

Ct. at 299.
6

Excluding this information, we are left with Simmons's 

observations of the defendant entering and then leaving a multiunit residential building known for drug activity, and the 

continuing presence of the Acura. Simmons could not see inside 

the building, so he did not know which of the three apartments, 

if any, the defendant was visiting. He did not see the 

defendant engage in any kind of suspicious transaction. See 

Commonwealth v. Smith, 55 Mass. App. Ct. 569, 573 (2002) (no 

reasonable suspicion where officer "did not observe any actual 

transaction or furtive activity on the part of the defendant").

He did not observe the defendant carrying anything suggesting 

contraband, either before or after he entered the building. Cf. 

Commonwealth v. Sweezey, 50 Mass. App. Ct. 48, 52 (2000) 

(reasonable suspicion where defendant left scene with paper bag 

he did not have upon arriving at location). After checking the 

license plate of the Acura, Simmons did not find anything

suspicious, nor do we discern any inherently suspect quality to 

the fact that the driver of the Acura waited for the defendant 

in the area of the apartment building. These movements by the 

Acura, even when combined with the defendant's actions, do "not 

meaningfully add to the [reasonable suspicion] calculus." 

Kearse, 97 Mass. App. Ct. at 303.
7

Because the information about suspected drug activity in 

the apartment building was as vague and unspecific as 

characterizing the neighborhood as being a "high crime area,"

the Commonwealth has failed to establish reasonable suspicion. 

See Commonwealth v. Grandison, 433 Mass. 135, 139 (2001) ("Just 

being in a high crime area is not enough to justify a stop");

Kearse, 97 Mass. App. Ct. at 302, quoting Gomes, 453 Mass. at 

512 ("[L]aw-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. Clark, 65 Mass. App. Ct. 39, 44 (2005). Absent 

reasonable suspicion, the police are not permitted to stop every 

person who enters a multi-unit residential building for a short 

period of time, merely because a single unit is suspected or 

known to be a hub for drug activity.

In light of our conclusion that the police lacked

reasonable suspicion to stop the Acura, we do not address the 

propriety of the subsequent exit order and patfrisk of the 
8

defendant. See Clark, 65 Mass. App. Ct. at 45.

The orders denying the motion to suppress and the motion 

for reconsideration are reversed, and the matter is remanded to 

the District Court for further proceedings.

So ordered.

By the Court (Desmond, Hand & 

Grant, JJ.5),

Clerk

Entered: June 27, 2024.

5 The panelists are listed in order of seniority.