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March 11, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. Atweri

Massachusetts Appeals Court

• Citations: None known

• Docket Number: AC 24-P-938

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (976)

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Combined Opinion

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

24-P-938 Appeals Court

COMMONWEALTH vs. KINGSLEY ATWERI.

No. 24-P-938.

Worcester. September 16, 2025. – March 11, 2026.

Present: Rubin, D'Angelo, & Toone, JJ.

Firearms. Controlled Substances. Motor Vehicle, Firearms.
Search and Seizure, Motor vehicle, Reasonable suspicion,
Plain view. Constitutional Law, Search and seizure,
Reasonable suspicion. Practice, Criminal, Motion to
suppress.

Complaint received and sworn to in the Worcester Division
of the District Court Department on February 22, 2022.

A pretrial motion to suppress evidence was heard by Steven
D. Power, J., a motion for reconsideration was considered by
him, and the case was also heard by him.

David J. Rotondo for the defendant.
Anne S. Kennedy, Assistant District Attorney, for the
Commonwealth.

RUBIN, J. After a District Court judge (motion judge)

denied the defendant's motion to suppress, the defendant,

Kingsley Atweri, was found guilty after a bench trial before the
2

same judge of carrying a loaded firearm without a license, G. L.

c. 269, § 10 (n), carrying a firearm without a license, G. L.

c. 269, § 10 (a), and possession of a class B drug, G. L.

c. 94C, § 34.1 On appeal, the defendant argues that an exit

order and the subsequent search of the vehicle from which he had

been removed were impermissible, and that the denial of a motion

to suppress he filed before trial was therefore in error. We

conclude that both the exit order and the protective search of

the car were justified, and thus we affirm.

Background. We summarize the facts found by the motion

judge, supplemented by uncontroverted testimony that the motion

judge implicitly or explicitly credited. See Commonwealth v.

Jones–Pannell, 472 Mass. 429, 431 (2015). When reviewing a

ruling on a motion to suppress, "we accept the judge's

subsidiary findings of fact absent clear error." Commonwealth

v. Wilson, 441 Mass. 390, 393 (2004). Nevertheless, "[w]e

review independently the application of constitutional

principles to the facts found." Id. At the October 6, 2023

hearing, the motion judge heard from Worcester Police Officers

Alexander Maracallo and Peter Bissonnette, and the motion judge

explicitly credited their testimony.

1 The defendant was also found responsible for failure to
signal, G. L. c. 90, § 14B.
3

On the morning of February 18, 2022, Maracallo was on Main

Street in Worcester, near traffic lights at the intersection of

Main Street and King Street, facing toward downtown Worcester.

He was in plain clothes and in an unmarked vehicle.

At approximately 9:50 A.M., Maracallo observed a black

Hyundai motor vehicle pull up next to him. It had extremely

tinted windows, and he could not see into the car. The vehicle

abruptly turned onto King Street, parked in a no parking zone

for a few seconds, then abruptly did a three-point turn. Prior

to this, Maracallo had already decided to stop the motor vehicle

because of the tinted windows. Cf. G. L. c. 90, § 9D

(regulating permissible degree of tinting of motor vehicle

windows operated on public ways). Maracallo followed the

vehicle for some distance and noted that, on several occasions,

the operator did not signal when turning. Maracallo radioed

other officers. Officers Bissonnette and Rocky Ductan, among

others, responded that they would stop the vehicle in their

marked cruisers.

Bissonnette encountered the defendant's vehicle and

Maracallo's unmarked vehicle at the intersection of King Street

and Chandler Street and followed Maracallo's vehicle. After

Bissonnette activated the lights of the cruiser he was driving,

the defendant's vehicle pulled over in a parking lot near 221

Chandler Street. The area in which the vehicle was stopped,
4

like the area in which Maracallo first encountered it, was a

high crime area.

When Bissonnette and Ductan approached the vehicle,

Bissonnette could not see clearly into the vehicle due to the

tinted windows, but he could clearly see shadows of the

defendant, who was the operator, leaning his whole body over

toward the front passenger seat floor. Bissonnette saw the

defendant move specifically toward the front passenger seat

floor, not toward the glove box. Ductan approached the driver's

side of the vehicle, and Bissonnette approached the passenger's

side. The defendant did not follow a command to keep his window

down; instead, he raised and lowered the window once or twice.

Bissonnette described the defendant as moving in a "herky jerky"

manner, in the sense that he "wouldn't sit still," and appearing

nervous.2 Bissonnette was concerned for his safety and feared

that the defendant might be disguising or concealing a weapon.

Ductan and another officer who arrived later ordered the

defendant to exit the vehicle and step to its rear. At the same

time, Bissonnette, who was on the passenger's side of the

vehicle, opened the front passenger door of the vehicle and

2 The motion judge found as a fact that the defendant moved
in a herky jerky manner and appeared nervous. Bissonnette was
on the passenger's side of the vehicle and may have been able to
see only shadows through the tinted window. The defendant does
not challenge these findings of fact or argue that Bissonnette
could not have seen these things.
5

looked at the front passenger seat floor area. Without

manipulating the seat or touching anything in the vehicle,

Bissonnette saw in plain view the barrel of a firearm sticking

out from underneath the passenger seat. He then alerted other

officers, and the defendant was handcuffed. Maracallo then pat

frisked the defendant and located narcotics on his person.

The defendant moved to suppress all the items seized from

his person and vehicle, including the firearm and the narcotics.

After the evidentiary hearing, the motion judge denied the

motion. The defendant filed a motion for reconsideration, which

was also denied. Following his conviction, he now appeals,

arguing only that his motion to suppress was erroneously denied.

The defendant challenges only the exit order and the search of

the vehicle. He makes no argument about the lawfulness of the

stop itself or about the patfrisk of his person. We therefore

need not address those two issues.

Discussion. 1. Exit order. The defendant first argues

that it was unreasonable for the officers to issue the exit

order during this routine vehicle stop.

"[A]n exit order is justified during a traffic stop if

officers have a reasonable suspicion of a threat to safety"

based on specific and articulable facts. Commonwealth v.

Torres-Pagan, 484 Mass. 34, 38 (2020). See Commonwealth v.

Monell, 99 Mass. App. Ct. 487, 489 (2021). "It is not necessary
6

to show that an individual police officer personally experienced

fear . . . ." Commonwealth v. Daniel, 464 Mass. 746, 753 n.2

(2013).

Movements of the vehicle's occupants that are "suggestive

of the occupant's retrieving or concealing" a weapon may

objectively raise legitimate safety concerns. Commonwealth v.

Stampley, 437 Mass. 323, 327 (2002). Here, Bissonnette saw the

defendant lean toward the floor area of the front passenger seat

after the vehicle was stopped. Taken together, all the facts

and circumstances, including this movement, the defendant's

failure to comply with the officers' order to keep the window

down, and the defendant's nervous behavior after he was stopped,

sufficed to provide an articulable basis for reasonable

suspicion that the defendant had hidden or retrieved a weapon,

and thus of a threat to officer safety. See Commonwealth v.

Goewey, 452 Mass. 399, 407 (2008) (listing defendant's

questionable identification, nervousness, and reaching movements

as factors supporting officer's fear for his safety). Contrast

Commonwealth v. Barreto, 483 Mass. 716, 722–723 (2019) (exit

order improper when based solely on defendant's nervousness

where defendant responded to officers' questions, complied with

officers' requests, and "made no movements consistent with

reaching for a weapon after he was stopped"). We therefore

conclude that the exit order was lawful.
7

1. Vehicle search. Next, the defendant challenges

Bissonnette's search of the vehicle, which was undertaken by the

officer's opening of its door and examination of the car's

previously hidden interior. Police are permitted to conduct a

warrantless limited Terry-type3 protective search of a car for

weapons without probable cause when there is a reasonable,

articulable suspicion that the suspect might gain control of a

weapon from within the car and use it against them. See Daniel,

464 Mass. at 752 ("limited search for weapons"); Commonwealth v.

Almeida, 373 Mass. 266, 270-271 (1977); Commonwealth v. Silva,

366 Mass. 402, 406 (1974). See also Commonwealth v. Douglas,

472 Mass. 439, 445 (2015) (calling it "protective sweep" of

car). Police may conduct such a protective search of a vehicle

even after the occupants have exited the vehicle in

circumstances in which occupants "may access a weapon left

behind upon returning to the vehicle" and use it against the

police then. Commonwealth v. Silvelo, 486 Mass. 13, 16 (2020).

The intrusiveness of the protective search must be "proportional

to the degree of suspicion that prompted it" (citation omitted),

Daniel, supra, and the scope of the search must be "confined to

the area from which the suspect might gain possession of a

weapon" (citation omitted), Douglas, supra at 446.

3 See Terry v. Ohio, 392 U.S. 1 (1968).
8

The officers here had an articulable basis for reasonable

suspicion that the defendant had secreted a firearm in the car,

in the floor area of the front passenger seat, that it might be

used against them, and that the defendant might use it against

them upon his return to the vehicle. The limited search of the

defendant's vehicle was proportional to that suspicion.

Bissonnette merely opened the front passenger door and looked at

the floor area of the front passenger seat, the exact area

toward which the defendant had leaned. This area would have

been within the immediate reach of the defendant upon returning

to the vehicle. The limited protective search of the

defendant's vehicle, which revealed a firearm in plain view, was

thus constitutionally permissible.

Since both the exit order and the protective search were

permissible, the motion to suppress was properly denied.

Judgments affirmed.