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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 25-P-0626main content

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COMMONWEALTH vs. KELSCO PORTER.
2/12/2026
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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
25-P-626
COMMONWEALTH
vs.
KELSCO PORTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On December 5, 2024, the defendant entered a conditional
plea of guilty to one count of possession of a firearm without
an FID card, in violation of G. L. c. 269, § 10 (h) (1); and one
count of possession of ammunition without an FID card, in
violation of G. L. c. 269, § 10 (h) (1).
1
On appeal, the
defendant challenges the denial of his motion to suppress,
following an evidentiary hearing. He argues that the motion
judge erred in rejecting his argument that the police lacked a
lawful basis to order him to step out of his car, and in denying
the motion. Gaps in the motion judge's findings make it unclear
1
A District Court judge sentenced the defendant to an
eighteen-month suspended sentence with two years of probation.
2
whether he credited portions of the officer's testimony that are
critical to determining whether the exit order was reasonable.
See Commonwealth v. Demos D., 497 Mass. 78, 79 (2026). Since
"[c]redibility determinations are for the motion judge to make,"
Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007), S.C., 450
Mass. 818 (2008), we conclude that the matter must be remanded
to the District Court for further findings and conclusions.
Background. The following facts are derived from the
motion judge's findings of fact on the defendant's motion to
suppress, and from undisputed evidence in the record that he
implicitly credited. See Commonwealth v. Tremblay, 480 Mass.
645, 654-655 (2018); Commonwealth v. Jones-Pannell, 472 Mass.
429, 436 (2015).
2
At around 12:27 A.M. on September 1, 2023, Officer Nicholas
Stoner, a one-year veteran of the Barnstable Police Department
who testified at the hearing on the motion to suppress, was in a
marked police cruiser in "the area of Hiramar and Fresh Holes
Road" in Hyannis. That area was subject to "numerous calls for
weapons and domestic violations" for the Barnstable Police
2
The motion judge made oral findings of facts at the
conclusion of the evidentiary hearing. He began by stating,
"based on the credible evidence that I've had, I'm going to make
the following findings of fact." Compare Demos D., 497 Mass. at
88 (although judge prefaced her findings of fact "by stating
that her findings were derived from 'the credible evidence,'" it
was unclear what testimony she credited).
3
department. Officer Stoner saw a "gray blue" Honda Accord
turning left from Walton Avenue onto Route 28. He ran a license
plate query of the car and learned that the owner of the car had
a suspended license. He also saw that the car's windows were
"extremely dark and tinted," and therefore he could not see the
car's driver. As a result, he decided to stop the car and
activated his blue lights. The car stopped promptly by a bank
and the Cape Cod Mall.
Initially, Officer Stoner was concerned because the car's
darkly tinted windows were rolled up. The defendant lowered the
front driver's side window one-half to three-quarters of the way
down as Officer Stoner approached the vehicle. He saw a large
amount of smoke billow out of the window. He also saw a woman
in the passenger's seat who had what he believed was a marijuana
grinder on her lap. Officer Stoner noted that the smoke smelled
like marijuana. Officer Stoner asked the defendant for his
license, which he provided. Officer Stoner did not suspect that
the defendant was under the influence of marijuana.
Throughout this interaction, Officer Stoner saw that the
defendant was "moving and shifting throughout . . . the driver's
seat with his hand draped over . . . the center console." The
defendant was constantly shifting and repositioning his body
4
toward the center console.
3
Officer Stoner asked the defendant
whose car it was and the defendant stated that it was his
uncle's car.
At that point, a second police officer arrived at the
scene. Officer Stoner then ordered the defendant to step out of
the car and the defendant promptly complied. Indeed, Officer
Stoner testified that the defendant was "very compliant" and
"relaxed" when he stepped out of the car. Officer Stoner
testified that he ordered the defendant to step out of the car
because he believed that the defendant was focused on the center
console and that he could access a weapon from the center
console.
4
3
The motion judge characterized this testimony as follows:
"the officer testified at that -- those actions that he saw he
had concern with of that area of the center console, and the
moving and shaking." The motion judge did not state whether he
found that the officer's testimony was credible or that his
concern was reasonable, and if so why.
During his factual findings, the motion judge twice
characterized the defendant's movement as "shaking." Officer
Stoner did not testify to that effect. Likewise, the motion
judge found that the defendant was "moving . . . his hands . . .
in and around the center console area." Again, Officer Stoner
did not testify to that effect.
4
The motion judge did not refer to this explanation in his
oral findings of fact. See note 3, supra.
5
Officer Stoner then asked the defendant whether there was
anything in the car.
5
The defendant repeated that the car
belonged to his uncle, and stated that he believed that his
uncle had a gun. The second officer then asked the passenger to
step out of the car, and Officer Stoner asked both the passenger
and the defendant to sit on a nearby curb. They complied.
Officer Stoner asked the defendant for permission to search
the car, and the defendant consented. Officer Stoner opened the
front driver's side door, and then opened the center console,
where he found a gun.
Officer Stoner then asked the defendant and the passenger
who owned the gun. After neither the defendant nor the
passenger answered, Officer Stoner told them both that because
neither was old enough to have a firearm license (Officer Stoner
confirmed with dispatch that the defendant did not have a
firearm license) he would arrest and charge them both for
possession of the firearm. The defendant eventually said that
the gun was his. Officer Stoner then arrested the defendant.
The car's owner arrived and gave the female passenger permission
to drive it away.
5
Officer Stoner testified that this was a routine question
asked by police officers, especially when the officer is in fear
for their safety. The motion judge did not refer to this
explanation in his oral findings of fact.
6
Discussion. "In reviewing a decision on a motion to
suppress, 'we accept the judge's subsidiary findings of fact
absent clear error "but conduct an independent review of [the]
ultimate findings and conclusions of law."'" Commonwealth v.
Ramos, 470 Mass. 740, 742 (2015), quoting Commonwealth v. Colon,
449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007).
In support of his motion to suppress, the defendant argued
that Officer Stoner did not have reasonable grounds to be
concerned for his safety and therefore, both his exit order and
his subsequent search of the car's center console were unlawful.
Therefore, the motion judge was obligated to determine whether
the exit order was lawful.
An exit order is justified during a traffic stop where "a
reasonably prudent [person] in the [officer's] position would be
warranted in the belief that the safety of the police or that of
other persons was in danger." Commonwealth v. Torres-Pagan, 484
Mass. 34, 37 (2020), quoting Commonwealth v. Washington, 449
Mass. 476, 482 (2007). "Where an officer has issued an exit
order based on safety concerns, the officer may conduct a
reasonable search for weapons in the absence of probable cause
to arrest." Commonwealth v. Amado, 474 Mass. 147, 152 (2016).
Our inquiry is an objective one in which we consider the
totality of the circumstances, including an officer's training
and experience. Commonwealth v. Monell, 99 Mass. App. Ct. 487,
7
489 (2021). "Although it does not take much for a police
officer to establish a reasonable basis to justify an exit order
or search based on safety concerns, the mere fact that an
officer observes a driver's nervousness and fidgeting, without
more, does not warrant a belief that the safety of the officers
or others is threatened" (quotations and citations omitted).
Commonwealth v. Barreto, 483 Mass. 716, 723 (2019).
In order to address the defendant's argument, we need to
begin with the motion judge's factual findings bearing on
whether Officer Stoner had a reasonable fear for his safety.
The motion judge did not make a clear finding about this issue.
The closest he came was to state that "the officer testified at
that -- those actions that he saw he had concern with of that
area of the center console, and the moving and shaking." As
noted above, Officer Stoner never testified that the defendant
was shaking. Nor did he testify that the defendant moved his
hands. We add that though the motion judge found that Officer
Stoner "had concern," it is unclear on this record exactly what
the judge thought Officer Stoner's concern was.
Moreover, assuming that the motion judge's brief statement
preceding his oral findings of fact -- "based on the credible
evidence that I've h[ear]d" -- meant that he found all of
Officer Stoner's testimony credible, and that he interpreted
Officer Stoner's "concern" as a concern for his safety, he did
8
not state whether he found Officer Stoner's "concern"
reasonable, and if so, why. See Barreto, 483 Mass. at 722 ("In
determining whether an exit order was justified based upon
safety concerns, we ask whether a reasonably prudent [person] in
the [officer's] position would be warranted in the belief that
the safety of the police or that of other persons was in danger"
[quotation and citation omitted]).
6
The motion judge's written
decision reads in full:
"The Court after reading facts found into the record on
date of hearing finds that there is sufficient cause for
officer to search the area of the center console and
driver's side area based on actions of the defendant.
Also, defendant's statement as to ownership of gun was made
voluntarily. Based on above, defendant's motion to
suppress is denied."
In his decision, the judge did not make an explicit finding
that Officer Stoner's exit order was justified and the basis
underlying that conclusion. Instead, his endorsement decision
begins its legal analysis after Officer Stoner had ordered the
defendant out of the car by discussing the legality of the
6
The Supreme Judicial Court recently noted, "We have
previously urged judges to avoid simply recounting the testimony
of the witnesses; judges should instead state the facts they
find occurred." Commonwealth v. Mosso, 496 Mass. 768, 771 n.5
(2025). See Isaiah I., 448 Mass. at 339 ("Findings of fact are
drawn from, and consistent with, the evidence and are not merely
a recitation of the evidence"). See also Tremblay, 480 Mass. at
661 ("what is needed from a trial court judge are credibility
determinations as to pertinent matters, and concise, clear, and
adequate findings of fact").
9
search, which presumably was based, at least in part, on the
defendant's admission, after he had been ordered out of the car,
that his uncle owned a gun.
Given the gaps in the motion judge's findings, we are
unable to discern whether he concluded that Officer Stoner
ordered the defendant to step out of the car because he
reasonably feared for his safety, and if so what specific and
articulable facts supported that finding. "[O]n a motion to
suppress, [t]he determination of the weight and credibility of
the testimony is the function and responsibility of the [motion]
judge who saw the witnesses, and not this court" (quotation and
citation omitted). Isaiah I., 448 Mass. at 337. Were we to
attempt to resolve ambiguity where, as here, it is unclear what
testimony the motion judge credited, we would risk violating our
"long-standing jurisprudence" that it is "[im]proper for an
appellate court to engage in what amounts to independent fact
finding in order to reach a conclusion of law that is contrary
to that of a motion judge who has seen and heard the witnesses,
and made determinations regarding the weight and credibility of
their testimony." Jones-Pannell, 472 Mass. at 438. Under these
circumstances, a remand is in order.
Conclusion. The order denying the defendant's motion to
suppress is vacated, and the matter is remanded to the District
10
Court for further findings and conclusions consistent with this
memorandum and order.
So ordered.
By the Court (Meade,
Desmond & Wood, JJ. ),
7
Clerk
Entered: February 12, 2026.
7
The panelists are listed in order of seniority.