Commonwealth v. Jordan

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revision and are superseded by the advance sheets and bound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

SJC-11440

COMMONWEALTH vs. KOREY JORDAN
(and a companion case 1).

Suffolk. March 6, 2014. - July 14, 2014.

Present: Ireland, C.J., Spina, Botsford, Gants, Duffly,
& Lenk, JJ.

Practice, Criminal, Appeal, Appeal by Commonwealth,
Interlocutory appeal, Motion to suppress. Notice,
Timeliness. Rules of Appellate Procedure. Time. Appeals
Court, Jurisdiction. Supreme Judicial Court,
Superintendence of inferior courts. Firearms. Evidence,
Firearm. Constitutional Law, Search and seizure,
Investigatory stop, Probable cause, Stop and frisk.
Probable Cause. Threshold Police Inquiry. Search and
Seizure, Motor vehicle, Threshold police inquiry,
Reasonable suspicion, Probable cause.

Complaints received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on April 28, 2009.

Following transfer to the Central Division of the Boston
Municipal Court Department, a pretrial motion to suppress
evidence was heard by Michael J. Coyne, J.

An application for leave to prosecute an interlocutory
appeal was allowed by Cordy, J., in the Supreme Judicial Court
for the county of Suffolk. After review by the Appeals Court,
the Supreme Judicial Court granted leave to obtain further
appellate review.

1
Commonwealth vs. Bonnie S. Greene.
 2

Allison R. Callahan, Assistant District Attorney (Benjamin
R. Megrian, Assistant District Attorney, with her) for the
Commonwealth.
Dennis M. Toomey for Korey Jordan.
Michael A. Contant for Bonnie S. Greene.

BOTSFORD, J. This is an interlocutory appeal brought by

the Commonwealth from an order of a Boston Municipal Court judge

allowing the defendants' motion to suppress. The procedural

history reflects that the Commonwealth's notice of appeal was

filed significantly late in the trial court, and its application

to the single justice of this court for leave to appeal was

filed significantly late in the county court. In neither

instance did the Commonwealth file a timely motion to enlarge

the time for filing. A single justice allowed the application,

and the case was entered in the Appeals Court. In an

unpublished order, a panel of that court dismissed the appeal on

a jurisdictional ground, believing that it had no authority to

authorize the late-filed notice of appeal. We granted the

Commonwealth's request for further appellate review. For the

reasons explained hereafter, we do not dismiss the appeal.

Rather, we affirm the order allowing the motion to suppress. In

addition, because there has sometimes been ambiguity in the

manner in which the single justices of this court have applied

the procedural rules governing the timeliness of interlocutory

appeals of orders on motions to suppress, we set out at the end
 3

of this opinion a new framework that will apply henceforth to

such appeals.

1. Background. a. Facts. On April 28, 2009, complaints

issued from the Boston Municipal Court against both defendants,

Korey Jordan and Bonnie Greene, charging them with unlawfully

carrying a firearm, G. L. c. 269, § 10 (a); unlawful possession

of a firearm, G. L. c. 269, § 10 (h); and unlawful possession of

a loaded firearm, G. L. c. 269, § 10 (n). Jordan also was

charged as an armed career criminal pursuant to G. L. c. 269,

§ 10G. Jordan filed a motion to suppress on October 8, 2009,

which Greene later joined. A judge of the Boston Municipal

Court (motion judge) held an evidentiary hearing on the motion

in February, 2010. What follows is a summary of the facts found

by the motion judge based on the evidence presented at that

hearing.

On April 25, 2009, a shooting occurred at 49 Rosseter

Street in the Dorchester section of Boston. A woman suffered a

grazed forehead during the event, although it was not clear that

a bullet actually caused the injury. After firing his weapon,

the shooter entered a Toyota Camry automobile and drove away.

The victim described the shooter as a black man between the ages

of twenty and twenty-three; she also provided the police with

the license plate number of the Camry. Two days later, on April

27, police officers identified a Toyota Camry with the same
 4

license plate number near the location of the shooting. The

officers observed Jordan and Greene as well as a third person,

Phillip Jackson, 2 standing on the sidewalk near the Camry.

Whenever other vehicles drove by, the two defendants and Jackson

moved away from the street. The officers believed this nervous

behavior indicated that one or more in the group possessed an

illegal firearm or feared a retaliatory drive-by shooting. Both

Jordan and Jackson, as young black males, fit the general

description that the victim had provided of the shooter in the

April 25 incident.

Jordan, Greene, and Jackson entered the Camry with Jordan

in the driver's seat, Greene in the passenger seat, and Jackson

in the back seat. The officers knew that the Camry was rented,

but they did not have any information about the identity of the

renter or the terms of the rental contract. The officers

stopped the Camry shortly after Jordan began driving away; he

pulled over immediately. 3 One of the officers, Serra, approached

the vehicle and asked Jordan for his license and registration.

Jordan quickly opened and closed the glove compartment and

center console without looking inside, and then he retrieved his

license from his pocket. Jordan's hands were "trembling

2
Jackson also was charged as a codefendant, but the
complaint against him was dismissed following his death in
November, 2009.
3
The officers did not observe the defendants commit any
traffic violations.
 5

heavily" as he handed his license to the officer, and Serra

noticed that Greene's hands also were shaking. Serra did not

inquire about the ownership of the car, the identity of Jordan's

passengers, where the three were going, or where they had been

two days earlier. Serra ordered all three individuals out of

the vehicle, pat frisked each of them, and found no weapons.

All three complied peacefully with the officer's requests

throughout the encounter.

Officer Serra then proceeded to search the Camry for a

"hide" for weapons, something he had expertise in identifying.

On entering the car, he noticed "non-factory lines" around the

center console area. The officers lifted up the console,

exposing the barrel of a hidden firearm. At this point the

defendants and Jackson were arrested.

b. Procedural history. The motion judge held an

evidentiary hearing on the defendants' motion to suppress on

February 3, 2010. He heard arguments from counsel on May 3 and

eventually allowed the motion on November 17. 4 On January 7,

2011, fifty-one days after notice of the order allowing the

motion had issued, the Commonwealth filed in the trial court

4
The docket entry for the allowance of the motion lists the
date as November 17, 2010. The judge's handwritten endorsement
in the margin of the motion, dated November 16, stated in
relevant part: "[T]he motion is allowed. I find the police
lacked probable cause to stop the vehicle; to order the
occupants out of the vehicle; and search the interior of the
vehicle" (emphasis in original).
 6

both a notice of appeal and a motion to extend until January 17,

2011, the time for filing its application to a single justice of

this court for leave to appeal. 5 The Commonwealth did not move

to extend the time for its late notice of appeal. A Boston

Municipal Court judge other than the motion judge allowed the

Commonwealth's motion with respect to the application for leave

to appeal on the day that motion was filed.

The Commonwealth did not file its application to the single

justice for leave to appeal on or before the extended deadline,

January 17, 2011. Instead, on January 14, it filed in the trial

court a request for written findings and rulings on the

suppression motion. The motion judge issued his findings on

March 28, 2011.

On March 31, 2011, 133 days after the issuance of the order

allowing the motion to suppress, the Commonwealth filed in the

county court its application to the single justice for leave to

appeal. The application was not accompanied by any motion to

5
As explained in greater detail infra, Mass. R. Crim.
P. 15 (b) (1), as appearing in 422 Mass. 1501 (1996), requires a
party aggrieved by a ruling on a motion to suppress, who wishes
to pursue an interlocutory appeal of that ruling, to file both a
notice of appeal in the trial court and an application for leave
to appeal in the county court. The rule requires that both
papers be filed within ten days of the issuance of notice of the
order being appealed. The trial court docket in this case
indicates that notice of the suppression order was issued on the
same day as the order, November 17, 2010. Thus, barring
extensions of time, the notice of appeal and the application for
leave to appeal should have been filed by November 27, 2010.
 7

enlarge the time for filing it, nor did it mention that the

notice of appeal and the application for leave to appeal were

both filed substantially late. 6 On April 26, 2011, a single

justice allowed, without a hearing, the Commonwealth's

application for leave to appeal and reported the appeal to the

Appeals Court. The appeal was docketed in the Appeals Court on

May 25, 2011.

On September 7, 2012 -- approximately twenty-two months

after the motion judge's suppression order, approximately

sixteen months after its interlocutory appeal had been allowed

to proceed, and just three days before the case was scheduled to

be heard in the Appeals Court -- the Commonwealth filed a motion

in the county court "to accept as timely filed" both its notice

of appeal previously filed in the trial court and its

application for leave to pursue the appeal previously filed in

the county court. 7 To date, this motion has not been acted on. 8

6
Jordan, but not Greene, filed an opposition to the
Commonwealth's application in the county court. The opposition,
like the application, did not mention the late filing of either
the notice of appeal or the application for leave to appeal.
7
This motion was filed by the Commonwealth after the
defendants raised the issue of the Commonwealth's late filing in
their briefs in the Appeals Court. The Commonwealth did not
address the late-filing issue in its principal Appeals Court
brief and did not file a reply brief addressing the issue.
8
The Appeals Court's order dismissing the appeal states
that, two days before the argument, the Commonwealth also filed
a motion in that court to allow the late filing of its notice of
appeal, although such a motion does not appear on the Appeals
Court's docket.
 8

The case was argued in the Appeals Court on September 10,

2012. On October 17, 2012, a panel of that court issued an

unpublished order dismissing the appeal. The panel determined

that the Appeals Court lacked jurisdiction to hear this

interlocutory appeal because the Commonwealth's notice of appeal

had not been timely filed. The panel, apparently believing that

the Commonwealth had filed a motion in the trial court for an

extension of time in which to file its notice of appeal, 9 and

relying on Mass. R. A. P. 4 (c), as amended, 378 Mass. 928

(1979), concluded that the trial court had no authority to grant

an extension of time for a notice of appeal beyond December 27,

2010. The panel further concluded that the Appeals Court was

itself "without jurisdiction" to grant the motion that was

before it to enlarge the time for filing the notice of appeal.

Citing Mass. R. Crim. P. 15 (b) (1), as appearing in 422 Mass.

1501 (1996), the panel stated that, with respect to

interlocutory appeals from suppression rulings, only a judge in

the trial court or a single justice of the Supreme Judicial

Court can extend the time for filing a notice of appeal.

9
The Commonwealth in fact did not ask the trial court to
extend the time for filing its notice of appeal; the
Commonwealth asked only that the trial court extend the time for
filing its application to the single justice for leave to
appeal. The notice of appeal and the application are separate
documents.
 9

2. Applicable statute and rules. We begin with a review

of the applicable statute and court rules. Neither the

Commonwealth nor a defendant has an absolute right to take an

interlocutory appeal from a trial court ruling on a motion to

suppress. However, under G. L. c. 278, § 28E, and Mass. R.

Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), both

the Commonwealth and a defendant have a right and opportunity to

apply to a single justice of this court for leave to pursue such

an appeal. 10 They may proceed with an interlocutory appeal if

and only if it has been authorized by a single justice under the

statute and rule. The final paragraph of § 28E states that,

when such appeals are authorized, the "[r]ules of practice and

procedure with respect to [the] appeals . . . shall be the same

as those applicable to criminal appeals under the Massachusetts

10
Read in isolation, G. L. c. 278, § 28E, which was last
amended in 1991, see St. 1991, c. 488, §§ 11, 12, suggests that
the Commonwealth may appeal as a matter of right to the Appeals
Court from an order of the District Court allowing a motion to
suppress. That is incorrect. The statute must be read together
with G. L. c. 218, §§ 26A and 27A (g), as amended by St. 1992,
c. 379, and Mass. R. Crim. P. 15 (a) (2), as appearing in 422
Mass. 1501 (1996). See Reporters' Notes to Rule 15, Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1549
(LexisNexis 2013). When the statutes and rule are read
together, it is clear that in order to pursue an interlocutory
appeal from a suppression ruling, the Commonwealth must first
obtain leave to proceed with the appeal from a single justice of
this court, regardless of whether the suppression ruling is a
ruling of the District Court or the Superior Court. See, e.g.,
Commonwealth v. Lopez, 451 Mass. 608, 608-609 (2008);
Commonwealth v. Silva, 440 Mass. 772, 773 (2004); Commonwealth
v. Haskell, 438 Mass. 790, 791 (2003).
 10

Rules of Appellate Procedure." See Commonwealth v. Bouvier, 399

Mass. 1002, 1003 (1987).

Rule 3 (a) of the Massachusetts Rules of Appellate

Procedure, as amended, 378 Mass. 927 (1979), addresses the

filing of notices of appeal generally. It provides that "[a]n

appeal permitted by law from a lower court shall be taken by

filing a notice of appeal with the clerk of the lower court

within the time allowed by rule 4." Rule 4 (b) of the

Massachusetts Rules of Appellate Procedure, as amended, 431

Mass. 1601 (2000), in turn, provides that, in a criminal case,

"unless otherwise provided by statute or court rule," a notice

of appeal must be filed in the trial court "within thirty days

after entry of the judgment or order appealed from."

Rule 15 of the Massachusetts Rules of Criminal Procedure

is, in the language of rule 4 (b), a "court rule" that

"otherwise provide[s]" the time in which a notice of appeal must

be filed. Rule 15 (a) (2) 11 describes the process by which a

party may seek and obtain leave to pursue an interlocutory

11
Rule 15 (a) (2) provides:

"Right of Appeal Where Motion to Suppress Evidence
Determined. A defendant or the Commonwealth shall have the
right and opportunity to apply to a single justice of the
Supreme Judicial Court for leave to appeal an order
determining a motion to suppress evidence prior to trial.
If the single justice determines that the administration of
justice would be facilitated, the justice may grant that
leave and may hear the appeal or may report it to the full
Supreme Judicial Court or to the Appeals Court."
 11

appeal from an order on a motion to suppress, and

rule 15 (b) (1) 12 prescribes the time period for filing the two

documents that are needed to perfect such an appeal: first, a

notice of appeal filed in the trial court and, second, the

application filed in the county court seeking leave from the

single justice to pursue the appeal. Specifically, under

rule 15 (b) (1), the party seeking to appeal has ten days from

the issuance of notice of the order being appealed to make both

required filings. 13 See Commonwealth v. Love, 452 Mass. 498, 507

(2008); Commonwealth v. McConaga, 79 Mass. App. Ct. 524, 528

(2011). See also Commonwealth v. Guaba, 417 Mass. 746, 751

(1994) (discussing earlier version of rule 15).

12
Rule 15 (b) (1) of the Massachusetts Rules of Criminal
Procedure, as appearing in 422 Mass. 1501 (1996), provides:

"Time for Filing Appeal. . . . An application for
leave to appeal [an order on a motion to suppress under
rule 15 (a) (2)] shall be made by filing within ten days of
the issuance of notice of the order being appealed, or such
additional time as either the trial judge or the single
justice of the Supreme Judicial Court shall order, (a) a
notice of appeal in the trial court, and (b) an application
to the single justice of the Supreme Judicial Court for
leave to appeal."
13
A standing order of this court, entitled "Applications to
a Single Justice Pursuant to Mass. R. Crim. P. 15 (a) (2),"
effective February 1, 1997, purports to reduce the time for
filing the notice of appeal and the application for leave to
appeal from ten days, as set out in rule 15 (b) (1), to seven
days. In this opinion, we focus on the provisions of the
pertinent court rules, not the standing order. We briefly
discuss the standing order in part 3.d, infra.
 12

As rule 15 (b) (1) indicates, its ten-day filing period for

the notice of appeal is not absolute. The rule expressly

provides that a judge of the trial court or a single justice of

this court may grant "additional time" in which to file. How

much additional time, when it may be sought, and the standard by

which requests for additional time will be evaluated are not

defined in the rule itself, but they are addressed in the

Massachusetts Rules of Appellate Procedure that deal with

extensions of time. 14 These rules are meant to be read together

with rule 15. When this is done, it becomes clear that a trial

court judge, an appellate court, and a single justice of an

appellate court all have the authority to grant extensions of

time for filing the notice of appeal.

In particular, as the Appeals Court correctly recognized in

its order of dismissal in this case, a judge in the trial court

has authority under Mass. R. A. P. 4 (c), 15 "[u]pon a showing of

14
Consistent with the statutory directive in the final
paragraph of G. L. c. 278, § 28E, quoted supra, our cases have
indicated that parties pursuing interlocutory appeals pursuant
to criminal rule 15 must satisfy the requirements of Mass.
R. A. P. 3, as amended, 430 Mass. 1602 (1999), and Mass.
R. A. P. 4, as amended, 430 Mass. 1603 (1999). See Commonwealth
v. Bouvier, 399 Mass. 1002, 1003 (1987). See also Commonwealth
v. Franco, 419 Mass. 635, 636 (1995); Commonwealth v. Guaba, 417
Mass. 746, 750-752 (1994).
15
Rule 4 (c) of the Massachusetts Rules of Appellate
Procedure, as amended, 378 Mass. 928 (1979), states:

"Upon a showing of excusable neglect, the lower court
may extend the time for filing the notice of appeal by any
 13

excusable neglect," to extend the time for filing a notice of

appeal up to and including "thirty days from the expiration of

the time otherwise prescribed by" Mass. R. A. P. 4 (b).

Because, as we have explained, the time prescribed by Mass. R.

Crim. P. 15 (b) (1) and, therefore, by rule 4 (b) for filing a

notice of appeal from an order on a motion to suppress is ten

days, a trial court judge acting under rule 4 (c) may extend the

time for filing the notice of appeal in a case such as this up

to forty days from the date of issuance of notice of the order,

i.e., up to thirty days beyond the otherwise prescribed ten-day

filing period.

Rule 4 (c) addresses only the authority of a trial court

judge to enlarge time; different appellate rules govern the

authority of a single justice and an appellate court to enlarge

the time prescribed by rule 15 (b) (1) for filing the notice of

party for a period not to exceed thirty days from the
expiration of the time otherwise prescribed by this rule.
Such an extension may be granted before or after the time
otherwise prescribed by this rule has expired; but if a
request for an extension is made after such time has
expired, it shall be made by motion with such notice as the
lower court shall deem appropriate."

It is important to note that rule 4 (c) governs only
extensions of time for filing a notice of appeal in the trial
court. Neither rule 4 (c) nor any of the other appellate rules
governs extensions of time for the ten-day period set out in
Mass. R. Crim. P. 15 (b) (1) for filing an application to a
single justice of this court for leave to pursue the
interlocutory appeal. The authority of a trial court judge or a
single justice to extend the time for filing an application
derives from rule 15 (b) (1), not from the appellate rules.
 14

appeal. In particular, Mass. R. A. P. 2, 365 Mass. 845 (1974), 16

and Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979), 17

provide the appellate court and its single justices with the

authority to act. In the context of interlocutory appeals from

orders on motions to suppress, we have viewed rules 2 and 14 (b)

as authorizing this court or a single justice of the county

court, in appropriate circumstances, to suspend or extend the

time for filing the notice of appeal. See, e.g., Commonwealth

v. Guaba, 417 Mass. at 751-752; Commonwealth v. Santana, 403

Mass. 167, 169-170 (1988). We can see no good reason why, when

the criminal rules and the appellate rules are read together, as

the final paragraph of G. L. c. 278, § 28E, contemplates, the

16
Rule 2 of the Massachusetts Rules of Appellate Procedure,
365 Mass. 845 (1974), states:

"In the interest of expediting decision, or for other
good cause shown, the appellate court or a single justice
may, except as otherwise provided in Rule 14 (b), suspend
the requirements or provisions of any of these rules in a
particular case on application of a party or on its own
motion and may order proceedings in accordance with its
direction. Such a suspension may be on reasonable terms."
17
Rule 14 (b) of the Massachusetts Rules of Appellate
Procedure, as amended, 378 Mass. 939 (1979), states in pertinent
part:

"The appellate court or a single justice for good
cause shown may upon motion enlarge the time prescribed by
these rules or by its order for doing any act, or may
permit an act to be done after the expiration of such time;
but neither the appellate court nor a single justice may
enlarge the time for filing a notice of appeal beyond one
year from the date of entry of the judgment or order sought
to be reviewed . . . ."
 15

Appeals Court and its single justices would not have the same

authority as this court and our single justices to suspend or

extend the time for filing notices of appeal in interlocutory

appeals that have been authorized and reported to that court.

The Appeals Court and its single justices, in those cases, are

respectively "the appellate court" and "a single justice" within

the meaning of rules 2 and 14 (b). 18

3. Discussion. a. Timeliness of the Commonwealth's

appeal. The Commonwealth claims that the Appeals Court erred in

concluding that it lacked jurisdiction to reach the merits of

this interlocutory appeal. Its delays and lack of explanation

may have been regrettable, the Commonwealth argues, but they

were essentially irrelevant because the single justice of this

court, by exercising his discretion to allow the Commonwealth's

application for leave to appeal, effectively cured any and all

time-related procedural defects that may have existed. In the

18
We add a final point concerning the allowance of motions
to extend time for filing notices of appeal. In the case of a
trial court judge acting pursuant to Mass. R. A. P. 4 (c), so
long as the appealing party files its notice of appeal in the
trial court within forty days of the date of issuance of the
notice of the order it seeks to appeal, the judge has authority
to act on a motion to extend at any time thereafter. See Board
of Health of Sturbridge v. Board of Health of Southbridge, 461
Mass. 548, 552-553 (2012). Similarly, a single justice or an
appellate court, acting under Mass. R. A. P. 14 (b), is
empowered to act at any time on a motion to enlarge the time to
file a notice of appeal, so long as the appealing party has
filed its notice of appeal within one year of the issuance of
notice of the order it seeks to appeal. See Commonwealth v.
White, 429 Mass. 258, 263-264 (1999).
 16

Commonwealth's view, the single justice's act of allowing the

application and reporting the case to the Appeals Court

indicates that he acted implicitly pursuant to Mass. R. A. P. 2

to suspend all rules relating to time limits for filing the

notice of appeal and the application for leave to appeal. The

Commonwealth claims that because it did in fact file a notice of

appeal in the trial court (albeit late), and the single justice

did not condition review of the merits in any manner, the

Appeals Court was required to treat the appeal as procedurally

proper and proceed directly to the merits.

We reject the contention that the single justice acted

implicitly pursuant to rule 2 to suspend the otherwise

applicable time requirements of the pertinent rules. Rule 2

requires a showing of "good cause" for suspension of the rules;

moreover, the suspension of generally applicable procedural

rules is an extraordinary, not an ordinary, event. We are

loathe to conclude that the single justice, on his own motion,

without being requested, and without saying that he was doing

so, meant to suspend (or should be deemed to have suspended) the

rules in a case where neither the Commonwealth nor the

defendants raised any issue of timeliness before him. 19

19
This case is quite different from Commonwealth v.
Santana, 403 Mass. 167 (1988), on which the Commonwealth relies.
There, the defendant, at the hearing before the single justice
on the Commonwealth's application for leave to appeal, "clearly
raised" an argument about the Commonwealth's failure to file a
 17

That being said, we agree with the Commonwealth that the

Appeals Court had jurisdiction to allow the Commonwealth's

motion for the late filing of its notice of appeal. As earlier

suggested, the letter and spirit of Mass. R. A. P. 2 and 14 (b)

gave the Appeals Court the power to act -- provided the notice

of appeal was filed within one year of the issuance of notice of

the order the Commonwealth sought to appeal, which it was in

this case. See Commonwealth v. White, 429 Mass. 258, 263-264

(1999). 20 We hasten to add, however, that although the Appeals

Court had the power to allow the Commonwealth's motion, it was

notice of appeal in the trial court, and thereafter, the single
justice allowed the application "upon consideration of counsels'
argument." Id. at 169. In those circumstances, we determined
that it was implicit in the single justice's allowance of the
Commonwealth's interlocutory appeal that he had exercised his
authority to suspend rules under Mass. R. A. P. 2. Id. Here,
as stated, no one brought the timeliness issue to the single
justice's attention, and he did not mention the issue when he
issued his order allowing the appeal to proceed. See
Commonwealth v. Guaba, 417 Mass. at 750-752 (considering merits
of Commonwealth's interlocutory appeal where, although
Commonwealth's notice of appeal in the trial court was filed
late, rule's time requirements were unclear and Commonwealth
relied on erroneous advice of court clerk).
20
The Appeals Court was correct that a trial court judge,
had the request been made, would not have had authority on
January 7, 2011 (when a trial court judge allowed the
Commonwealth's motion to extend the time for filing its
application to the single justice), to enlarge the time for the
Commonwealth to file its notice of appeal, because that date was
already more than forty days after the issuance of notice of the
order allowing the defendants' motion to suppress. See Mass.
R. A. P. 4 (c). Moreover, a motion to enlarge time under rule 4
(c) may only be granted on a showing of "excusable neglect" by
the moving party. The Commonwealth made no such showing in this
case.
 18

not obligated to do so on this record. Where, as here, a single

justice of this court allowed the Commonwealth's appeal to

proceed but did so without addressing in any manner the lateness

of the Commonwealth's notice of appeal, it remained open to the

Appeals Court to consider the lateness issue in accordance with

the standards of rules 2 and 14 (b). The Appeals Court would

have been within its discretion to deny the motion, and to

dismiss the appeal, if it concluded that good cause had not been

shown for the late filing of the notice of appeal.

The Commonwealth's appeal, in any event, is now before this

court for further appellate review, and insofar as the late-

filed notice of appeal is concerned, this court is now the

"appellate court" for purposes of Mass. R. A. P. 2 and 14 (b).

We have thus considered the lateness issue anew. On the present

record, we would be well within our discretion to conclude that

the Commonwealth's late filing of its notice of appeal and its

application for leave to appeal were egregious and inexcusable.

The Commonwealth's repeated missteps in terms of compliance with

the procedural rules governing interlocutory appeals,

individually and collectively, reflect a complete disregard of

court rules. The Commonwealth's noncompliance with the rules is

exacerbated by the continued absence of any showing of good

cause or even explanation for its repeated delays. Rather than

dismiss the appeal, however, we shall address the merits. We do
 19

so because, we acknowledge, there has sometimes been a lack of

clarity in the manner in which the single justices of this court

have, in the past, applied the procedural rules governing the

timeliness of interlocutory appeals of orders on motions to

suppress.

b. The merits: validity of the search of the car. The

Commonwealth argues that the motion judge erred in allowing the

defendants' motion to suppress because (1) the stop of the Camry

was justified because the officers had a reasonable suspicion

that the Camry had been involved in a shooting in almost the

same location two days earlier; (2) the exit order as well as

the search of the Camry console were justified by a reasonable

concern for safety on the part of the officers; and (3) in any

event, the search of the console for a firearm was permitted

under the automobile exception because the police had probable

cause to believe the Camry had been involved in the shooting

incident two days earlier. 21

21
The Commonwealth offers an array of contextual facts to
support its arguments, including the following: the defendants
were known to the police from earlier "firearms incidents,"
including one that had occurred only two months earlier; the
Camry driven by Jordan was the same car that was involved in the
shooting two days earlier and was near the location of that
shooting; the shooter was identified as a young black male
between the ages of twenty to twenty-three, a description that
matched both Jordan and Jackson; the two defendants exhibited
nervous and suspicious behavior both before and during the
encounter with police; and Officer Serra's training in
identifying "hides" allowed him to identify the center console,
 20

The Commonwealth's arguments fail. First, as the

Commonwealth has conceded, it did not argue before the motion

judge that the initial stop of the Camry was justified under a

reasonable suspicion standard or, we infer, that the exit order

and search of the vehicle were justified by a concern for

officer safety; the Commonwealth's argument below was premised

solely on the existence of probable cause. "It has long been

[this court's] rule that [it] need not consider an argument that

urges reversal of a trial court's ruling when that argument is

raised for the first time on appeal." Commonwealth v.

Bettencourt, 447 Mass. 631, 633 (2006).

Second, the facts found by the motion judge do not support

the Commonwealth's position that there was probable cause to

justify the stop of the Camry. The judge found that while the

license plate of the Camry in which the defendants were stopped

on April 27 matched the license plate of the Camry involved in

the shooting two days earlier, the vehicle was a rental vehicle,

and the officers did not know the identity of the renter or the

terms of the rental arrangement. The judge concluded from these

facts that two days was more than sufficient time to remove a

gun from the car, and the absence of details about the car's

rental weakened any link between the shooter and the defendants

in any event. As for the connection of Jordan and Jackson to a

which was accessible to the defendants and could contain a
weapon.
 21

firearm incident that had occurred two months earlier, the judge

found that neither Jordan nor Jackson was charged with a crime

in relation to that incident and that the Commonwealth was not

"forthcoming" with information that connected that incident to

the shooting incident occurring two days before the stop. The

judge also determined that while Jordan and Jackson matched the

victim's description of the shooter (a young, black male), the

vague, general character of the description was not adequate to

support a finding of probable cause; and that while the two

defendants were nervous when stopped, this fact in itself was

not enough to establish probable cause. Finally, the judge

found that Officer Serra did not discover the "'non-factory'

lines" around the center console until he entered the vehicle

after the search had begun.

"We accept a judge's findings of fact, in the absence of

clear error, and grant substantial deference to the conclusions

of law based thereon." Commonwealth v. Motta, 424 Mass. 117,

121 (1997), citing Commonwealth v. Bakoian, 412 Mass. 295, 297-

298 (1992). We discern no error in the findings here 22 and also

agree with the legal conclusions the judge drew from the facts.

It follows, of course, that without a justification for the

22
The Commonwealth has not included a transcript of the
hearing on the defendants' motion to suppress in the record on
appeal, which obviously limits our ability to consider any
challenge to the motion judge's findings.
 22

stop, the subsequent exit order and search of the car cannot be

sustained, and evidence of the gun must be suppressed. See,

e.g., Commonwealth v. Bacon, 381 Mass. 642, 644 (1980).

In sum, based on the record before us, the Commonwealth has

failed to show that the allowance of the defendants' motion to

suppress was erroneous. The motion judge's order allowing the

motion is affirmed.

c. Rule 15 procedure in future cases. Numerous

applications to single justices for leave to pursue

interlocutory appeals from orders on motions to suppress are

filed in the county court each year by both defendants and the

Commonwealth. 23 In order to provide greater clarity and

consistency in the manner in which such applications are

handled, we set out here certain procedures that the single

justices will follow, and that we will require the parties to

follow, in relation to Mass. R. Crim. P. 15 applications filed

after the date of this opinion.

Going forward, we shall require a party (the Commonwealth

or a defendant) seeking to take an interlocutory appeal from an

order on a motion to suppress to demonstrate, to the

satisfaction of the single justice, that there has been

compliance with the rules concerning timeliness. Pursuant to

23
An informal review of this court's internal records
indicates that there have been, on average, 186 such
applications filed in the county court for each of the last five
calendar years.
 23

rule 15 (b) (1), the applicant must file a notice of appeal in

the trial court and an application for leave to appeal in the

county court within ten days of issuance of notice of the

suppression order. 24 The applicant shall affirmatively represent

in the application that both the notice of appeal and the

application have been filed within ten days, as the rule

requires, or that the applicant has previously obtained, from

the trial court judge or the single justice, the necessary

extension(s) of time in which to file. 25 If the applicant cannot

make this representation -- because the notice of appeal, the

application, or both, are not timely and an extension has not

previously been secured -- then the applicant must file along

with the application a motion to enlarge or suspend the time or

times for filing, together with an affidavit setting forth in

24
The filing of a motion for reconsideration, accompanied
by all necessary supporting material, within ten days of
issuance of notice of the order stays the time for filing the
notice of appeal and the application. The notice of appeal and
application must then be filed within ten days of the trial
court's ruling on the reconsideration motion. See Commonwealth
v. Powers, 21 Mass. App. Ct. 570, 573-574 (1986) (discussing
effect of motions for reconsideration on timeliness of appeals
generally); Commonwealth v. Mandile, 15 Mass. App. Ct. 83, 85-91
(1983). See also Commonwealth v. Montanez, 410 Mass. 290, 294
nn.4, 5 (1991).
25
If the applicant filed a motion for reconsideration in
the trial court within ten days of issuance of notice of the
order, the applicant shall so indicate in the application and
must affirmatively represent that the notice of appeal and
application have been filed within ten days of the ruling on the
reconsideration motion or that the applicant has previously
obtained the necessary extensions.
 24

meaningful detail the reasons for the delay. These steps will

help to ensure that any questions concerning the timeliness of

the notice of appeal and the application are put squarely before

the single justice. If the applicant fails to meet these

requirements, the single justice may deny the application

because of the noncompliance.

If a single justice is presented with both an application

for leave to appeal and a motion to enlarge or suspend the time

for filing the notice of appeal, the application, or both, he or

she will first rule on the threshold procedural motion. If that

motion is denied, the application for leave to appeal will then

be summarily denied as well, because of the noncompliance with

the timing requirements. The single justice will proceed to

rule on the substantive merits of the application for leave to

appeal if, and only if, he or she first allows the motion to

enlarge or suspend time. The single justice will then

determine, as Mass. R. Crim. P. 15 (a) (2) requires, whether

allowing the interlocutory appeal "will facilitate the

administration of justice." Commonwealth v. Cavanaugh, 366

Mass. 277, 279 (1974).

Implementation of these procedures will help to ensure that

in the future, when a single justice of this court allows an

application for leave to appeal and reports the appeal to the

Appeals Court pursuant to rule 15 (a) (2), the single justice
 25

will have been alerted to, and will have already resolved, any

questions concerning the timeliness of the notice of appeal and

the application. Accordingly, we would expect the Appeals

Court, when faced with such an appeal, to focus only on the

substantive merits of the interlocutory appeal and not to

revisit any questions about late filing. Similarly, if the

single justice reports the appeal to this court, we would expect

to focus solely on the merits.

At the present time, there are, inevitably, a number of

previously-authorized interlocutory appeals pending in both the

Appeals Court and in this court in which unresolved timeliness

issues remain. If a notice of appeal was not timely filed, and

there is no indication that the single justice of this court

addressed that issue when authorizing the appeal to proceed, the

trial court, either appellate court, or a single justice of

either court may, as previously explained, extend the time for

filing the notice of appeal if an extension is warranted

(subject to the time limits contained in Mass. R. A. P. 4 [c]

and 14 [b]). The appellate court or a single justice also may,

as previously explained, suspend the requirements of the rules

in appropriate cases (subject to the time limits of Mass.

R. A. P. 2). Any request for an enlargement of time or

suspension of the rules that is made to an appellate court or a
 26

single justice should be made in the court where the case is

pending. 26

If, in a currently-pending appeal, the application for

leave to appeal was not timely filed, and there is no indication

that this court's single justice previously addressed that

issue, the appellate court in which the case is pending, or its

single justice, may extend the time for filing if an extension

is warranted. We recognize that the appellate rules do not

govern extensions of time for filing applications pursuant to

rule 15, and that, under a literal interpretation of

rule 15 (b) (1), only a "trial judge" or a "single justice of

the Supreme Judicial Court" can extend the time for filing an

application. We believe, however, with respect to this very

limited class of pending, previously-authorized cases, that the

spirit of the rule would best be served by permitting either

appellate court or a single justice of either court to extend

the time for the application. For these cases only, as a matter

of general superintendence, we shall recognize the authority of

26
We trust that courts and judges faced with motions to
enlarge time in such cases will be mindful, when acting on the
motions, that a single justice of this court has already
determined that the appeal is one warranting interlocutory
appellate review. This does not mean that the motions to
enlarge should automatically be allowed; every motion will need
to be resolved on the merits. We do expect, however, that in
these pending cases, the rules will be applied with some
forgiveness, and that worthwhile appeals will not be dismissed
lightly.
 27

the Appeals Court and its single justices to entertain and act

on such motions in cases that are pending there. 27

d. Possible rule changes. This case has led us to

question whether the ten-day period in rule 15 (b) (1) for

filing notices of appeal and applications to a single justice

for leave to appeal is sufficient. Our principal concern is

with the time for filing the applications. We will request this

court's standing advisory committee on the rules of criminal

procedure to review these time requirements and, if the

committee deems it appropriate, to propose suitable amendments

to the rule.

We also question the advisability of having a standing

order of this court that openly conflicts with a controlling

court rule in such an important respect. See note 13, supra.

We will therefore refer the standing order to this court's rules

committee for its reconsideration.

4. Conclusion. For the reasons discussed, the order

allowing the defendants' motion to suppress is affirmed.

So ordered.

27
See note 26, supra.