Commonwealth v. Demirtshyan

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14-P-450 Appeals Court

COMMONWEALTH vs. HARUTYUN DEMIRTSHYAN.

No. 14-P-450.

Essex. February 6, 2015. - August 5, 2015.

Present: Cypher, Hanlon, & Agnes, JJ.

Practice, Criminal, Motion to suppress, Appeal by Commonwealth,
Interlocutory appeal. Rules of Appellate Procedure.
Supreme Judicial Court, Superintendence of inferior courts.
Appeals Court, Jurisdiction. Constitutional Law, Search
and seizure, Probable cause, Reasonable suspicion. Search
and Seizure, Automobile, Protective frisk, Reasonable
suspicion, Probable cause. Probable Cause.

Complaint received and sworn to in the Lynn Division of the
District Court Department on June 7, 2013.

A pretrial motion to suppress evidence was heard by Albert
S. Conlon, J.; a motion to dismiss was heard by him; and a
motion for reconsideration was heard by Ellen Flatley, J.

An application for leave to prosecute an interlocutory
appeal was allowed by Fernande R.V. Duffly, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.

Ronald DeRosa, Assistant District Attorney, for the
Commonwealth.
Jane Larmon White for the defendant.
 2

AGNES, J. This appeal arises out of the Commonwealth's

application for an interlocutory appeal of a District Court

order suppressing evidence consisting of an electroshock weapon,1

the defendant's statements regarding its ownership, and the

arresting officer's observations that led to its discovery

during a routine motor vehicle stop. The defendant claims that

the Commonwealth's appeal is untimely. The Commonwealth

contends that its appeal is not time barred because the issue

was addressed and decided in its favor in the court below, and,

moreover, its application for leave to appeal was authorized by

a single justice of the Supreme Judicial Court. Based on the

guidance in Commonwealth v. Jordan, 469 Mass. 134 (2014),

decided after this case was entered in the Appeals Court, we

determine that the merits should be reached albeit for reasons

different from those advanced by the Commonwealth.

On the merits, the Commonwealth contends that the police

officer was justified in ordering the defendant to exit the

vehicle (leading to the discovery of the weapon) when at the

conclusion of the stop, the defendant suddenly lunged and

1
An electroshock weapon is defined as "a portable device or
weapon from which an electrical current, impulse, wave or beam
may be directed, which current, impulse, wave or beam is
designed to incapacitate temporarily, injure or kill." G. L.
c. 140, § 131J, as appearing in St. 2004, c. 270, § 1. Unlawful
possession of such a device is punishable by a fine,
imprisonment in the house of correction, or both.
 3

reached into the back seat of the vehicle. We agree, and,

accordingly, reverse the order allowing the motion to suppress.

Discussion. 1. Procedural history. The evidentiary

hearing on the defendant's motion to suppress took place on

September 17, 2013, and included the testimony of one police

officer. The transcript, which is part of the record on appeal,

consists of thirty-eight pages. The judge endorsed his findings

and rulings on the motion that day. The parties were notified

in court on October 1, 2013, that the motion was allowed. The

Commonwealth requested a thirty day continuance. The

Commonwealth filed a timely notice of appeal on October 7, 2013.

See Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501

(1996). Several days later, the judge allowed the

Commonwealth's motion to file its rule 15(a)(2) application for

leave to file an interlocutory appeal on or before November 5,

2013. At a status conference on November 5, 2013, the

Commonwealth reported that the transcript was not prepared and

it requested additional time to "get all the paper work

together."2 The judge continued the matter for "status" to

February 4, 2014. At a hearing held on February 4, defense

2
The record before us does not include a transcript of the
hearing on November 5, 2013. However, it appears that the judge
who allowed the Commonwealth's motion to reconsider the order
dismissing its interlocutory appeal had access to it or to a
recording of the hearing. We rely on her account of what
occurred at that event.
 4

counsel informed the judge that the Commonwealth had not filed

its application for leave to file an interlocutory appeal. The

Commonwealth asked for a continuance to February 7, 2014.

Defense counsel moved to dismiss. The judge, who was the same

judge who had heard and decided the defendant's motion to

suppress and who had continued the case to November 5 and then

to February 4, allowed the motion to dismiss.

The Commonwealth responded on February 19, 2014, by filing

a motion to reconsider the order of dismissal.3 In a written

memorandum of decision and order dated March 10, 2014, the

motion for reconsideration was allowed.4 The judge stated that

she viewed the issue as simply whether, on February 4, 2013, the

Commonwealth should have been given the three additional days it

requested to file its application for an interlocutory appeal.

The judge reasoned that because the Commonwealth had done

"substantial work" on the case as of February 4 and the District

Attorney's office was burdened by an "extraordinary" amount of

appellate-related work, as outlined in an affidavit submitted by

3
Although the motion for rehearing was scheduled to be
heard by the same judge who had ordered the application
dismissed, it was referred to a different judge -- we assume for
appropriate reasons. A hearing on the Commonwealth's motion for
reconsideration took place on February 25, 2014.
4
The record before us indicates that on March 10, 2014, the
Commonwealth filed its application for leave to file an appeal
with a single justice of the Supreme Judicial Court. On March
18, 2014, the single justice allowed the application.
 5

the chief of the office's appellate division, the motion to

reconsider should be allowed "in the exercise of discretion."

Thereafter, on March 10, 2014, the Commonwealth filed its

application for leave to appeal in the Supreme Judicial Court

for Suffolk County. An opposition was filed by the defendant on

March 14, 2014. The single justice entered an order on March

18, 2014, allowing the Commonwealth's application.5

2. Legal framework. When either the Commonwealth or the

defendant seek interlocutory review of a judge's decision

allowing or denying a pretrial motion to suppress pursuant to

G. L. c. 278, § 28E, and Mass.R.Crim.P. 15(a)(2) and (b)(1),6 the

appealing party is required to file two documents: a notice of

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

in the Supreme Judicial Court for Suffolk County. Jordan, 469

Mass. at 140. Rule 15(b)(1) requires that both documents be

5
Although the order entered by the single justice does not
address the timeliness issues that are the subject of this
appeal, the procedural history of the case, including the
enlargements of time obtained by the Commonwealth and the
allowance of its motion for reconsideration, were set forth in
the defendant's opposition filed on March 14, 2014.
6
Rule 15(b)(1) provides in relevant part: "An application
for leave to appeal under subdivision (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."
 6

filed within ten days of the issuance of notice of the order

being appealed. Jordan, 469 Mass. at 140.7 In the present case,

unlike in Jordan, the defendant does not question the timeliness

of the Commonwealth's filing of the notice of appeal on October

7, 2013. Instead, the defendant challenges whether the

application seeking leave from the single justice to pursue the

appeal was filed in a timely manner. Nonetheless, Jordan is

instructive in our consideration of this issue because its

explanation of the interplay between the statutes and rules

governing interlocutory appeals from a ruling on a motion to

suppress applies both to the filing of the notice of appeal and

the application for leave to appeal.

Jordan instructs that in cases involving "excusable

neglect," Mass.R.App.P. 4(c), as amended, 378 Mass. 928 (1979),

trial judges have authority to enlarge the time in which to file

the notice of appeal (and by analogy, the application for leave

to file an interlocutory appeal) for an additional thirty days.

Jordan, 469 Mass. at 141-142. As a result, a trial judge may

extend the time for filing the notice of appeal in the trial

court and the application for leave to appeal in the Supreme

7
Jordan clarifies that interlocutory appeals from a trial
court ruling on a motion to suppress, whether sought by the
Commonwealth or the defendant, are discretionary and must be
approved by a single justice of the Supreme Judicial Court
acting under G. L. c. 278, § 28E, and Mass.R.Crim.P. 15.
Jordan, 469 Mass. at 139 & n.10.
 7

Judicial Court for Suffolk County up to forty days from the date

of issuance of notice of the order that is the subject of

appeal. In the present case, the order by the judge extending

the Commonwealth's filing deadline to February 4, 2014, was

invalid. The Commonwealth's subsequent motion for

reconsideration thus did not provide the second judge with a

basis upon which to grant relief.8

In Jordan, the court also explained that a single appellate

judge or an appellate court has a broader authority to suspend

or extend the time for filing notices of appeal. Id. at 142-

143. Presumably, this broader authority extends both to the

filing of the notice of appeal as well as to the application for

leave to appeal. Jordan explained that this broader authority

is enjoyed by a single justice of the Appeals Court as well as

by a panel of this court. Ibid. Based on its interpretation of

the relevant rules, the Jordan court indicated that when there

8
Although it is not necessary to address the merits of the
Commonwealth's February 19, 2014 motion for reconsideration, it
should be noted that simply because a motion is cast as a motion
for reconsideration does not mean that it qualifies as a motion
for reconsideration. A genuine motion for reconsideration must
be based on (1) a change in circumstances "such as (a) newly
discovered evidence or information, or (b) a development of
relevant law; or (2) a particular and demonstrable error in the
original ruling or decision." Audubon Hill S. Condominium Assn.
v. Community Assn. Underwriters of America, Inc., 82 Mass. App.
Ct. 461, 470 (2012). A motion that simply requests that a judge
revisit a decision made previously under the guise of exercising
discretion is not a genuine motion for reconsideration.
 8

has been a showing of "good cause," a single justice of either

appellate court, as well as those courts, has the authority to

exercise discretion and permit a party to file the two documents

required to secure interlocutory appellate review of a ruling on

a motion to suppress at any time so long as the two documents

were filed within one year of the issuance of notice of the

order that is the subject of the appeal. Id. at 143-144. In

Jordan, the court added that the exercise of this discretion by

a single justice or an appellate court to suspend the procedural

rules governing interlocutory appeals of rulings on motion to

suppress must be considered "an extraordinary, not an ordinary,

event." Id. at 143.9

3. Suspension of the procedural rules. In the present

case, it is unnecessary to address the Commonwealth's argument

that the allowance of its application for leave to file an

interlocutory appeal by a single justice of the Supreme Judicial

9
In Jordan, the court also clarified the procedure that a
party must follow in future cases. Essentially, the party that
files an application for leave to file an interlocutory appeal
must demonstrate that the two required documents have been filed
in a timely manner (either within ten days of the issuance of
notice of the order that is the subject of the appeal or within
the time allowed by an extension order) or simultaneously submit
a motion for an extension of time or a suspension of the rules
along with an affidavit "setting forth in meaningful detail the
reasons for the delay." Id. at 148. In all cases in which a
party requires an extension of time or a suspension of the rules
in order to proceed, the single justice will address that matter
before reaching the merits of the application for leave to
appeal. Ibid.
 9

Court, which was ultimately allowed by the single justice on

March 18, 2014, represents an implied suspension of the

procedural rules governing applications for leave to file an

interlocutory appeal from a ruling on a motion to suppress, and

thus cures any timeliness issues. See id. at 143-144.10

However, in Jordan, the Supreme Judicial Court added that in

cases such as this, in which a late filed notice of appeal or

application for leave to file an interlocutory appeal were

pending appeal at the time of its decision, an appellate court,

including a panel of this court, has discretion to suspend the

otherwise applicable procedural rules for "good cause." Id. at

145, 149. As in Jordan, we determine that it is appropriate to

do so in this case because until Jordan, there was a lack of

certainty about the authority of trial judges to grant

extensions of time in these cases, the merits are fully briefed,

and the issue is one of importance.

4. The exit order and seizure of the electroshock weapon.

In reviewing a ruling on a motion to suppress, we accept the

motion judge's findings of fact absent clear error "but

conduct[] an independent review of his ultimate findings and

10
As in Jordan, "[w]e are loath to conclude that the single
justice, on [her] own motion, without being requested, and
without saying that [she] was doing so, meant to suspend (or
should be deemed to have suspended) the rules" when such relief
was not requested by the Commonwealth, and not addressed in the
order entered by the single justice. Id. at 143-144 & n.19.
 10

conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002).

Only one witness, Officer Brendon Reen of the Swampscott

police department, testified at the motion hearing. The

essential facts are not in dispute. The judge found that the

vehicle operated by the defendant was properly stopped without

incident because it lacked a valid inspection sticker. There

were no passengers in the vehicle. The defendant complied with

an order to produce his license and registration. The officer

then noticed five or six small clumps of what appeared to be

marijuana on the console. The defendant admitted the same and

told the officer he had smoked marijuana five or six hours

earlier. The officer did not suspect that the operator was

under the influence of marijuana. The officer did not issue a

citation for the civil infraction of possession of marijuana.

See G. L. c. 40, § 21D. Meanwhile, a second police officer

arrived on the scene. Officer Reen informed the defendant that

he would like to conduct a search. The defendant said, "No."

Officer Reen told the defendant that he had probable cause to

search the vehicle. In response, the defendant, who was not

secured by a seatbelt, suddenly turned away from the officer

and, as the judge found, "lunged" toward the passenger's side of

the backseat where there was a backpack.
 11

The judge acknowledged that this sudden and unexpected

movement by the defendant "changed [the] dynamic" of the

encounter. Although the judge did not make any further,

specific findings of fact, his decision to credit Officer Reen's

testimony authorizes us to imply additional findings that are

consistent with the judge's other findings and the officer's

testimony. See Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50

n.2 (2014). In response to the lunge by the defendant, Officer

Reen, who stated he was concerned for his safety, responded

immediately by reaching through the open window, and putting his

right hand on the defendant's left shoulder, which prevented the

defendant from reaching into the backseat area. He asked the

defendant what he was doing. The defendant stated that he was

reaching for the bag in the backseat. Officer Reen instructed

the defendant to turn off the ignition and step out of the

vehicle. The defendant complied. Officer Reen removed the

backpack and placed it on the hood of the defendant's vehicle.

Officer Reen discovered the electroshock weapon (commonly known

as a stun gun) referred to earlier in an open compartment in the

driver's side door.11 After securing the weapon, Officer Reen

11
The defendant did not argue below and does not argue on
appeal that apart from the validity of the exit order, the
subsequent search of the vehicle conducted by Officer Reen
exceeded the scope of a valid protective search. The
uncontroverted testimony at the motion hearing indicates that
the first area of the vehicle searched by Officer Reen was the
 12

informed the defendant that it was illegal to possess a "stun

gun." The defendant responded by stating that it was not his

gun, and must belong to a friend.

Describing the ultimate question as "close," the judge

ruled that the exit order was invalid because the defendant's

act of reaching into the backseat was not sufficient to create a

heightened awareness of danger. See Commonwealth v. Gonsalves,

429 Mass. 658, 664-665 (1999). This ruling is based on too

driver's side door where, in an open compartment, he found the
stun gun inside a black, leather case.

In a case such as this, a police officer is allowed to make
a limited protective search of the interior of the vehicle.
"A Terry-type 'frisk' of the interior of an automobile may be
justified under art. 14 of the Massachusetts Declaration of
Rights by the concern that a driver or passenger returning to
the vehicle may gain access to a weapon that may be used against
the police, even though the driver and any passengers are
permitted to reenter the vehicle and go on their way."
Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 411
(2014). Michigan v. Long, 463 U.S. 1032, 1049 (1983). See
Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010)
(officer entitled to conduct protective sweep of vehicle
confined in scope to intrusion reasonably designed to discover
weapon, where concern extended to threats that might arise from
retrieval of weapon in vehicle by occupant who was not placed
under arrest but subjected to patfrisk); Commonwealth v. Myers,
82 Mass. App. Ct. 172, 177-178 (2012) (police entitled to
conduct protective sweep of vehicle even though driver sat in
back seat of cruiser after patfrisk and could no longer have
reached inside vehicle, because he could have returned to
vehicle and recovered hidden weapon at end of encounter). Once
Officer Reen discovered the stun gun, an illegal weapon, he had
probable cause to conduct a warrantless search of the entire
automobile. See also Commonwealth v. Motta, 424 Mass. 117, 122-
124 (1997); Johnson, 461 Mass. 44, 50 (2011); Commonwealth v.
Jiminez, 22 Mass. App. Ct. 286, 290-291 (1986).
 13

narrow a view of Gonsalves. When, during a traffic stop, the

driver suddenly and without explanation lunges into the backseat

area of the vehicle where a backpack that had not been inspected

by the police is located, it is objectively reasonable for the

officer to take protective measures, including the use of

reasonable force to prevent the driver from reaching into the

backseat followed by an exit order in order to gain control over

the situation. This is what the Supreme Judicial Court had in

mind when in Gonsalves it described what might justify an exit

order: "the officer need point only to some fact or facts in

the totality of the circumstances that would create in a police

officer a heightened awareness of danger that would warrant an

objectively reasonable officer in securing the scene in a more

effective manner by ordering the passenger to alight from the

car." Id. at 665, quoting from State v. Smith, 134 N.J. 599,

618 (1994). See Commonwealth v. Stampley, 437 Mass. 323, 325-

326 (2002) ("To establish the reasonableness of an officer's

belief that someone's safety is in danger during a stop, the

Commonwealth is not required to make the specific showing that a

driver or passenger has a weapon").

In concluding that Officer Reen had a valid concern for his

safety and thus an objective basis for the exit order, we do not

retreat from our observation in Commonwealth v. Hooker, 52 Mass.

App. Ct. 683, 686 (2001), that "[a] citizen is not required to
 14

sit absolutely motionless in a stopped vehicle.” Nor do we

deviate from the principles of objectivity and proportionality

that this court and the Supreme Judicial Court have consistently

applied in cases involving motor vehicle stops. See, e.g.,

Commonwealth v. Silva, 366 Mass. 402, 405 (1974); Commonwealth

v. Torres, 433 Mass. 669, 672 (2001); Commonwealth v. Cruz, 459

Mass. 459, 476 (2011); Commonwealth v. Santos, 65 Mass. App. Ct.

122, 126-127 (2005). See also Commonwealth v. King, 389 Mass.

233, 243 (1983). Rather, the result we reach is a common sense

application of the principle announced in Gonsalves, where the

court observed that "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, and, if the basis is there, a

court will uphold the order." Id. at 664. The defendant's

reliance on Commonwealth v. Daniel, 464 Mass. 746 (2013), is

misplaced. The exit order in the present case, unlike in

Daniel, was not undertaken in response to the officer's

generalized suspicion that his safety was at risk. See id. at

752-753. Here, unlike in Daniel, the officer was faced with a

specific, sudden, and unexpected movement by the driver into an

area of the vehicle containing a backpack that, in turn, could

conceal a weapon.

In a case involving a motor vehicle infraction such as an

invalid inspection sticker, the detention of the vehicle and its
 15

occupants must end when the driver produces a valid license and

registration or when the officer completes the issuance of a

citation or warning unless a development occurs that when viewed

objectively is indicative of criminal activity or creates a

heightened awareness of danger. See Commonwealth v. Torres, 424

Mass. 153, 158 (1997).12 The motor vehicle stop in this case had

not yet reached the point where the justification for the

initial stop had expired because only a very brief time had

elapsed, the officer had yet to issue a citation or warning, and

the officer had not returned the defendant's license and

registration. Even if we assume, without deciding, that Officer

Reen's request for permission to search the vehicle was not

justified because it exceeded the scope of a lawful inquiry in a

case such as this, the Wong Sun doctrine13 does not taint the

12
The observation of a noncriminal amount of marijuana
within the defendant's car is not sufficient justification for
the continued detention of the vehicle beyond what is necessary
for the issuance of a citation, even if only for the purpose of
obtaining consent for a search. See Cruz, supra; Torres, 424
Mass. at 163; Commonwealth v. Robie, 51 Mass. App. Ct. 494, 497
(2001). Contrast Commonwealth v. Mateo-German, 453 Mass. 838,
844 (2009) (trooper present at scene of disabled vehicle and
waiting with driver for arrival of friend who was bringing
gasoline did not seize driver as result of their conversation;
furthermore, after observing suspicious items in vehicle, and
while driver continued to wait for his friend, trooper was
entitled to ask defendant if he would consent to trooper's
police dog sniffing exterior of vehicle).
13
Wong Sun v. United States, 371 U.S. 471, 485-488 (1963)
("fruit of the poisonous tree").
 16

officer's exit order and the discovery of the stun gun because

both were the result of the defendant's independent and

intervening act. See King, supra, at 245.14

Conclusion. For the above reasons, the order allowing the

defendant's motion to suppress is reversed.15

So ordered.

14
The fact that the officer stated incorrectly that he had
probable cause to search the vehicle after discovering the
presence of a small quantity of marijuana, see Commonwealth v.
Cruz, 459 Mass. at 476, is of no consequence. If during an
encounter with a police officer, the officer makes an incorrect
statement about what the law permits him to do in the
circumstances, there is no justification for a person to use
force against the officer or to make a movement which could
reasonably be understood by the officer as a threat to the
safety of the officer or anyone else who is present. See
Commonwealth v. Moreira, 388 Mass. 596, 600 (1983) ("If a police
officer is making an illegal arrest, but without excessive
force, the remedy is to be found in the courts").
15
As the defendant's motion to suppress other items seized
from his person and statements he subsequently made to the
police was based entirely on the claim that the exit order and
seizure of the stun gun was unlawful, that additional evidence
is available for use at trial subject to any further orders made
by the judge.