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SJC-12170
COMMONWEALTH vs. STEVEN MORA.
Suffolk. February 6, 2017. - June 29, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Firearms. Motor Vehicle, Firearms. Search and Seizure, Motor
vehicle, Warrant, Probable cause. Practice, Criminal,
Interlocutory appeal, Judicial discretion, Motion to
suppress, Warrant, Grand jury proceedings, Indictment,
Sentence. Probable Cause. Evidence, Grand jury
proceedings. Grand Jury.
Indictments found and returned in the Superior Court
Department on October 22, 2014.
A pretrial motion to suppress evidence was heard by James
R. Lemire, J.
An application for leave to file an interlocutory appeal
was allowed by Botsford, J., in the Supreme Judicial Court for
the county of Suffolk, and the appeal was reported by her.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 20, 2016.
The case was reported by Botsford, J.
2
Richard J. Shea for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
BUDD, J. This case is here on the reservation and report
of two related matters involving the defendant, Steven Mora, who
was indicted on various charges in connection with the
possession of an unlicensed firearm. Two of those charges
included sentence enhancement as an armed career criminal
pursuant to G. L. c. 269, § 10G (b). We conclude that the
search warrant that yielded the gun, a magazine, and ammunition
lacked probable cause and that the Commonwealth failed to
present sufficient evidence to the grand jury to support the
armed career criminal enhancements.
1. Background. a. The search. We summarize the facts
provided in the affidavit that a Worcester police officer filed
in support of an application for a warrant to search a safe
found in a motor vehicle driven by the defendant. See
Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) ("our inquiry
as to the sufficiency of the search warrant application always
begins and ends with the 'four corners of the affidavit'"
[citation omitted]).
One summer evening in 2014, that police officer was
conducting surveillance and observed a man engaged in what
appeared to be hand-to-hand drug transactions in the parking lot
3
of a convenience store. This lot was known to be a location
where "numerous drug arrests" had occurred. Approximately
thirty minutes into the surveillance, the defendant drove into
the lot in a station wagon and approached the suspected drug
dealer. As the two stood together, a third man approached the
drug dealer who appeared to conduct a brief transaction with
that individual as the defendant looked around nervously.
Following this interaction, the defendant, the drug dealer,
and a woman entered the station wagon and left the parking lot.
The officer alerted other officers in the area, and the vehicle
was stopped shortly thereafter. A patfrisk of the defendant
yielded several hypodermic needles, and the officer learned that
the defendant's driver's license was suspended. A search of the
vehicle produced more needles and other drug paraphernalia along
with a small safe marked "Fort Knox," which was on the floor of
the vehicle behind the driver's seat. No illegal narcotics were
found either in the vehicle or in the possession of any of its
occupants.
The defendant was arrested for driving with a suspended
license, and the motor vehicle, which was not registered in his
name, was towed. Police took possession of the safe pursuant to
an inventory search and determined that there was a heavy metal
object inside. Police learned through research that the safe
was designed to secure pistols. As a result, the officer sought
4
a search warrant for the contents of the safe, averring that, in
his training and experience, heroin addicts often steal anything
of value to support their addiction; drug dealers often keep
contraband inside of safes to secure their drug supply; and on
numerous occasions he had found illegal narcotics, firearms,
money, and drug transaction notes in safes belonging to drug
dealers. A warrant for the contents of the safe issued; inside
police found a handgun and magazine, two boxes of ammunition,
two pill bottles bearing the defendant's name, and two
hypodermic needles.
b. The indictments. Based on the evidence seized from the
safe, a grand jury returned indictments charging the defendant
with possession of a large capacity feeding device, possession
of ammunition without a firearm identification card, and illegal
possession of a firearm. With regard to the latter two
indictments, the defendant also was charged as an armed career
criminal pursuant to G. L. c. 269, § 10G (b) (act), on the basis
that he had been previously convicted of two violent or serious
drug offenses and therefore was subject to enhanced sentencing.1
1
A sentence enhancement pursuant to G. L. c. 269, § 10 (b),
would result in additional "imprisonment in the state prison for
not less than ten years nor more than [fifteen] years" above
that imprisonment already imposed in connection with the
underlying crime.
5
c. Procedural history. The defendant filed a motion to
suppress the evidence recovered from the safe. A Superior Court
judge denied the motion. The defendant filed a notice of appeal
from the judge's order and, subsequently, an application to a
single justice of this court for leave to appeal pursuant to
Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501
(1996).
The defendant also moved to dismiss the sentence
enhancements, arguing that there could be no probable cause for
them where the grand jury heard no evidence that his second
predicate conviction, for unarmed robbery, was a "violent crime"
as required by G. L. c. 269, § 10G (e). That motion was denied
by a different Superior Court judge. The defendant then filed a
petition in the county court pursuant to G. L. c. 211, § 3,
seeking review of the denial of his motion to dismiss the armed
career criminal enhancements.
A single justice reserved and reported both matters for
consideration by the full court.
2. Discussion. a. Motion to suppress. i. Timeliness.
As an initial matter, the Commonwealth argues that we should
reject as untimely the defendant's appeal from the denial of his
motion to suppress. The Commonwealth claims that the motion
judge did not have the authority to extend, for as long as he
6
did, the defendant's time for filing his application for leave
to appeal. We disagree.
There are two steps to perfecting an interlocutory appeal
from an order on a motion to suppress: (1) filing a notice of
appeal with the trial court; and (2) applying to a single
justice of the Supreme Judicial Court for leave to appeal.
Mass. R. Crim. P. 15 (b) (1), as appearing in 422 Mass. 1501
(1996). At the time of the events in this case, the party
seeking to appeal had ten days from the entry of the order to
file the notice of appeal, or such additional time as a judge in
the trial court or a single justice of this court may allow.2
Id. The trial court's authority to extend the time for filing a
notice of appeal is limited to thirty additional days beyond the
time set by rule 15 (b) (1). Mass. R. A. P. 4 (c), as amended,
378 Mass. 928 (1979). See Commonwealth v. Jordan, 469 Mass.
134, 141-143 (2014) (discussing interplay of Mass. R. Crim. P.
15 and Mass. R. A. P. 4, and limitation on extension of time
that lower court may grant for filing notices of appeal).
2
Rule 15 (b) (1) of the Massachusetts Rules of Criminal
Procedure has since been amended, effective August 1, 2016, to
provide that the notice of appeal and the application for leave
to appeal must be filed within thirty days of the date of entry
of the order being appealed from, or such additional time as the
lower court or the single justice may order. Mass. R. Crim. P.
15 (b) (1), as appearing in 474 Mass. 1501 (2016).
7
Here, the order denying the motion to suppress was entered
on the Superior Court docket on April 13, 2016, and the
defendant filed his notice of appeal on April 22, 2016. The
Commonwealth takes no issue with the timeliness of the
defendant's notice of appeal. The dispute lies with the second
step in the process, i.e., filing the application in the county
court for leave to pursue an interlocutory appeal.
At the same time that he filed his timely notice of appeal,
the defendant filed in the trial court a motion to extend the
time to file his application for leave to appeal by thirty days.
The motion judge allowed that request. On May 20, 2016, the
defendant filed a second motion for an extension of time, asking
for an additional thirty days to file the application, which
also was allowed. The defendant filed his application for leave
to appeal on June 20, 2016. The Commonwealth argues that the
judge's authority to grant an extension of time for filing the
application was limited to thirty days beyond the initial ten-
day period, which the judge exhausted by granting the
defendant's first motion for an extension, and thus that the
judge had no authority to grant the second motion for a further
extension. To support its argument the Commonwealth relies on
Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 740-741
(2015), in which the Appeals Court interpreted the holding in
Jordan, 469 Mass. at 140-142, and stated that the authority of a
8
judge in the trial court to grant an extension for filing an
application for leave to appeal is, by analogy, the same as the
judge's authority to grant an extension for filing a notice of
appeal, i.e., no more than thirty days beyond the expiration of
the original time period prescribed by the rule.
We pointed out in Jordan, 469 Mass. at 141-142, that the
limitation on a trial court judge's authority to extend the time
for filing a notice of appeal derives from Mass. R. A. P. 4 (c).
The same cannot be said of the judge's authority with respect to
filing the application. "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 . . .
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." Jordan, supra at 141 n.15. Rule 15 (b) (1) speaks only
of "such additional time as either the trial judge or the single
justice . . . shall order." Simply put, there is no express
limitation in the rules on a trial court judge's authority to
grant an extension of time for filing the application for leave
to appeal. A trial court judge, like a single justice of this
9
court, has discretion to determine a reasonable and appropriate
amount of time in the circumstances.3
Pursuant to Mass. R. Crim. P. 15 (b) (1), the motion judge
in this case was well within his discretion to grant thirty
additional days beyond the thirty days previously granted for
the filing of the application. The defendant's application,
filed on June 20, 2016, in accordance with the judge's grant of
additional time, was therefore timely.
ii. Search warrant. "Because a determination of probable
cause is a conclusion of law, we review a search warrant
affidavit de novo." Commonwealth v. Foster, 471 Mass. 236, 242
(2015). The defendant argues that the search warrant for the
safe was improperly issued as the affidavit in support of the
application failed to establish the necessary probable cause.
"[T]he magistrate [must have] a substantial basis to conclude
that a crime [was] committed . . . and that the items described
in the warrant were related to the criminal activity and
probably in the place to be searched" (citation omitted).
O'Day, 440 Mass. at 298. The warrant affidavit established
probable cause that drug transactions occurred, and that drug
dealers often use safes to hide contraband such as narcotics,
firearms, and money. However, it did not adequately connect the
3
To the extent that Commonwealth v. Demirtshyan, 87 Mass.
App. Ct. 737 (2015), states otherwise, it is incorrect.
10
drug dealing, or any other criminal activity, to the safe in the
motor vehicle that the defendant was driving.
The affidavit does not make clear whom the police were
targeting. As a warrant application must draw a nexus between
the area to be searched and criminal activity -- not a
particular person -- it is not necessary for the application to
identify a suspect. See, e.g., Commonwealth v. Martinez, 476
Mass. 410, 416-417 (2017) (probable cause analysis focused on
nexus between suspected child pornography crimes and certain
computers, not certain users). Here, however, in an attempt to
create a basis for probable cause, the affidavit seems to
conflate observations of the suspected dealer with observations
of the defendant as though the two were one individual. An
examination of the actions of and circumstances surrounding each
individual is in order.
First, although there clearly was probable cause to believe
that the first male observed was a drug dealer, the affidavit
did not reveal a nexus between his activities and the safe.
Despite the fact that the affidavit states that "drug dealers
often keep contraband inside of safes to secure their drug
supply," this particular safe was behind the driver's seat of a
motor vehicle in which the drug dealer took a short trip just
prior to the stop. The affidavit did not indicate whether the
drug dealer had prior access to the motor vehicle, whether he
11
would have had physical access to the safe based on where he was
sitting, or whether he would have had time to access the safe
given the short period of time that he was in the vehicle.
Although the defendant, as the driver of the vehicle, has
an arguable connection to the safe, there must be a nexus
between the safe and criminal activity. The affidavit included
no "specific allegations or particularized information based on
police surveillance" that the defendant was a dealer.
Commonwealth v. Pina, 453 Mass. 438, 442 (2009). Rather, the
patfrisk of the defendant and sweep of the motor vehicle yielded
hypodermic needles indicating drug use, not drug dealing. Cf.
Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (intent to
distribute marijuana supported by, inter alia, "absence of any
smoking paraphernalia" undermined claim of possession for
personal use). Further, neither the fact that a hand-to-hand
drug transaction was conducted in the defendant's presence nor
the fact that the defendant thereafter gave the drug dealer a
ride permits an inference that the defendant was a participant
in the drug dealer's distribution activities. Contrast
Commonwealth v. Fernandez, 458 Mass. 137, 141 n.9 (2010) (search
for evidence of drug dealing warranted where defendant seen
personally conducting hand-to-hand drug transactions).
As there is no plausible nexus between the safe and drug
dealing, we look to whether there is probable cause to believe
12
that there is a nexus between the safe and any other criminal
activity. As discussed supra, there was probable cause to
believe that the defendant was a drug user, and the affiant
averred that in his training and experience, heroin addicts may
steal anything of value "to sell or trade the items to support"
their habit. Importantly, however, the affiant also stated that
dealers, not addicts, tend to hide contraband in safes. Because
the affidavit made no connection between drug use and safes,
there was no probable cause to believe that evidence of the
defendant's drug use could be found in the safe.
Finally, the affidavit did provide probable cause to
believe that there was a firearm in the safe. However, the
licensed possession of a firearm is not a crime, and on the
facts here, there was no probable cause to believe that the
defendant did not have a license to carry the weapon. If
anything, the fact that a handgun is properly secured in a gun
safe makes it more likely that its owner has a license. See
Commonwealth v. Edwards, 476 Mass. 341, 346-347 & n.10 (2017).
The mere fact that the defendant may have been a heroin user
does not give rise to the inference that the firearm was
unlicensed. See Commonwealth v. White, 374 Mass. 132, 141
(1977), aff'd (by an equally divided Court), 439 U.S. 280 (1978)
(evidence of drug use does not furnish probable cause for
additional criminality). Further, "mere possession of a handgun
13
[is] not sufficient to give rise to a reasonable suspicion that
the defendant was illegally carrying that gun." Commonwealth v.
Couture, 407 Mass. 178, 183, cert. denied, 498 U.S. 951 (1990).
As the affidavit failed to provide a nexus between any
suspected criminal activity and the safe, the warrant was
invalid and the fruits of the search must be suppressed.
b. Motion to dismiss sentence enhancements.4 The defendant
also asks us to exercise our extraordinary powers pursuant to
G. L. c. 211, § 3, to reverse the denial of his motion to
dismiss the sentence enhancements.
The armed career criminal statute imposes enhanced
penalties on a person convicted of possession of a firearm or
ammunition where that person was previously convicted of two
violent crimes or serious drug offenses. G. L. c. 269,
§ 10G (b). The two predicate crimes that the Commonwealth
presented to the grand jury in this case were assault and
battery by means of a dangerous weapon and robbery. The
defendant argues that the Commonwealth failed to establish that
his conviction of robbery was a conviction of a violent crime,
and that therefore the sentence enhancements must be dismissed.
4
Because we conclude that all of the evidence seized from
the safe must be suppressed, for all practical purposes it would
appear that the Commonwealth may be required to dismiss its
case. Nevertheless, the single justice reserved and reported
this issue because it is likely to continue arising in other
cases and we reach it accordingly.
14
The Commonwealth argues that the fact that the defendant was
convicted of robbery is enough to establish probable cause that
he committed a violent crime. We agree with the defendant.
The act uses the definition of "[v]iolent crime" found in
G. L. c. 140, § 121:
"any crime punishable by imprisonment for a term exceeding
one year . . . that: (i) has as an element the use,
attempted use or threatened use of physical force or a
deadly weapon against the person of another; (ii) is
burglary, extortion, arson or kidnapping; (iii) involves
the use of explosives; or (iv) otherwise involves conduct
that presents a serious risk of physical injury to
another."
See G. L. c. 269, § 10G (e). Only the first part of this
definition in G. L. c. 140, § 121, is relevant here.5 "Physical
force" as used in that clause means "violent or substantial
force capable of causing pain or injury." Commonwealth v.
Eberhart, 461 Mass. 809, 818 (2012), quoting Commonwealth v.
Colon, 81 Mass. App. Ct. 8, 18 (2011).
Pursuant to G. L. c. 265, § 19 (b), the crime of robbery
(i.e., unarmed robbery) is defined as follows:
"Whoever, not being armed with a dangerous weapon, by force
and violence, or by assault and putting in fear, robs,
steals or takes from the person of another, or from his
immediate control, money or other property which may be the
subject of larceny, shall be punished by imprisonment in
the state prison for life or for any term of years."
5
Robbery is not one of the offenses enumerated in the
second and third clauses of G. L. c. 140, § 121, and we recently
determined that the fourth clause is unconstitutionally vague.
Commonwealth v. Beal, 474 Mass. 341, 350-351 (2016).
15
Thus, one can commit a robbery either by "force and
violence," or by "assault and putting in fear." Commonwealth v.
Jones, 362 Mass. 83, 86 (1972), quoting G. L. c. 277, § 39. In
both circumstances, "the degree of force is immaterial so long
as it is sufficient to obtain the victim's property 'against his
will'" (citation omitted). Jones, supra at 87. Importantly,
the victim need not resist; as "long as the victim is aware of
the application of force which relieves him of his property,
. . . the requisite degree of force is present to make the crime
robbery" (citation omitted). Id. at 89.
Even in a case where the robbery is committed by "force and
violence," it is not necessary that the victim be placed in
fear.6 Thus, conduct that may be sufficient to meet the
definition of robbery may not satisfy the definition of "violent
crime" for purposes of a sentence enhancement under the act.
See United States v. Parnell, 818 F.3d 974, 981 (9th Cir. 2016)
(robbery is not "violent crime" in meaning of Federal armed
6
For example, in Commonwealth v. Jones, 362 Mass. 83, 85
(1972), the defendant was convicted of robbing a woman who
"described the taking as follows: 'I really couldn't tell you
what he did. All I knew he was standing there. Next thing I
knew, I felt something off my arm. I realized my bag was
gone.'" This court upheld the conviction, holding that
"although the action may be so swift as to leave the victim
momentarily in a dazed condition, the requisite degree of force
is present to make the crime robbery." Id. at 89.
16
career criminal statute, from which Massachusetts statute
borrows its definition).
Because the crime of robbery can encompass conduct
satisfying one of several definitions, not all of which are
violent, to determine whether robbery is a violent crime for
purposes of the act, the Commonwealth must provide not only the
certified record of conviction but also evidence of the
circumstances surrounding the robbery.7 See Eberhart, 461 Mass.
at 816-817, citing Colon, 81 Mass. App. Ct. at 15.
Because the grand jury in this case heard only that the
defendant had been convicted of robbery, without evidence that
the defendant used, attempted to use, or threatened to use
physical force, there was no reasonable basis to find probable
cause that he had committed a "violent crime." Commonwealth v.
Hanright, 466 Mass. 303, 312 (2013) (evidence before grand jury
must contain "reasonably trustworthy information . . .
sufficient to warrant a prudent [person] in believing that the
defendant had committed . . . an offense" [citation omitted]);
7
As a practical matter, the necessary extrinsic evidence is
slight. The Commonwealth need only demonstrate which statutory
or common-law definition was the basis of the prior conviction
by, for example, presenting the police report or calling an
officer to testify. See Commonwealth v. Eberhart, 461 Mass.
809, 816 (2012), citing Commonwealth v. Colon, 81 Mass. App. Ct.
8, 16 n.8 (2011).
17
Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Thus, the
sentence enhancements must be dismissed.
3. Conclusion. The matters are remanded to the county
court. In No. SJ-2016-275, a judgment shall enter reversing the
order of the Superior Court denying the defendant's motion to
suppress evidence recovered pursuant to the search warrant. In
No. SJ-2016-276, a judgment shall enter allowing the defendant's
petition for relief under G. L. c. 211, § 3, and reversing the
Superior Court order denying the defendant's motion to dismiss
the armed career criminal portions of the indictments.
So ordered.