Commonwealth v. Alexis , 481 Mass. 91 ( 2018 )

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SJC-12465
COMMONWEALTH vs. JEAN ALEXIS.
Essex. September 5, 2018. - December 14, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Constitutional Law, Search and seizure. Search and Seizure,
Exigent circumstances, Warrant, Probable cause. Practice,
Criminal, Motion to suppress, Warrant, Waiver. Probable
Cause.
Indictments found and returned in the Superior Court
Department on June 27, 2016.
A pretrial motion to suppress evidence was heard by James
F. Lang, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Kafker, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him.
Emily R. Mello, Assistant District Attorney, for the
Commonwealth.
Emily A. Cardy, Committee for Public Counsel Services, for
the defendant.
2
CYPHER, J. The defendant, Jean Alexis, was charged with
numerous crimes stemming from an armed home invasion in Lynn.1
The day after the home invasion, and following an investigation,
the police arrested the defendant inside his dwelling without an
arrest warrant. The defendant moved to suppress evidence that
(1) the police observed during a protective sweep of his
dwelling after he was arrested and (2) the police gathered after
they obtained a warrant to search his dwelling.2 A judge in the
Superior Court allowed the defendant's motion to suppress
because the police created the exigency that prompted their
warrantless entry into the defendant's dwelling. A single
justice of this court allowed the Commonwealth's application for
leave to pursue an interlocutory appeal and reported the case to
the full court.
1 The charges are as follows: home invasion (G. L. c. 265,
§ 18C), armed robbery (G. L. c. 265, § 17), armed assault in a
dwelling (G. L. c. 265, § 18A), assault and battery by means of
a dangerous weapon (G. L. c. 265, § 15A [b]), assault and
battery (G. L. c. 265, § 13A [a]), and possession of an
electrical stun gun (G. L. c. 140, § 131J).
2 "An arrest warrant 'encompasses the power to enter a
[suspect's] residence for the purpose of executing the warrant'"
(citation omitted). Commonwealth v. Silva, 440 Mass. 772, 776
(2004). "Generally, a [search] warrant must be secured before a
search [of the dwelling] is conducted, and warrantless searches
'are presumptively unreasonable.'" Commonwealth v. Ramos, 470
Mass. 740, 745 (2015), quoting Kentucky v. King, 563 U.S. 452,
459 (2011).
3
We have held that "where the exigency is reasonably
foreseeable and the police offer no justifiable excuse for their
prior delay in obtaining a warrant, the exigency exception to
the warrant requirement is not open to them." Commonwealth v.
Forde, 367 Mass. 798, 803 (1975) (analyzing warrantless search
under Fourth Amendment to United States Constitution). See
Commonwealth v. Molina, 439 Mass. 206, 211 (2003). In Kentucky
v. King, 563 U.S. 452, 462 (2011), the United States Supreme
Court held that where "the police did not create the exigency by
engaging or threatening to engage in conduct that violates the
Fourth Amendment, warrantless entry to prevent the destruction
of evidence is reasonable and thus allowed." The Commonwealth
urges us to follow the jurisprudence of the Supreme Court when
examining a warrantless search of a dwelling under art. 14 of
the Massachusetts Declaration of Rights. Adopting such an
approach would render all of the evidence obtained after the
defendant's arrest admissible. The defendant argues that,
notwithstanding the Supreme Court's decision in King, under art.
14 the police cannot create the exigent circumstances used to
justify a warrantless entry to a home, even if they engaged in
lawful action, such as approaching a house to knock on a door.
He also contends that the Commonwealth waived the argument that
probable cause remained for the subsequent search warrant, even
4
if the impermissibly viewed evidence is redacted from the
affidavit.
We interpret art. 14 to provide greater protection than the
Fourth Amendment where the police have relied on a reasonably
foreseeable exigency to justify the warrantless entry into a
dwelling. Therefore, we conclude that the judge did not err in
allowing the defendant's motion to suppress evidence that was
found in plain view during a protective sweep because the
officers' entry into his home was not justified based on exigent
circumstances. We also conclude that the Commonwealth waived
the argument regarding whether, if the impermissible
observations from the affidavit were redacted, the search
warrant was based on probable cause.
Background. We recite the motion judge's factual findings
supplemented by the uncontroverted evidence at the motion
hearing that is consistent with the judge's findings.
Commonwealth v. Jones–Pannell, 472 Mass. 429, 431 (2015).
"[O]ur duty is to make an independent determination of the
correctness of the [motion] judge's application of
constitutional principles to the facts as found" (citation
omitted). Commonwealth v. Campbell, 475 Mass. 611, 615 (2016).
On the morning of June 14, 2016, Lynn police officers responded
to a report of a home invasion. Shortly thereafter, Detective
Stephen Pohle arrived at the scene. Upon arrival, Pohle spoke
5
with the victim, Shomar Garcia, who lived at the apartment with
his wife and two children. Garcia conveyed that earlier that
morning, while he was leaving for work, three African-American
males forced their way into the apartment, one of them struck
him in the face with a silver handgun, and they "forced their
way into the bedroom, where his wife and two children were."
The men restrained Garcia with duct tape and took his jewelry
and wallet. Before leaving the house, the man with the silver
handgun struck Garcia's six month old baby in the face with the
gun.
Garcia recognized the man with the silver handgun as
someone with whom he had attended high school. Later that
afternoon, Garcia went to the police station in an attempt to
identify the perpetrator. After looking through a "few hundred
photos," Garcia saw a photograph of the defendant and stated
with "[one hundred] percent" certainty that the photograph was
of one of the men who had broken into his home and was the one
who had hit him and his baby.
Pohle wrote an incident report and filled out an arrest
warrant application. Because it was late in the afternoon and
his shift had ended, Pohle placed the warrant in the "court box"
6
for the next day.3 Pohle testified that although the nature of
the investigation -- an armed home invasion -- justified an
after-hours warrant, the decision not to seek one was within his
discretion.4
Early the next morning, before he began his shift, Pohle
telephoned the supervisor of the Lynn police department's
warrant task force, Sergeant Michael Kenny. Pohle informed
Kenny, who was on his way to the police station, that the
defendant had been identified as the perpetrator of the home
invasion who brandished a handgun and struck the baby with the
gun. Pohle also informed Kenny that he was in the process of
getting an arrest warrant.
At approximately 7 A.M., Kenny arrived at the police
station and reviewed the department's "hot sheet."5 Kenny
recognized the defendant's name on the "hot sheet" as a person
The "court box" has a mail slot for "paperwork that needs
3
to go over to court." Each morning, a "police prosecutor"
brings applications for warrants and complaints from the police
station to the Lynn Division of the District Court Department,
where a clerk reviews and signs the applications.
4 Detective Stephen Pohle did not recall his rationale for
not seeking an after-hours arrest warrant.
A "hot sheet" has "information that's put out to police
5
officers within the department that explains incidents, what
happened, the facts of incidents, [and] suspect information."
The "hot sheet" "pass[es] on information" to "officers who may
have not worked [the previous] shift."
7
with whom he had recently spoken while investigating another
matter. Kenny also knew where the defendant lived.
Without an arrest warrant, but believing that there was
probable cause to arrest the defendant and that exigent
circumstances existed, Kenny and four other members of the
warrant task force proceeded to the defendant's address. The
officers were dressed in plainclothes and had their badges
displayed.6 Because of the information available to Kenny at the
time -- the defendant's identification being fresh, the violent
nature of the home invasion, the defendant's role in it, his
possession of a firearm, the involvement of two accomplices, and
the possibility that they might flee -- he believed that
immediate action was required.7
Upon arriving at the defendant's address, Kenny and two
officers approached the front door, while two other officers
went to the side of the house to secure a perimeter.8 Kenny
6 The officers arrived at the defendant's residence in
unmarked police vehicles.
7 The motion judge found that Sergeant Michael Kenny
mistakenly believed that the defendant's identification had
occurred that morning, immediately prior to Pohle's telephone
call. Testimony in the record indicates that Garcia had
identified the defendant the previous day.
8 Kenny described the dwelling as a "four-room rooming
house" that "looks like a single-family house from the front."
"There's a porch that goes up to the front door," and the front
door is "clear glass." "To the left and right of [the] door are
8
understood that the officers' presence might prompt the
defendant to flee or destroy evidence. Kenny's plan was to
knock on the door to determine if the defendant was home,
question him, and, if the opportunity arose, arrest him. As
Kenny ascended the front porch steps, the defendant saw the
officers through the glass front door. The defendant turned
around and ran toward the back of the house. One of the
officers who was setting up a perimeter observed the defendant
climbing through a window in the back of the house. The officer
shouted at the defendant to show his hands. Instead, the
defendant retreated into the house, out of the officer's view.
Because of the volatile situation and the nature of the crimes
involved, the officers forced their way through the front door.
As they entered, they noticed the defendant coming toward them
from the back of the home. The officers ordered the defendant
to the ground and handcuffed him in the hallway.
After the defendant had been restrained, the officers
conducted a protective sweep of the house and secured the
premises. During the protective sweep, Kenny made a plain view
windows, and the windows are to each separate room in the
rooming house." "When you walk in the front door, to the right
is a door that goes to a bedroom," and "[o]n the left, is
another door that goes to a bedroom." "There is an open living
room area, and . . . behind that is a kitchen area [with] stairs
on the right . . . going to the second level."
9
observation of some jewelry on top of a refrigerator in the
defendant's room that matched the description of the jewelry
taken during the home invasion.9
After the dwelling had been secured, Kenny prepared an
application for a search warrant. In his affidavit, Kenny
relayed Garcia's account of the violent home invasion, Garcia's
identification of the defendant, and that the defendant was
brandishing a silver handgun. He also included the plain view
observations of the suspected stolen property he had seen during
the protective sweep. A clerk-magistrate of the Lynn Division of
the District Court Department approved the search warrant.
During the execution of the search warrant, the officers
seized items of evidentiary significance, including jewelry, a
wallet, an electrical stun gun, and various identification cards
bearing the defendant's name. Also discovered were articles of
clothing that matched the description given by Garcia of the
clothes worn by the home invaders. Following the search warrant
execution, Garcia confirmed that the sweatshirt and the pants
were consistent with the clothing worn by the defendant during
the home invasion.
Discussion. 1. Warrantless arrest. Historically, the
Massachusetts Constitution has carefully protected the home from
9 A description of the jewelry that had been taken from
Garcia was in Pohle's incident report.
10
the intrusion by the government without a warrant, with certain
delineated exceptions. See Commonwealth v. Tyree, 455 Mass.
676, 684 (2010); Molina, 439 Mass. at 211. The existence of
exigent circumstances that make it impracticable to obtain a
warrant is one such exception. Commonwealth v. Figueroa, 468
Mass. 204, 213 (2014).10
The Commonwealth argues that the warrantless arrest of the
defendant in his home was justified because the defendant's
reaction to the lawful police presence outside his home created
exigent circumstances. In making this argument, it maintains
that the United States Supreme Court, in King, 563 U.S. at 469,
abrogated prevailing Massachusetts jurisprudence when it held
that "the exigent circumstances rule applies when the police do
not gain entry to premises by means of an actual or threatened
violation of the Fourth Amendment." In other words, if the
conduct of the police before their entry into the apartment was
10Police may have reasonable grounds to believe that
obtaining a warrant would be impracticable when the delay in
doing so would pose a significant risk that the suspect may
flee, evidence may be destroyed, or the safety of the police or
others may be endangered. Commonwealth v. Figueroa, 468 Mass.
204, 213 (2014). Although often used interchangeably in the
cases, "impractical" is not "impracticable." See J.A. Grasso,
Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law
§ 14-1[c][2] (2018). Webster's Third New International
Dictionary 1136 (1963) defines "impractical" as "not wise to put
into or keep in practice or effect," while "impracticable" is
defined as "incapable of being performed or accomplished by the
means employed or at command," id.
11
entirely lawful, the exigent circumstances exception applies.
Id.
The defendant contends that the exigent circumstances
exception to the warrant requirement is inapplicable because the
police created the exigency themselves by not procuring a
warrant before going to the defendant's residence. He claims
that the warrantless entry into his home violates his rights
under art. 14, notwithstanding the fact that police officers may
lawfully knock on a door and make inquiries.11
The Fourth Amendment and art. 14 require that all searches
and seizures be reasonable, and case law has held that all
warrantless entries into a home are presumptively unreasonable.
See, e.g., Commonwealth v. Ramos, 470 Mass. 740, 744-745 (2015);
Commonwealth v. Polanco, 92 Mass. App. Ct. 764, 769 (2018).
Because the touchstone of the Fourth Amendment is
reasonableness, however, "the warrant requirement is subject to
For the first time on appeal, the defendant contends that
11
the officers' presence on his porch violated his rights under
the Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights. This argument is
misplaced. Neither the Federal nor the Massachusetts
Constitution prohibits police from knocking on a citizen's door
and making an initial inquiry. See Commonwealth v. Leslie, 477
Mass. 48, 57 (2017) ("a police officer, like any other citizen,
has an implied license to walk up the path to the front door of
a home and knock on the front door"). Contrast Collins v.
Virginia, 138 S. Ct. 1663, 1675 (2018) (Fourth Amendment does
not permit police officer, uninvited and without search warrant,
to enter curtilage of home to search vehicle).
12
certain reasonable exceptions." Ramos, supra at 745, quoting
King, 563 U.S. at 459. The Commonwealth may justify a
warrantless entry into a home if the police had probable cause
and exigent circumstances. Molina, 439 Mass. at 209. Under the
exigent circumstances exception to the warrant requirement,
"there must be a showing that it was impracticable for the
police to obtain a warrant, and the standards as to exigency are
strict." Forde, 367 Mass. at 800.
In Forde, we held that "a warrantless entry into a dwelling
to arrest in the absence of sufficient justification for the
failure to obtain a warrant" is impermissible. Id. at 806. We
concluded that "where the exigency is reasonably foreseeable and
the police offer no justifiable excuse for their prior delay in
obtaining a warrant, the exigency exception to the warrant
requirement is not open to them." Id. at 803. Forde was
decided solely on the basis of the Fourth Amendment. Id. at
805-806.
Later, in Molina, a case decided eight years before the
Supreme Court's decision in King, we held: "The Fourth
Amendment . . . and art. 14 . . . scrupulously guard against the
intrusion of the government into a citizen's home without a
warrant." Molina, 439 Mass. at 211. We stated that "[t]he
exigent circumstance requirement is not satisfied by virtue of
altercations resulting from a warrantless arrest at the home,
13
where there is no showing of exigent circumstances leading to
the warrantless arrest itself." Id.
In King, 563 U.S. at 462, the Supreme Court held that where
"the police did not create the exigency by engaging or
threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of
evidence is reasonable and thus allowed." In an eight-to-one
decision, the Court concluded that as long as "the police do not
gain entry to premises by means of an actual or threatened
violation of the Fourth Amendment," they may knock on a
suspect's door and announce their presence, and the exigent
circumstances rule may still apply. Id. at 469. See
Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 249 (2011).
"Molina and King thus appear inconsistent with each other as a
matter of Fourth Amendment jurisprudence." Gentle, supra at
251. Our interpretation of the Fourth Amendment tracked that of
the dissent in King. As the sole dissenter, Justice Ginsberg
reasoned, "How 'secure' do our homes remain if police, armed
with no warrant, can pound on doors at will and, on hearing
sounds indicative of things moving, forcibly enter and search
for evidence of unlawful activity?" King, supra at 475
(Ginsburg, J., dissenting).
In Molina, we did not address whether art. 14 offers more
protection than the Fourth Amendment in situations where, as
14
here, law enforcement's lawful conduct created the exigent
circumstances that are in turn used to justify a warrantless
search. We take the opportunity to address this issue now.
Our interpretation of art. 14 frequently aligns with the
United States Supreme Court's interpretation of the Fourth
Amendment. However, we have sometimes held that art. 14 may
provide more substantive protection to individuals than that
provided by the Fourth Amendment.12 See, e.g., Commonwealth v.
Amado, 474 Mass. 147, 154 (2016) ("'probable cause [(not
reasonable suspicion)] is the appropriate standard that must be
met for a strip or visual body cavity search to be
constitutionally permissible' under art. 14" [citation
omitted]); Commonwealth v. Balicki, 436 Mass. 1, 9 (2002)
(declining to abandon inadvertence requirement of plain view
12See Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 250
(2011); Cordy, Criminal Procedure and the Massachusetts
Constitution, 45 New Eng. L. Rev. 815, 821 (2011) ("the [Supreme
Judicial Court] has repeatedly concluded that [art.] 14's
protections against unreasonable searches and seizures are
broader and more restrictive of police power than those of the
Fourth Amendment"); Grasso, "John Adams Made Me Do It":
Judicial Federalism, Judicial Chauvinism, and Article 14 of
Massachusetts' Declaration of Rights, 77 Miss. L.J. 315, 340
(2007) ("the [Supreme Judicial Court] has often recognized its
authority and duty to interpret and enforce cognate provisions
of the Massachusetts Constitution that afford greater
protections than its federal counterpart"); Wilkins, The
Massachusetts Constitution -- The Last Thirty Years, 44 Suffolk
U. L. Rev. 331, 337 (2011) ("In the past three decades, the
Supreme Judicial Court has resisted urgings to relax the
requirements of art. 14 to conform to the Supreme Court's
revisions of Fourth Amendment law" [footnotes omitted]).
15
exception to warrant requirement under art. 14, as Supreme Court
did under Fourth Amendment); Commonwealth v. Gonsalves, 429
Mass. 658, 668 (1999) ("under art. 14, the balancing of
interests requires that Massachusetts citizens should not be
subjected to unjustified exit orders during routine traffic
stops"); Commonwealth v. Upton, 394 Mass. 363, 373–375 (1985)
(retaining more stringent test under Aguilar v. Texas, 378 U.S.
108 [1964], and Spinelli v. United States, 393 U.S. 410 [1969],
rather than totality of circumstances standard); Gentle, 80
Mass. App. Ct. at 250 ("Although the Supreme Judicial Court's
interpretation of art. 14 has often converged with the United
States Supreme Court's interpretation of the Fourth Amendment,
when the Supreme Judicial Court has diverged it has emphasized
its obligation to undertake an independent review of the State
Constitution and the court's freedom to interpret the State
Constitution to provide a different balancing of the interests
of privacy and the police . . .").
Although we have not specifically answered the question
whether art. 14 provides greater protection than the Fourth
Amendment in these circumstances, we have repeatedly emphasized
the importance of a person's right to privacy in the home. See,
e.g., Commonwealth v. Porter P., 456 Mass. 254, 260 (2010) ("In
view of the 'sanctity of the home,' 'all details [in the home]
are intimate details, because the entire area is held safe from
16
prying government eyes'" [citation omitted]); Molina, 439 Mass.
at 209; Balicki, 436 Mass. at 12 n.14 ("Nowhere are expectations
of privacy greater than in the home, and '[i]n the home . . .
all details are intimate details" [citation omitted]);
Commonwealth v. Marquez, 434 Mass. 370, 374 (2001); Commonwealth
v. Straw, 422 Mass. 756, 760 (1996) ("it is in the home that a
person's expectation of privacy is at its highest");
Commonwealth v. Blood, 400 Mass. 61, 68 & n.9 (1987) (art. 14
affords greater privacy protection from government eavesdropping
for conversations that occur in home); Forde, 367 Mass. at 805("The right of police officers to enter into a home, for
whatever purpose, represents a serious governmental intrusion
into one's privacy").
In the present case, balancing the interests of law
enforcement with the rights of people to be protected from
warrantless searches in the home, we conclude that art. 14
provides greater protection than the Fourth Amendment in these
circumstances and that under art. 14 the police cannot avail
themselves of the exigency exception to the warrant requirement
when it was foreseeable that their actions would create the
exigency, even if their conduct was lawful. See Molina, 439
Mass. at 210; Forde, 367 Mass. at 803.
Here, before arriving at the defendant's home, Kenny knew
that Pohle was in the process of getting an arrest warrant but
17
had not secured one. Moreover, Kenny testified that his plan
was to knock on the door to see if the defendant was home,
question him, and if the opportunity arose, arrest him. Based
on his testimony, it was evident that Kenny went to the
defendant's home with the purpose of making an arrest without a
warrant. There is nothing in the record indicating that it was
impracticable to get a warrant.
Likewise, it was reasonably foreseeable that the five
police officers approaching the defendant's home could cause the
defendant to attempt to flee.13 In fact, Kenny testified that he
understood that the officers' presence might prompt the
defendant to flee or destroy evidence. See Forde, 367 Mass. at
801. The officers also set up a perimeter around the house to
prevent the defendant from discarding evidence or escaping.
There is no question that the police had developed probable
cause to arrest the defendant prior to arriving at his home.
Pohle decided not to pursue an after-hours arrest warrant, even
though he testified that there was a procedure in place to get
one. There is also no question that it is generally permissible
for police to approach a person's home and knock on the door.
Commonwealth v. Leslie, 477 Mass. 48, 57 (2017). However, Kenny
had the opportunity to obtain an arrest warrant the morning of
Although the officers were in plain clothes, Kenny
13
testified that their badges were displayed.
18
the arrest. Forgoing multiple opportunities to procure an
arrest warrant further highlights the unreasonableness of the
arrest. See Forde, 367 Mass. at 799, 801.
Furthermore, the Commonwealth made no showing that it was
impracticable to obtain an arrest warrant. There was no
evidence that there was a risk that the defendant would flee,
destroy evidence, or be a risk to the officers' safety if the
police followed the normal course and secured a warrant. See
Tyree, 455 Mass. at 687-691. Compare Figueroa, 468 Mass. at
213. The crime occurred the previous day, and there was no
evidence that the defendant even knew or had reason to know that
he was a suspect before the police arrived at his home. Compare
Commonwealth v. Colon, 449 Mass. 207, 217, cert. denied, 552
U.S. 1079 (2007) (exigent circumstances existed where witnesses
to shooting told police that shooters had run into building and
officers knocked on door and received no answer notwithstanding
noises coming from apartment).
The Commonwealth argues that because of the nature of the
crime, the defendant's role in it, his possession of a firearm,
the involvement of two accomplices, and the possibility that
they might try to flee, the situation called for immediate
action. However, the police could have set up surveillance
while they waited for the warrant and arrested the defendant if
he left his house. To this point, even though the Commonwealth
19
argued that the defendant might have fled, it did not articulate
any basis to conclude that there was a risk of flight. See
Tyree, 455 Mass. at 689 ("the police had no reason to believe
that the suspects were likely to flee the residence in the time
it would have taken to procure a warrant to search the
premises"); Molina, 439 Mass. at 210. As in Molina, supra at
211, "[t]his is a situation where the officers could have, and
should have, secured a warrant. . . . The exigent circumstances
that emerged during the arrest were a result of the officers'
appearance at the dwelling." Considering all of the
circumstances, the arrest of the defendant in his dwelling
without a warrant was unreasonable. Because the defendant's
warrantless arrest in his apartment was unlawful, the police
cannot rely on the plain view doctrine to allow the postarrest
observations in evidence. Forde, 367 Mass. at 807.
2. Waiver. In a postargument letter invited by the court,
the defendant contends that the Commonwealth waived any argument
regarding the validity of the search warrant that was sought and
executed after the defendant was arrested because the argument
was raised neither below nor on appeal. We agree. See
Commonwealth v. Bettencourt, 447 Mass. 631, 634 (2006) ("Our
system is premised on appellate review of that which was
presented and argued below"). Contrast Commonwealth v. Perkins,
478 Mass. 97, 107 (2017). Nevertheless, we take this
20
opportunity to discuss the nexus requirement to issue a search
warrant for a dwelling.
Under both the Fourth Amendment and art. 14, a search
warrant may issue only on a showing of probable cause.
Commonwealth v. Keown, 478 Mass. 232, 237 (2017), cert. denied,
138 S. Ct. 1038 (2018). Probable cause means a "substantial
basis" to conclude that "the items sought are related to the
criminal activity under investigation, and that they reasonably
may be expected to be located in the place to be searched at the
time the search warrant issues" (citation omitted).
Commonwealth v. Holley, 478 Mass. 508, 521 (2017). "Information
establishing that a person is guilty of a crime does not
necessarily constitute probable cause to search the person's
residence." Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.
denied, 464 U.S. 860 (1983). There must be probable cause to
conclude not only that an individual committed a crime, but also
that there is a nexus between the crime and the items sought,
and the location to be searched. The nexus to search a
residence for evidence of a crime "may be found in the type of
crime, the nature of the . . . items [sought], the extent of the
suspect's opportunity for concealment, and normal inferences as
to where a criminal would be likely to hide [items of the sort
sought]" (quotation and citation omitted). Id. See Perkins,
478 Mass. at 104.
21
Some cases involving the search of a dwelling have used an
articulation of the nexus standard that has sometimes been
interpreted as being more stringent, particularly in cases
involving searches of residences for drugs. See, e.g., Perkins,
478 Mass. at 104; Commonwealth v. Colondres, 471 Mass. 192, 201,
cert. denied, 136 S. Ct. 347 (2015); Commonwealth v. Tapia, 463
Mass. 721, 725-726 (2012); Commonwealth v. Escalera, 462 Mass.
636, 644-646 (2012); Commonwealth v. Pina, 453 Mass. 438, 440-
441 (2009). In one of those cases we stated: "The affidavit
need not convince the magistrate beyond a reasonable doubt, but
must provide a substantial basis for concluding that [drugs or
instrumentalities of the drug trade] will be found on the
specified premises." Pina, supra, quoting Commonwealth v.
Donahue, 430 Mass. 710, 712 (2000). A "substantial basis" means
no more and no less than that "[a]n affidavit must contain
enough information for an issuing magistrate to determine that
the items sought are related to the criminal activity under
investigation, and that they reasonably may be expected to be
located in the place to be searched at the time the search
warrant issues." Cinelli, 389 Mass. at 213. "In determining
whether an affidavit justifies a finding of probable cause, the
affidavit is considered as a whole and in a commonsense and
realistic fashion" (citation omitted). Commonwealth v.
Robertson, 480 Mass. 383, 386 (2018).
22
The affidavit in support of the search warrant stated that
the defendant was identified by the victim, was seen brandishing
a silver handgun, and struck Garcia and his baby during the home
invasion with the gun. The affidavit also stated that Kenny
observed jewelry fitting the description of stolen jewelry
during the protective sweep. The search warrant was approved by
a clerk-magistrate, and the police seized significant evidence,
including articles of clothing that matched Garcia's description
of the clothes worn by the home invaders.
Here, probable cause to issue the search warrant remained
even without considering Kenny's plain view observation of
jewelry matching the description of the stolen jewelry. The
defendant used a handgun to strike Garcia and his child during
the commission of the home invasion.14 It is reasonable to
expect that the handgun specified in the warrant was an item
that could reasonably be located in the home of a person who had
participated in an armed home invasion the previous day.
Cinelli, 389 Mass. at 212-213. See Commonwealth v. Luthy, 69
Mass. App. Ct. 102, 105 (2007) ("The connection between the
items to be seized and the place to be searched does not have to
be based on direct observations; it may be found by looking at
the type of crime, nature of the items, the suspect's
14The defendant did not fire the handgun during the home
invasion.
23
opportunity to conceal items, and inferences as to where the
items are likely to be hidden"). In Commonwealth v. James, 424
Mass. 770, 778 (1997), we held that the defendants had no reason
to dispose of the instrumentalities used in a murder -- knives,
sneakers, and a face mask -- because the defendants were unaware
that they were suspects and "all of [the] items [were] durable,
of continuing utility to the defendants, and it was reasonable
to expect that they would be kept at home, particularly as they
are not inherently incriminating to possess." We noted,
however, that a defendant who has fired a handgun in the
commission of a murder "would not keep at home an incriminating
handgun which could be readily identified as the murder weapon
through ballistics tests." Id. at 778 n.15. The defendant here
did not fire his firearm, but used it to strike Garcia and his
baby. That a person would keep a handgun that was not
vulnerable to ballistic testing in his or her home is not a
remarkable proposition. See United States v. Cowling, 648 F.3d
690, 696 (8th Cir. 2011), cert. denied, 566 U.S. 940 (2012)
("people generally keep [firearms] at home or on their persons"
[quotation and citation omitted]); United States v. Jones, 994
F.2d 1051, 1056 (3d Cir. 1993) (firearms are "the type[] of
evidence likely to be kept in a suspect's residence"). The fact
that the handgun was ultimately not discovered is of no
consequence. Had the argument been preserved, it is likely that
24
the evidence seized as a result of the search would not have
been suppressed.
Conclusion. The order of the Superior Court judge allowing
the defendant's pretrial motion to suppress evidence is
affirmed.
So ordered.