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

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unpublished order, a panel of that court dismissed the appeal on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