Commonwealth v. Hart , 95 Mass. App. Ct. 165 ( 2019 )

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18-P-409 Appeals Court
COMMONWEALTH vs. DEREK HART.
No. 18-P-409.
Suffolk. December 4, 2018. - April 11, 2019.
Present: Kinder, Neyman, & Desmond, JJ.
Probable Cause. Search and Seizure, Affidavit, Probable cause,
Warrant. Constitutional Law, Search and seizure, Probable
cause. Practice, Criminal, Motion to Supress. Firearms.
Indictments found and returned in the Superior Court
Department on April 26, 2017.
A motion to suppress was heard by Mary K. Ames, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Budd, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her to
the Appeals Court.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
Barry A. Bachrach (Rhonda L. Bachrach also present) for the
defendant.
DESMOND, J. The Commonwealth appeals from a Superior Court
order allowing a motion to suppress evidence discovered during
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the execution of a search warrant.1 The sole issue presented is
whether the observation of a firearm stored in the defendant's
home sixty days before the application for a search warrant
suffices to establish probable cause to believe that firearms,
ammunition, and related materials would be found at that
location. A Superior Court judge determined that it was not
sufficient; we affirm.
Background. An officer from the Boston Police Department's
city-wide drug control unit submitted a warrant application to
search the residence and person of the defendant, Derek Hart.
Because the officer suspected that the defendant possessed a
firearm in violation of G. L. c. 269, § 10 (h), the warrant
application requested permission to search for firearms,
ammunition, and other gun-related materials.
The central evidence in the affidavit came from a reliable
confidential informant (informant), who had spoken with the
officer within twenty-four hours of the submission of the
application. The informant told the officer that the defendant
"was in possession of a black semi-automatic firearm which [the
defendant] kept in his hand and stored on the floor in a bedroom
area within the last 60 days while inside the [defendant's
1 A single justice of the Supreme Judicial Court allowed the
Commonwealth's application for leave to pursue an interlocutory
appeal and reported the case to this court. See G. L. c. 278,
§ 28E.
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residence]." The affiant stated that he had personal knowledge
that firearms and ammunition are "not easily or quickly
discarded," and "are often retained for long periods of time and
kept in close proximity to the owners of said firearms."
The affidavit then recited the extensive criminal
background of the defendant and the defendant's brother, who was
also reported to be living at the residence to be searched.
Though the defendant's record was lengthy, his most recent
arrest involving a firearm occurred in 2009, when he was
arrested for unlawful possession of a firearm and ammunition,
discharging a firearm, possession of a high-capacity magazine,
and assault with intent to murder. His brother's most recent
armed offense took place in 2015, when he was arrested and
charged with possession of a firearm and possession of
ammunition, amongst other charges. The brother was also subject
to an active warrant related to a shooting on January 28, 2017.2
The search warrant issued. Upon its execution at the
defendant's residence four days later, the police discovered,
amongst other items, forty-four live rounds of .45 caliber
ammunition, one round of nine millimeter ammunition, $52,540 in
cash, and a diamond ring. No firearm was found. The defendant
2 The defendant's brother was not a target of the search
warrant, and the affidavit does not allege any connection
between the black semiautomatic gun seen in the defendant's home
and the January 28, 2017, shooting.
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was charged pursuant to G. L. c. 269, § 10 (h) (1) with unlawful
possession of ammunition, and being an armed career criminal
under G. L. c. 269, § 10G.
A nonevidentiary hearing on the defendant's motion to
suppress the evidence was held, and the motion was allowed. The
judge concluded that the information regarding the observation
of the gun at the defendant's residence was stale because there
was "insufficient timely evidence of a continuous illegal
presence of weapons in the defendant's residence." This appeal
followed.
Discussion. The Commonwealth argues on appeal that the
judge erred in concluding that the gun information was stale.
The Commonwealth asserts that because a firearm is a valuable,
durable item, it is likely to be retained in the same place for
more than sixty days, and the information supporting the search
warrant application was consequently not stale.
We review the question of whether there was probable cause
to issue a search warrant de novo. Commonwealth v. Perkins, 478
Mass. 97, 102 (2017). Our inquiry is limited to the "four
corners of the affidavit" (citation omitted), Commonwealth v.
Keown, 478 Mass. 232, 238 (2017), cert. denied, 138 S. Ct. 1038
(2018), and allegations in the affidavit are viewed in "a
commonsense and realistic fashion" (citation omitted).
Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464
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U.S. 860 (1983). "[P]robable cause to believe [that] evidence
of criminal activity will be found in a particular place must be
demonstrated by a 'nexus' between the crime alleged and the
place to be searched" (citation omitted). Commonwealth v.
Matias, 440 Mass. 787, 794 (2004). "Facts asserted in the
affidavit must be closely related in time to the issuance of the
warrant in order to justify a finding of probable cause; whether
facts are stale or timely is determined by the circumstances of
each case." Commonwealth v. Connolly, 454 Mass. 808, 814
(2009). When an informant describes his or her observation as
bounded by a range of time, "we assume that the observation
occurred at the most remote date within that time span." United
States v. Dauphinee, 538 F.2d 1, 5 n.7 (1st Cir. 1976).
Therefore, the question before us is whether a single, isolated
observation of a firearem sixty days before the application for
a search warrant is sufficient to establish probable cause that
a firearm remains at the location to be searched.
We conclude that the affidavit submitted with the warrant
application failed to provide a timely nexus between the
informant's observation of the firearm and the location to be
searched. First, we are unpersuaded by the State and Federal
cases cited by the Commonwealth where dated observations of a
firearm were found to be timely. In each of the cases cited by
the Commonwealth, there was other evidence suggesting that
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possession of the gun was continuous. For example, in United
States v. Neal, 528 F.3d 1069 (8th Cir. 2008), an informant had
observed "stacks of firearms and a gun safe" in the defendant's
home on several occasions, and two police officers saw "numerous
rifles" in the bedroom in the course of making an arrest. Id.
at 1071, 1074. In Commonwealth v. Beliard, 443 Mass. 79 (2004),
there was sufficient evidence to show a "continuous illegal
presence of a number of weapons in the defendant's residence
over extended periods of time" to the point where the timing of
the executing of the warrant became "of less significance." Id.
at 85-86. Likewise, in Commonwealth v. Fleurant, 2 Mass. App.
Ct. 250 (1974), the police were searching for a number of guns,
including a machine gun, and the informant had provided
"considerable additional information" that indicated that the
firearms remained in the home.3 Id. at 254. A staleness inquiry
is necessarily fact-driven, and all of the cases cited by the
Commonwealth had substantial facts beyond the timing of the most
recent observation from which it could be reasonably inferred
that possession of the firearms was continuous. None of those
3 In Fleurant, although the most recent observation of the
firearms occurred a full thirteen months prior to the warrant
application, that fact was not before the magistrate and was
only revealed at trial. In fact, "[t]he language of the
affidavit indicated that at least some of the events contained
therein had taken place recently." Id. at 254-255.
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cases, unlike our own, featured an isolated observation of one
weapon by a single individual.
Indeed, the affidavit submitted with the warrant
application included little information about the gun beyond its
description as a semiautomatic weapon, kept "in [the
defendant's] hand," and stored on the floor in a bedroom area of
the home. There was no mention as to why the defendant
possessed the gun or how he had acquired it. There was no
assertion that the gun was used to commit a recent armed offense
or was linked to any ongoing course of conduct. Compare
Commonwealth v. James, 424 Mass. 770, 778 (1997). Firearms are
said to be more durable than drugs because they are "not likely
to be consumed or destroyed." Fleurant, 2 Mass. App. at 255.
However, standing alone, a gun's durability does not adequately
support a belief that the firearm will still be in the home two
months later. Compare id. ("We think the affidavit recited
'facts indicating activity of a protracted and continuous nature
[and therefore] . . . the passage of time [became] less
significant'" [citation omitted]).
"A defendant's criminal history may be factored into a
probable cause determination as corroboration of an informant's
tip, but only if the history is sufficiently recent and similar
to the crime charged to demonstrate that 'the defendant was not
averse' to committing such a crime." Commonwealth v. Allen, 406
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Mass. 575, 579 (1990), quoting Commonwealth v. Germain, 396
Mass. 413, 418 n.7 (1985). Here, while the defendant's criminal
history is extensive, his most recent arrest for a firearm-
related offense was eight years prior to the search in question.
Such a conviction is too remote in time to support probable
cause that a firearm would be in his residence or on his person.
See Allen, 406 Mass. at 579 (defendant's four year old
conviction found to be too remote). Likewise, the brother's
criminal history adds little to the probable cause analysis.4 In
short, a single observation of a firearm in a residence sixty
days prior to the application for a search warrant does not
establish probable cause that firearms, ammunition, and related
materials would be found at that residence.
Order allowing motion to
suppress affirmed.
4 When looking for a "nexus between the items to be seized
and the place to be searched," we consider "the type of crime,
the nature of the missing items, the extent of the suspect's
opportunity for concealment, and normal inferences as to where a
criminal would be likely to hide" the items. Cinelli, 389 Mass.
at 213, quoting United States v. Lucarz, 430 F.2d 1051, 1055
(9th Cir. 1970). The brother's criminal record goes to none of
these factors.