Commonwealth v. Mora

477 Mass. 399

77 N.E.3d 298

COMMONWEALTH

v.Steven MORA.

SJC-12170

Supreme Judicial Court of Massachusetts, Suffolk..

February 6, 2017

June 29, 2017

The case was reported by Botsford, J.

Richard J. Shea for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

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, 798 N.E.2d 275 (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 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 had been 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 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

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 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, 12 N.E.3d 371 (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).

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, 36 N.E.3d 32 (2015), in which the Appeals Court interpreted the holding in Jordan , 469 Mass. at 140-142, 12 N.E.3d 371, and stated that the authority of a 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, 12 N.E.3d 371, 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, 12 N.E.3d 371. 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 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...