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Commonwealth v. Saywahn

Appeals Court of Massachusetts, Hampden

June 15, 2017

COMMONWEALTH
v.
BENJAMIN B. SAYWAHN, JR.

          Heard: April 13, 2017.

         Complaint received and sworn to in the Springfield Division of the District Court Department on February 4, 2016.

         A pretrial motion to suppress evidence was heard by William P. Hadley, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

          Thomas C. Maxim for the defendant.

          Present: Kafker, C.J., Grainger, & Kinder, JJ.

          KAFKER, C.J.

          During a protective sweep of the home of the defendant, Benjamin B. Saywahn, Jr., conducted during the execution of a warrant for his arrest, police discovered a firearm. The defendant was subsequently charged with possession of a firearm and ammunition without an identification card, G. L. c. 269, § 10(h), improper storage of a firearm, G. L. c. 140, § 131L(a.) & (b), and receiving stolen property, G. L. c. 266, § 60.[1] The defendant moved to suppress "the fruits of the sweep" on the ground that the protective sweep was not justified by the officers' reasonable belief that a dangerous individual in the home posed a threat to the officers. The motion judge agreed and granted the motion. The Commonwealth appeals pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), claiming that the protective sweep was justified.[2] We affirm.

         Background.

         "We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing." Commonwealth v. Matos, 78 Mass.App.Ct. 156, 157 (2010) (quotation omitted). On February 1, 2016, a warrant issued in the State of Connecticut for the defendant's arrest. Because the defendant resided in Springfield, a member of the Windsor, Connecticut police department contacted Detective Christopher Bates of the Springfield police department with regard to the warrant. Detective Bates learned that the defendant was wanted in connection with a shooting that had occurred during the course of a marijuana sale in Windsor. He learned that the victim, the defendant, and an unidentified third person were involved in the shooting, that the victim had been shot in the face, and that no firearm had been recovered.

         At approximately 2:30 P..M. on February 3, 2016, Detective Bates and six to seven other members of the Springfield police department went to the defendant's home to execute the arrest warrant. All of the officers were armed, with their weapons holstered, and in uniform or wearing police insignia. The officers knocked, and the defendant answered the door after twenty or thirty seconds. Four to five officers entered the home; the other officers went to the rear and sides of the home. The officers immediately recognized the defendant from his photograph.[3] The officers asked the defendant whether he was the person named in the warrant, and he responded, "Yes, I am." The officers then placed the defendant in handcuffs just inside the front door. The defendant did not resist or attempt to flee.

          Detective Bates patted down the defendant for weapons and found none. Lieutenant Steven Kent then asked the defendant whether anyone else was in the home. The defendant did not make eye contact and mumbled something inaudible. Lieutenant Kent asked him again whether anyone else was in the home. The defendant hesitated and then said, "[N]o."

         Based on the defendant's mumbled response and hesitation, Lieutenant Kent decided to conduct a protective sweep to ensure that there was no one else in the home who might pose a danger to the officers.[4] Lieutenant Kent proceeded to the second floor of the home and opened the door to a bedroom. As he looked under the bed, he noticed a firearm protruding from between the box spring and mattress. He completed the sweep of the home and, after determining that the defendant was ...


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