Heard: April 13, 2017.
received and sworn to in the Springfield Division of the
District Court Department on February 4, 2016.
pretrial motion to suppress evidence was heard by William P.
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.
L. Sheppard-Brick, Assistant District Attorney, for the
C. Maxim for the defendant.
Present: Kafker, C.J., Grainger, & Kinder, JJ.
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. 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. We affirm.
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.
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. 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."
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. 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 ...