Heard: February 6, 2017.
found and returned in the Superior Court Department on
October 22, 2014. A pretrial motion to suppress evidence was
heard by James R. Lemire, J.
application for leave to file an interlocutory appeal was
allowed by Botsford, J., in the Supreme Judicial Court for
the county of Suffolk, and the appeal was reported by her.
action commenced in the Supreme Judicial Court for the county
of Suffolk on June 20, 2016. The case was reported by
Richard J. Shea for the defendant.
H. Lazar-Moore, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
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.
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 (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]).
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
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 was 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.
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.
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
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 ...