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Commonwealth v. Mora

Supreme Judicial Court of Massachusetts, Suffolk

June 29, 2017

COMMONWEALTH
v.
STEVEN MORA.

          Heard: February 6, 2017.

         Indictments 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.

         An 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.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 20, 2016. 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 (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 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.

         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 ...


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