Supreme Judicial Court of Massachusetts, Worcester
Heard: March 7, 2017.
found and returned in the Superior Court Department on
December 20, 2013. A pretrial motion to suppress evidence was
heard by Daniel M. Wrenn, J., and the cases were heard by
Richard T. Tucker, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
C. Stiles for the defendant.
A. Simmons, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
course of arresting the defendant at his apartment on a
default warrant, Worcester police officers saw in his kitchen
three bags containing unknown powders. One of the bags was
labeled "aluminum powder, " another "red iron
oxide, " and one bag was not labeled. An unidentified
red-brown powder was spilled on the counter and the kitchen
window sill, and smudged on the wall around the window.
Concerned about the appearance of the bags of powder, given
the other circumstances in the apartment, one of the officers
undertook an Internet search for information on the labeled
substances. On the basis of information derived from that
search, a detective requested assistance from the Federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
the State police, and the local fire department.
Representatives of these agencies arrived, seized the bags of
powder, and removed them from the apartment.
defendant thereafter was indicted on two charges of
possession of the ingredients to make an incendiary device or
substance with the intent to do so, in violation of G. L. c.
266, § 102 (a.), and a single
charge of possession of an incendiary device or substance, in
violation of G. L. c. 266, § 102 (c) .
jury-waived trial in the Superior Court, the defendant was
convicted of both charges under G. L. c. 266, § 102
(a.), and acquitted of the charge under G. L. c. 266, §
102 (c) . In this appeal, the
defendant argues that the ingredients seized and observations
made by police during the search of his apartment should have
been suppressed, and that the evidence at trial was in any
event insufficient to support his convictions. In the
alternative, the defendant contends that his convictions are
duplicative and that one must be vacated.
convict the defendant of a violation of G. L. c. 266, §
102 (a.), the Commonwealth was
required to prove beyond a reasonable doubt that the
defendant had in his possession or control, without lawful
authority to do so, a "substance . . . which, alone or
in combination, could be used to make a destructive or
incendiary device or substance" and that he intended to
"make a destructive or incendiary device or
substance." To prove that what the defendant intended to
make was a violation of the statute, the Commonwealth was
required to establish that the device or substance was
"designed or adapted to cause physical harm to persons
or property by means of fire, explosion, deflagration or
detonation and consisting of [a] substance capable of being
ignited, whether or not contrived to ignite or explode
automatically." G. L. c. 266, § 101.
conclude that the evidence introduced at trial was not
sufficient to establish that the defendant was without lawful
authority to possess the powders themselves or the incendiary
substance, thermite, that the Commonwealth asserted he
intended to make. Since the evidence at trial was
insufficient to establish at least one critical element of
the Commonwealth's case, the defendant's convictions
cannot stand. Accordingly, the matter must be remanded to the
Superior Court for entry of required findings of not guilty.
hearing on the defendant's motion to suppress, a Superior
Court judge denied the motion in a written decision
containing comprehensive findings of fact. The defendant
thereafter was tried, jury-waived, by a different Superior
Court judge. All of the individuals who had testified at the
hearing on the motion to suppress -- officers involved in the
arrest and the building manager -- testified to essentially
the same facts at trial. In addition, testimony was
introduced from another member of the Worcester police
department, members of the State police bomb squad, a chemist
and a State police evidence technician, two Worcester fire
department lieutenants, and a defense expert in chemistry. In
announcing his verdicts, the trial judge issued limited oral
findings of fact and a brief explanation of his reasoning. We
recite the facts the trial judge could have found, reserving
some facts for later discussion.
Evidence at trial.
October 15, 2013, officers of the Worcester police
departments went to the defendant's apartment to arrest
him on a default warrant for a charge of disorderly conduct.
Detective Sergeant Mark Richardson of the Worcester police
department, and other Worcester police officers, entered the
building and went to the door of the defendant's
apartment. Richardson knocked on the door and announced the
police presence several times without receiving a response.
After the officers heard movement inside the apartment and
the sounds of breaking glass, Richardson ordered one of them
to force entry into the apartment.
defendant was arrested almost immediately upon the police
entry. Through the kitchen doorway, officers could see an
open kitchen cabinet and drawers standing open. The officers
saw two foil bags of powder, and one unlabeled plastic bag
containing a reddish-brown powder, on the counter and in the
open kitchen cabinet. One foil bag was labeled "aluminum
powder" and the other was labeled "red iron
oxide." The officers did not recognize the names, and
were not familiar with the appearance of the powders. One of
the officers conducted an Internet search on his cellular
telephone and reported to Richardson that, when mixed
together, red iron oxide powder and aluminum powder produce
thermite, a substance Richardson believed posed a significant
public safety concern.
Richardson contacted ATF, the State police, and the Worcester
fire department; at some point, he conducted a
"sweep" of the apartment. State police Trooper Eric
Gahagan, a bomb squad technician, arrived and examined the
three bags of powders. Based on the appearance of the
substance, he suspected that the unlabeled bag contained
thermite. He took three samples from each of the three bags
of powder and placed them in glass vials. Gahagan also
performed a "sweep" of the apartment for signs of
other possibly dangerous materials, and any means for
lighting Thermite, and found none. He then took the samples
back to the State police crime laboratory for testing. The
remaining powders were placed in a plastic bin and
transported to a Department of Public Works site to be
destroyed by burning. Gahagan and an ATF agent mixed the
three bags of powder together, at the site, and lit them
remotely using a robot with an ignited road flare. The
mixture burned for approximately five minutes before it
consumed all of the aluminum and burned itself out.
police chemist testified regarding the steps he took to
determine whether the powders seized from the defendant's
apartment were, indeed, thermite. First, he examined samples
of each of the three powders under a microscope and confirmed
that they were aluminum, red iron oxide, and a mixture of
aluminum and red iron oxide. He then attempted to ignite the
mixture with a Bunsen burner and was not able to do so; he
did not attempt to ignite it with tools that burn at higher
temperatures, such as a road flare or a magnesium strip.
technical evidence concerning the properties of the various
powders seized and their testing was essentially undisputed.
Experts for both the Commonwealth and the defendant testified
that thermite can be created by combining red iron oxide and
aluminum powder, and that specific ratios are necessary for
it to burn. Neither iron oxide nor aluminum powder is
ignitable individually. The experts agreed that the only
reason to combine red iron oxide and aluminum powder is to
create a thermite mixture that can be ignited. When ignited,
thermite burns at very high temperatures, at approximately 4,
000 degrees Fahrenheit. Thermite is not explosive, will not
ignite spontaneously, and, because of the high temperature at
which it burns, cannot be ignited with an ordinary flame,
such as a match or a Bunsen burner. To reach the high
temperatures necessary to ignite thermite requires heat
sources such as road flares, firework sparklers, or magnesium
is used in military operations to dispose of old equipment or
to disable it in the field so that it does not fall into
enemy hands, and in civilian operations for metal salvage.
Thermite also is used for cutting metal, including steel; for
welding or filling in damaged portions of railroad tracks;
for spot welding; for cutting through locks to open doors and
safes; and, because it is not extinguished by water, in
sole evidence as to the licensing and permitting requirements
applicable to thermite was introduced through Lieutenant
Robert Mansfield of the Worcester fire department. Mansfield
testified that he was responsible for fire hazard
identification, inspection, and suppression in Worcester.
Through his testimony, the Commonwealth introduced, and
sought judicial notice of, §§ 9, 12, and 13 of G.
L. c. 148, the State fire prevention act, and 527 Code Mass.
Regs. §§ 13.00 (2012), a regulation in effect at
the time of the defendant's arrest, governing storage,
use, and permitting of explosives, based on § 13 of the
statute. Mansfield explained that G. L. c. 148,
§ 9,  authorizes the fire department to require
and issue permits to store and use certain explosive and
inflammable substances and that G. L. c. 148, § 12,
requires licenses for the use and storage of, inter alia,
fireworks and firecrackers. G. L. c. 148, § 13,
governs the storage, manufacture, and sale of explosives. The
regulations concerning the manufacture, sale, and storage of
explosives, implementing the provisions of G. L. c. 148,
§ 13, were then contained in 527 Code Mass. Regs.
testified that the fire department's authority to
regulate the storage of thermite was derived from 527 Code
Mass. Regs. §§ 13.00. Although that regulation
did not mention thermite directly, he stated that thermite
fell within its requirements because it explicitly
incorporated 27 C.F.R. § 55.23, a Federal regulation
setting forth a list of explosive materials. To possess
thermite in his apartment, the defendant would have been
required to have both a license from the State, after passing
an explosives handling course, and a permit from the city of
Worcester. Mansfield had examined the city's records and
found no indication that the defendant had a permit to
possess thermite; he stated also that he would never issue
such a permit to anyone living in a multiunit residential
building. He did not explain which of the statutory or
regulatory definitions pertaining to "explosive, "
see G. L. c. 266, § 101 (defining
"[e]xplosive" as "any element, compound or
mixture that is manufactured, designed or used to produce an
explosion"), were applicable to thermite.
testified on cross-examination, without reference to any
applicable statute or regulation, that possession of aluminum
powder or red iron oxide would require a permit if it were
above "a certain amount" because they are an
"inhalation hazard." No permit was required for
possession of aluminum oxide. He also agreed that, under G.
L. c. 148, § 13, certain quantities of explosives could
be held without a permit or a license.
close of the Commonwealth's case, the judge denied the
defendant's motion for required findings of not guilty.
At the close of all the evidence, the judge found the
defendant guilty of two counts of possession of the
ingredients necessary to make a destructive or incendiary
device or substance without lawful authority and with the
intent to make such a device or substance, in violation of G.
L. c. 266, § 102 (a.) . The ...