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Commonwealth v. Hart

Appeals Court of Massachusetts, Suffolk

April 11, 2019

COMMONWEALTH
v.
DEREK HART.

          December 4, 2018.

         Indictments found and returned in the Superior Court Department on April 26, 2017. A motion to suppress was heard by Mary K. Ames, J.

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

          Paul B. Linn, Assistant District Attorney, for the Commonwealth.

          Barry A. Bachrach (Rhonda L. Bachrach also present) for the defendant.

          Present: Kinder, Neyman, & Desmond, JJ.

          DESMOND, J.

         The Commonwealth appeals from a Superior Court order allowing a motion to suppress evidence discovered during the execution of a search warrant.[1] The sole issue presented is whether the observation of a firearm stored in the defendant's home sixty days before the application for a search warrant suffices to establish probable cause to believe that firearms, ammunition, and related materials would be found at that location. A Superior Court judge determined that it was not sufficient; we affirm.

         Background.

         An officer from the Boston Police Department's city-wide drug control unit submitted a warrant application to search the residence and person of the defendant, Derek Hart. Because the officer suspected that the defendant possessed a firearm in violation of G. L. c. 269, § 10 (h), the warrant application requested permission to search for firearms, ammunition, and other gun-related materials.

         The central evidence in the affidavit came from a reliable confidential informant (informant), who had spoken with the officer within twenty-four hours of the submission of the application. The informant told the officer that the defendant "was in possession of a black semi-automatic firearm which [the defendant] kept in his hand and stored on the floor in a bedroom area within the last 60 days while inside the [defendant's residence]." The affiant stated that he had personal knowledge that firearms and ammunition are "not easily or quickly discarded," and "are often retained for long periods of time and kept in close proximity to the owners of said firearms."

         The affidavit then recited the extensive criminal background of the defendant and the defendant's brother, who was also reported to be living at the residence to be searched. Though the defendant's record was lengthy, his most recent arrest involving a firearm occurred in 2009, when he was arrested for unlawful possession of a firearm and ammunition, discharging a firearm, possession of a high-capacity magazine, and assault with intent to murder. His brother's most recent armed offense took place in 2015, when he was arrested and charged with possession of a firearm and possession of ammunition, amongst other charges. The brother was also subject to an active warrant related to a shooting on January 28, 2017.[2]

         The search warrant issued. Upon its execution at the defendant's residence four days later, the police discovered, amongst other items, forty-four live rounds of .45 caliber ammunition, one round of nine millimeter ammunition, $52, 540 in cash, and a diamond ring. No firearm was found. The defendant was charged pursuant to G. L. c. 269, § 10 (h) (1) with unlawful possession of ammunition, and being an armed career criminal under G. L. c. 269, § 10G.

         A nonevidentiary hearing on the defendant's motion to suppress the evidence was held, and the motion was allowed. The judge concluded that the information regarding the observation of the gun at the defendant's residence was stale because there was "insufficient timely evidence of a continuous ...


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