December 4, 2018.
found and returned in the Superior Court Department on April
26, 2017. A motion to suppress was heard by Mary K. Ames, J.
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.
B. Linn, Assistant District Attorney, for the Commonwealth.
A. Bachrach (Rhonda L. Bachrach also present) for the
Present: Kinder, Neyman, & Desmond, JJ.
Commonwealth appeals from a Superior Court order allowing a
motion to suppress evidence discovered during the execution
of a search warrant. 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.
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.
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."
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.
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.
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 ...