Massachusetts Criminal Lawyer Blog
In Commonwealth v. Hart, the Appeals Court affirmed the suppression of evidence discovered during the execution of a search warrant. In its decision, the Court opined that “a single observation of a firearm in [the defendant’s] residence sixty days prior to the application for [the] warrant [did] not establish probable cause that firearms, ammunition, and related materials would be found at that residence.”
The basic facts were as follows. A police officer “submitted a warrant application to search the residence and person of the defendant…. 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 …, 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 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…. His brother’s most recent armed offense took place in 2015…. The brother was also subject to an active warrant related to a shooting” in January, 2017. “The search warrant issued. Upon its execution at the defendant’s residence four days later, the police discovered, amongst other items,” numerous rounds of ammunition, “$52,540 in cash, and a diamond ring. No firearm was found.” After the return of indictments against the defendant, he moved to suppress the fruits of the search. The judge allowed the motion, concluding “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 illegal presence of weapons [there].’” On appeal, “[t]he Commonwealth assert[ed] that because a firearm is a valuable, durable item, it is likely to be retained in the same place for more than sixty days, and the information supporting the search warrant application was consequently not stale.”
In its decision rejecting the Commonwealth’s argument, the Appeals Court stated, “[S]tanding alone, a gun’s durability does not adequately support a belief that the firearm will still be in the home two months later.” “[T]he affidavit submitted with the warrant application failed to provide a timely nexus between the informant’s observation of the firearm and the location to be searched.” The Court noted that the affidavit included “no mention as to why the defendant possessed the gun or how he had acquired it. There was no assertion that the gun was used to commit a recent armed offense or was linked to any ongoing course of conduct.” Moreover, “while the defendant’s criminal history is extensive, his most recent arrest for a firearm-related offense was eight years prior to the search in question. Such a conviction is too remote in time to support probable cause that a firearm would be in [the defendant’s] residence or on his person…. Likewise, the brother’s criminal history adds little to the probable cause analysis.”
If you or a loved one is in a situation where the police obtained evidence against you as the result of a search warrant, you will need an attorney to fight to suppress that evidence. Attorney Daniel Cappetta is an experienced and skilled attorney who has litigated numerous motions to suppress. Call him today for a consultation to determine whether you have a strong motion that should be litigated.