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SJC-12465

                 COMMONWEALTH   vs.   JEAN ALEXIS.



       Essex.      September 5, 2018. - December 14, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Constitutional Law, Search and seizure. Search and Seizure,
     Exigent circumstances, Warrant, Probable cause. Practice,
     Criminal, Motion to suppress, Warrant, Waiver. Probable
     Cause.



     Indictments found and returned in the Superior Court
Department on June 27, 2016.

     A pretrial motion to suppress evidence was heard by James
F. Lang, J.

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


     Emily R. Mello, Assistant District Attorney, for the
Commonwealth.
     Emily A. Cardy, Committee for Public Counsel Services, for
the defendant.
                                                                    2


     CYPHER, J.   The defendant, Jean Alexis, was charged with

numerous crimes stemming from an armed home invasion in Lynn.1

The day after the home invasion, and following an investigation,

the police arrested the defendant inside his dwelling without an

arrest warrant.   The defendant moved to suppress evidence that

(1) the police observed during a protective sweep of his

dwelling after he was arrested and (2) the police gathered after

they obtained a warrant to search his dwelling.2   A judge in the

Superior Court allowed the defendant's motion to suppress

because the police created the exigency that prompted their

warrantless entry into the defendant's dwelling.   A single

justice of this court allowed the Commonwealth's application for

leave to pursue an interlocutory appeal and reported the case to

the full court.




     1 The charges are as follows: home invasion (G. L. c. 265,
§ 18C), armed robbery (G. L. c. 265, § 17), armed assault in a
dwelling (G. L. c. 265, § 18A), assault and battery by means of
a dangerous weapon (G. L. c. 265, § 15A [b]), assault and
battery (G. L. c. 265, § 13A [a]), and possession of an
electrical stun gun (G. L. c. 140, § 131J).

     2 "An arrest warrant 'encompasses the power to enter a
[suspect's] residence for the purpose of executing the warrant'"
(citation omitted). Commonwealth v. Silva, 440 Mass. 772, 776
(2004). "Generally, a [search] warrant must be secured before a
search [of the dwelling] is conducted, and warrantless searches
'are presumptively unreasonable.'" Commonwealth v. Ramos, 470
Mass. 740, 745 (2015), quoting Kentucky v. King, 563 U.S. 452,
459 (2011).
                                                                   3


    We have held that "where the exigency is reasonably

foreseeable and the police offer no justifiable excuse for their

prior delay in obtaining a warrant, the exigency exception to

the warrant requirement is not open to them."   Commonwealth v.

Forde, 367 Mass. 798, 803 (1975) (analyzing warrantless search

under Fourth Amendment to United States Constitution).    See

Commonwealth v. Molina, 439 Mass. 206, 211 (2003).   In Kentucky

v. King, 563 U.S. 452, 462 (2011), the United States Supreme

Court held that where "the police did not create the exigency by

engaging or threatening to engage in conduct that violates the

Fourth Amendment, warrantless entry to prevent the destruction

of evidence is reasonable and thus allowed."    The Commonwealth

urges us to follow the jurisprudence of the Supreme Court when

examining a warrantless search of a dwelling under art. 14 of

the Massachusetts Declaration of Rights.   Adopting such an

approach would render all of the evidence obtained after the

defendant's arrest admissible.   The defendant argues that,

notwithstanding the Supreme Court's decision in King, under art.

14 the police cannot create the exigent circumstances used to

justify a warrantless entry to a home, even if they engaged in

lawful action, such as approaching a house to knock on a door.

He also contends that the Commonwealth waived the argument that

probable cause remained for the subsequent search warrant, even
                                                                    4


if the impermissibly viewed evidence is redacted from the

affidavit.

    We interpret art. 14 to provide greater protection than the

Fourth Amendment where the police have relied on a reasonably

foreseeable exigency to justify the warrantless entry into a

dwelling.    Therefore, we conclude that the judge did not err in

allowing the defendant's motion to suppress evidence that was

found in plain view during a protective sweep because the

officers' entry into his home was not justified based on exigent

circumstances.   We also conclude that the Commonwealth waived

the argument regarding whether, if the impermissible

observations from the affidavit were redacted, the search

warrant was based on probable cause.

    Background.     We recite the motion judge's factual findings

supplemented by the uncontroverted evidence at the motion

hearing that is consistent with the judge's findings.

Commonwealth v. Jones–Pannell, 472 Mass. 429, 431 (2015).

"[O]ur duty is to make an independent determination of the

correctness of the [motion] judge's application of

constitutional principles to the facts as found" (citation

omitted).    Commonwealth v. Campbell, 475 Mass. 611, 615 (2016).

On the morning of June 14, 2016, Lynn police officers responded

to a report of a home invasion.   Shortly thereafter, Detective

Stephen Pohle arrived at the scene.    Upon arrival, Pohle spoke
                                                                    5


with the victim, Shomar Garcia, who lived at the apartment with

his wife and two children.    Garcia conveyed that earlier that

morning, while he was leaving for work, three African-American

males forced their way into the apartment, one of them struck

him in the face with a silver handgun, and they "forced their

way into the bedroom, where his wife and two children were."

The men restrained Garcia with duct tape and took his jewelry

and wallet.    Before leaving the house, the man with the silver

handgun struck Garcia's six month old baby in the face with the

gun.

       Garcia recognized the man with the silver handgun as

someone with whom he had attended high school.    Later that

afternoon, Garcia went to the police station in an attempt to

identify the perpetrator.    After looking through a "few hundred

photos," Garcia saw a photograph of the defendant and stated

with "[one hundred] percent" certainty that the photograph was

of one of the men who had broken into his home and was the one

who had hit him and his baby.

       Pohle wrote an incident report and filled out an arrest

warrant application.    Because it was late in the afternoon and

his shift had ended, Pohle placed the warrant in the "court box"
                                                                      6


for the next day.3      Pohle testified that although the nature of

the investigation -- an armed home invasion -- justified an

after-hours warrant, the decision not to seek one was within his

discretion.4

       Early the next morning, before he began his shift, Pohle

telephoned the supervisor of the Lynn police department's

warrant task force, Sergeant Michael Kenny.       Pohle informed

Kenny, who was on his way to the police station, that the

defendant had been identified as the perpetrator of the home

invasion who brandished a handgun and struck the baby with the

gun.       Pohle also informed Kenny that he was in the process of

getting an arrest warrant.

       At approximately 7 A.M., Kenny arrived at the police

station and reviewed the department's "hot sheet."5      Kenny

recognized the defendant's name on the "hot sheet" as a person




       The "court box" has a mail slot for "paperwork that needs
       3

to go over to court." Each morning, a "police prosecutor"
brings applications for warrants and complaints from the police
station to the Lynn Division of the District Court Department,
where a clerk reviews and signs the applications.
     4 Detective Stephen Pohle did not recall his rationale for

not seeking an after-hours arrest warrant.

       A "hot sheet" has "information that's put out to police
       5

officers within the department that explains incidents, what
happened, the facts of incidents, [and] suspect information."
The "hot sheet" "pass[es] on information" to "officers who may
have not worked [the previous] shift."
                                                                   7


with whom he had recently spoken while investigating another

matter.   Kenny also knew where the defendant lived.

     Without an arrest warrant, but believing that there was

probable cause to arrest the defendant and that exigent

circumstances existed, Kenny and four other members of the

warrant task force proceeded to the defendant's address.   The

officers were dressed in plainclothes and had their badges

displayed.6   Because of the information available to Kenny at the

time -- the defendant's identification being fresh, the violent

nature of the home invasion, the defendant's role in it, his

possession of a firearm, the involvement of two accomplices, and

the possibility that they might flee -- he believed that

immediate action was required.7

     Upon arriving at the defendant's address, Kenny and two

officers approached the front door, while two other officers

went to the side of the house to secure a perimeter.8   Kenny


     6 The officers arrived at the defendant's residence in
unmarked police vehicles.

     7 The motion judge found that Sergeant Michael Kenny
mistakenly believed that the defendant's identification had
occurred that morning, immediately prior to Pohle's telephone
call. Testimony in the record indicates that Garcia had
identified the defendant the previous day.

     8 Kenny described the dwelling as a "four-room rooming
house" that "looks like a single-family house from the front."
"There's a porch that goes up to the front door," and the front
door is "clear glass." "To the left and right of [the] door are
                                                                     8


understood that the officers' presence might prompt the

defendant to flee or destroy evidence.   Kenny's plan was to

knock on the door to determine if the defendant was home,

question him, and, if the opportunity arose, arrest him.      As

Kenny ascended the front porch steps, the defendant saw the

officers through the glass front door.   The defendant turned

around and ran toward the back of the house.    One of the

officers who was setting up a perimeter observed the defendant

climbing through a window in the back of the house.    The officer

shouted at the defendant to show his hands.    Instead, the

defendant retreated into the house, out of the officer's view.

Because of the volatile situation and the nature of the crimes

involved, the officers forced their way through the front door.

As they entered, they noticed the defendant coming toward them

from the back of the home.   The officers ordered the defendant

to the ground and handcuffed him in the hallway.

    After the defendant had been restrained, the officers

conducted a protective sweep of the house and secured the

premises.   During the protective sweep, Kenny made a plain view




windows, and the windows are to each separate room in the
rooming house." "When you walk in the front door, to the right
is a door that goes to a bedroom," and "[o]n the left, is
another door that goes to a bedroom." "There is an open living
room area, and . . . behind that is a kitchen area [with] stairs
on the right . . . going to the second level."
                                                                     9


observation of some jewelry on top of a refrigerator in the

defendant's room that matched the description of the jewelry

taken during the home invasion.9

     After the dwelling had been secured, Kenny prepared an

application for a search warrant.    In his affidavit, Kenny

relayed Garcia's account of the violent home invasion, Garcia's

identification of the defendant, and that the defendant was

brandishing a silver handgun.   He also included the plain view

observations of the suspected stolen property he had seen during

the protective sweep. A clerk-magistrate of the Lynn Division of

the District Court Department approved the search warrant.

     During the execution of the search warrant, the officers

seized items of evidentiary significance, including jewelry, a

wallet, an electrical stun gun, and various identification cards

bearing the defendant's name.   Also discovered were articles of

clothing that matched the description given by Garcia of the

clothes worn by the home invaders.    Following the search warrant

execution, Garcia confirmed that the sweatshirt and the pants

were consistent with the clothing worn by the defendant during

the home invasion.

     Discussion.   1.   Warrantless arrest.   Historically, the

Massachusetts Constitution has carefully protected the home from


     9 A description of the jewelry that had been taken from
Garcia was in Pohle's incident report.
                                                                   10


the intrusion by the government without a warrant, with certain

delineated exceptions.     See Commonwealth v. Tyree, 455 Mass.

676, 684 (2010); Molina, 439 Mass. at 211.     The existence of

exigent circumstances that make it impracticable to obtain a

warrant is one such exception.     Commonwealth v. Figueroa, 468

Mass. 204, 213 (2014).10

     The Commonwealth argues that the warrantless arrest of the

defendant in his home was justified because the defendant's

reaction to the lawful police presence outside his home created

exigent circumstances.     In making this argument, it maintains

that the United States Supreme Court, in King, 563 U.S. at 469,

abrogated prevailing Massachusetts jurisprudence when it held

that "the exigent circumstances rule applies when the police do

not gain entry to premises by means of an actual or threatened

violation of the Fourth Amendment."     In other words, if the

conduct of the police before their entry into the apartment was




     10Police may have reasonable grounds to believe that
obtaining a warrant would be impracticable when the delay in
doing so would pose a significant risk that the suspect may
flee, evidence may be destroyed, or the safety of the police or
others may be endangered. Commonwealth v. Figueroa, 468 Mass.
204, 213 (2014). Although often used interchangeably in the
cases, "impractical" is not "impracticable." See J.A. Grasso,
Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law
§ 14-1[c][2] (2018). Webster's Third New International
Dictionary 1136 (1963) defines "impractical" as "not wise to put
into or keep in practice or effect," while "impracticable" is
defined as "incapable of being performed or accomplished by the
means employed or at command," id.
                                                                   11


entirely lawful, the exigent circumstances exception applies.

Id.

      The defendant contends that the exigent circumstances

exception to the warrant requirement is inapplicable because the

police created the exigency themselves by not procuring a

warrant before going to the defendant's residence.   He claims

that the warrantless entry into his home violates his rights

under art. 14, notwithstanding the fact that police officers may

lawfully knock on a door and make inquiries.11

      The Fourth Amendment and art. 14 require that all searches

and seizures be reasonable, and case law has held that all

warrantless entries into a home are presumptively unreasonable.

See, e.g., Commonwealth v. Ramos, 470 Mass. 740, 744-745 (2015);

Commonwealth v. Polanco, 92 Mass. App. Ct. 764, 769 (2018).

Because the touchstone of the Fourth Amendment is

reasonableness, however, "the warrant requirement is subject to




       For the first time on appeal, the defendant contends that
      11

the officers' presence on his porch violated his rights under
the Fourth Amendment to the United States Constitution and art.
14 of the Massachusetts Declaration of Rights. This argument is
misplaced. Neither the Federal nor the Massachusetts
Constitution prohibits police from knocking on a citizen's door
and making an initial inquiry. See Commonwealth v. Leslie, 477
Mass. 48, 57 (2017) ("a police officer, like any other citizen,
has an implied license to walk up the path to the front door of
a home and knock on the front door"). Contrast Collins v.
Virginia, 138 S. Ct. 1663, 1675 (2018) (Fourth Amendment does
not permit police officer, uninvited and without search warrant,
to enter curtilage of home to search vehicle).
                                                                     12


certain reasonable exceptions."     Ramos, supra at 745, quoting

King, 563 U.S. at 459.    The Commonwealth may justify a

warrantless entry into a home if the police had probable cause

and exigent circumstances.    Molina, 439 Mass. at 209.     Under the

exigent circumstances exception to the warrant requirement,

"there must be a showing that it was impracticable for the

police to obtain a warrant, and the standards as to exigency are

strict."    Forde, 367 Mass. at 800.

    In Forde, we held that "a warrantless entry into a dwelling

to arrest in the absence of sufficient justification for the

failure to obtain a warrant" is impermissible.       Id. at 806.    We

concluded that "where the exigency is reasonably foreseeable and

the police offer no justifiable excuse for their prior delay in

obtaining a warrant, the exigency exception to the warrant

requirement is not open to them."      Id. at 803.   Forde was

decided solely on the basis of the Fourth Amendment.       Id. at

805-806.

    Later, in Molina, a case decided eight years before the

Supreme Court's decision in King, we held:      "The Fourth

Amendment . . . and art. 14 . . . scrupulously guard against the

intrusion of the government into a citizen's home without a

warrant."   Molina, 439 Mass. at 211.    We stated that "[t]he

exigent circumstance requirement is not satisfied by virtue of

altercations resulting from a warrantless arrest at the home,
                                                                   13


where there is no showing of exigent circumstances leading to

the warrantless arrest itself."    Id.

       In King, 563 U.S. at 462, the Supreme Court held that where

"the police did not create the exigency by engaging or

threatening to engage in conduct that violates the Fourth

Amendment, warrantless entry to prevent the destruction of

evidence is reasonable and thus allowed."     In an eight-to-one

decision, the Court concluded that as long as "the police do not

gain entry to premises by means of an actual or threatened

violation of the Fourth Amendment," they may knock on a

suspect's door and announce their presence, and the exigent

circumstances rule may still apply.      Id. at 469.   See

Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 249 (2011).

"Molina and King thus appear inconsistent with each other as a

matter of Fourth Amendment jurisprudence."     Gentle, supra at

251.   Our interpretation of the Fourth Amendment tracked that of

the dissent in King.    As the sole dissenter, Justice Ginsberg

reasoned, "How 'secure' do our homes remain if police, armed

with no warrant, can pound on doors at will and, on hearing

sounds indicative of things moving, forcibly enter and search

for evidence of unlawful activity?"      King, supra at 475

(Ginsburg, J., dissenting).

       In Molina, we did not address whether art. 14 offers more

protection than the Fourth Amendment in situations where, as
                                                                   14


here, law enforcement's lawful conduct created the exigent

circumstances that are in turn used to justify a warrantless

search.   We take the opportunity to address this issue now.

     Our interpretation of art. 14 frequently aligns with the

United States Supreme Court's interpretation of the Fourth

Amendment.   However, we have sometimes held that art. 14 may

provide more substantive protection to individuals than that

provided by the Fourth Amendment.12   See, e.g., Commonwealth v.

Amado, 474 Mass. 147, 154 (2016) ("'probable cause [(not

reasonable suspicion)] is the appropriate standard that must be

met for a strip or visual body cavity search to be

constitutionally permissible' under art. 14" [citation

omitted]); Commonwealth v. Balicki, 436 Mass. 1, 9 (2002)

(declining to abandon inadvertence requirement of plain view


     12See Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 250
(2011); Cordy, Criminal Procedure and the Massachusetts
Constitution, 45 New Eng. L. Rev. 815, 821 (2011) ("the [Supreme
Judicial Court] has repeatedly concluded that [art.] 14's
protections against unreasonable searches and seizures are
broader and more restrictive of police power than those of the
Fourth Amendment"); Grasso, "John Adams Made Me Do It":
Judicial Federalism, Judicial Chauvinism, and Article 14 of
Massachusetts' Declaration of Rights, 77 Miss. L.J. 315, 340
(2007) ("the [Supreme Judicial Court] has often recognized its
authority and duty to interpret and enforce cognate provisions
of the Massachusetts Constitution that afford greater
protections than its federal counterpart"); Wilkins, The
Massachusetts Constitution -- The Last Thirty Years, 44 Suffolk
U. L. Rev. 331, 337 (2011) ("In the past three decades, the
Supreme Judicial Court has resisted urgings to relax the
requirements of art. 14 to conform to the Supreme Court's
revisions of Fourth Amendment law" [footnotes omitted]).
                                                                  15


exception to warrant requirement under art. 14, as Supreme Court

did under Fourth Amendment); Commonwealth v. Gonsalves, 429

Mass. 658, 668 (1999) ("under art. 14, the balancing of

interests requires that Massachusetts citizens should not be

subjected to unjustified exit orders during routine traffic

stops"); Commonwealth v. Upton, 394 Mass. 363, 373–375 (1985)

(retaining more stringent test under Aguilar v. Texas, 378 U.S.

108 [1964], and Spinelli v. United States, 393 U.S. 410 [1969],

rather than totality of circumstances standard); Gentle, 80

Mass. App. Ct. at 250 ("Although the Supreme Judicial Court's

interpretation of art. 14 has often converged with the United

States Supreme Court's interpretation of the Fourth Amendment,

when the Supreme Judicial Court has diverged it has emphasized

its obligation to undertake an independent review of the State

Constitution and the court's freedom to interpret the State

Constitution to provide a different balancing of the interests

of privacy and the police . . .").

    Although we have not specifically answered the question

whether art. 14 provides greater protection than the Fourth

Amendment in these circumstances, we have repeatedly emphasized

the importance of a person's right to privacy in the home.     See,

e.g., Commonwealth v. Porter P., 456 Mass. 254, 260 (2010) ("In

view of the 'sanctity of the home,' 'all details [in the home]

are intimate details, because the entire area is held safe from
                                                                  16


prying government eyes'" [citation omitted]); Molina, 439 Mass.

at 209; Balicki, 436 Mass. at 12 n.14 ("Nowhere are expectations

of privacy greater than in the home, and '[i]n the home . . .

all details are intimate details" [citation omitted]);

Commonwealth v. Marquez, 434 Mass. 370, 374 (2001); Commonwealth

v. Straw, 422 Mass. 756, 760 (1996) ("it is in the home that a

person's expectation of privacy is at its highest");

Commonwealth v. Blood, 400 Mass. 61, 68 & n.9 (1987) (art. 14

affords greater privacy protection from government eavesdropping

for conversations that occur in home); Forde, 367 Mass. at 805

("The right of police officers to enter into a home, for

whatever purpose, represents a serious governmental intrusion

into one's privacy").

    In the present case, balancing the interests of law

enforcement with the rights of people to be protected from

warrantless searches in the home, we conclude that art. 14

provides greater protection than the Fourth Amendment in these

circumstances and that under art. 14 the police cannot avail

themselves of the exigency exception to the warrant requirement

when it was foreseeable that their actions would create the

exigency, even if their conduct was lawful.   See Molina, 439

Mass. at 210; Forde, 367 Mass. at 803.

    Here, before arriving at the defendant's home, Kenny knew

that Pohle was in the process of getting an arrest warrant but
                                                                    17


had not secured one.    Moreover, Kenny testified that his plan

was to knock on the door to see if the defendant was home,

question him, and if the opportunity arose, arrest him.    Based

on his testimony, it was evident that Kenny went to the

defendant's home with the purpose of making an arrest without a

warrant.    There is nothing in the record indicating that it was

impracticable to get a warrant.

       Likewise, it was reasonably foreseeable that the five

police officers approaching the defendant's home could cause the

defendant to attempt to flee.13   In fact, Kenny testified that he

understood that the officers' presence might prompt the

defendant to flee or destroy evidence.    See Forde, 367 Mass. at

801.    The officers also set up a perimeter around the house to

prevent the defendant from discarding evidence or escaping.

       There is no question that the police had developed probable

cause to arrest the defendant prior to arriving at his home.

Pohle decided not to pursue an after-hours arrest warrant, even

though he testified that there was a procedure in place to get

one.    There is also no question that it is generally permissible

for police to approach a person's home and knock on the door.

Commonwealth v. Leslie, 477 Mass. 48, 57 (2017).    However, Kenny

had the opportunity to obtain an arrest warrant the morning of



       Although the officers were in plain clothes, Kenny
       13

testified that their badges were displayed.
                                                                     18


the arrest.    Forgoing multiple opportunities to procure an

arrest warrant further highlights the unreasonableness of the

arrest.    See Forde, 367 Mass. at 799, 801.

       Furthermore, the Commonwealth made no showing that it was

impracticable to obtain an arrest warrant.     There was no

evidence that there was a risk that the defendant would flee,

destroy evidence, or be a risk to the officers' safety if the

police followed the normal course and secured a warrant.       See

Tyree, 455 Mass. at 687-691.     Compare Figueroa, 468 Mass. at

213.    The crime occurred the previous day, and there was no

evidence that the defendant even knew or had reason to know that

he was a suspect before the police arrived at his home.       Compare

Commonwealth v. Colon, 449 Mass. 207, 217, cert. denied, 552

U.S. 1079 (2007) (exigent circumstances existed where witnesses

to shooting told police that shooters had run into building and

officers knocked on door and received no answer notwithstanding

noises coming from apartment).

       The Commonwealth argues that because of the nature of the

crime, the defendant's role in it, his possession of a firearm,

the involvement of two accomplices, and the possibility that

they might try to flee, the situation called for immediate

action.    However, the police could have set up surveillance

while they waited for the warrant and arrested the defendant if

he left his house.    To this point, even though the Commonwealth
                                                                     19


argued that the defendant might have fled, it did not articulate

any basis to conclude that there was a risk of flight.         See

Tyree, 455 Mass. at 689 ("the police had no reason to believe

that the suspects were likely to flee the residence in the time

it would have taken to procure a warrant to search the

premises"); Molina, 439 Mass. at 210.     As in Molina, supra at

211, "[t]his is a situation where the officers could have, and

should have, secured a warrant. . . .     The exigent circumstances

that emerged during the arrest were a result of the officers'

appearance at the dwelling."    Considering all of the

circumstances, the arrest of the defendant in his dwelling

without a warrant was unreasonable.   Because the defendant's

warrantless arrest in his apartment was unlawful, the police

cannot rely on the plain view doctrine to allow the postarrest

observations in evidence.   Forde, 367 Mass. at 807.

    2.   Waiver.   In a postargument letter invited by the court,

the defendant contends that the Commonwealth waived any argument

regarding the validity of the search warrant that was sought and

executed after the defendant was arrested because the argument

was raised neither below nor on appeal.     We agree.    See

Commonwealth v. Bettencourt, 447 Mass. 631, 634 (2006) ("Our

system is premised on appellate review of that which was

presented and argued below").   Contrast Commonwealth v. Perkins,

478 Mass. 97, 107 (2017).   Nevertheless, we take this
                                                                  20


opportunity to discuss the nexus requirement to issue a search

warrant for a dwelling.

    Under both the Fourth Amendment and art. 14, a search

warrant may issue only on a showing of probable cause.

Commonwealth v. Keown, 478 Mass. 232, 237 (2017), cert. denied,

138 S. Ct. 1038 (2018).   Probable cause means a "substantial

basis" to conclude that "the items sought are related to the

criminal activity under investigation, and that they reasonably

may be expected to be located in the place to be searched at the

time the search warrant issues" (citation omitted).

Commonwealth v. Holley, 478 Mass. 508, 521 (2017).    "Information

establishing that a person is guilty of a crime does not

necessarily constitute probable cause to search the person's

residence."   Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.

denied, 464 U.S. 860 (1983).   There must be probable cause to

conclude not only that an individual committed a crime, but also

that there is a nexus between the crime and the items sought,

and the location to be searched.   The nexus to search a

residence for evidence of a crime "may be found in the type of

crime, the nature of the . . . items [sought], the extent of the

suspect's opportunity for concealment, and normal inferences as

to where a criminal would be likely to hide [items of the sort

sought]" (quotation and citation omitted).   Id.   See Perkins,

478 Mass. at 104.
                                                                   21


    Some cases involving the search of a dwelling have used an

articulation of the nexus standard that has sometimes been

interpreted as being more stringent, particularly in cases

involving searches of residences for drugs.      See, e.g., Perkins,

478 Mass. at 104; Commonwealth v. Colondres, 471 Mass. 192, 201,

cert. denied, 136 S. Ct. 347 (2015); Commonwealth v. Tapia, 463

Mass. 721, 725-726 (2012); Commonwealth v. Escalera, 462 Mass.

636, 644-646 (2012); Commonwealth v. Pina, 453 Mass. 438, 440-

441 (2009).   In one of those cases we stated:    "The affidavit

need not convince the magistrate beyond a reasonable doubt, but

must provide a substantial basis for concluding that [drugs or

instrumentalities of the drug trade] will be found on the

specified premises."   Pina, supra, quoting Commonwealth v.

Donahue, 430 Mass. 710, 712 (2000).     A "substantial basis" means

no more and no less than that "[a]n affidavit must contain

enough information for an issuing magistrate to determine that

the items sought are related to the criminal activity under

investigation, and that they reasonably may be expected to be

located in the place to be searched at the time the search

warrant issues."   Cinelli, 389 Mass. at 213.    "In determining

whether an affidavit justifies a finding of probable cause, the

affidavit is considered as a whole and in a commonsense and

realistic fashion" (citation omitted).    Commonwealth v.

Robertson, 480 Mass. 383, 386 (2018).
                                                                  22


     The affidavit in support of the search warrant stated that

the defendant was identified by the victim, was seen brandishing

a silver handgun, and struck Garcia and his baby during the home

invasion with the gun.   The affidavit also stated that Kenny

observed jewelry fitting the description of stolen jewelry

during the protective sweep.   The search warrant was approved by

a clerk-magistrate, and the police seized significant evidence,

including articles of clothing that matched Garcia's description

of the clothes worn by the home invaders.

     Here, probable cause to issue the search warrant remained

even without considering Kenny's plain view observation of

jewelry matching the description of the stolen jewelry.    The

defendant used a handgun to strike Garcia and his child during

the commission of the home invasion.14   It is reasonable to

expect that the handgun specified in the warrant was an item

that could reasonably be located in the home of a person who had

participated in an armed home invasion the previous day.

Cinelli, 389 Mass. at 212-213.   See Commonwealth v. Luthy, 69

Mass. App. Ct. 102, 105 (2007) ("The connection between the

items to be seized and the place to be searched does not have to

be based on direct observations; it may be found by looking at

the type of crime, nature of the items, the suspect's


     14The defendant did not fire the handgun during the home
invasion.
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opportunity to conceal items, and inferences as to where the

items are likely to be hidden").   In Commonwealth v. James, 424

Mass. 770, 778 (1997), we held that the defendants had no reason

to dispose of the instrumentalities used in a murder -- knives,

sneakers, and a face mask -- because the defendants were unaware

that they were suspects and "all of [the] items [were] durable,

of continuing utility to the defendants, and it was reasonable

to expect that they would be kept at home, particularly as they

are not inherently incriminating to possess."   We noted,

however, that a defendant who has fired a handgun in the

commission of a murder "would not keep at home an incriminating

handgun which could be readily identified as the murder weapon

through ballistics tests."   Id. at 778 n.15.   The defendant here

did not fire his firearm, but used it to strike Garcia and his

baby.   That a person would keep a handgun that was not

vulnerable to ballistic testing in his or her home is not a

remarkable proposition.   See United States v. Cowling, 648 F.3d

690, 696 (8th Cir. 2011), cert. denied, 566 U.S. 940 (2012)

("people generally keep [firearms] at home or on their persons"

[quotation and citation omitted]); United States v. Jones, 994

F.2d 1051, 1056 (3d Cir. 1993) (firearms are "the type[] of

evidence likely to be kept in a suspect's residence").      The fact

that the handgun was ultimately not discovered is of no

consequence.   Had the argument been preserved, it is likely that
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the evidence seized as a result of the search would not have

been suppressed.

    Conclusion.    The order of the Superior Court judge allowing

the defendant's pretrial motion to suppress evidence is

affirmed.

                                    So ordered.
