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SJC-12170

                       COMMONWEALTH   vs.   STEVEN MORA.



            Suffolk.       February 6, 2017. - June 29, 2017.

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


Firearms. Motor Vehicle, Firearms. Search and Seizure, Motor
     vehicle, Warrant, Probable cause. Practice, Criminal,
     Interlocutory appeal, Judicial discretion, Motion to
     suppress, Warrant, Grand jury proceedings, Indictment,
     Sentence. Probable Cause. Evidence, Grand jury
     proceedings. Grand Jury.



     Indictments found and returned in the Superior Court
Department on October 22, 2014.

     A pretrial motion to suppress evidence was heard by James
R. Lemire, J.

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


     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 20, 2016.

    The case was reported by Botsford, J.
                                                                    2


     Richard J. Shea for the defendant.
     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.   This case is here on the reservation and report

of two related matters involving the defendant, Steven Mora, who

was indicted on various charges in connection with the

possession of an unlicensed firearm.      Two of those charges

included sentence enhancement as an armed career criminal

pursuant to G. L. c. 269, § 10G (b).      We conclude that the

search warrant that yielded the gun, a magazine, and ammunition

lacked probable cause and that the Commonwealth failed to

present sufficient evidence to the grand jury to support the

armed career criminal enhancements.

    1.   Background.   a.   The search.    We summarize the facts

provided in the affidavit that a Worcester police officer filed

in support of an application for a warrant to search a safe

found in a motor vehicle driven by the defendant.      See

Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) ("our inquiry

as to the sufficiency of the search warrant application always

begins and ends with the 'four corners of the affidavit'"

[citation omitted]).

    One summer evening in 2014, that police officer was

conducting surveillance and observed a man engaged in what

appeared to be hand-to-hand drug transactions in the parking lot
                                                                      3


of a convenience store.     This lot was known to be a location

where "numerous drug arrests" had occurred.     Approximately

thirty minutes into the surveillance, the defendant drove into

the lot in a station wagon and approached the suspected drug

dealer.   As the two stood together, a third man approached the

drug dealer who appeared to conduct a brief transaction with

that individual as the defendant looked around nervously.

    Following this interaction, the defendant, the drug dealer,

and a woman entered the station wagon and left the parking lot.

The officer alerted other officers in the area, and the vehicle

was stopped shortly thereafter.     A patfrisk of the defendant

yielded several hypodermic needles, and the officer learned that

the defendant's driver's license was suspended.     A search of the

vehicle produced more needles and other drug paraphernalia along

with a small safe marked "Fort Knox," which was on the floor of

the vehicle behind the driver's seat.     No illegal narcotics were

found either in the vehicle or in the possession of any of its

occupants.

    The defendant was arrested for driving with a suspended

license, and the motor vehicle, which was not registered in his

name, was towed.     Police took possession of the safe pursuant to

an inventory search and determined that there was a heavy metal

object inside.     Police learned through research that the safe

was designed to secure pistols.     As a result, the officer sought
                                                                   4


a search warrant for the contents of the safe, averring that, in

his training and experience, heroin addicts often steal anything

of value to support their addiction; drug dealers often keep

contraband inside of safes to secure their drug supply; and on

numerous occasions he had found illegal narcotics, firearms,

money, and drug transaction notes in safes belonging to drug

dealers.   A warrant for the contents of the safe issued; inside

police found a handgun and magazine, two boxes of ammunition,

two pill bottles bearing the defendant's name, and two

hypodermic needles.

     b.    The indictments.    Based on the evidence seized from the

safe, a grand jury returned indictments charging the defendant

with possession of a large capacity feeding device, possession

of ammunition without a firearm identification card, and illegal

possession of a firearm.      With regard to the latter two

indictments, the defendant also was charged as an armed career

criminal pursuant to G. L. c. 269, § 10G (b) (act), on the basis

that he had been previously convicted of two violent or serious

drug offenses and therefore was subject to enhanced sentencing.1




     1
       A sentence enhancement pursuant to G. L.    c. 269, § 10 (b),
would result in additional "imprisonment in the    state prison for
not less than ten years nor more than [fifteen]    years" above
that imprisonment already imposed in connection    with the
underlying crime.
                                                                       5


    c.    Procedural history.     The defendant filed a motion to

suppress the evidence recovered from the safe.      A Superior Court

judge denied the motion.      The defendant filed a notice of appeal

from the judge's order and, subsequently, an application to a

single justice of this court for leave to appeal pursuant to

Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501

(1996).

    The defendant also moved to dismiss the sentence

enhancements, arguing that there could be no probable cause for

them where the grand jury heard no evidence that his second

predicate conviction, for unarmed robbery, was a "violent crime"

as required by G. L. c. 269, § 10G (e).      That motion was denied

by a different Superior Court judge.      The defendant then filed a

petition in the county court pursuant to G. L. c. 211, § 3,

seeking review of the denial of his motion to dismiss the armed

career criminal enhancements.

    A single justice reserved and reported both matters for

consideration by the full court.

    2.    Discussion.    a.   Motion to suppress.   i.   Timeliness.

As an initial matter, the Commonwealth argues that we should

reject as untimely the defendant's appeal from the denial of his

motion to suppress.     The Commonwealth claims that the motion

judge did not have the authority to extend, for as long as he
                                                                    6


did, the defendant's time for filing his application for leave

to appeal.   We disagree.

      There are two steps to perfecting an interlocutory appeal

from an order on a motion to suppress:   (1) filing a notice of

appeal with the trial court; and (2) applying to a single

justice of the Supreme Judicial Court for leave to appeal.

Mass. R. Crim. P. 15 (b) (1), as appearing in 422 Mass. 1501

(1996).   At the time of the events in this case, the party

seeking to appeal had ten days from the entry of the order to

file the notice of appeal, or such additional time as a judge in

the trial court or a single justice of this court may allow.2

Id.   The trial court's authority to extend the time for filing a

notice of appeal is limited to thirty additional days beyond the

time set by rule 15 (b) (1).   Mass. R. A. P. 4 (c), as amended,

378 Mass. 928 (1979).   See Commonwealth v. Jordan, 469 Mass.

134, 141-143 (2014) (discussing interplay of Mass. R. Crim. P.

15 and Mass. R. A. P. 4, and limitation on extension of time

that lower court may grant for filing notices of appeal).




      2
       Rule 15 (b) (1) of the Massachusetts Rules of Criminal
Procedure has since been amended, effective August 1, 2016, to
provide that the notice of appeal and the application for leave
to appeal must be filed within thirty days of the date of entry
of the order being appealed from, or such additional time as the
lower court or the single justice may order. Mass. R. Crim. P.
15 (b) (1), as appearing in 474 Mass. 1501 (2016).
                                                                    7


    Here, the order denying the motion to suppress was entered

on the Superior Court docket on April 13, 2016, and the

defendant filed his notice of appeal on April 22, 2016.     The

Commonwealth takes no issue with the timeliness of the

defendant's notice of appeal.    The dispute lies with the second

step in the process, i.e., filing the application in the county

court for leave to pursue an interlocutory appeal.

    At the same time that he filed his timely notice of appeal,

the defendant filed in the trial court a motion to extend the

time to file his application for leave to appeal by thirty days.

The motion judge allowed that request.     On May 20, 2016, the

defendant filed a second motion for an extension of time, asking

for an additional thirty days to file the application, which

also was allowed.   The defendant filed his application for leave

to appeal on June 20, 2016.     The Commonwealth argues that the

judge's authority to grant an extension of time for filing the

application was limited to thirty days beyond the initial ten-

day period, which the judge exhausted by granting the

defendant's first motion for an extension, and thus that the

judge had no authority to grant the second motion for a further

extension.   To support its argument the Commonwealth relies on

Commonwealth v. Demirtshyan, 87 Mass. App. Ct. 737, 740-741

(2015), in which the Appeals Court interpreted the holding in

Jordan, 469 Mass. at 140-142, and stated that the authority of a
                                                                     8


judge in the trial court to grant an extension for filing an

application for leave to appeal is, by analogy, the same as the

judge's authority to grant an extension for filing a notice of

appeal, i.e., no more than thirty days beyond the expiration of

the original time period prescribed by the rule.

    We pointed out in Jordan, 469 Mass. at 141-142, that the

limitation on a trial court judge's authority to extend the time

for filing a notice of appeal derives from Mass. R. A. P. 4 (c).

The same cannot be said of the judge's authority with respect to

filing the application.   "It is important to note that rule

4 (c) governs only extensions of time for filing a notice of

appeal in the trial court.    Neither rule 4 (c) nor any of the

other appellate rules governs extensions of time for the . . .

period set out in Mass. R. Crim. P. 15 (b) (1) for filing an

application to a single justice of this court for leave to

pursue the interlocutory appeal.    The authority of a trial court

judge or a single justice to extend the time for filing an

application derives from rule 15 (b) (1), not from the appellate

rules."   Jordan, supra at 141 n.15.   Rule 15 (b) (1) speaks only

of "such additional time as either the trial judge or the single

justice . . . shall order."    Simply put, there is no express

limitation in the rules on a trial court judge's authority to

grant an extension of time for filing the application for leave

to appeal.   A trial court judge, like a single justice of this
                                                                     9


court, has discretion to determine a reasonable and appropriate

amount of time in the circumstances.3

     Pursuant to Mass. R. Crim. P. 15 (b) (1), the motion judge

in this case was well within his discretion to grant thirty

additional days beyond the thirty days previously granted for

the filing of the application.    The defendant's application,

filed on June 20, 2016, in accordance with the judge's grant of

additional time, was therefore timely.

     ii.   Search warrant.    "Because a determination of probable

cause is a conclusion of law, we review a search warrant

affidavit de novo."    Commonwealth v. Foster, 471 Mass. 236, 242

(2015).    The defendant argues that the search warrant for the

safe was improperly issued as the affidavit in support of the

application failed to establish the necessary probable cause.

"[T]he magistrate [must have] a substantial basis to conclude

that a crime [was] committed . . . and that the items described

in the warrant were related to the criminal activity and

probably in the place to be searched" (citation omitted).

O'Day, 440 Mass. at 298.     The warrant affidavit established

probable cause that drug transactions occurred, and that drug

dealers often use safes to hide contraband such as narcotics,

firearms, and money.   However, it did not adequately connect the

     3
       To the extent that Commonwealth v. Demirtshyan, 87 Mass.
App. Ct. 737 (2015), states otherwise, it is incorrect.
                                                                    10


drug dealing, or any other criminal activity, to the safe in the

motor vehicle that the defendant was driving.

    The affidavit does not make clear whom the police were

targeting.   As a warrant application must draw a nexus between

the area to be searched and criminal activity -- not a

particular person -- it is not necessary for the application to

identify a suspect.   See, e.g., Commonwealth v. Martinez, 476

Mass. 410, 416-417 (2017) (probable cause analysis focused on

nexus between suspected child pornography crimes and certain

computers, not certain users).    Here, however, in an attempt to

create a basis for probable cause, the affidavit seems to

conflate observations of the suspected dealer with observations

of the defendant as though the two were one individual.     An

examination of the actions of and circumstances surrounding each

individual is in order.

    First, although there clearly was probable cause to believe

that the first male observed was a drug dealer, the affidavit

did not reveal a nexus between his activities and the safe.

Despite the fact that the affidavit states that "drug dealers

often keep contraband inside of safes to secure their drug

supply," this particular safe was behind the driver's seat of a

motor vehicle in which the drug dealer took a short trip just

prior to the stop.    The affidavit did not indicate whether the

drug dealer had prior access to the motor vehicle, whether he
                                                                    11


would have had physical access to the safe based on where he was

sitting, or whether he would have had time to access the safe

given the short period of time that he was in the vehicle.

    Although the defendant, as the driver of the vehicle, has

an arguable connection to the safe, there must be a nexus

between the safe and criminal activity.   The affidavit included

no "specific allegations or particularized information based on

police surveillance" that the defendant was a dealer.

Commonwealth v. Pina, 453 Mass. 438, 442 (2009).   Rather, the

patfrisk of the defendant and sweep of the motor vehicle yielded

hypodermic needles indicating drug use, not drug dealing.     Cf.

Commonwealth v. Wilson, 441 Mass. 390, 401 (2004) (intent to

distribute marijuana supported by, inter alia, "absence of any

smoking paraphernalia" undermined claim of possession for

personal use).   Further, neither the fact that a hand-to-hand

drug transaction was conducted in the defendant's presence nor

the fact that the defendant thereafter gave the drug dealer a

ride permits an inference that the defendant was a participant

in the drug dealer's distribution activities.   Contrast

Commonwealth v. Fernandez, 458 Mass. 137, 141 n.9 (2010) (search

for evidence of drug dealing warranted where defendant seen

personally conducting hand-to-hand drug transactions).

    As there is no plausible nexus between the safe and drug

dealing, we look to whether there is probable cause to believe
                                                                  12


that there is a nexus between the safe and any other criminal

activity.   As discussed supra, there was probable cause to

believe that the defendant was a drug user, and the affiant

averred that in his training and experience, heroin addicts may

steal anything of value "to sell or trade the items to support"

their habit.   Importantly, however, the affiant also stated that

dealers, not addicts, tend to hide contraband in safes.     Because

the affidavit made no connection between drug use and safes,

there was no probable cause to believe that evidence of the

defendant's drug use could be found in the safe.

    Finally, the affidavit did provide probable cause to

believe that there was a firearm in the safe.   However, the

licensed possession of a firearm is not a crime, and on the

facts here, there was no probable cause to believe that the

defendant did not have a license to carry the weapon.     If

anything, the fact that a handgun is properly secured in a gun

safe makes it more likely that its owner has a license.     See

Commonwealth v. Edwards, 476 Mass. 341, 346-347 & n.10 (2017).

The mere fact that the defendant may have been a heroin user

does not give rise to the inference that the firearm was

unlicensed.    See Commonwealth v. White, 374 Mass. 132, 141

(1977), aff'd (by an equally divided Court), 439 U.S. 280 (1978)

(evidence of drug use does not furnish probable cause for

additional criminality).    Further, "mere possession of a handgun
                                                                  13


[is] not sufficient to give rise to a reasonable suspicion that

the defendant was illegally carrying that gun."   Commonwealth v.

Couture, 407 Mass. 178, 183, cert. denied, 498 U.S. 951 (1990).

    As the affidavit failed to provide a nexus between any

suspected criminal activity and the safe, the warrant was

invalid and the fruits of the search must be suppressed.

    b.   Motion to dismiss sentence enhancements.4    The defendant

also asks us to exercise our extraordinary powers pursuant to

G. L. c. 211, § 3, to reverse the denial of his motion to

dismiss the sentence enhancements.

    The armed career criminal statute imposes enhanced

penalties on a person convicted of possession of a firearm or

ammunition where that person was previously convicted of two

violent crimes or serious drug offenses.   G. L. c. 269,

§ 10G (b).   The two predicate crimes that the Commonwealth

presented to the grand jury in this case were assault and

battery by means of a dangerous weapon and robbery.    The

defendant argues that the Commonwealth failed to establish that

his conviction of robbery was a conviction of a violent crime,

and that therefore the sentence enhancements must be dismissed.

    4
       Because we conclude that all of the evidence seized from
the safe must be suppressed, for all practical purposes it would
appear that the Commonwealth may be required to dismiss its
case. Nevertheless, the single justice reserved and reported
this issue because it is likely to continue arising in other
cases and we reach it accordingly.
                                                                  14


The Commonwealth argues that the fact that the defendant was

convicted of robbery is enough to establish probable cause that

he committed a violent crime.   We agree with the defendant.

     The act uses the definition of "[v]iolent crime" found in

G. L. c. 140, § 121:

     "any crime punishable by imprisonment for a term exceeding
     one year . . . that: (i) has as an element the use,
     attempted use or threatened use of physical force or a
     deadly weapon against the person of another; (ii) is
     burglary, extortion, arson or kidnapping; (iii) involves
     the use of explosives; or (iv) otherwise involves conduct
     that presents a serious risk of physical injury to
     another."

See G. L. c. 269, § 10G (e).    Only the first part of this

definition in G. L. c. 140, § 121, is relevant here.5   "Physical

force" as used in that clause means "violent or substantial

force capable of causing pain or injury."    Commonwealth v.

Eberhart, 461 Mass. 809, 818 (2012), quoting Commonwealth v.

Colon, 81 Mass. App. Ct. 8, 18 (2011).

     Pursuant to G. L. c. 265, § 19 (b), the crime of robbery

(i.e., unarmed robbery) is defined as follows:

     "Whoever, not being armed with a dangerous weapon, by force
     and violence, or by assault and putting in fear, robs,
     steals or takes from the person of another, or from his
     immediate control, money or other property which may be the
     subject of larceny, shall be punished by imprisonment in
     the state prison for life or for any term of years."

     5
       Robbery is not one of the offenses enumerated in the
second and third clauses of G. L. c. 140, § 121, and we recently
determined that the fourth clause is unconstitutionally vague.
Commonwealth v. Beal, 474 Mass. 341, 350-351 (2016).
                                                                      15



     Thus, one can commit a robbery either by "force and

violence," or by "assault and putting in fear."      Commonwealth v.

Jones, 362 Mass. 83, 86 (1972), quoting G. L. c. 277, § 39.         In

both circumstances, "the degree of force is immaterial so long

as it is sufficient to obtain the victim's property 'against his

will'" (citation omitted).     Jones, supra at 87.   Importantly,

the victim need not resist; as "long as the victim is aware of

the application of force which relieves him of his property,

. . . the requisite degree of force is present to make the crime

robbery" (citation omitted).    Id. at 89.

     Even in a case where the robbery is committed by "force and

violence," it is not necessary that the victim be placed in

fear.6   Thus, conduct that may be sufficient to meet the

definition of robbery may not satisfy the definition of "violent

crime" for purposes of a sentence enhancement under the act.

See United States v. Parnell, 818 F.3d 974, 981 (9th Cir. 2016)

(robbery is not "violent crime" in meaning of Federal armed


     6
       For example, in Commonwealth v. Jones, 362 Mass. 83, 85
(1972), the defendant was convicted of robbing a woman who
"described the taking as follows: 'I really couldn't tell you
what he did. All I knew he was standing there. Next thing I
knew, I felt something off my arm. I realized my bag was
gone.'" This court upheld the conviction, holding that
"although the action may be so swift as to leave the victim
momentarily in a dazed condition, the requisite degree of force
is present to make the crime robbery." Id. at 89.
                                                                  16


career criminal statute, from which Massachusetts statute

borrows its definition).

     Because the crime of robbery can encompass conduct

satisfying one of several definitions, not all of which are

violent, to determine whether robbery is a violent crime for

purposes of the act, the Commonwealth must provide not only the

certified record of conviction but also evidence of the

circumstances surrounding the robbery.7   See Eberhart, 461 Mass.

at 816-817, citing Colon, 81 Mass. App. Ct. at 15.

     Because the grand jury in this case heard only that the

defendant had been convicted of robbery, without evidence that

the defendant used, attempted to use, or threatened to use

physical force, there was no reasonable basis to find probable

cause that he had committed a "violent crime."   Commonwealth v.

Hanright, 466 Mass. 303, 312 (2013) (evidence before grand jury

must contain "reasonably trustworthy information . . .

sufficient to warrant a prudent [person] in believing that the

defendant had committed . . . an offense" [citation omitted]);




     7
       As a practical matter, the necessary extrinsic evidence is
slight. The Commonwealth need only demonstrate which statutory
or common-law definition was the basis of the prior conviction
by, for example, presenting the police report or calling an
officer to testify. See Commonwealth v. Eberhart, 461 Mass.
809, 816 (2012), citing Commonwealth v. Colon, 81 Mass. App. Ct.
8, 16 n.8 (2011).
                                                                     17


Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).     Thus, the

sentence enhancements must be dismissed.

    3.   Conclusion.   The matters are remanded to the county

court.   In No. SJ-2016-275, a judgment shall enter reversing the

order of the Superior Court denying the defendant's motion to

suppress evidence recovered pursuant to the search warrant.     In

No. SJ-2016-276, a judgment shall enter allowing the defendant's

petition for relief under G. L. c. 211, § 3, and reversing the

Superior Court order denying the defendant's motion to dismiss

the armed career criminal portions of the indictments.

                                    So ordered.
