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18-P-409                                                 Appeals Court

                      COMMONWEALTH   vs.   DEREK HART.


                              No. 18-P-409.

           Suffolk.       December 4, 2018. - April 11, 2019.

              Present:     Kinder, Neyman, & Desmond, JJ.


Probable Cause. Search and Seizure, Affidavit, Probable cause,
     Warrant. Constitutional Law, Search and seizure, Probable
     cause. Practice, Criminal, Motion to Supress. Firearms.


     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.


    DESMOND, J.       The Commonwealth appeals from a Superior Court

order allowing a motion to suppress evidence discovered during
                                                                    2


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


     1 A single justice of the Supreme Judicial Court allowed the
Commonwealth's application for leave to pursue an interlocutory
appeal and reported the case to this court. See G. L. c. 278,
§ 28E.
                                                                    3


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


     2 The defendant's brother was not a target of the search
warrant, and the affidavit does not allege any connection
between the black semiautomatic gun seen in the defendant's home
and the January 28, 2017, shooting.
                                                                   4


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 illegal

presence of weapons in the defendant's residence."   This appeal

followed.

    Discussion.   The Commonwealth argues on appeal that the

judge erred in concluding that the gun information was stale.

The Commonwealth asserts 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.

    We review the question of whether there was probable cause

to issue a search warrant de novo.   Commonwealth v. Perkins, 478

Mass. 97, 102 (2017).   Our inquiry is limited to the "four

corners of the affidavit" (citation omitted), Commonwealth v.

Keown, 478 Mass. 232, 238 (2017), cert. denied, 138 S. Ct. 1038

(2018), and allegations in the affidavit are viewed in "a

commonsense and realistic fashion" (citation omitted).

Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464
                                                                     5


U.S. 860 (1983).    "[P]robable cause to believe [that] evidence

of criminal activity will be found in a particular place must be

demonstrated by a 'nexus' between the crime alleged and the

place to be searched" (citation omitted).     Commonwealth v.

Matias, 440 Mass. 787, 794 (2004).     "Facts asserted in the

affidavit must be closely related in time to the issuance of the

warrant in order to justify a finding of probable cause; whether

facts are stale or timely is determined by the circumstances of

each case."    Commonwealth v. Connolly, 454 Mass. 808, 814

(2009).   When an informant describes his or her observation as

bounded by a range of time, "we assume that the observation

occurred at the most remote date within that time span."        United

States v. Dauphinee, 538 F.2d 1, 5 n.7 (1st Cir. 1976).

Therefore, the question before us is whether a single, isolated

observation of a firearem sixty days before the application for

a search warrant is sufficient to establish probable cause that

a firearm remains at the location to be searched.

    We conclude that the 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.     First, we are unpersuaded by the State and Federal

cases cited by the Commonwealth where dated observations of a

firearm were found to be timely.     In each of the cases cited by

the Commonwealth, there was other evidence suggesting that
                                                                    6


possession of the gun was continuous.   For example, in United

States v. Neal, 528 F.3d 1069 (8th Cir. 2008), an informant had

observed "stacks of firearms and a gun safe" in the defendant's

home on several occasions, and two police officers saw "numerous

rifles" in the bedroom in the course of making an arrest.     Id.

at 1071, 1074.   In Commonwealth v. Beliard, 443 Mass. 79 (2004),

there was sufficient evidence to show a "continuous illegal

presence of a number of weapons in the defendant's residence

over extended periods of time" to the point where the timing of

the executing of the warrant became "of less significance."     Id.

at 85-86.   Likewise, in Commonwealth v. Fleurant, 2 Mass. App.

Ct. 250 (1974), the police were searching for a number of guns,

including a machine gun, and the informant had provided

"considerable additional information" that indicated that the

firearms remained in the home.3   Id. at 254.   A staleness inquiry

is necessarily fact-driven, and all of the cases cited by the

Commonwealth had substantial facts beyond the timing of the most

recent observation from which it could be reasonably inferred

that possession of the firearms was continuous.    None of those




     3 In Fleurant, although the most recent observation of the
firearms occurred a full thirteen months prior to the warrant
application, that fact was not before the magistrate and was
only revealed at trial. In fact, "[t]he language of the
affidavit indicated that at least some of the events contained
therein had taken place recently." Id. at 254-255.
                                                                   7


cases, unlike our own, featured an isolated observation of one

weapon by a single individual.

    Indeed, the affidavit submitted with the warrant

application included little information about the gun beyond its

description as a semiautomatic weapon, kept "in [the

defendant's] hand," and stored on the floor in a bedroom area of

the home.   There was 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.   Compare

Commonwealth v. James, 424 Mass. 770, 778 (1997).   Firearms are

said to be more durable than drugs because they are "not likely

to be consumed or destroyed."    Fleurant, 2 Mass. App. at 255.

However, standing alone, a gun's durability does not adequately

support a belief that the firearm will still be in the home two

months later.   Compare id. ("We think the affidavit recited

'facts indicating activity of a protracted and continuous nature

[and therefore] . . . the passage of time [became] less

significant'" [citation omitted]).

    "A defendant's criminal history may be factored into a

probable cause determination as corroboration of an informant's

tip, but only if the history is sufficiently recent and similar

to the crime charged to demonstrate that 'the defendant was not

averse' to committing such a crime."    Commonwealth v. Allen, 406
                                                                    8


Mass. 575, 579 (1990), quoting Commonwealth v. Germain, 396

Mass. 413, 418 n.7 (1985).   Here, 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 his residence or on his person.

See Allen, 406 Mass. at 579 (defendant's four year old

conviction found to be too remote).   Likewise, the brother's

criminal history adds little to the probable cause analysis.4   In

short, a single observation of a firearm in a residence sixty

days prior to the application for a search warrant does not

establish probable cause that firearms, ammunition, and related

materials would be found at that residence.

                                   Order allowing motion to
                                     suppress affirmed.




     4 When looking for a "nexus between the items to be seized
and the place to be searched," we consider "the type of crime,
the nature of the missing items, the extent of the suspect's
opportunity for concealment, and normal inferences as to where a
criminal would be likely to hide" the items. Cinelli, 389 Mass.
at 213, quoting United States v. Lucarz, 430 F.2d 1051, 1055
(9th Cir. 1970). The brother's criminal record goes to none of
these factors.
