Commonwealth v. Hart
Commonwealth v. Hart
Opinion
*165 The Commonwealth appeals from a Superior Court order allowing a motion to suppress evidence discovered during 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, *166 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 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 *198 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 was charged pursuant to G. L. c. 269, § 10 ( h ) (1) with unlawful possession of *167 ammunition, and he was charged with 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
,
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
*168
where dated observations of a firearm were found to be timely. In each of the cases cited by the
*199
Commonwealth, there was other evidence suggesting that possession of the gun was continuous. For example, in
United States
v.
Neal
,
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
,
"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
,
Order allowing motion to suppress affirmed .
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.
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.
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,
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
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.