Commonwealth v. Forbes (Lawyers Weekly No. 11-036-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1712 Appeals Court COMMONWEALTH vs. JASON FORBES. No. 12‑P‑1712. Hampden. November 5, 2013. ‑ April 8, 2014. Present: Cypher, Brown, & Fecteau, JJ. Search and Seizure, Warrant, Affidavit, Probable cause. Constitutional Law, Search and seizure. Practice, Criminal, Warrant, Affidavit, Motion to suppress. Probable Cause. Indictments found and returned in the Superior Court Department on July 28, 2010. Pretrial motions to suppress evidence were heard by C. Jeffrey Kinder, J., and Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Ralph D. Gants, J., and the appeal was reported by him to the Appeals Court. John M. Thompson (Vincent A. Bongiorni with him) for the defendant. Marcia B. Julian, Assistant District Attorney, for the Commonwealth. CYPHER, J. In this interlocutory appeal, the defendant, Jason Forbes, seeks reversal of orders by two different judges in the Superior Court, one denying the defendant’s motion to suppress and the other denying the defendant’s request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (Franks). The defendant argues that the judge deciding the motion to suppress erred in concluding that a second search warrant affidavit established independent probable cause to search the defendant’s apartment. He further argues that the police’s exploitation of an improper search requires suppression of evidence in order to deter future police misconduct. We affirm. Background. The defendant was charged with trafficking in cocaine, distribution of a class D substance, a drug violation near a school or park, possession of a firearm without a firearm identification card, possession of a firearm in the commission of a felony, improper storage of a firearm, and two counts of assault and battery on a police officer. The defendant filed a motion to suppress evidence in which he also sought disclosure of the identity of an informant, and a Franks hearing regarding alleged police misconduct. On July 28, 2011, a Superior Court judge conducted a limited, in camera hearing pursuant to Commonwealth v. Amral, 407 Mass. 511 (1990). The judge denied the defendant’s request for a Franks hearing. A different Superior Court judge subsequently allowed that portion of the defendant’s motion seeking to suppress the evidence of a firearm but denied the motion with regard to the remaining evidence. A single […]