Commonwealth v. Colon (Lawyers Weekly No. 11-169-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1525 Appeals Court COMMONWEALTH vs. ROBERT COLON. No. 14-P-1525. Essex. September 22, 2015. – October 26, 2015. Present: Berry, Grainger, & Sullivan, JJ. Search and Seizure, Protective sweep, Warrant. Firearms. Controlled Substances. Constitutional Law, Search and seizure. Complaint received and sworn to in the Lynn Division of the District Court Department on February 19, 2013. A pretrial motion to suppress evidence was heard by Matthew J. Machera, J. An application for leave to prosecute an interlocutory appeal was allowed by Ralph D. Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Scott F. Gleason for the defendant. Quentin Weld, Assistant District Attorney, for the Commonwealth. GRAINGER, J. The defendant appeals from the denial of his motion to suppress evidence obtained during a warrantless search of his apartment conducted at the time of his arrest on an outstanding warrant.[1] A judge of the District Court concluded that the search was permissible as a “protective sweep.” The facts found by the motion judge after an evidentiary hearing are undisputed for purposes of our consideration of the motion to suppress. The salient findings are these:[2] The officers were made to wait several minutes after they knocked and announced their presence. During that time they heard a man and woman in conversation, running water, and a woman’s voice informing them she needed to get dressed. The defendant opened the door and the officers “smelled a strong odor of fresh marijuana.” The defendant said “let’s go” and attempted to leave with the officers, who instead brought him back inside the apartment, handcuffed him, and conducted the protective sweep. Discussion. Both United States Supreme Court and Massachusetts cases have recognized that a limited protective sweep of premises may be conducted incident to an arrest in order to ensure the safety of the arresting officers if they can demonstrate a “reasonable belief based on ‘specific and articulable facts’ that the area could harbor a dangerous individual.” Commonwealth v. Matos, 78 Mass. App. Ct. 156, 159 (2010), quoting from Maryland v. Buie, 494 U.S. 325, 327, 334 (1990). We conclude that the evidence in this case falls short of that standard. We are unpersuaded by the Commonwealth’s argument, based on facts not found by the […]
Commonwealth v. Colon (Lawyers Weekly No. 11-053-15)
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 13-P-774 Appeals Court COMMONWEALTH vs. GABRIEL COLON. No. 13-P-774. Hampden. December 9, 2014. – May 22, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Firearms. Practice, Criminal, Motion to suppress. Search and Seizure, Reasonable suspicion. Constitutional Law, Search and seizure, Reasonable suspicion. Indictments found and returned in the Superior Court Department on October 18, 2011. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J., and the cases were heard by Cornelius J. Moriarty, II, J. Elaine Fronhofer for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Gabriel Colon, was convicted after a jury-waived trial of unlawful possession of a firearm, possession of a defaced firearm, and unlawful possession of ammunition.[1] On appeal from the ensuing judgments, he argues error in an order denying his motion to suppress evidence, contending that the judge erred when he found that the defendant was lawfully seized. Only one witness testified at the hearing on the motion to suppress, Detective William Delgado. The salient facts are not in dispute.[2] We accept the motion judge’s findings of fact unless they are clearly erroneous, but we undertake an independent review of the application of the constitutional principles. Commonwealth v. Hoose, 467 Mass. 395, 399-400 (2014). The motion judge found the following facts, which we recite verbatim. “At approximately 5:30 P.M. on September 18, 2011, Holyoke Police Detective William Delgado received a telephone call from a friend, Manuel Alicea. Alicea informed Detective Delgado that five Hispanic males were loitering in front of Manny’s Market near the intersection of Sergeant and Walnut Streets in Holyoke. Alicea, the owner of the property, asked Detective Delgado to respond to address the problem. “Manny’s Market is in a high crime area, well known to Detective Delgado for drug dealing, firearms offenses and shootings. A Holyoke [p]olice [o]fficer had been killed recently in that area. “Detective Delgado had been a Holyoke police officer for ten years. At the time, he was assigned to the Holyoke [p]olice [d]epartment [n]arcotics and [v]ice [u]nit and also the Western Massachusetts [g]ang [t]ask [f]orce. He was familiar with firearms, having made firearms arrests approximately [forty] to [fifty] times. Many of those arrests involved illegal possession of firearms on the street. “At approximately 5:45 P.M., […]