Commonwealth v. Fontaine (Lawyers Weekly No. 11-004-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1113 Appeals Court COMMONWEALTH vs. YVES C. FONTAINE. No. 12‑P‑1113. Suffolk. April 2, 2013. ‑ January 21, 2014. Present: Vuono, Carhart, & Agnes, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Warrant, Affidavit. Search and Seizure, Warrant, Affidavit, Probable cause, Motor vehicle, Inevitable discovery. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Motor Vehicle. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on December 14, 2010. Following transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Sally A. Kelly, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Dana Alan Curhan (Joshua D. Werner with him) for the defendant. AGNES, J. This is an interlocutory appeal by the Commonwealth from the allowance of the defendant’s motion to suppress a firearm and ammunition seized by officers of the Boston police department from a motor vehicle pursuant to a search warrant. The motion judge concluded that the affidavit submitted in support of the warrant failed to establish probable cause. For the reasons that follow, we reverse. Background. The warrant in question was issued on the basis of an affidavit prepared by Boston police Detective James R. Sheehan. It informed the magistrate of the following facts. On December 9, 2010, at approximately 8:30 P.M., two officers of the Boston police department pulled over the defendant’s vehicle after observing several traffic violations in the vicinity of Blue Hill Avenue and Wellington Hill Street in Mattapan. The defendant was driving the vehicle and Jason Bly was sitting in the front passenger seat. As the officers approached the vehicle, they saw the defendant lean towards the passenger side dashboard and return to an upright position. The defendant denied making this movement when the officers questioned him about it. Upon approaching the vehicle, the driver- and passenger-side windows of the car were open. The officers noticed an “overwhelming scent” of unburnt marijuana that was “pervasive” throughout the interior of the vehicle. The officers observed a small plastic bag […]