Posts tagged "1116915"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;   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 […]


Posted by Massachusetts Legal Resources - October 26, 2015 at 3:35 pm

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