Commonwealth v. Demirtshyan (Lawyers Weekly No. 11-091-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-450                                        Appeals Court   COMMONWEALTH  vs.  HARUTYUN DEMIRTSHYAN. No. 14-P-450. Essex.     February 6, 2015. – August 5, 2015.   Present:  Cypher, Hanlon, & Agnes, JJ.     Practice, Criminal, Motion to suppress, Appeal by Commonwealth, Interlocutory appeal.  Rules of Appellate Procedure.  Supreme Judicial Court, Superintendence of inferior courts.  Appeals Court, Jurisdiction.  Constitutional Law, Search and seizure, Probable cause, Reasonable suspicion.  Search and Seizure, Automobile, Protective frisk, Reasonable suspicion, Probable cause.  Probable Cause.       Complaint received and sworn to in the Lynn Division of the District Court Department on June 7, 2013.   A pretrial motion to suppress evidence was heard by Albert S. Conlon, J.; a motion to dismiss was heard by him; and a motion for reconsideration was heard by Ellen Flatley, J.   An application for leave to prosecute an interlocutory appeal was allowed by Fernande R.V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Jane Larmon White for the defendant.     AGNES, J.  This appeal arises out of the Commonwealth’s application for an interlocutory appeal of a District Court order suppressing evidence consisting of an electroshock weapon,[1] the defendant’s statements regarding its ownership, and the arresting officer’s observations that led to its discovery during a routine motor vehicle stop.  The defendant claims that the Commonwealth’s appeal is untimely.  The Commonwealth contends that its appeal is not time barred because the issue was addressed and decided in its favor in the court below, and, moreover, its application for leave to appeal was authorized by a single justice of the Supreme Judicial Court.  Based on the guidance in Commonwealth v. Jordan, 469 Mass. 134 (2014), decided after this case was entered in the Appeals Court, we determine that the merits should be reached albeit for reasons different from those advanced by the Commonwealth. On the merits, the Commonwealth contends that the police officer was justified in ordering the defendant to exit the vehicle (leading to the discovery of the weapon) when at the conclusion of the stop, the defendant suddenly lunged and reached into the back seat of the vehicle.  We agree, and, accordingly, reverse the order allowing the motion to suppress. Discussion.  1.  Procedural history.  The evidentiary hearing on the […]

Read more...