Commonwealth v. Owens (Lawyers Weekly No. 11-116-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1868 Appeals Court COMMONWEALTH vs. TERRY LYNN OWENS. No. 14-P-1868. Suffolk. October 4, 2016. – September 11, 2017. Present: Kafker, C.J., Trainor, & Henry, JJ.[1] Controlled Substances. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Exigent circumstances, Securing of premises, Expectation of privacy, Probable cause, Protective sweep, Warrant. Probable Cause. Practice, Criminal, Motion to suppress, Warrant. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on July 17, 2013. A pretrial motion to suppress evidence was heard by Kenneth J. Fiandaca, 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. Trevor Davis for the defendant. KAFKER, C.J. The defendant, Terry Lynn Owens, was charged with possession of a class B substance pursuant to G. L. c. 94C, § 34. The defendant moved to suppress evidence discovered when police officers secured a house used for prostitution while they obtained a warrant. After an evidentiary hearing, the motion judge allowed the defendant’s motion. The Commonwealth appeals, claiming that the search was justified as a protective sweep or “freeze” to prevent the destruction of evidence. We conclude that the limited search was permissible in these circumstances, where the officers were already in the home pursuant to an undercover “sting” operation and knew there were other people in the home who might be alerted to the officers’ presence and destroy evidence before they could obtain a search warrant, was permissible. We therefore reverse the order allowing the motion to suppress. Background. We recite the facts as found by the motion judge, supplemented by uncontroverted evidence drawn from the record of the suppression hearing and evidence that was implicitly credited by the judge. See Commonwealth v. Melo, 472 Mass. 278, 286 (2015). The judge’s findings were as follows: “Boston Police Officers Kevin McClay and Luis Anjos . . . were, on April 8, 2013, members of the Orchard Park [s]afe [s]treet [t]eam, . . . tasked with quality of life community policing in the Orchard Park/Dudley Triangle area of the Roxbury district. The team was in the area of 131 […]
Owens v. Commonwealth (Lawyers Weekly No. 10-086-13)
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 SJC‑11368 JULIUS OWENS vs. COMMONWEALTH.[1] May 15, 2013. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Interlocutory appeal, Speedy trial, Competency to stand trial. The petitioner, Julius Owens, filed a pro se petition in the county court seeking interlocutory review of the denial of his motion to dismiss indictments against him in an underlying criminal case. He claimed that the indictments should have been dismissed on speedy trial ground. A single justice denied relief, and the petitioner appeals, claiming that the single justice abused his discretion in denying the petition, pursuant to G. L. c. 211, § 3. We affirm. The denial of a motion to dismiss in a criminal case cannot be appealed by a defendant as a matter of right until after trial. Nor is review of such an interlocutory ruling available as a matter of right under G. L. c. 211, § 3. “Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002). With one limited exception not applicable here, these principles apply to all motions to dismiss, including those, like the petitioner’s, that raise speedy trial claims. See Esteves v. Commonwealth, 434 Mass. 1003, 1005 (2001). Accord Grand-Pierre v. Commonwealth, 461 Mass. 1003, 1004 (2011); Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 (2009); Glawson v. Commonwealth, 450 Mass. 1009, 1009-1010 (2007); Bateman v. Commonwealth, 449 Mass. 1024, 1024 (2007). Regardless whether the “brief and appendix” the petitioner has filed was intended to be a memorandum pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), or an appellate brief pursuant to Mass. R. A. P. 16, as amended, 428 Mass. 1603 (1999), he has failed to demonstrate the absence or inadequacy of the ordinary appellate review process. He claims that he has been adjudicated incompetent, see G. L. c. 123, § 16; that an appeal after a conviction would not be an adequate remedy because his “adjudication of ‘incompetency’ is unlikely to change at any point in the for[e]seeable future”; and thus that there will be no trial and appeal. If his competency is restored, […]