Com. v. Guaba

• Citation: 417 Mass. 746,632 N.E.2d 1217
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 11 May 1994
• Parties: , 62 USLW 2798 COMMONWEALTH v. Jose A. GUABA.

Page 1217

632 N.E.2d 1217

417 Mass. 746, 62 USLW 2798

COMMONWEALTH v. Jose A. GUABA.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 7, 1994.

Decided May 11, 1994.

Paul B. Linn, Asst. Dist. Atty., for the Com.

John C. McBride, Boston (J. Thomas Kerner, with him) for defendant.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

This is an interlocutory appeal from an allowance of the defendant's motion to suppress evidence. The motion judge, holding that the search of an apartment pursuant to a validly issued warrant constituted a warrantless search due to the failure of the police to possess the warrant in hand at the commencement of the search, ordered the suppression of the evidence seized during the search. Because we agree that, under art. 14 of the Declaration of Rights of the Massachusetts Constitution, law enforcement officials are required to possess a copy of the warrant in hand when executing a search warrant, we affirm.

On September 11, 1991, a confidential informant told Boston police detective Timothy Lynch that a thirty year old, Hispanic male, weighing approximately 150 pounds, and being about five feet, six inches tall, would be leaving 10 Ernst Street, apartment 3, in the Jamaica Plain section of Boston and would be driving a blue motor vehicle with a particular registration number en route to deliver a package of cocaine. Later that day, Boston police detective William Tracy observed the defendant, Jose Guaba, who matched this description, leave the above address and drive away in the above described motor vehicle. The officers subsequently seized a package of cocaine from the defendant and placed him under arrest. Detective Lynch then travelled to the West Roxbury District Court to obtain a search warrant for 10 Ernst Street, apartment 3. Anticipating that a search warrant would be issued, the other officers proceeded to that address to secure the premises.

At the apartment, the police found Sandra Rodriguez and two young children. The police informed her that the defendant had been arrested and that they were seeking a search warrant for the apartment. They did not conduct a search at this time. The police waited until they received a call from Detective Lynch informing them that a search warrant had been issued. The police then searched the apartment and seized cocaine, cash, and paraphernalia used to distribute cocaine. Before the search was completed, Detective Lynch arrived with the warrant. Subsequently, the defendant was indicted on charges of trafficking in cocaine in violation of G.L. c. 94C, § 32E (1992 ed.), and conspiracy to violate a controlled substance law in violation of G.L. c. 94C, § 40 (1992 ed.).

Prior to trial, the defendant moved to suppress the evidence seized during the motor vehicle search and the search of the apartment. After a hearing, the motion judge denied the motion concerning the evidence seized during the motor vehicle stop but allowed the motion concerning the evidence seized during the apartment search. Citing Commonwealth v. Rutkowski, 406 Mass. 673, 550 N.E.2d 362 (1990), the motion judge held that, because the search warrant was not at the premises when the search began, the search constituted a warrantless search. She further held that the search did not meet any of the narrowly-drawn exceptions to the warrant requirement and, accordingly, ordered that the evidence seized from the apartment be suppressed.

1. Commonwealth's leave to appeal. The defendant argues that the single justice improperly allowed the Commonwealth's application for leave to appeal because the Commonwealth failed to file its notice of appeal in a timely manner. The procedural facts follow.

On September 3, 1992, the motion judge filed a written memorandum containing her findings of fact, rulings of law, and order concerning the two suppression motions. On October 20, 1992, the Commonwealth filed a notice of appeal from the order suppressing the evidence seized from the apartment. In its motion, the Commonwealth stated its intent to seek leave to appeal the suppression order from the single justice of this court and asserted that it did not receive a copy of the judge's written decision until September 22, 1992. On this same date, the defendant filed a motion to dismiss the appeal, arguing that the Commonwealth had not filed the notice within the thirty-day period mandated by Mass.R.A.P. 4(b), as amended, 378 Mass. 928 (1979). On January 22, 1993, the Commonwealth applied pursuant to Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979), to the single justice of this court for leave to appeal from the suppression order. The defendant failed to file a memorandum in opposition. On February 9, 1993, the single justice, without a hearing, issued an order allowing the Commonwealth's application and transferred the case to the Appeals Court. Over six months later, on August 13, 1993, the defendant filed a motion to reconsider the order allowing the application for interlocutory appeal. On September 2, 1993, the defendant's motion to reconsider was denied without a hearing. The defendant objected to this denial. Subsequently, we transferred this case from the Appeals Court on our own motion.

The defendant argues that the Commonwealth was required by Mass.R.A.P. 4(b) to file a notice of appeal in the Superior Court within thirty days after the suppression order on September 3, 1992. Thus, the defendant argues, the Commonwealth's filing of the notice on October 20, 1992, was untimely and that, under our decision in Commonwealth v. Bouvier, 399 Mass. 1002, 504 N.E.2d 355 (1987), the single justice could not properly allow the Commonwealth's application for leave to appeal.

The Commonwealth argues that its notice of appeal was timely in that it filed the notice within thirty days after it received a copy of the judge's written decision on September 22, 1992. Supported by affidavit, the Commonwealth contends that the prosecutor was informed by a clerk in the Superior Court clerk's office that the delivery of the written decision constitutes official notification of the decision and that the thirty-day period for filing a notice of appeal begins when the parties were so notified. The Commonwealth asserts that Mass.R.A.P. 4 is unclear as to when the thirty-day time period begins to run as to interlocutory motions and, hence, that it was justified in relying on the clerk's advice. The Commonwealth concedes that it knew before it received the written decision that the judge had granted the motion to suppress. In addition, the Commonwealth argues that, even if its notice of appeal is held to be untimely, the allowance of its application for leave to appeal should still be affirmed because its tardiness is excusable in light of its reasonable reliance on the clerk's advice, the importance of the issue raised in this appeal, and the absence of any prejudice to the defendant. ¹

We begin by stating that the single justice may have extended the Commonwealth's time to file its notice of appeal under Mass.R.A.P. 2, 365 Mass. 845 (1974), in light of the Commonwealth's late reception of the written decision and its reliance on the information given by the clerk. Commonwealth v. Santana, 403 Mass. 167, 169, 526 N.E.2d 1051 (1988). An extension in these circumstances would not have been improper. However, because the single justice did not accompany his order with a written memorandum, we are uncertain as to the basis of his decision. Even assuming, however, that the single justice found that the Commonwealth's filing of its notice of appeal was timely, we affirm the single justice's allowance of the Commonwealth's application for leave to appeal.

The Commonwealth has a right to apply to this court for an interlocutory appeal "from a[n] ... order of the superior court determining a motion to suppress prior to trial." G.L. c. 278, § 28E (1992 ed.). See Commonwealth v. Bouvier, supra. This section further provides that the "[r]ules of practice and procedure with respect to appeals authorized by this section shall be the same as those applicable to criminal appeals under the Massachusetts Rules of Appellate Procedure." Rule 15(b)(2) of the Rules of Criminal Procedure also expressly provides for this right. The Commonwealth must file its application for leave to appeal "within such reasonable time after the ruling of the judge as the judge may allow and in any event before the defendant has been placed in jeopardy...." Mass.R.Crim.P. 15(b)(3), 378 Mass. 884 (1979). Also, the Commonwealth must file a notice of appeal with the Superior Court as required by Mass.R.A.P. 3(a), 378 Mass. 927 (1979). Commonwealth v. Santana, supra 403 Mass. at 169, 526 N.E.2d 1051. Rule 4(b) provides that the notice of appeal required by rule 3 must be "filed ... within thirty days after the verdict or finding of guilt or within thirty days after imposition of sentence" (emphasis added).

Although it is clear that the Commonwealth, when applying for leave to appeal a suppression order, must file a notice of appeal as required by rules 3 and 4, it is unclear as to when the thirty-day period begins to run. Rule 4(b) expressly refers only to a verdict, finding of guilt, or imposition of the sentence and does not expressly refer to interlocutory appeals. In the interests of consistency and certainty, we hold that the notice of appeal for an interlocutory appeal from an order, under Mass.R.A.P. 4(b), must be filed within thirty days after the order is filed. However, because we acknowledge that the rule was unclear as to interlocutory appeals and because we accept the Commonwealth's assertions that it did not receive the written decision until nineteen days after the allowance of the defendant's motion to suppress and that it relied upon the advice of the clerk, we hold that the Commonwealth's notice of appeal was timely filed. ² In the future, any delay in receiving the...