Commonwealth v. Jordan

• Citation: 12 N.E.3d 371,469 Mass. 134
• Decision Date: 14 July 2014
• Docket Number: SJC–11440.
• Parties: COMMONWEALTH v. Korey JORDAN (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts

469 Mass. 134

12 N.E.3d 371

COMMONWEALTH

v.Korey JORDAN (and a companion case¹ ).

SJC–11440.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 2014.

Decided July 14, 2014.

Allison R. Callahan, Assistant District Attorney (Benjamin R. Megrian, Assistant District Attorney, with her) for the Commonwealth.

Dennis M. Toomey for Korey Jordan.

Michael A. Contant, Everett, for Bonnie S. Greene.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

Opinion

BOTSFORD

, J.

This is an interlocutory appeal brought by the Commonwealth from an order of a Boston Municipal Court judge allowing the defendants' motion to suppress. The procedural history reflects that the Commonwealth's notice of appeal was filed significantly late in the trial court, and its application to the single justice of this court for leave to appeal was filed significantly late in the county court. In neither instance did the Commonwealth file a timely motion to enlarge the time for filing. A single justice allowed the application, and the case was entered in the Appeals Court. In an unpublished order, a panel of that court dismissed the appeal on a jurisdictional ground, believing that it had no authority to authorize the late-filed notice of appeal. We granted the Commonwealth's request for further appellate review. For the reasons explained hereafter, we do not dismiss the appeal. Rather, we affirm the order allowing the motion to suppress. In addition, because there has sometimes been ambiguity in the manner in which the single justices of this court have applied the procedural rules governing the timeliness of interlocutory appeals of orders on motions to suppress, we set out at the end of this opinion a new framework that will apply henceforth to such appeals.

1. Background. a. Facts. On April 28, 2009, complaints issued from the Boston Municipal Court against both defendants, Korey

Jordan and Bonnie Greene, charging them with unlawfully carrying a firearm, G.L. c. 269, § 10 (a )

; unlawful possession of a firearm, G.L. c. 269, § 10 (h ) ; and unlawful possession of a loaded firearm, G.L. c. 269, § 10 (n ). Jordan also was charged as an armed career criminal pursuant to G.L. c. 269, § 10G. Jordan filed a motion to suppress on October 8, 2009, which Greene later joined. A judge of the Boston Municipal Court (motion judge) held an evidentiary hearing on the motion in February, 2010. What follows is a summary of the facts found by the motion judge based on the evidence presented at that hearing.

On April 25, 2009, a shooting occurred at 49 Rosseter Street in the Dorchester section of Boston. A woman suffered a grazed forehead during the event, although it was not clear that a bullet actually caused the injury. After firing his weapon, the shooter entered a Toyota Camry automobile and drove away. The victim described the shooter as a black man between the ages of twenty and twenty-three; she also provided the police with the license plate number of the Camry. Two days later police officers identified a Toyota Camry with the same license plate number near the location of the shooting. The officers observed Jordan and Greene as well as a third person, Phillip Jackson,² standing on the sidewalk near the Camry. Whenever other vehicles drove by, the two defendants and Jackson moved away from the street. The officers believed this nervous behavior indicated that one or more in the group possessed an illegal firearm or feared a retaliatory drive-by shooting. Both Jordan and Jackson, as young black males, fit the general description that the victim had provided of the shooter in the incident.

Jordan, Greene, and Jackson entered the Camry with Jordan in the driver's seat, Greene in the passenger seat, and Jackson in the back seat. The officers knew that the Camry was rented, but they did not have any information about the identity of the renter or the terms of the rental contract. The officers stopped the Camry shortly after Jordan began driving away; he pulled over immediately.³ One of the officers, Serra, approached the vehicle and asked Jordan for his license and registration. Jordan quickly opened and closed the glove compartment and center console without looking inside, and then he retrieved his license from his

pocket. Jordan's hands were “trembling heavily” as he handed his license to the officer, and Serra noticed that Greene's hands also were shaking. Serra did not inquire about the ownership of the car, the identity of Jordan's passengers, where the three were going, or where they had been two days earlier. Serra ordered all three individuals out of the vehicle, pat frisked each of them, and found no weapons. All three complied peacefully with the officer's requests throughout the encounter.

Officer Serra then proceeded to search the Camry for a “hide” for weapons, something he had expertise in identifying. On entering the car, he noticed “non-factory lines” around the center console area. The officers lifted up the console, exposing the barrel of a hidden firearm. At this point the defendants and Jackson were arrested.

b. Procedural history. The motion judge held an evidentiary hearing on the defendants' motion to suppress on February 3, 2010. He heard arguments from counsel on May 3 and allowed the motion on November 17.⁴ On January 7, 2011, fifty-one days after notice of the order allowing the motion had issued, the Commonwealth filed in the trial court both a notice of appeal and a motion to extend until January 17, 2011, the time for filing its application to a single justice of this court for leave to appeal.⁵ The Commonwealth did not move to extend the time for its late notice of appeal. A Boston Municipal Court judge other than the motion judge allowed the Commonwealth's motion with respect to the application for leave to appeal on the day that motion was filed.

The Commonwealth did not file its application to the single justice for leave to appeal on or before the extended deadline,

January 17, 2011. Instead, on January 14, it filed in the trial court a request for written findings and rulings on the suppression motion. The motion judge issued his findings on March 28, 2011.

On March 31, 2011, 133 days after the issuance of the order allowing the motion to suppress, the Commonwealth filed in the county court its application to the single justice for leave to appeal. The application was not accompanied by any motion to enlarge the time for filing it, nor did it mention that the notice of appeal and the application for leave to appeal were both filed substantially late.⁶ On April 26, 2011, a single justice allowed, without a hearing, the Commonwealth's application for leave to appeal and reported the appeal to the Appeals Court. The appeal was docketed in the Appeals Court on May 25, 2011.

On September 7, 2012—approximately twenty-two months after the motion judge's suppression order, approximately sixteen months after its interlocutory appeal had been allowed to proceed, and just three days before the case was scheduled to be heard in the Appeals Court—the Commonwealth filed a motion in the county court “to accept as timely filed” both its notice of appeal previously filed in the trial court and its application for leave to pursue the appeal previously filed in the county court.⁷ To date, this motion has not been acted on.⁸

The case was argued in the Appeals Court on September 10, 2012. On October 17, 2012, a panel of that court issued an unpublished order dismissing the appeal. The panel determined that the Appeals Court lacked jurisdiction to hear this interlocutory appeal because the Commonwealth's notice of appeal had not been timely filed. The panel, apparently believing that the Commonwealth had filed a motion in the trial court for an extension of time in which to file its notice of appeal,⁹ and relying

on Mass. R.A.P. 4(c)

, as amended, 378 Mass. 928 (1979), concluded that the trial court had no authority to grant an extension of time for a notice of appeal beyond December 27, 2010. The panel further concluded that the Appeals Court was itself “without jurisdiction” to grant the motion that was before it to enlarge the time for filing the notice of appeal. Citing Mass. R. Crim. P. 15(b)(1), as appearing in 422 Mass. 1501 (1996), the panel stated that, with respect to interlocutory appeals from suppression rulings, only a judge in the trial court or a single justice of the Supreme Judicial Court can extend the time for filing a notice of appeal.

2. Applicable statute and rules. We begin with a review of the applicable statute and court rules. Neither the Commonwealth nor a defendant has an absolute right to take an interlocutory appeal from a trial court ruling on a motion to suppress. However, under G.L. c. 278, § 28E

, and Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), both the Commonwealth and a defendant have a right and opportunity to apply to a single justice of this court for leave to pursue such an appeal.¹⁰ They may proceed with an interlocutory appeal if and only if it has been authorized by a single justice under the statute and the rule. The final paragraph of § 28E

states that, when such appeals are authorized, the “[r]ules of practice and procedure with respect to [the] appeals ... shall be the same as those applicable to criminal appeals under the Massachusetts Rules of Appellate Procedure.” See Commonwealth v. Bouvier, 399 Mass. 1002, 1003, 504 N.E.2d 355 (1987).

Rule 3(a) of the Massachusetts Rules of Appellate Procedure

, as amended, 378 Mass. 927 (1979), addresses the filing of notices

of appeal generally. It provides that “[a]n appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by rule 4

.” Rule 4(b) of the Massachusetts Rules of Appellate Procedure, as amended, 431 Mass. 1601 (2000), in turn, provides that, in a criminal case, “unless otherwise provided by statute or court rule,” a...