121 N.E.3d 195
Mass. App. Ct.2019Background
- Police obtained a search warrant for Derek Hart's residence to look for firearms, ammunition, and gun-related materials after an affidavit from a city-wide drug control unit officer.
- A confidential informant told the officer within 24 hours of the affidavit that Hart had possessed a black semiautomatic pistol and had stored it on the bedroom floor "within the last 60 days."
- The affidavit also recited extensive criminal histories for Hart and his brother, though Hart's last firearm-related arrest was in 2009 and the brother's most recent armed offense was in 2015.
- The warrant issued and police executed it four days later, seizing ammunition and cash but no firearm; Hart was charged with unlawful possession of ammunition and as an armed career criminal.
- A Superior Court judge granted Hart's motion to suppress, finding the informant's observation stale and insufficient to establish a timely nexus between the firearm and the residence; the Commonwealth appealed.
Issues
| Issue | Commonwealth's Argument | Hart's Argument | Held |
|---|---|---|---|
| Whether a single informant observation of a gun within the prior 60 days suffices to establish probable cause to search for firearms and ammunition | A firearm is durable and likely retained in place for >60 days, so the 60-day observation is not stale and supports probable cause | A single, isolated observation 60 days earlier is stale and fails to establish a timely nexus to the residence | The observation was stale; a single 60-day-old sighting without supporting facts does not establish probable cause (motion to suppress affirmed) |
| Whether the defendant's and his brother's criminal histories corroborate the informant's tip | The criminal histories corroborate and support a continuous propensity to possess firearms | The histories are too remote or unrelated to support a timely nexus to current possession | The histories were too remote (Hart's last firearm arrest was eight years earlier); they did not cure staleness |
Key Cases Cited
- Commonwealth v. Cinelli, 389 Mass. 197 (1983) (probable cause inquiry uses commonsense assessment and seeks nexus between alleged crime and place to be searched)
- Commonwealth v. Connolly, 454 Mass. 808 (2009) (staleness depends on case circumstances; facts must be closely related in time)
- Commonwealth v. Beliard, 443 Mass. 79 (2004) (continuous illegal presence of weapons over extended periods can make timing less significant)
- United States v. Neal, 528 F.3d 1069 (8th Cir. 2008) (multiple sightings and corroborating police observations supported nonstaleness)
- Commonwealth v. Fleurant, 2 Mass. App. Ct. 250 (1974) (affidavit showing protracted, continuous activity lessened significance of time lapse)
- Commonwealth v. Allen, 406 Mass. 575 (1990) (defendant's criminal history may corroborate a tip only if sufficiently recent and similar)