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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.
2

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 

 

1 An electroshock weapon is defined as "a portable device or 

weapon from which an electrical current, impulse, wave or beam 

may be directed, which current, impulse, wave or beam is 

designed to incapacitate temporarily, injure or kill." G. L. 

c. 140, § 131J, as appearing in St. 2004, c. 270, § 1. Unlawful 

possession of such a device is punishable by a fine, 

imprisonment in the house of correction, or both.
3

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 defendant's motion to suppress took place on 

September 17, 2013, and included the testimony of one police 

officer. The transcript, which is part of the record on appeal, 

consists of thirty-eight pages. The judge endorsed his findings 

and rulings on the motion that day. The parties were notified 

in court on October 1, 2013, that the motion was allowed. The 

Commonwealth requested a thirty day continuance. The 

Commonwealth filed a timely notice of appeal on October 7, 2013. 

See Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 

(1996). Several days later, the judge allowed the 

Commonwealth's motion to file its rule 15(a)(2) application for 

leave to file an interlocutory appeal on or before November 5, 

2013. At a status conference on November 5, 2013, the 

Commonwealth reported that the transcript was not prepared and 

it requested additional time to "get all the paper work 

together."2 The judge continued the matter for "status" to 

February 4, 2014. At a hearing held on February 4, defense 

 

2 The record before us does not include a transcript of the 

hearing on November 5, 2013. However, it appears that the judge 

who allowed the Commonwealth's motion to reconsider the order 

dismissing its interlocutory appeal had access to it or to a 

recording of the hearing. We rely on her account of what 

occurred at that event.
4

counsel informed the judge that the Commonwealth had not filed 

its application for leave to file an interlocutory appeal. The 

Commonwealth asked for a continuance to February 7, 2014. 

Defense counsel moved to dismiss. The judge, who was the same 

judge who had heard and decided the defendant's motion to 

suppress and who had continued the case to November 5 and then 

to February 4, allowed the motion to dismiss. 

The Commonwealth responded on February 19, 2014, by filing 

a motion to reconsider the order of dismissal.3 In a written 

memorandum of decision and order dated March 10, 2014, the 

motion for reconsideration was allowed.4 The judge stated that 

she viewed the issue as simply whether, on February 4, 2013, the 

Commonwealth should have been given the three additional days it 

requested to file its application for an interlocutory appeal. 

The judge reasoned that because the Commonwealth had done 

"substantial work" on the case as of February 4 and the District 

Attorney's office was burdened by an "extraordinary" amount of 

appellate-related work, as outlined in an affidavit submitted by 

 

3 Although the motion for rehearing was scheduled to be 

heard by the same judge who had ordered the application 

dismissed, it was referred to a different judge -- we assume for 

appropriate reasons. A hearing on the Commonwealth's motion for 

reconsideration took place on February 25, 2014.

4 The record before us indicates that on March 10, 2014, the 

Commonwealth filed its application for leave to file an appeal 

with a single justice of the Supreme Judicial Court. On March 

18, 2014, the single justice allowed the application.
5

the chief of the office's appellate division, the motion to 

reconsider should be allowed "in the exercise of discretion." 

Thereafter, on March 10, 2014, the Commonwealth filed its 

application for leave to appeal in the Supreme Judicial Court 

for Suffolk County. An opposition was filed by the defendant on 

March 14, 2014. The single justice entered an order on March 

18, 2014, allowing the Commonwealth's application.5

2. Legal framework. When either the Commonwealth or the 

defendant seek interlocutory review of a judge's decision 

allowing or denying a pretrial motion to suppress pursuant to 

G. L. c. 278, § 28E, and Mass.R.Crim.P. 15(a)(2) and (b)(1),

6 the 

appealing party is required to file two documents: a notice of 

appeal in the trial court and an application for leave to appeal 

in the Supreme Judicial Court for Suffolk County. Jordan, 469 

Mass. at 140. Rule 15(b)(1) requires that both documents be 

 

5 Although the order entered by the single justice does not 

address the timeliness issues that are the subject of this 

appeal, the procedural history of the case, including the 

enlargements of time obtained by the Commonwealth and the 

allowance of its motion for reconsideration, were set forth in 

the defendant's opposition filed on March 14, 2014.

6 Rule 15(b)(1) provides in relevant part: "An application 

for leave to appeal under subdivision (a)(2) shall be made by 

filing within ten days of the issuance of notice of the order 

being appealed, or such additional time as either the trial 

judge or the single justice of the Supreme Judicial Court shall 

order, (a) a notice of appeal in the trial court, and (b) an 

application to the single justice of the Supreme Judicial Court 

for leave to appeal."
6

filed within ten days of the issuance of notice of the order 

being appealed. Jordan, 469 Mass. at 140.7 In the present case, 

unlike in Jordan, the defendant does not question the timeliness 

of the Commonwealth's filing of the notice of appeal on October 

7, 2013. Instead, the defendant challenges whether the 

application seeking leave from the single justice to pursue the 

appeal was filed in a timely manner. Nonetheless, Jordan is 

instructive in our consideration of this issue because its 

explanation of the interplay between the statutes and rules 

governing interlocutory appeals from a ruling on a motion to 

suppress applies both to the filing of the notice of appeal and 

the application for leave to appeal. 

Jordan instructs that in cases involving "excusable 

neglect," Mass.R.App.P. 4(c), as amended, 378 Mass. 928 (1979), 

trial judges have authority to enlarge the time in which to file 

the notice of appeal (and by analogy, the application for leave 

to file an interlocutory appeal) for an additional thirty days.

Jordan, 469 Mass. at 141-142. As a result, a trial judge may 

extend the time for filing the notice of appeal in the trial 

court and the application for leave to appeal in the Supreme 

 

7 Jordan clarifies that interlocutory appeals from a trial 

court ruling on a motion to suppress, whether sought by the 

Commonwealth or the defendant, are discretionary and must be 

approved by a single justice of the Supreme Judicial Court 

acting under G. L. c. 278, § 28E, and Mass.R.Crim.P. 15. 

Jordan, 469 Mass. at 139 & n.10.
7

Judicial Court for Suffolk County up to forty days from the date 

of issuance of notice of the order that is the subject of 

appeal. In the present case, the order by the judge extending 

the Commonwealth's filing deadline to February 4, 2014, was

invalid. The Commonwealth's subsequent motion for 

reconsideration thus did not provide the second judge with a 

basis upon which to grant relief.8

In Jordan, the court also explained that a single appellate 

judge or an appellate court has a broader authority to suspend 

or extend the time for filing notices of appeal. Id. at 142-

143. Presumably, this broader authority extends both to the 

filing of the notice of appeal as well as to the application for 

leave to appeal. Jordan explained that this broader authority 

is enjoyed by a single justice of the Appeals Court as well as 

by a panel of this court. Ibid. Based on its interpretation of 

the relevant rules, the Jordan court indicated that when there 

 

8 Although it is not necessary to address the merits of the 

Commonwealth's February 19, 2014 motion for reconsideration, it 

should be noted that simply because a motion is cast as a motion 

for reconsideration does not mean that it qualifies as a motion 

for reconsideration. A genuine motion for reconsideration must 

be based on (1) a change in circumstances "such as (a) newly 

discovered evidence or information, or (b) a development of 

relevant law; or (2) a particular and demonstrable error in the 

original ruling or decision." Audubon Hill S. Condominium Assn. 

v. Community Assn. Underwriters of America, Inc., 82 Mass. App. 

Ct. 461, 470 (2012). A motion that simply requests that a judge 

revisit a decision made previously under the guise of exercising 

discretion is not a genuine motion for reconsideration.
8

has been a showing of "good cause," a single justice of either 

appellate court, as well as those courts, has the authority to 

exercise discretion and permit a party to file the two documents 

required to secure interlocutory appellate review of a ruling on 

a motion to suppress at any time so long as the two documents 

were filed within one year of the issuance of notice of the 

order that is the subject of the appeal. Id. at 143-144. In 

Jordan, the court added that the exercise of this discretion by 

a single justice or an appellate court to suspend the procedural 

rules governing interlocutory appeals of rulings on motion to 

suppress must be considered "an extraordinary, not an ordinary, 

event." Id. at 143.9 

3. Suspension of the procedural rules. In the present 

case, it is unnecessary to address the Commonwealth's argument 

that the allowance of its application for leave to file an 

interlocutory appeal by a single justice of the Supreme Judicial 

 

9 In Jordan, the court also clarified the procedure that a 

party must follow in future cases. Essentially, the party that 

files an application for leave to file an interlocutory appeal 

must demonstrate that the two required documents have been filed 

in a timely manner (either within ten days of the issuance of 

notice of the order that is the subject of the appeal or within 

the time allowed by an extension order) or simultaneously submit 

a motion for an extension of time or a suspension of the rules 

along with an affidavit "setting forth in meaningful detail the 

reasons for the delay." Id. at 148. In all cases in which a 

party requires an extension of time or a suspension of the rules 

in order to proceed, the single justice will address that matter 

before reaching the merits of the application for leave to 

appeal. Ibid.
9

Court, which was ultimately allowed by the single justice on 

March 18, 2014, represents an implied suspension of the 

procedural rules governing applications for leave to file an 

interlocutory appeal from a ruling on a motion to suppress, and 

thus cures any timeliness issues. See id. at 143-144.

10

However, in Jordan, the Supreme Judicial Court added that in 

cases such as this, in which a late filed notice of appeal or 

application for leave to file an interlocutory appeal were

pending appeal at the time of its decision, an appellate court, 

including a panel of this court, has discretion to suspend the 

otherwise applicable procedural rules for "good cause." Id. at 

145, 149. As in Jordan, we determine that it is appropriate to 

do so in this case because until Jordan, there was a lack of 

certainty about the authority of trial judges to grant 

extensions of time in these cases, the merits are fully briefed, 

and the issue is one of importance. 

4. The exit order and seizure of the electroshock weapon. 

In reviewing a ruling on a motion to suppress, we accept the 

motion judge's findings of fact absent clear error "but 

conduct[] an independent review of his ultimate findings and 

 

10 As in Jordan, "[w]e are loath to conclude that the single 

justice, on [her] own motion, without being requested, and 

without saying that [she] was doing so, meant to suspend (or 

should be deemed to have suspended) the rules" when such relief 

was not requested by the Commonwealth, and not addressed in the 

order entered by the single justice. Id. at 143-144 & n.19.
10

conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 

(2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 

(2002). 

Only one witness, Officer Brendon Reen of the Swampscott 

police department, testified at the motion hearing. The 

essential facts are not in dispute. The judge found that the 

vehicle operated by the defendant was properly stopped without 

incident because it lacked a valid inspection sticker. There 

were no passengers in the vehicle. The defendant complied with 

an order to produce his license and registration. The officer 

then noticed five or six small clumps of what appeared to be 

marijuana on the console. The defendant admitted the same and 

told the officer he had smoked marijuana five or six hours 

earlier. The officer did not suspect that the operator was 

under the influence of marijuana. The officer did not issue a 

citation for the civil infraction of possession of marijuana. 

See G. L. c. 40, § 21D. Meanwhile, a second police officer 

arrived on the scene. Officer Reen informed the defendant that 

he would like to conduct a search. The defendant said, "No." 

Officer Reen told the defendant that he had probable cause to 

search the vehicle. In response, the defendant, who was not 

secured by a seatbelt, suddenly turned away from the officer 

and, as the judge found, "lunged" toward the passenger's side of 

the backseat where there was a backpack. 
11

The judge acknowledged that this sudden and unexpected 

movement by the defendant "changed [the] dynamic" of the 

encounter. Although the judge did not make any further, 

specific findings of fact, his decision to credit Officer Reen's 

testimony authorizes us to imply additional findings that are 

consistent with the judge's other findings and the officer's 

testimony. See Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50 

n.2 (2014). In response to the lunge by the defendant, Officer 

Reen, who stated he was concerned for his safety, responded 

immediately by reaching through the open window, and putting his 

right hand on the defendant's left shoulder, which prevented the 

defendant from reaching into the backseat area. He asked the 

defendant what he was doing. The defendant stated that he was 

reaching for the bag in the backseat. Officer Reen instructed 

the defendant to turn off the ignition and step out of the 

vehicle. The defendant complied. Officer Reen removed the 

backpack and placed it on the hood of the defendant's vehicle. 

Officer Reen discovered the electroshock weapon (commonly known 

as a stun gun) referred to earlier in an open compartment in the 

driver's side door.11 After securing the weapon, Officer Reen 

 

11 The defendant did not argue below and does not argue on 

appeal that apart from the validity of the exit order, the 

subsequent search of the vehicle conducted by Officer Reen 

exceeded the scope of a valid protective search. The

uncontroverted testimony at the motion hearing indicates that

the first area of the vehicle searched by Officer Reen was the
12

informed the defendant that it was illegal to possess a "stun 

gun." The defendant responded by stating that it was not his 

gun, and must belong to a friend. 

Describing the ultimate question as "close," the judge 

ruled that the exit order was invalid because the defendant's 

act of reaching into the backseat was not sufficient to create a 

heightened awareness of danger. See Commonwealth v. Gonsalves, 

429 Mass. 658, 664-665 (1999). This ruling is based on too 

 

driver's side door where, in an open compartment, he found the

stun gun inside a black, leather case.

In a case such as this, a police officer is allowed to make 

a limited protective search of the interior of the vehicle. 

"A Terry-type 'frisk' of the interior of an automobile may be

justified under art. 14 of the Massachusetts Declaration of

Rights by the concern that a driver or passenger returning to

the vehicle may gain access to a weapon that may be used against

the police, even though the driver and any passengers are

permitted to reenter the vehicle and go on their way."

Commonwealth v. Douglas, 86 Mass. App. Ct. 404, 411

(2014). Michigan v. Long, 463 U.S. 1032, 1049 (1983). See

Commonwealth v. Graham, 78 Mass. App. Ct. 127, 129 (2010)

(officer entitled to conduct protective sweep of vehicle

confined in scope to intrusion reasonably designed to discover

weapon, where concern extended to threats that might arise from

retrieval of weapon in vehicle by occupant who was not placed

under arrest but subjected to patfrisk); Commonwealth v. Myers,

82 Mass. App. Ct. 172, 177-178 (2012) (police entitled to

conduct protective sweep of vehicle even though driver sat in

back seat of cruiser after patfrisk and could no longer have

reached inside vehicle, because he could have returned to

vehicle and recovered hidden weapon at end of encounter). Once

Officer Reen discovered the stun gun, an illegal weapon, he had

probable cause to conduct a warrantless search of the entire

automobile. See also Commonwealth v. Motta, 424 Mass. 117, 122-

124 (1997); Johnson, 461 Mass. 44, 50 (2011); Commonwealth v.

Jiminez, 22 Mass. App. Ct. 286, 290-291 (1986).
13

narrow a view of Gonsalves. When, during a traffic stop, the 

driver suddenly and without explanation lunges into the backseat 

area of the vehicle where a backpack that had not been inspected 

by the police is located, it is objectively reasonable for the 

officer to take protective measures, including the use of 

reasonable force to prevent the driver from reaching into the 

backseat followed by an exit order in order to gain control over 

the situation. This is what the Supreme Judicial Court had in 

mind when in Gonsalves it described what might justify an exit 

order: "the officer need point only to some fact or facts in 

the totality of the circumstances that would create in a police 

officer a heightened awareness of danger that would warrant an 

objectively reasonable officer in securing the scene in a more 

effective manner by ordering the passenger to alight from the 

car." Id. at 665, quoting from State v. Smith, 134 N.J. 599, 

618 (1994). See Commonwealth v. Stampley, 437 Mass. 323, 325-

326 (2002) ("To establish the reasonableness of an officer's 

belief that someone's safety is in danger during a stop, the 

Commonwealth is not required to make the specific showing that a 

driver or passenger has a weapon"). 

In concluding that Officer Reen had a valid concern for his 

safety and thus an objective basis for the exit order, we do not 

retreat from our observation in Commonwealth v. Hooker, 52 Mass.

App. Ct. 683, 686 (2001), that "[a] citizen is not required to 
14

sit absolutely motionless in a stopped vehicle.” Nor do we 

deviate from the principles of objectivity and proportionality

that this court and the Supreme Judicial Court have consistently 

applied in cases involving motor vehicle stops. See, e.g.,

Commonwealth v. Silva, 366 Mass. 402, 405 (1974); Commonwealth

v. Torres, 433 Mass. 669, 672 (2001); Commonwealth v. Cruz, 459 

Mass. 459, 476 (2011); Commonwealth v. Santos, 65 Mass. App. Ct. 

122, 126-127 (2005). See also Commonwealth v. King, 389 Mass. 

233, 243 (1983). Rather, the result we reach is a common sense 

application of the principle announced in Gonsalves, where the 

court observed that "it does not take much for a police officer 

to establish a reasonable basis to justify an exit order or 

search based on safety concerns, and, if the basis is there, a 

court will uphold the order." Id. at 664. The defendant's 

reliance on Commonwealth v. Daniel, 464 Mass. 746 (2013), is 

misplaced. The exit order in the present case, unlike in 

Daniel, was not undertaken in response to the officer's 

generalized suspicion that his safety was at risk. See id. at 

752-753. Here, unlike in Daniel, the officer was faced with a 

specific, sudden, and unexpected movement by the driver into an 

area of the vehicle containing a backpack that, in turn, could 

conceal a weapon. 

In a case involving a motor vehicle infraction such as an 

invalid inspection sticker, the detention of the vehicle and its 
15

occupants must end when the driver produces a valid license and 

registration or when the officer completes the issuance of a 

citation or warning unless a development occurs that when viewed 

objectively is indicative of criminal activity or creates a 

heightened awareness of danger. See Commonwealth v. Torres, 424 

Mass. 153, 158 (1997).

12 The motor vehicle stop in this case had 

not yet reached the point where the justification for the 

initial stop had expired because only a very brief time had 

elapsed, the officer had yet to issue a citation or warning, and 

the officer had not returned the defendant's license and 

registration. Even if we assume, without deciding, that Officer 

Reen's request for permission to search the vehicle was not 

justified because it exceeded the scope of a lawful inquiry in a 

case such as this, the Wong Sun doctrine13 does not taint the 

 

12 The observation of a noncriminal amount of marijuana 

within the defendant's car is not sufficient justification for 

the continued detention of the vehicle beyond what is necessary 

for the issuance of a citation, even if only for the purpose of 

obtaining consent for a search. See Cruz, supra; Torres, 424 

Mass. at 163; Commonwealth v. Robie, 51 Mass. App. Ct. 494, 497 

(2001). Contrast Commonwealth v. Mateo-German, 453 Mass. 838, 

844 (2009) (trooper present at scene of disabled vehicle and 

waiting with driver for arrival of friend who was bringing 

gasoline did not seize driver as result of their conversation; 

furthermore, after observing suspicious items in vehicle, and 

while driver continued to wait for his friend, trooper was 

entitled to ask defendant if he would consent to trooper's 

police dog sniffing exterior of vehicle).

13 Wong Sun v. United States, 371 U.S. 471, 485-488 (1963) 

("fruit of the poisonous tree").
16

officer's exit order and the discovery of the stun gun because 

both were the result of the defendant's independent and 

intervening act. See King, supra, at 245.14

Conclusion. For the above reasons, the order allowing the 

defendant's motion to suppress is reversed.15

So ordered.

 

14 The fact that the officer stated incorrectly that he had 

probable cause to search the vehicle after discovering the 

presence of a small quantity of marijuana, see Commonwealth v. 

Cruz, 459 Mass. at 476, is of no consequence. If during an 

encounter with a police officer, the officer makes an incorrect 

statement about what the law permits him to do in the 

circumstances, there is no justification for a person to use 

force against the officer or to make a movement which could 

reasonably be understood by the officer as a threat to the 

safety of the officer or anyone else who is present. See 

Commonwealth v. Moreira, 388 Mass. 596, 600 (1983) ("If a police 

officer is making an illegal arrest, but without excessive 

force, the remedy is to be found in the courts").

15 As the defendant's motion to suppress other items seized 

from his person and statements he subsequently made to the 

police was based entirely on the claim that the exit order and 

seizure of the stun gun was unlawful, that additional evidence 

is available for use at trial subject to any further orders made 

by the judge.