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18-P-409 Appeals Court

COMMONWEALTH vs. DEREK HART.

No. 18-P-409.

Suffolk. December 4, 2018. - April 11, 2019.

Present: Kinder, Neyman, & Desmond, JJ.

Probable Cause. Search and Seizure, Affidavit, Probable cause, 

Warrant. Constitutional Law, Search and seizure, Probable 

cause. Practice, Criminal, Motion to Supress. Firearms.

Indictments found and returned in the Superior Court 

Department on April 26, 2017. 

A motion to suppress was heard by Mary K. Ames, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Budd, J., in the Supreme Judicial Court 

for the county of Suffolk, and the appeal was reported by her to 

the Appeals Court. 

Paul B. Linn, Assistant District Attorney, for the

Commonwealth.

Barry A. Bachrach (Rhonda L. Bachrach also present) for the 

defendant.

DESMOND, J. The Commonwealth appeals from a Superior Court 

order allowing a motion to suppress evidence discovered during 
2

the execution of a search warrant.1 The sole issue presented is 

whether the observation of a firearm stored in the defendant's 

home sixty days before the application for a search warrant 

suffices to establish probable cause to believe that firearms, 

ammunition, and related materials would be found at that 

location. A Superior Court judge determined that it was not 

sufficient; we affirm.

Background. An officer from the Boston Police Department's 

city-wide drug control unit submitted a warrant application to 

search the residence and person of the defendant, Derek Hart. 

Because the officer suspected that the defendant possessed a 

firearm in violation of G. L. c. 269, § 10 (h), the warrant 

application requested permission to search for firearms, 

ammunition, and other gun-related materials. 

The central evidence in the affidavit came from a reliable 

confidential informant (informant), who had spoken with the 

officer within twenty-four hours of the submission of the 

application. The informant told the officer that the defendant 

"was in possession of a black semi-automatic firearm which [the 

defendant] kept in his hand and stored on the floor in a bedroom 

area within the last 60 days while inside the [defendant's 

 

1 A single justice of the Supreme Judicial Court allowed the 

Commonwealth's application for leave to pursue an interlocutory 

appeal and reported the case to this court. See G. L. c. 278, 

§ 28E.
3

residence]." The affiant stated that he had personal knowledge 

that firearms and ammunition are "not easily or quickly 

discarded," and "are often retained for long periods of time and 

kept in close proximity to the owners of said firearms." 

The affidavit then recited the extensive criminal 

background of the defendant and the defendant's brother, who was 

also reported to be living at the residence to be searched. 

Though the defendant's record was lengthy, his most recent 

arrest involving a firearm occurred in 2009, when he was 

arrested for unlawful possession of a firearm and ammunition, 

discharging a firearm, possession of a high-capacity magazine, 

and assault with intent to murder. His brother's most recent 

armed offense took place in 2015, when he was arrested and 

charged with possession of a firearm and possession of 

ammunition, amongst other charges. The brother was also subject 

to an active warrant related to a shooting on January 28, 2017.2 

The search warrant issued. Upon its execution at the 

defendant's residence four days later, the police discovered, 

amongst other items, forty-four live rounds of .45 caliber 

ammunition, one round of nine millimeter ammunition, $52,540 in 

cash, and a diamond ring. No firearm was found. The defendant 

 

2 The defendant's brother was not a target of the search 

warrant, and the affidavit does not allege any connection 

between the black semiautomatic gun seen in the defendant's home 

and the January 28, 2017, shooting.
4

was charged pursuant to G. L. c. 269, § 10 (h) (1) with unlawful 

possession of ammunition, and being an armed career criminal 

under G. L. c. 269, § 10G. 

A nonevidentiary hearing on the defendant's motion to 

suppress the evidence was held, and the motion was allowed. The 

judge concluded that the information regarding the observation 

of the gun at the defendant's residence was stale because there 

was "insufficient timely evidence of a continuous illegal 

presence of weapons in the defendant's residence." This appeal 

followed. 

Discussion. The Commonwealth argues on appeal that the 

judge erred in concluding that the gun information was stale. 

The Commonwealth asserts that because a firearm is a valuable, 

durable item, it is likely to be retained in the same place for 

more than sixty days, and the information supporting the search 

warrant application was consequently not stale. 

We review the question of whether there was probable cause 

to issue a search warrant de novo. Commonwealth v. Perkins, 478 

Mass. 97, 102 (2017). Our inquiry is limited to the "four 

corners of the affidavit" (citation omitted), Commonwealth v. 

Keown, 478 Mass. 232, 238 (2017), cert. denied, 138 S. Ct. 1038

(2018), and allegations in the affidavit are viewed in "a 

commonsense and realistic fashion" (citation omitted).

Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 
5

U.S. 860 (1983). "[P]robable cause to believe [that] evidence 

of criminal activity will be found in a particular place must be 

demonstrated by a 'nexus' between the crime alleged and the 

place to be searched" (citation omitted). Commonwealth v. 

Matias, 440 Mass. 787, 794 (2004). "Facts asserted in the 

affidavit must be closely related in time to the issuance of the 

warrant in order to justify a finding of probable cause; whether 

facts are stale or timely is determined by the circumstances of 

each case." Commonwealth v. Connolly, 454 Mass. 808, 814 

(2009). When an informant describes his or her observation as 

bounded by a range of time, "we assume that the observation 

occurred at the most remote date within that time span." United 

States v. Dauphinee, 538 F.2d 1, 5 n.7 (1st Cir. 1976). 

Therefore, the question before us is whether a single, isolated

observation of a firearem sixty days before the application for 

a search warrant is sufficient to establish probable cause that 

a firearm remains at the location to be searched.

We conclude that the affidavit submitted with the warrant 

application failed to provide a timely nexus between the 

informant's observation of the firearm and the location to be 

searched. First, we are unpersuaded by the State and Federal 

cases cited by the Commonwealth where dated observations of a 

firearm were found to be timely. In each of the cases cited by 

the Commonwealth, there was other evidence suggesting that 
6

possession of the gun was continuous. For example, in United 

States v. Neal, 528 F.3d 1069 (8th Cir. 2008), an informant had 

observed "stacks of firearms and a gun safe" in the defendant's 

home on several occasions, and two police officers saw "numerous 

rifles" in the bedroom in the course of making an arrest. Id. 

at 1071, 1074. In Commonwealth v. Beliard, 443 Mass. 79 (2004), 

there was sufficient evidence to show a "continuous illegal 

presence of a number of weapons in the defendant's residence 

over extended periods of time" to the point where the timing of 

the executing of the warrant became "of less significance." Id. 

at 85-86. Likewise, in Commonwealth v. Fleurant, 2 Mass. App. 

Ct. 250 (1974), the police were searching for a number of guns, 

including a machine gun, and the informant had provided 

"considerable additional information" that indicated that the 

firearms remained in the home.3 Id. at 254. A staleness inquiry 

is necessarily fact-driven, and all of the cases cited by the 

Commonwealth had substantial facts beyond the timing of the most 

recent observation from which it could be reasonably inferred 

that possession of the firearms was continuous. None of those 

 

3 In Fleurant, although the most recent observation of the 

firearms occurred a full thirteen months prior to the warrant 

application, that fact was not before the magistrate and was 

only revealed at trial. In fact, "[t]he language of the 

affidavit indicated that at least some of the events contained 

therein had taken place recently." Id. at 254-255. 
7

cases, unlike our own, featured an isolated observation of one 

weapon by a single individual.

Indeed, the affidavit submitted with the warrant 

application included little information about the gun beyond its 

description as a semiautomatic weapon, kept "in [the 

defendant's] hand," and stored on the floor in a bedroom area of 

the home. There was no mention as to why the defendant 

possessed the gun or how he had acquired it. There was no 

assertion that the gun was used to commit a recent armed offense 

or was linked to any ongoing course of conduct. Compare 

Commonwealth v. James, 424 Mass. 770, 778 (1997). Firearms are 

said to be more durable than drugs because they are "not likely 

to be consumed or destroyed." Fleurant, 2 Mass. App. at 255.

However, standing alone, a gun's durability does not adequately 

support a belief that the firearm will still be in the home two 

months later. Compare id. ("We think the affidavit recited 

'facts indicating activity of a protracted and continuous nature 

[and therefore] . . . the passage of time [became] less 

significant'" [citation omitted]). 

"A defendant's criminal history may be factored into a 

probable cause determination as corroboration of an informant's 

tip, but only if the history is sufficiently recent and similar 

to the crime charged to demonstrate that 'the defendant was not 

averse' to committing such a crime." Commonwealth v. Allen, 406 
8

Mass. 575, 579 (1990), quoting Commonwealth v. Germain, 396 

Mass. 413, 418 n.7 (1985). Here, while the defendant's criminal 

history is extensive, his most recent arrest for a firearmrelated offense was eight years prior to the search in question. 

Such a conviction is too remote in time to support probable 

cause that a firearm would be in his residence or on his person. 

See Allen, 406 Mass. at 579 (defendant's four year old 

conviction found to be too remote). Likewise, the brother's 

criminal history adds little to the probable cause analysis.4 In 

short, a single observation of a firearm in a residence sixty 

days prior to the application for a search warrant does not 

establish probable cause that firearms, ammunition, and related 

materials would be found at that residence.

Order allowing motion to 

suppress affirmed.

 

4 When looking for a "nexus between the items to be seized 

and the place to be searched," we consider "the type of crime, 

the nature of the missing items, the extent of the suspect's 

opportunity for concealment, and normal inferences as to where a 

criminal would be likely to hide" the items. Cinelli, 389 Mass. 

at 213, quoting United States v. Lucarz, 430 F.2d 1051, 1055

(9th Cir. 1970). The brother's criminal record goes to none of 

these factors.