NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

16-P-1098 Appeals Court

COMMONWEALTH vs. BENJAMIN B. SAYWAHN, JR.

No. 16-P-1098.

Hampden. April 13, 2017. - June 15, 2017.

Present: Kafker, C.J., Grainger, & Kinder, JJ.

Firearms. Search and Seizure, Protective sweep. Constitutional 

Law, Search and seizure.

Complaint received and sworn to in the Springfield Division 

of the District Court Department on February 4, 2016. 

A pretrial motion to suppress evidence was heard by William 

P. Hadley, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Francis X. Spina, J., in the Supreme 

Judicial Court for the county of Suffolk, and the appeal was 

reported by him to the Appeals Court.

David L. Sheppard-Brick, Assistant District Attorney, for 

the Commonwealth.

Thomas C. Maxim for the defendant.

KAFKER, C.J. During a protective sweep of the home of the 

defendant, Benjamin B. Saywahn, Jr., conducted during the 

execution of a warrant for his arrest, police discovered a 
2

firearm. The defendant was subsequently charged with possession 

of a firearm and ammunition without an identification card, 

G. L. c. 269, § 10(h), improper storage of a firearm, G. L. 

c. 140, § 131L(a) & (b), and receiving stolen property, G. L. 

c. 266, § 60.

1 The defendant moved to suppress "the fruits of 

the sweep" on the ground that the protective sweep was not 

justified by the officers' reasonable belief that a dangerous 

individual in the home posed a threat to the officers. The 

motion judge agreed and granted the motion. The Commonwealth 

appeals pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 

Mass. 1501 (1996), claiming that the protective sweep was 

justified.

2 We affirm.

Background. "We summarize the pertinent facts from the 

judge's findings on the motion to suppress, supplemented where 

appropriate by uncontroverted testimony from the suppression 

hearing." Commonwealth v. Matos, 78 Mass. App. Ct. 156, 157

(2010) (quotation omitted). On February 1, 2016, a warrant 

issued in the State of Connecticut for the defendant's arrest. 

Because the defendant resided in Springfield, a member of the 

Windsor, Connecticut police department contacted Detective 

 

1 The defendant was also considered to be a fugitive from 

justice, G. L. c. 276, § 20A. 

2 A single justice of the Supreme Judicial Court ordered the 

case to be considered by this court. See Mass.R.Crim.P. 

15(a)(2).
3

Christopher Bates of the Springfield police department with 

regard to the warrant. Detective Bates learned that the 

defendant was wanted in connection with a shooting that had 

occurred during the course of a marijuana sale in Windsor. He 

learned that the victim, the defendant, and an unidentified 

third person were involved in the shooting, that the victim had 

been shot in the face, and that no firearm had been recovered. 

At approximately 2:30 P.M. on February 3, 2016, Detective 

Bates and six to seven other members of the Springfield police 

department went to the defendant's home to execute the arrest 

warrant. All of the officers were armed, with their weapons 

holstered, and in uniform or wearing police insignia. The 

officers knocked, and the defendant answered the door after 

twenty or thirty seconds. Four to five officers entered the 

home; the other officers went to the rear and sides of the home. 

The officers immediately recognized the defendant from his 

photograph.3 The officers asked the defendant whether he was the 

person named in the warrant, and he responded, "Yes, I am." The 

officers then placed the defendant in handcuffs just inside the 

front door. The defendant did not resist or attempt to flee.

 

3 Detective Bates obtained the defendant's photograph from 

the registry of motor vehicles using the biographical 

information he had received about the defendant. Detective

Bates had a copy of the photograph with him during the execution 

of the arrest warrant.
4

Detective Bates patted down the defendant for weapons and 

found none. Lieutenant Steven Kent then asked the defendant 

whether anyone else was in the home. The defendant did not make 

eye contact and mumbled something inaudible. Lieutenant Kent 

asked him again whether anyone else was in the home. The 

defendant hesitated and then said, "[N]o." 

Based on the defendant's mumbled response and hesitation, 

Lieutenant Kent decided to conduct a protective sweep to ensure 

that there was no one else in the home who might pose a danger 

to the officers.4 Lieutenant Kent proceeded to the second floor 

of the home and opened the door to a bedroom. As he looked 

under the bed, he noticed a firearm protruding from between the 

box spring and mattress. He completed the sweep of the home

and, after determining that the defendant was not licensed to 

possess a firearm, secured a search warrant. The police later 

returned with the warrant and recovered the firearm.

Standard of review. In reviewing the grant "of a motion to 

suppress, we accept the judge's subsidiary findings of fact 

absent clear error and accord substantial deference to the 

judge's ultimate findings." Commonwealth v. Carr, 458 Mass. 

295, 298 (2010) (citation and quotation omitted). The ultimate 

 

4 One of the officers who participated in the sweep 

testified that the officers had learned that the home was a 

foster home, and that the defendant lived there with his foster 

family. The officers did not know, however, how many people 

lived in the home.
5

legal conclusions to be drawn from the findings, however, are 

matters for review by this court. Id. at 299.

Discussion. "While executing an arrest warrant, police may 

conduct a protective sweep, 'a quick and limited search of the 

premises' to protect the officers' safety, if they have a 

reasonable belief based on 'specific and articulable facts' that 

the area [to be swept] could harbor a dangerous individual." 

Matos, 78 Mass. App. Ct. at 159, quoting from Maryland v. Buie, 

494 U.S. 325, 327, 334 (1990). Among the factors to be

considered are (1) "the violence implicit in the crime for which 

the defendant is sought and the violence implicit in his 

criminal history," Commonwealth v. DeJesus, 70 Mass. App. Ct. 

114, 119 (2007); (2) the location of the arrest in relation to 

the area to be swept, Commonwealth v. Colon, 88 Mass. App. Ct. 

579, 581-582 (2015); (3) the defendant's resistance or 

cooperation at the time of arrest, Commonwealth v. McCollum, 79 

Mass. App. Ct. 239, 251 (2011); and, of course, (4) the 

presence, or at least the suspicion of the presence, of other 

individuals, including those known to be dangerous, in the area, 

Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-636 (2000). 

Finally, the sweep must last "no longer than is necessary to 

dispel the reasonable suspicion of danger and in any event no 

longer than it takes to complete the arrest and depart the 

premises." Buie, 494 U.S. at 335-336.
6

In the present case, we conclude that the protective sweep 

of the bedroom on the second floor of the defendant's home was 

not justified, despite the violent crime for which the defendant 

was arrested, when the defendant was immediately handcuffed and 

secured in the front doorway of his home in a peaceful manner, 

and there was no indication of anyone else present in the home.

We begin by recognizing that the defendant was wanted in 

connection with a shooting, which "clearly justifies caution." 

Colon, 88 Mass. App. Ct. at 581. This is obviously an important 

factor, as "[t]he risk of danger in the context of an arrest in 

the home is as great as, if not greater than, it is in an onthe-street or roadside investigatory encounter." DeJesus, 70 

Mass. App. Ct. at 119, quoting from Buie, 494 U.S. at 333. This 

factor must, however, be considered along with others. "[W]hile 

the charge to which the warrant relates is generally a relevant 

factor bearing on our consideration of the appropriate conduct 

of arresting officers, it must be viewed in context." Colon, 

supra. In the instant case, the nature of the crime for which 

the defendant was wanted is more difficult than usual to 

evaluate: although the defendant was allegedly present, along 

with another unidentified suspect, at a marijuana sale during

which someone was shot, the officers did not know what role the 
7

defendant played in the shooting or his criminal history.5

Compare DeJesus, 70 Mass. App. Ct. at 120 (protective sweep 

justified by arrest warrant for armed carjacking and known 

record of "violent felonies and firearm possession charges"); 

Matos, 78 Mass. App. Ct. at 159 (same; arrest warrant for drug 

distribution and "prior arrests related to firearms offenses").

Other factors cut against the need for the protective 

sweep. The defendant was already handcuffed and secured at the 

front door when the officers went upstairs to conduct the sweep.

6

At this point, the arrest had been completed, and the officers 

could have easily removed the defendant via the front door 

safely, without needing to enter a bedroom on the second floor. 

See Colon, 88 Mass. App. Ct. at 581-582 (sweep not justified 

where defendant opened door, said, "{L]et's go," and attempted 

to leave, yet officers brought him back inside home, handcuffed 

him, and conducted sweep). See also Nova, 50 Mass. App. Ct. at 

634-636 (sweep not justified where officers returned to 

apartment after chasing defendant through apartment and 

apprehending him at rear of building). Here, the defendant 

 

5 Lieutenant Kent testified that he had "nothing to do with 

the Connecticut investigation whatsoever." Defense counsel 

argued in closing that "there was no testimony whatsoever about 

the history of [the defendant]" and whether the officers knew 

whether the defendant had a record of any "violent felonies."

6 Detective Bates testified that the defendant was placed in 

handcuffs in the "living room area" of the home, "right when you 

enter the doorway." 
8

appeared, by all accounts, completely compliant and cooperative 

throughout the interaction. He answered the door promptly, 

admitted to being the person named in the warrant, and did not 

resist or attempt to flee. See Colon, 88 Mass. App. Ct. at 581

(officers had "achieved their objective without conflict and in 

fairly short order").

Importantly, there was no objective indication of anyone 

else in the home and no facts suggesting that the officers 

needed to secure the bedroom on the second floor to protect 

themselves. See DeJesus, 70 Mass. App. Ct. at 116, quoting from 

Buie, 494 U.S. at 334 ("to 'look [beyond] closets and other 

spaces immediately adjoining the place of arrest from which an 

attack could be immediately launched[,] . . . there must be 

articulable facts which . . . would warrant a reasonably prudent 

officer in believing that the area to be swept harbors an 

individual posing a danger to those on the arrest scene'"). As 

the motion judge explained, "[T]he police made no observations 

of individuals entering or leaving the home, and they heard no 

sounds coming from any other location in the home." Thus, 

"[b]eyond Lieutenant Kent's concern that the defendant was not 

being truthful, there was no direct or circumstantial evidence 

to support an inference that anyone but the defendant was home 

or posed a danger to the police." In these circumstances, the 

defendant's mumbled initial response to questions about whether 
9

anyone else was present was not sufficient to justify a sweep 

for other individuals.

7 See Commonwealth v. Wren, 391 Mass. 705, 

708 n.2 (1984) (attempt to avoid contact with police "not enough 

in itself to justify a suspicion"). See also Nova, 50 Mass. 

App. Ct. at 635 (sweep not justified where "there were no 

articulable facts to support an inference that anyone was in the 

apartment at the time of the sweep -- let alone anyone who posed 

a danger to the police" [quotation omitted]); Colon, 88 Mass. 

App. Ct. at 582 ("there was no evidence of danger to be expected 

from the apartment"). Compare Commonwealth v. Walker, 370 Mass. 

548, 552, 556-557, cert. denied, 429 U.S. 943 (1976) (officers 

heard noises and saw individual peering from window); DeJesus, 

70 Mass. App. Ct. at 115-116 (officers saw two women in living 

room and learned that defendant's father was upstairs and 

another person was in cellar).

In sum, "any perception of a threat to officers was simply 

too speculative here to meet constitutional requirements" for a 

protective sweep of an upstairs bedroom, Nova, 50 Mass. App. Ct. 

at 635, when the defendant, the only person posing a potential 

danger to the police in the home, appeared by all objective 

 

7 We further note that the defendant eventually answered 

"no" in response to this question. Also, although there was 

another suspect involved in the crime for which the defendant 

was arrested, the shooting had occurred in Connecticut, not 

Massachusetts, and had taken place at least two days before the 

sweep, thus diminishing any concern that the other suspect might 

be found with the defendant.
10

evidence to be home alone, and was handcuffed and peacefully 

secured at the front door. We therefore affirm the order 

allowing the motion to suppress.

So ordered.