Massachusetts Appeals Court Rules Information In Warrant Was Too Old To Justify Search

The Massachusetts Appeals Court today upheld a Suffolk Superior Court judge’s order suppressing a gun found during the execution of a search warrant, because the information contained in the warrant application was two months old.  The name of the case is Commonwealth v. Hart. 

As often happens in criminal law, this case resulted from a tip given by a confidential informant to a police officer.  The informant told the officer the defendant possessed a semi-automatic firearm in his Boston home.  According to the informant, he knew about the gun because he saw it in the defendant’s residence during the prior 60 days.  The officer promptly applied for a warrant to search the defendant’s home.  In his application, the officer offered his professional opinion that it’s difficult to get rid of guns and ammunition, and owners of those objects typically hold on to them for long periods of time.  The officer’s application also noted that the defendant had an extensive criminal record, including a 2009 arrest for a number of firearm-related offenses (including assault with intent to murder).  The defendant’s brother, who lived with the defendant, had also been charged with violating gun laws.  In 2015, he was charged with unlawfully possessing a gun and ammunition and he was also subject to an active warrant related to a 2017 shooting.  The search warrant in this case issued based on the information contained in the officer’s application and accompanying affidavit.  Four days later, the cops searched the defendant’s home and found ammunition (but no gun).  The defendant was charged with illegally possessing the ammunition and being an armed career criminal.  The defendant filed a motion to suppress the ammunition, arguing the police officer’s application lacked probable cause on which to issue the warrant.  A superior court judge agreed and suppressed the evidence.  The Commonwealth appealed and the Appeals Court affirmed.

The issue in the case was whether the information provided by the confidential informant was “stale” – which means too old to be legally meaningful.  The Appeals Court agreed with the superior court judge that there was an insufficient timely nexus between the informant’s viewing of the firearm and the defendant’s home.  If the informant had seen the gun within 10 days of the warrant application, instead of 60, it likely would have established probable cause.  Alternatively, if there was additional evidence to suggest the gun was likely to still be present in the defendant’s residence, the outcome might have been different.  For example, evidence that the defendant had multiple weapons in his home or that he was actively involved in ongoing criminal activity might have allowed the magistrate to properly conclude a weapon would probably be found in the defendant’s home.  It was further problematic, according to the Appeals Court, that the informant did not provide any information as to why the defendant had a gun or how he obtained it.  Finally, while a suspect’s prior criminal record may be considered in the probable cause analysis in terms of corroborating an informant’s tip, the defendant’s gun conviction in this case occurred eight years earlier, which is too remote in time to allow for the inference that he would have a gun at the time of the warrant’s execution.

With the evidence now being suppressed, the Commonwealth will likely be forced to dismiss the case.