COMMONWEALTH v. HOWARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Superior Court judge's order allowing the defendant's motion to suppress a firearm and other evidence recovered from a satchel during a stop and search of the defendant's vehicle. In its opposition to the motion to suppress, the Commonwealth argued that the stop and search were lawful because the police had reasonable suspicion to believe that the defendant was then in possession of an illegal firearm. The Commonwealth also argued that the defendant committed traffic violations that independently justified the stop. The judge rejected both arguments, finding that the purported traffic violations “did not occur” and that “[t]here were no specific, articulable facts ․ to support reasonable suspicion that the defendant was in possession of an illegal firearm or any other contraband” at the time of the stop.

The Commonwealth does not contend on appeal that the judge erred in either her factual findings or legal conclusions. Instead, the Commonwealth seeks to justify the stop and search on a different ground -- that the police had probable cause, based on earlier events, to arrest the defendant for unlawful possession of a firearm and were permitted to search the satchel as a search incident to arrest. As the Commonwealth concedes, it raised this issue for the first time in a motion to reconsider, which the judge denied “[f]or the reasons set forth in [the] defendant's opposition.” The defendant's opposition had argued, among other things, that the Commonwealth waived the issue by not raising it until after the evidentiary hearing.

We need not consider an argument that seeks reversal on a theory not presented to the motion judge. See Commonwealth v. Bettencourt, 447 Mass. 631, 633-634 (2006). “[W]e are particularly reluctant to do so where there are no factual findings directed to the theory now advanced.” Commonwealth v. Daniel, 464 Mass. 746, 755 (2013). Such is the case here. Because of the Commonwealth's failure to timely raise the issue, the evidence related to it is sparse, and the judge made no findings that would enable us to conclude that the search was justified as one incident to a lawful arrest. See Bettencourt, supra at 634 (“Trial judges cannot be expected to rule, and indeed should not, on theories not presented to them, and defendants cannot respond to arguments not made at the trial level”); Commonwealth v. Silva, 440 Mass. 772, 781 (2004) (“When a [party] attempts to raise a new issue after the completion of the hearing's evidentiary phase, the evidence on that issue is likely to be scant or nonexistent” [quotations omitted]). For example, we have no findings establishing that, at the time of the search, the defendant was unsecured and within reaching distance of the passenger compartment of the vehicle. See Commonwealth v. Perkins, 465 Mass. 600, 605 (2013), quoting Arizona v. Gant, 556 U.S. 332, 346 (2009) (“police may search an automobile incident to the arrest of its driver only where the arrestee ‘is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest’ ”).² In fact, the judge found that the search occurred “[a]fter the defendant was removed from the vehicle and placed under arrest,” suggesting that he was unable to access the vehicle at the time. See Gant, supra at 335.

We are unpersuaded by the Commonwealth's contention that the waiver was cured when a single justice of the Supreme Judicial Court allowed the Commonwealth's motion to accept its interlocutory appeal as timely filed. The single justice's order addressed only the timeliness of the application for leave to appeal. Likewise, the procedures set out in Commonwealth v. Jordan, 469 Mass. 134, 147-148 (2014), relied on by the Commonwealth, relate to establishing the timeliness of the appeal. Jordan did not overrule sub silentio the established line of cases governing the doctrine of waiver.

Given our ruling, we need not address the remaining issues raised by the parties.

Order allowing motion to suppress affirmed.

FOOTNOTES

2.   The Commonwealth asserts that there was probable cause to believe that the firearm was in the satchel based on an officer's observations that the defendant did not appear to be carrying a firearm on his person. This assertion, contained in a footnote and unaccompanied by citation, does not constitute adequate appellate argument. See Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 236 (1993). It also assumes, with no supporting evidence, that the defendant necessarily had the firearm with him.