Commonwealth v. Ivarson

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24-P-1152 Appeals Court

COMMONWEALTH vs. ROBERT IVARSON.

No. 24-P-1152.

Middlesex. September 12, 2025. – January 16, 2026.

Present: Vuono, Massing, & Allen, JJ.

Forfeiture Proceeding. Waiver. Firearms. Search and Seizure,
Warrant. Practice, Criminal, Waiver, Judicial discretion.
Words, "Public interest."

Indictments found and returned in the Superior Court
Department on May 9, 2017, October 26, 2017, and May 29, 2018.

Motions to dispose of seized property and for return of
property were heard by Laurence D. Pierce, J.

Robert H. D'Auria for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.

MASSING, J. The defendant, Robert Ivarson, appeals from an

order allowing the Commonwealth's motion to forfeit certain

property seized from the defendant's home during the execution

of a search warrant and denying the defendant's motion to return

the same property. General Laws c. 276, § 3, states that,
2

except for specified categories of stolen property, "property

seized in execution of a search warrant shall be disposed of as

the court or justice orders and may be forfeited and either sold

or destroyed, as the public interest requires, in the discretion

of the court or justice." Under Commonwealth v. James, 493

Mass. 828, 838 (2024), which was decided after the order of

forfeiture at issue here was entered, hearings concerning the

forfeiture of property conducted under § 3 must comport with the

procedures set forth in G. L. c. 276, §§ 4 to 8. For the first

time on appeal, the defendant claims that his forfeiture

proceedings were procedurally flawed because §§ 4 to 8 were not

followed. He also asserts that the motion judge erred in

applying § 3 to seized property that was not described in the

search warrant, and in determining that forfeiture was in the

public interest. Concluding that the defendant waived his

procedural argument, that the waiver is not excused by the so-

called "clairvoyance" exception, and that the judge did not

otherwise err or abuse his discretion in issuing the forfeiture

order, we affirm.

Background. In mid-December 2016 a family reported to the

police that they, the only Black family residing in their

neighborhood, had been the victims of an ongoing campaign of

anonymous harassment over the past year. Between thirty and

forty times, they had found banana peels thrown into their
3

driveway. The week before they called the police the episodes

had escalated; they had found banana peels on their car in the

driveway every day that week. An investigation, which included

video surveillance of the neighborhood, revealed that the

perpetrator was the defendant, who lived on the same street as

the victims.

In early January 2017, the police obtained a warrant

authorizing them to search the defendant's residence for

evidence of criminal harassment, particularly "bananas of any

kind." The officers knew that the defendant had a lengthy

criminal history, including felony convictions for assault and

battery by means of a dangerous weapon and assault with a

firearm, as well as numerous other convictions for firearms

violations. While executing the warrant, the officers had

conversations with the defendant's parents and a friend of the

defendant that led them to believe that the defendant illegally

possessed numerous firearms and was storing them in his bedroom.

Later that day the police obtained a second warrant, which

authorized a search for evidence of unlawful possession of

firearms, specifically, "firearms, ammunition, and any documents

evidencing the purchase, sale, custody or control of those

items." In executing the second warrant, the police seized an

arsenal of firearms and ammunition. They also seized some items

that were not described in the warrant, but were related to the
4

crimes they were investigating, including firearms accessories

such as holsters, scopes, ammunition loading devices, and

cleaning kits, as well as Confederate and Nazi paraphernalia.

A grand jury indicted the defendant on over one hundred

firearms-related charges, including thirty charges of unlawful

possession of assault weapons and large-capacity firearms and

feeding devices. For most of these crimes he was charged as an

"armed career criminal" with two qualifying prior convictions.

See G. L. c. 269, § 10G (b). With respect to the crimes against

his neighbors, the defendant was indicted on charges of criminal

harassment, see G. L. c. 265, § 43A (a), and criminally

violating their civil rights, see G. L. c. 265, § 37. In

February 2023 he pleaded guilty to 111 crimes and to being a

prior violent offender with one predicate offense. See G. L.

c. 269, § 10G (a). He was sentenced to ninety-nine concurrent

State prison terms of from seven to nine years, followed by

twelve concurrent three-year terms of probation.

Following sentencing the Commonwealth filed its motion "to

Dispose of Seized Property" on April 21, 2023, and the defendant

filed his motion "for Return of Property" on June 15. A virtual

hearing was held on August 18 before the same judge who had

taken the defendant's guilty pleas and imposed his sentences.

As explained in more detail below, the judge ordered forfeiture

of most of the property seized in execution of the search
5

warrants, returned some of it to the defendant, and directed

that some items be restored to a third party.

Discussion. 1. Applicability of G. L. c. 276, §§ 4 to 8.

After the judge's order in this case, the Supreme Judicial Court

decided James, holding that the procedures set forth in G. L.

c. 276, §§ 4 to 8, must be followed in forfeiture proceedings

held under G. L. c. 276, § 3. See James, 493 Mass. at 838.

Sections 4 through 6 of c. 276, pertain to notice and scheduling

of the forfeiture hearing. Section 7 provides for the

disposition of property that is forfeited. Section 8 describes

the process for appealing to the Superior Court from a decree of

forfeiture entered in the District Court. See James, supra at

834. The applicable procedures of §§ 4 to 8 were not followed

here, but, unlike in James, the defendant did not raise any

procedural objection in the Superior Court. See James, supra at

838-839 (where defendant raised issue of procedural deficiencies

in renewed motion for return of property, and Superior Court

judge reached merits of defendant's claim, issue not waived).

The defendant argues that we should forgive his failure to

preserve the issue under the clairvoyance exception to the

waiver doctrine.

a. Clairvoyance exception. To assess the applicability of

the clairvoyance exception, we begin by noting that the James

decision turned on "questions of statutory interpretation."
6

James, 493 Mass. at 834.1 The result was dictated by the plain

language of G. L. c. 276, § 3, and §§ 4 to 8, considered in

light of the statute's history. See James, supra at 833-838.

The clairvoyance exception, however, "applies to errors of a

constitutional dimension 'when the constitutional theory on

which the defendant has relied was not sufficiently developed at

the time of trial or direct appeal to afford the defendant a

genuine opportunity to raise his claim at those junctures of the

case.'" Commonwealth v. Randolph, 438 Mass. 290, 295 (2002),

quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984).

Because the James decision did not turn on questions of

constitutional dimension, the clairvoyance exception does not

apply. In any event, the interpretation of the statute that the

court adopted in James was not so novel that defense counsel

would have to have been clairvoyant to think of it. See

Commonwealth v. Ashford, 486 Mass. 450, 453 (2020) ("the

interpretation we give the statute usually reflects the court's

view of its meaning since the statute's enactment" [citation

omitted]). Nor was the argument that G. L. c. 276, §§ 4 to 8,

1 Because James involved issues of statutory construction,
the Supreme Judicial Court could have made its decision
applicable only to future cases. See Commonwealth v. Ashford,
486 Mass. 450, 453–454 (2020); Commonwealth v. Bastos, 103 Mass.
App. Ct. 376, 380-381 (2023). For the purposes of this appeal,
we assume that the court intended for the James decision to have
full retroactive effect, which is the general rule in such
cases.
7

applied foreclosed by established precedent such that the

defendant did not have a genuine opportunity to raise the claim.

See, e.g., Commonwealth v. Vasquez, 456 Mass. 350, 356-359

(2010) (waiver excused where prior binding decision made it

futile to raise claim). The only case even hinting at a

different interpretation of the statute, Beldotti v.

Commonwealth, 41 Mass. App. Ct. 185, 189 (1996), cert. denied,

520 U.S. 1173 (1997), "gave no consideration whether the

procedural requirements in §§ 4 to 8 had been followed, and it

[was] unclear whether either party raised the issue on appeal."

James, 493 Mass. at 838.2 Because the clairvoyance exception is

inapplicable, we do not "review the claim as if it had been

properly preserved." Randolph, 438 Mass. at 295. Rather, we

assume, without deciding, that the claim is reviewable under the

substantial risk of a miscarriage of justice standard. See id.

at 294-295.

b. Review for substantial risk of a miscarriage of

justice. Although the notice of forfeiture proceedings did not

comply with the notice procedures set forth in G. L. c. 276,

§§ 4 to 6, the defendant and other interested parties had

effective, actual notice. The Commonwealth filed its motion for

2 In James, the court stated that "to the extent that
Beldotti may be read as allowing forfeiture to be accomplished
outside the parameters of §§ 4 to 8, it is not correct and not
to be followed." James, 493 Mass. at 838.
8

forfeiture in April 2023; the defendant filed his motion for

return of property, supported by a comprehensive memorandum, on

June 15; and a hearing was held two months later. Counsel for

the defendant appeared and argued the motions. A person

claiming ownership of some of the seized firearms was permitted

to be heard (and in fact was successful in reclaiming that

property). While the defendant's mother did not receive formal

notice, she listened to the hearing and submitted an affidavit a

few days later describing the family history of certain items

that the defendant possessed and wanted returned.

The purpose of "notice and a trial" under §§ 4 to 8 is "so

a judge may evaluate, on a full factual record, the merits of

the competing arguments to determine if a forfeiture decree is

in the 'public interest' under § 3." James, 493 Mass. at 840,

quoting G. L. c. 276, § 3. In James itself the court noted,

"Indeed, this case hinges on numerous factual disputes and thus

requires a fact finder to resolve them." James, supra. Here,

the defendant does not point to any unresolved factual disputes

and does not state what additional evidence, if any, he would

have provided, or how anything would have been different had

there been strict compliance with §§ 4 to 8. The arguments that

the defendant makes on appeal are essentially the same arguments

he made in his motion and at the motion hearing.
9

The Commonwealth, by contrast, points to record materials

that it might have introduced in an evidentiary hearing on

whether forfeiture was in the public interest. In anticipation

of trial, the Commonwealth filed a motion in limine to allow

admission of selected statements the defendant had made in

telephone calls that were recorded while he was held pretrial at

the house of correction. In those calls, the defendant made

racist and antisemitic remarks, said that the "next time" he

would throw a rock at his neighbors instead of banana peels, and

expressed his intent to get a gun "within a day of being out of

here." We are confident that strict adherence to §§ 4 to 8

would not have had a favorable, material influence on the

result; therefore, we discern no substantial risk of a

miscarriage of justice. See Commonwealth v. Alphas, 430 Mass.

8, 13 (1999).

Finally, we note that the defendant's brief makes two

passing references to entitlement to a jury trial on the

forfeiture issue, without argument or citation to legal

authority. Nothing in James suggests the right to a jury trial.

To the contrary, the decision refers to "a judge" evaluating the

evidence and making the public interest determination. James,

493 Mass. at 840. At oral argument, the defendant suggested

that entitlement to a jury trial might derive from G. L. c. 276,

§ 8, which states that appeals from District Court decrees of
10

forfeiture in the Superior Court "shall conform so far as may be

to proceedings in criminal cases." As the issue was not

adequately raised at any time, we decline to address it further.

See Commonwealth v. Richardson, 479 Mass. 344, 357 n.17 (2018)

(appellate court need not consider claims first raised at oral

argument); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996)

(claims "not supported by reasoned argument or citations" do not

rise to level of appellate argument and need not be considered);

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019) (issues presented in brief must be supported with

citations to authorities, and court need not address issues not

argued in brief).

2. Items not described in the warrant. The warrants

issued in this case authorized searches of the defendant's house

for evidence of criminal harassment and for evidence of unlawful

possession of firearms, specifically, "firearms, ammunition, and

any documents evidencing the purchase, sale, custody or control

of those items." In executing the second warrant, the police

seized some items that were not described in the warrant, but

that they recognized as related to the crimes they were

investigating. These items were lawfully seized under the plain

view doctrine, and the defendant does not contend otherwise.

"Under [the plain view] doctrine, if police are lawfully in a

position from which they view an object, if its incriminating
11

character is immediately apparent, and if the officers have a

lawful right of access to the object, they may seize it without

a warrant." Commonwealth v. Santana, 420 Mass. 205, 211 (1995),

quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). See,

e.g., Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307

(2010) (police executing search warrant may seize items in plain

view not covered by warrant "where the particular evidence is

plausibly related to criminal activity of which the police are

already aware"); Commonwealth v. D'Amour, 428 Mass. 725, 731

(1999) (in addition to contraband and fruits and

instrumentalities of crime, police may seize mere evidence "if

the officers recognize it as plausibly related to criminal

activity of which they already were aware").

The defendant argues, as he did in the Superior Court, that

§ 3 does not authorize forfeiture of items unless they were

described in the search warrant.3 We disagree. The first

sentence of § 3 speaks to when "an officer in the execution of a

search warrant finds property or articles therein described" and

authorizes the seizure and safekeeping of such items for use at

3 The firearms and ammunition that the defendant unlawfully
possessed were forfeited and delivered to the State police for
destruction under G. L. c. 276, § 3 (b) as well as G. L. c. 269,
§ 10 (e). See James, 493 Mass. at 834 n.10 (§§ 4 to 8 do not
apply to items forfeited under "dangerous weapons" exception of
§ 3 [b]). The judge allowed the return of some of the
defendant's personal items, money, credit cards, forms of
identification, and documents not relating to firearms.
12

trial. The second sentence of § 3 provides that, with the

exception of stolen goods, which are to be returned to their

owners, "all other property seized in execution of a search

warrant shall be disposed of as the court or justice orders and

may be forfeited and either sold or destroyed, as the public

interest requires, in the discretion of the court or justice"

(emphasis added). Giving effect to the plain and ordinary

meaning of the words of the statute, see Ciani v. MacGrath, 481

Mass. 174, 178 (2019), we have little difficulty concluding that

the forfeiture provision of § 3 encompasses not just items

described in the search warrant, but also any item legally

seized during the execution of the warrant. For examples of

standard English usage of words "execution of a search warrant,"

see, e.g., Commonwealth v. LaPlante, 416 Mass. 433, 440 (1993),

S.C., 482 Mass. 399 (2019) (items not included in search warrant

but identified "during the execution of the warrant" validly

seized under plain view doctrine); Commonwealth v. Pierre, 71

Mass. App. Ct. 58, 66 (2008) (plain view doctrine applies to

property discovered "during the execution of the valid search

warrant"); E.B. Cypher, Criminal Practice and Procedure § 5:113

(4th ed. 2014) (police may seize items in plain view, even

though not mentioned in warrant, if revealed in "the execution

of" search warrant). Indeed, the court in Commonwealth v. Rufo,

429 Mass. 380 (1999), noted the distinction between the
13

reference to property described in the warrant in the first

sentence of § 3 and property subject to disposal under the

second sentence. See id. at 382, quoting G. L. c. 276, § 3

("Property seized pursuant to a search warrant in Massachusetts

is held 'under the direction of the court' and all property

[other than stolen property] 'seized in execution of a search

warrant shall be disposed of as the court of justice orders'"

[emphasis added]).

The defendant misplaces reliance on a parenthetical phrase

from Commonwealth v. Salmons, 96 Mass. App. Ct. 61, 66 (2019),

quoting Rufo, 429 Mass. at 384 ("there is no basis for extending

the reach of G. L. c. 276, § 3, beyond its terms to [cover]

property not seized pursuant to a warrant"). In Salmons, supra

at 69, we held that an order permitting destruction of data from

the defendant's cell phones was not authorized under § 3 because

the seizure "was without a warrant and unlawful, and thus the

public interest standard of G. L. c. 276, § 3, does not directly

apply." The Rufo case concerned the forfeiture of $38,692 in

United States currency seized by a Commonwealth police officer

from the defendant's closed briefcase during a warrantless

inventory search conducted after a traffic stop, later held to

be unlawful. See Rufo, supra at 381. The court held only that

in those circumstances, § 3 did not confer in rem jurisdiction

over the currency sufficient to take precedence over a later
14

Federal forfeiture proceeding. See Rufo, supra at 382-384.

Indeed, the sentence from Rufo quoted in Salmons begins by

stating, "Obviously, there must be a process for returning to

its owner property unlawfully seized without a warrant," and

concludes, "but there is no basis for extending the reach of

G. L. c. 276, § 3, beyond its terms to justify an assertion of

in rem jurisdiction over property not seized pursuant to a

warrant" (emphasis added). Rufo, supra at 384. The Salmons

decision substituted "[cover]" for the words emphasized above.

Salmons, supra at 66. In short, items in plain view that are

lawfully seized during the execution of a search warrant are

subject to forfeiture in the public interest under § 3. Nothing

in Rufo or Salmons suggests otherwise.

3. Judge's exercise of discretion. The defendant contends

that the judge erred in ordering forfeiture and destruction of

three categories of items not particularized in the search

warrant: firearms-related accessories, "such as gun cases, gun

socks, tools, gun cleaning kits, holsters, scopes, hunting tag

holders and ammo pouches" and "ammunition reloading equipment";

antique and replica firearms, including "black powder antique

rifles," "antique handguns," and "antique/replica muzzle loading

guns"; and items related to the criminal harassment and civil

rights crimes, specifically "Confederate flags and pins" and

"World War II Nazi souvenir helmets and artifacts."
15

General Laws c. 276, § 3, specifically gives the "court or

justice" discretion to forfeit and either sell or destroy

property lawfully seized in the execution of a search warrant

"as the public interest requires." Accordingly, we review the

judge's decision for an abuse of that discretion. See

Commonwealth v. Dragotta, 96 Mass. App. Ct. 154, 156 (2019)

(order denying motion for return of property reviewed for abuse

of discretion).

The case law concerning the § 3 public interest standard is

not well developed. In Beldotti, 41 Mass. App. Ct. at 185-186,

189, the defendant, who had been convicted of murder in the

first degree in connection with a brutal, gruesome sex crime,

sought the return of sexually explicit materials that had been

seized from his home pursuant to a search warrant. We suggested

that forfeiture of property with a connection to the defendant's

crime would be in the public interest. See id. at 189. Because

the items he sought to have returned could "be seen as being

directly related to those acts, as having influenced his

behavior, or as being relevant to an understanding of the

psychological or physical circumstances under which the crime

was committed," id., we concluded that "to return the property

would be so offensive to basic concepts of decency treasured in

a civilized society, that it would undermine the confidence that

the public has a right to expect in the criminal justice
16

system." Id. at 190. On the other hand, in James, 493 Mass. at

840, the court stated that "property may not be forfeited based

merely on the speculative concern that harm could occur if the

disputed property were to be returned."

Here, the judge determined that all of the items in the

three contested categories were "related to the crimes the

police were investigating . . . i.e., civil rights and

harassment offenses and numerous offenses involving the

possession of dangerous weapons" and that the public interest

therefore required their destruction. With respect to firearm

and ammunition tools and accessories that "were not inherently

contraband or illegal for [the defendant] to have possessed,"

the judge determined that forfeiture was in the public interest

where the defendant pleaded guilty to "over 100 firearms and

firearms-related offenses."

Given the defendant's criminal history and the convictions

that followed the execution of the two search warrants, we

discern no abuse of discretion in the judge's decision to order

forfeiture of firearms-related items, tools, and equipment for

making ammunition, and antique and replica firearms. These

items all bear a strong connection to the defendant's

convictions for firearms offenses, and there is a strong

likelihood that the defendant might use such items for illegal

purposes in the future, creating a grave risk to public safety.
17

In reviewing for abuse of discretion, we ask whether "the judge

made a clear error of judgment in weighing the factors relevant

to the decision, such that the decision falls outside the range

of reasonable alternatives" (quotation and citation omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Although

the defendant suggests that the judge could have fashioned a

less "draconian" remedy, such as imposing probation conditions

or selling these items to a third party, the judge's decision to

limit the defendant's access to such items by authorizing their

forfeiture and destruction was not outside the range of

reasonable alternatives.

The forfeiture of the defendant's Nazi and Confederate

souvenirs and paraphernalia presents a closer question.

"[P]roperty may not be forfeited simply because it is offensive

or repugnant." Beldotti, 41 Mass. App. Ct. at 189. In

addition, the connection between these items and the defendant's

hate crime is more attenuated than the connection between his

firearms-related items and his firearms-related offenses. As

the defendant points out, he did not display Confederate or Nazi

items when he criminally harassed his Black neighbors.4

4 He also argues, far less persuasively, that "Nazi War
helmets may be construed possibly to relate to anti-semitism,
but the banana throwing was not related to anti-semitism." See,
e.g., Commonwealth v. Babbitt, 430 Mass. 700, 704 (2000)
(defendant's "racist statements" included "Heil Hitler" and
"white supremacy rules").
18

But there is a connection. The items illuminate the

defendant's state of mind, motivations, and actions underlying

his criminal convictions, see Beldotti, 41 Mass. App. Ct. at

189, and they were seized because their incriminating character

was immediately apparent to the officers executing the search

warrants. See Santana, 420 Mass. at 211. The judge found that

the public interest required the destruction of these items

because they were "related to" the "civil rights and harassment

offenses" the police were investigating, and to which the

defendant pleaded guilty. Our review is limited to determining

whether the judge considered the relevant factors and arrived at

a decision within the range of reasonable alternatives. The

judge did not order forfeiture of these items because they were

offensive, and we discern no clear error in the judge's

conclusion that these items were related to the defendant's

civil rights and harassment offenses. The judge's decision that

the public interest requires forfeiture and destruction of these

materials is not so unreasonable as to rise to the level of an

abuse of discretion.

Conclusion. So much of the judge's order entered October

15, 2023, allowing the Commonwealth's motion to dispose of

certain seized property and denying the defendant's motion for

return of the same property, is affirmed.

So ordered.