Commonwealth v. Jason Oliver.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-688

COMMONWEALTH

vs.

JASON OLIVER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge denied the defendant's motion to

suppress the fruits of an entry into his home to serve an arrest

warrant, as well as the fruits of a subsequent consent search of

the home, including a firearm and cocaine. The defendant then

entered conditional guilty pleas to charges of unlawful

possession of a firearm and ammunition and possession of cocaine

with intent to distribute. The defendant now appeals the order

denying his motion to suppress, contending that (1) the entry

into his home was based on unreliable hearsay and was

accomplished without police knocking and announcing themselves;

(2) police conducted a protective sweep of the home without

reasonable basis; (3) his girlfriend's subsequent consent to a
search of the home was coerced and thus invalid; (4) the judge

at the suppression hearing inappropriately allowed the

Commonwealth to present much of its evidence on rebuttal; and

(5) the claimed dismissal of certain Rhode Island charges

against the defendant required suppression of the evidence here.

We affirm.

Background. A Rhode Island court issued an arrest warrant

for the defendant on four felony cocaine charges. Because the

defendant's last known address was in Fall River, the Rhode

Island State police (RISP) placed the arrest warrant into a

tracking system for extradition. That system listed the

defendant's name, date of birth, social security number,

description, Massachusetts license number, and Fall River

address ("the address"), as well as his alias, "Gunz."

The warrant came to the attention of the Massachusetts

State police (MSP), who were further informed that the defendant

was president of the newly formed Massachusetts chapter of the

Pagans, a motorcycle club, was highly likely to have guns in his

possession, and had been placed at the address several times. A

MSP lieutenant applied to a District Court and obtained a

fugitive arrest warrant. The lieutenant also learned from a

Registry of Motor Vehicles (RMV) record check that the defendant

listed the address on his driver's license. Police then

executed the warrant at the address, arrested the defendant,

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discovered a firearm during a protective sweep, obtained his

girlfriend's signature on a form consenting to a search of the

home, conducted the search, and seized the firearm, as well as

cocaine found in a bathroom. The defendant was indicted, and

filed a motion to suppress, which the judge denied after a

lengthy evidentiary hearing.

We address the defendant's five claims in turn. In

reviewing the suppression ruling, "we adopt the motion judge's

factual findings absent clear error," Commonwealth v. Isaiah I.,

450 Mass. 818, 821 (2008), and "conduct an independent review of

his ultimate findings and conclusions of law." Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002).

1. Entry into home. The defendant asserts that police

lacked a reasonable belief that he lived at the address and that

he was home at the time. Police may enter a home to serve an

arrest warrant if they "have a reasonable belief that the

location to be searched is the arrestee's residence, and a

reasonable belief that the arrestee is in his residence at the

time the arrest warrant is executed." Commonwealth v. Gentile,

466 Mass. 817, 818 (2014), quoting Commonwealth v. Silva, 440

Mass. 772, 778 (2004). "[T]he 'reasonable belief' standard is

'less exacting than probable cause.'" Gentile, supra, quoting

Silva, supra at 776-777. To be reasonable, a belief "must be

supported by specific articulable facts that, based on the

3
totality of circumstances, permit a reasonable inference" that a

matter is true (quotation and citation omitted). Gentile, supra

at 822.

Here, the judge found that police had a reasonable belief

that the defendant lived at the address. The Rhode Island

warrant listed it as the defendant's last known address, and the

RISP informed the MSP that "we have placed him at this address

several times." Although the MSP lieutenant did not know the

details of the RISP investigation, the judge interpreted the

RISP statement to mean that the RISP had observed the defendant

at the address several times, and we cannot say this inference

was unreasonable. The MSP's RMV record check separately

confirmed that the defendant listed the address as his

residence.

Although the defendant argues that a reasonable belief

cannot be based on hearsay alone, he cites no authority

supporting that proposition, and Gentile is to the contrary. 1

The defendant's further suggestion that the information provided

1 In Gentile, a trooper saw the defendant's Massachusetts
identification card listing an apartment address in Leominster,
and the trooper confirmed that the address matched what was
listed on the defendant's driver's license. Gentile, 466 Mass.
at 821. The court stated, "[t]he defendant correctly does not
challenge the judge's finding that the officers had a reasonable
belief that the defendant resided at the apartment." Id. at
822.

4
by the RISP was akin to an uncorroborated informant's tip, is

inconsistent with Commonwealth v. Castillo-Martinez, 104 Mass.

App. Ct. 22, 26 (2024). The MSP could reasonably rely on the

veracity of statements by the RISP, see id., which stated as the

basis of knowledge that "[w]e have placed him at this address

several times." 2 Moreover, the MSP obtained corroboration of the

address from the RMV. See Commonwealth v. Lora, 43 Mass. App.

Ct. 136, 143 (1997) (RMV address records reliable). Finally,

the lieutenant testified that, in accordance with usual practice

before executing an arrest warrant for a potentially violent

suspect, "a work-up on [the] house . . . was done, and we

expected four people in that place, possibly," including the

defendant. 3 All this together supported a reasonable belief that

the defendant lived at the address.

2 We need not address the defendant's argument that the
collective knowledge doctrine does not apply. See Commonwealth
v. Privette, 491 Mass. 501, 503 (2023). The Commonwealth does
not rely on it here, nor did this court in Castillo-Martinez,
supra.

3 Although the judge's findings did not specifically mention
the work-up, the judge found that police had information
suggesting that four people would be present, and the judge
expressly credited other aspects of the lieutenant's testimony.
Also, a MSP sergeant, who the judge found "credibl[e] in all
respects," testified that before the warrant was executed, he
had conducted a "site visit." We think the testimony may be
considered. See Commonwealth v. Garner, 490 Mass. 90, 94
(2022); Commonwealth v. Jones-Pannell, 472 Mass. 429, 431
(2015).

5
The judge also found that police had a reasonable belief

the defendant would be at home when the warrant was executed,

which occurred at 6 A.M. "[T]he early morning hour alone . . .

sufficed to warrant a reasonable belief that the defendant was

home." Gentile, supra at 824. To be sure, such a belief might

be unreasonable where there is "contrary evidence regarding the

suspect's known schedule" (quotation and citation omitted). Id.

But there was no such evidence here. The defendant's daughter

testified that he did not always stay at the address, because he

stayed at his grandmother's house in Boston when he was

performing landscaping work. But this did not establish that

the defendant stayed in Boston on any schedule, let alone that

such schedule was known or should have been known to police.

Thus, the early hour sufficed to establish a reasonable belief

that the defendant would be at home, and the work-up testimony

further supported that belief.

The defendant also contends that police violated the

requirement that, "[e]xcept in certain limited circumstances,

[they] must knock, identify themselves, and state their purpose

before entering a dwelling to execute an arrest warrant"

(quotation and citation omitted). Silva, 440 Mass. at 781 n.12.

But the judge credited police testimony that they knocked and

announced their identity and purpose three times, with no direct

response from within, before they battered down the front door.

6
After their second announcement, they saw movement in an

upstairs window and observed an adult woman inside. The

testimony of an officer in the back yard that he did not hear

the announcements, and the similar testimony of the defendant's

daughter who was sleeping upstairs, does not render the judge's

findings clearly erroneous. 4

2. Protective sweep. The defendant next argues that

police, after arresting and handcuffing him, lacked sufficient

basis for conducting the protective sweep of the home, during

which they observed a firearm in his bedroom. See Commonwealth

v. Saywahn, 91 Mass. App. Ct. 706, 708-709 (2017) (requirements

for protective sweeps). We conclude that we need not reach this

argument, because the defendant has not explained why, if the

protective sweep were invalid, the firearm or other evidence

would need to be suppressed. The firearm was not seized (and

the cocaine not found and seized) until the subsequent search of

the home pursuant to the defendant's girlfriend's consent, which

the judge found was voluntarily given. 5 That finding, as we

4 The defendant also suggests that the manner of entry was
unreasonable, in that up to seventeen officers were involved,
many of them with military-style weapons and other gear, and
that weapons were unnecessarily pointed at his girlfriend and
their children. Because the defendant cites no legal authority
in support of this argument, we do not consider it further.

5 After the protective sweep and after being Mirandized, but
before the consent search, the defendant made several statements
to the police. However, neither in the trial court nor on

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discuss infra, was not clearly erroneous. And the defendant did

not sufficiently raise below any claim that the consent was

somehow the fruit of the protective sweep. Thus, regardless of

whether the protective sweep was valid, the motion to suppress

was properly denied.

A motion to suppress "shall state the grounds on which it

is based and shall include in separately numbered paragraphs all

reasons, defenses, or objections then available, which shall be

set forth with particularity." Mass. R. Crim. P. 13 (a) (2), as

appearing in 442 Mass. 1516 (2004).

"This requirement alerts the judge and the Commonwealth to
the suppression theories at issue, and allows the
Commonwealth to limit its evidence to these theories.
There is no reason for the Commonwealth to extend
unnecessarily the length of the suppression hearing by
presenting evidence on issues not raised by the defense."

Silva, 440 Mass. at 781.

In his written motion to suppress, the defendant made the

general claim that the entry into and search of his home

violated his constitutional rights and that "[a]ny alleged

consent to search . . . constituted the unlawful direct fruits

of said violations." The motion did not, however, set forth

this claim with any particularity. The motion did not mention

the protective sweep, or distinguish between it and the

appeal has the defendant argued that the statements were fruits
of the sweep or causally related to the consent search.

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subsequent consent search, or allege that police exploited

anything learned during the sweep to obtain consent to the

search, or that the consent was insufficiently attenuated from

the sweep. The defendant filed the affidavit of his girlfriend

asserting she signed the consent form only under police

pressure, but the affidavit did not mention the protective

sweep, let alone any causal relationship it might have to her

consent to the search.

Accordingly, the Commonwealth was not on notice that it

needed to elicit any evidence on those issues at the hearing on

the motion to suppress. The Commonwealth had no reason to offer

evidence, for example, on whether the police decision to seek

consent for the search was prompted by their observation of the

firearm during the sweep, or on whether police used their

knowledge of the firearm to obtain the girlfriend's consent.

Cf. Commonwealth v. Pearson, 486 Mass. 809, 813-814 (2021). 6 We

6 In Pearson the court explained that where evidence was
observed during an initial unlawful entry, but then later seized
during a search pursuant to a warrant supported by probable
cause, suppression was not required if the Commonwealth could
"show[] by a preponderance of the evidence that the challenged
evidence is admissible pursuant to the independent source
exception to the exclusionary rule." Id. at 813. This required
the Commonwealth to show that "(1) the officers' decision to
seek the search warrant was not prompted by what they observed
during the initial illegal entry, and (2) the affidavit
supporting the search warrant application contained sufficient
information to establish probable cause, 'apart from' any
observations made during the earlier illegal entry" (citation
omitted). Id.

9
see nothing in the hearing transcript directly bearing on either

proposition. 7 Nor is it self-evident that the Commonwealth could

not make either showing; police knew even before conducting the

protective sweep that, according to the RISP, the defendant was

"highly likely" to have firearms in his possession (to say

nothing of cocaine), and this information alone could well have

prompted them to seek consent to search the home. In the

defendant's closing argument at the hearing, he sought

suppression on four separate grounds, but he did not argue that

the consent search was the fruit of the protective sweep. Nor

did he so argue in his post-hearing memorandum.

Understandably, then, the judge made no findings regarding

why police sought consent to search the home or whether they

used their knowledge of the firearm to gain that consent. Even

on appeal, aside from two conclusory sentences in his brief, the

defendant makes no claim that police would not have sought

consent had they not seen the firearm during the sweep. 8 Cf.

7 The closest the testimony came to these points was the
lieutenant's statement that, in asking the girlfriend to consent
to a search, he told her that "police believed there may be
evidence related to [the defendant]."

8 The defendant's brief asserts without explanation that the
fruits of the sweep "include[ed] the . . . consent," and that
the discovery of the firearm "caused officers to seek consent."
When asked at oral argument, the defendant was unable to go
beyond the time sequence to explain any causal relationship
between the sweep and the consent. Merely asserting that

10
Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11 (2003) (remand

for further suppression proceedings unnecessary where defendant

claimed no connection between discovery of evidence during

unlawful entry and later application for warrant). Therefore,

because we conclude infra that the consent search and seizure of

the firearm and cocaine were valid, we need not and do not

address whether the earlier protective sweep was valid.

4. Consent to search. The defendant challenges the

judge's finding that the girlfriend voluntarily consented to the

search of the home.

"[T]he Commonwealth bears the burden of proof that consent
was freely and voluntarily given, meaning it was unfettered
by coercion, express or implied. Voluntariness of consent
is a question of fact to be determined in the circumstances
of each case. As a question of fact, it should not be
reversed absent clear error by the judge" (quotations and
citations omitted).

Commonwealth v. Buckley, 478 Mass. 861, 875 (2018). Many

factors may be considered, and no single factor is dispositive.

consent occurred after and was insufficiently attenuated from
the sweep does not suffice. The claim at oral argument that
police unlawfully remained on the premises for too long after
the arrest, the sweep, or both, and that this somehow tainted
the consent, was not made to the judge, nor did he make findings
on the issue, and thus we do not consider it. The cases cited
in the defendant's post-argument letter regarding exploiting a
prior illegality to obtain consent, Commonwealth v. Yehudi Y.,
56 Mass. App. Ct. 812, 816-817 (2002), and Commonwealth v. Midi,
46 Mass. App. Ct. 591, 595 (1999), do not mitigate the failure
to timely put the Commonwealth on notice that such issues should
be addressed at the suppression hearing.

11
See E.B. Cypher, Criminal Practice and Procedure § 5:143 (4th

ed. 2014). "[F]actors to consider include, but are not limited

to: the presence of armed, uniformed officers; whether the

defendant was informed of his right to refuse consent; the age,

intelligence, and other personal characteristics of the

defendant; and whether the defendant was in custody when consent

was given." Commonwealth v. Carr, 458 Mass. 295, 302 (2010).

Here, the judge found that consent was voluntary, and that

finding is not clearly erroneous.

The judge found that after the defendant was escorted out

of the home, police asked the girlfriend if she would consent to

a search and told her that they would obtain a consent form from

the police station and bring it to the house. Although she

initially refused verbal consent, police told her that she could

take some time to consider the matter while they retrieved the

form. The conversation was "normal," and although she initially

appeared confused and uncertain, police explained that they were

targeting her boyfriend, not her. During the approximately

ninety minutes it took to retrieve the form, she made several

phone calls. The form stated that she had a right to refuse to

allow a search without a warrant and that she was waiving that

right "voluntarily, without threats or promises of any kind."

The form was explained to her, and the judge found that "[n]o

weapons were drawn, no threats made, and she was not forced to

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sign." She was told she could be present during the search, and

she exercised that right. She signed the form and did not "ask

any questions, voice any objections, or indicate that she

revoked her consent." For these reasons the judge found that

her consent was voluntary.

The defendant asserted at oral argument before us that the

judge gave insufficient weight to the coercive atmosphere

created by the police. He points to the facts that police used

a battering ram, that the girlfriend and children were ordered

downstairs at gunpoint, and that the father of the girlfriend's

children (i.e., the defendant) was handcuffed and taken away.

The judge acknowledged these facts, yet he also found the

consent was voluntary. Moreover, all of those events occurred

before police initially asked the girlfriend for oral consent,

yet at that point she refused, demonstrating that police actions

up to that time had not overborne her will.

The defendant asserts that, after he was taken away, the

girlfriend was subjected to further coercion, by being "held in

her home, under police supervision, with [seventeen] officers,

for an hour," before finally consenting. But the defendant

cites no evidence, nor do we see any in the record, that the

girlfriend was detained for more than a brief period, if that,

between when police entered and when the defendant came

13
downstairs and was handcuffed. The judge was not asked to and

did not make findings on that issue.

As for the presence of seventeen officers remaining in the

home for an hour, there was little evidence and no finding to

that effect. The judge found that sixteen officers were

involved in executing the warrant, including a twelve-member MSP

special tactics team. But the sergeant who led that team

testified that once the occupants of the dwelling are brought

outside and anyone being taken into custody is handed over to

investigating officers, the team leaves. 9 The defendant's

daughter testified that there was one officer talking to the

girlfriend about consenting to the search, and another officer

was standing nearby and participating in parts of the

conversation; there were four officers inside the home. The

officer who brought the consent form to the home likewise

testified that he and another officer spoke to the girlfriend

about consent. The defendant did not argue to the judge that

the number of officers present at the time consent was obtained

made the atmosphere coercive. The issue not having been raised

9 The sergeant was not specifically asked and did not state
when he and his team left the address at issue here, but it
could be inferred from the question posed to him that they left
once the defendant was taken away.

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to the judge, and no finding on the issue having been made, the

defendant has not established that the number was coercive.

One factor cited by the defendant is concerning and

warrants separate discussion. The officers told the girlfriend

that if she did not consent, they would apply for a search

warrant. Although that by itself was not improper, on cross-

examination one officer was asked whether it was customary when

seeking consent to say that a search pursuant to a warrant would

be "much more[,] whatever word is used, intrusive, chaotic,

damaging search than the one" to be conducted if consent was

given, and the officer agreed that this was a fair statement.

The judge here found that the girlfriend was told a warrant

search would be "significantly more invasive."

A threat of this sort is "highly improper," and in some

circumstances "a prediction of police lawlessness could be

sufficiently overbearing to render a consent involuntary."

Commonwealth v. Kipp, 57 Mass. App. Ct. 629, 636 (2003). In

Kipp, however, the statement was held not to invalidate the

consent. 10 See id. The judge here found that the statement

10In Kipp, a defendant consented to a search of his
apartment and later testified at a suppression hearing to his
reasons for doing so, which did not include the desire to
prevent a more disruptive search pursuant to a warrant. Id. at
636. Here, the defendant did not call his girlfriend as a
witness to testify about how the officer's statement affected
her, nor did her affidavit, despite claiming coercion, refer to
any such statement. The defendant called his daughter as a

15
"does not compel the conclusion that [she] was coerced into

consenting to the search," in light of the other factors

suggesting that her consent was voluntary. Because the

voluntariness of such consent is a question of fact, we must

accept the judge's finding that consent was voluntary unless the

finding is clearly erroneous, Buckley, 478 Mass. at 875, i.e.,

unless we have "the definite and firm conviction that a mistake

has been committed" (quotation and citation omitted). Marlow v.

New Bedford, 369 Mass. 501, 508 (1976). We have no such

conviction; therefore, we will not disturb the judge's finding

that consent was voluntarily given, making the search valid.

4. Commonwealth's rebuttal testimony. The defendant next

claims that, at the suppression hearing, the judge improperly

allowed the Commonwealth to put on much of its evidence through

two rebuttal witnesses, i.e., after it had rested and then the

defendant had called his daughter as a witness. It was defense

counsel himself, however, who, after hearing the testimony of

the Commonwealth's only witness, told the judge that, "[i]n

order for this motion to be properly litigated," he needed

another witness, who could testify about the moments before

witness, and she testified that police told her mother that if
she did not sign the consent form they would "destroy the house
completely." The judge did not address that particular
statement, but he declined to credit other parts of the
daughter's testimony about the process of obtaining consent.

16
police battered down the door. The judge expressed

disappointment that the parties had not communicated more

clearly about what issues were contested and what witnesses were

needed. Defense counsel repeated his request for testimony

about the entry, and the judge agreed to continue the hearing

until a day when the appropriate witness could be present. At

that hearing, defense counsel called the defendant's daughter as

a witness on the consent issue. Then, without objection, the

Commonwealth called two "rebuttal" witnesses, the first

regarding the entry (as requested by defense counsel) and the

second to rebut the daughter's testimony that the girlfriend's

consent had been coerced.

In these circumstances, and particularly given defense

counsel's affirmative requests and subsequent failures to

object, the judge plainly had the discretion to proceed as he

did. The defendant cites no authority that barred the judge

from proceeding in this manner. Commonwealth v. Guidry, 22

Mass. App. Ct. 907, 909 (1986), affirms a judge's broad

discretion in permitting rebuttal testimony. There was no abuse

of discretion, let alone any substantial risk of a miscarriage

of justice. See generally Commonwealth v. Alphas, 430 Mass. 8,

13 (1999).

5. Rhode Island charges. Finally, the defendant argues

that what he claims was the dismissal of the original Rhode

17
Island charges against the defendant required suppression of the

evidence here. This argument fails at the threshold, because

there is no evidence that the Rhode Island charges were

dismissed. In arguments at the motion hearing, the defendant

asserted that dismissal had occurred, but the only remotely

relevant record evidence on the point is that a Rhode Island

court issued a suppression order in a case in which a person

named Jason Oliver was one of twenty-four defendants. Even

assuming the person so named was the defendant here, nothing in

the suppression order indicates that any charges against him,

let alone the charges on which the extradition request was

based, were ever dismissed. In the absence of such evidence, we

18
see no need to discuss what effect, if any at all, such a

dismissal might have on the suppression motion at issue here.

Order denying motion to
suppress affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ. 11),

Clerk

Entered: June 16, 2025.

11 The panelists are listed in order of seniority.

19