COMMONWEALTH vs. JASON CLEGG.

GRASSO, J. In this interlocutory appeal, the Commonwealth challenges a District Court judge's order allowing the defendant's

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motion to suppress evidence seized from a motor vehicle. At issue is whether the judge abused his discretion or committed other error of law in (1) denying the Commonwealth's request for a continuance when its sole witness, a police officer, failed to appear for the scheduled hearing, and (2) then allowing the defendant's motion. For the reasons that follow, we conclude that the judge erred.

1. Background. Because the officer who failed to appear for the scheduled evidentiary hearing was to be the only witness, the judge heard no evidence and made no factual findings concerning the contested search and seizure. To put the issues in context, we recite general background facts as set forth in the parties' briefs and as presented at the hearing before the motion judge.

On October 25, 2001, Attleboro police Officers Malley and Gosselin were dispatched to respond to a call. The caller related that she was inside her motor vehicle, a white car with New Hampshire registration parked in front of the Attleboro District Court, and that she was having a problem with a man who would be leaving the courthouse shortly. It was 10:51 A.M. and court was in session.

On arriving at that location, the officers observed a woman speaking on a cellular telephone inside the described vehicle. The officers also saw the defendant and another man walking towards the vehicle. Officer Malley approached the vehicle and asked the woman, later identified as Deborah Heath, what was wrong. She replied that the defendant had a substantial amount of marijuana in a black bag located in the trunk of her car. She also invited the officers to search the car.

Before searching the trunk, the police spoke to the defendant and requested his identification. When the police discovered an outstanding warrant, they placed the defendant under arrest. One of the officers then asked the defendant if he had any property in the car, and he stated that he did not. Officer Malley related the defendant's reply to Ms. Heath, who opened the trunk and pointed to a black bag that she said contained the marijuana. She told the police that the defendant and a friend grew and sold marijuana.

The strong odor of marijuana emanating from the bag was

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apparent to Officer Malley, who seized the bag. He then asked the defendant if the bag was his, and the defendant acknowledged that it was. Later, at the police station, the police opened the bag and discovered two large plastic bags of marijuana and drug paraphernalia inside. The defendant was charged with possession of a class D substance with intent to distribute, see G. L. c. 94C, § 32C, and possession of a class D substance. See G. L. c. 94C, § 34.

The docket discloses that the defendant, who gave his address as East Corinth, Vermont, failed to appear at various scheduled court appearances. In consequence, there issued default warrants that later were removed. On March 26, 2002, defense counsel filed a motion to suppress the marijuana found inside the bag taken from the vehicle. No affidavit accompanied the motion. See Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979). Nevertheless, the court continued the motion to May 7, 2002, for an evidentiary hearing. On May 7, another default warrant issued, but the default was removed that same day. The motion was continued to July 10, 2002, with the notation "NFC." [Note 1]

On July 10, the defendant, defense counsel, and the prosecutor appeared, but Officer Malley did not. The prosecutor informed the judge that the Commonwealth was unable to go forward on the motion: Officer Malley, its only witness, was in Maine for "personal reasons" and unavailable to the Commonwealth. The prosecutor moved for a continuance.

The judge probed further and learned from the prosecutor that Officer Malley had been present on May 7 and had received timely notice of the July 10 hearing through the Commonwealth's subpoena. The judge inquired whether the Commonwealth had any evidence or witnesses available. When the prosecutor responded that it did not, the judge concluded that no "valid exigent or emergency reason exist[ed] to prevent the police witness from appearing to testify" and "that for some unexplained reason, the police witness voluntarily absented himself . . . from the scheduled hearing, after notice." After

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reviewing the defendant's motion to suppress, the judge concluded, over the Commonwealth's objection, that by failing to present any evidence, the Commonwealth had failed to meet its burden of demonstrating that the challenged warrantless search and seizure satisfied constitutional requirements. He allowed the motion.

2. Discussion. The judge's allowance of the defendant's motion rests on two interrelated errors. First, the judge abused his discretion when he denied the Commonwealth's request for a continuance and required the Commonwealth to proceed to hearing on a matter in which it lacked its sole witness. See Commonwealth v. Super, 431 Mass. 492, 496-497 (2000). Further, the judge erred in allowing the motion to suppress because, without the requisite supporting affidavit, the defendant's motion did not satisfy his threshold burden of demonstrating that a search in the constitutional sense had occurred when the police opened the bag they had taken from Heath's vehicle. See Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986).

a. The continuance request. "Generally, '[t]he decision whether to grant a motion to continue lies within the sound discretion of the . . . judge . . . [and a] denial of a continuance will not constitute error absent an abuse of that discretion.' " Commonwealth v. Super, 431 Mass. at 496, quoting from Commonwealth v. Painten, 429 Mass. 536, 543 (1999). See Commonwealth v. Chase, 14 Mass. App. Ct. 1032, 1033 (1982). The judge's discretion is not unfettered, however, but bounded by important considerations. "In considering a request for a continuance, a trial judge should balance the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted." Commonwealth v. Super, 431 Mass. at 496-497, quoting from Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973). Among the factors a judge must consider is "[w]hether the failure to grant a continuance . . . would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice." Mass.R.Crim.P. 10(a)(2)(A), 378 Mass. 861 (1979). Here, as in Super, the judge's denial of the Commonwealth's motion to continue was an abuse of discretion.

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The Commonwealth had subpoenaed Officer Malley, and the need for his testimony was considerable. Indeed, as the only proffered witness at a suppression hearing wherein the Commonwealth ostensibly had the burden of proof, his testimony was indispensable. [Note 2] Moreover, other than the assistant district attorney's representation that the witness was absent for "personal reasons," the judge knew nothing as to the nature of these personal reasons and, consequently, lacked any basis for concluding that these reasons were not based on good cause. [Note 3]

Because the defendant was from Vermont, it was not unreasonable for the judge to conclude that some inconvenience and cost might arise were the defendant required to appear for the hearing at a future date. However, the defendant failed to apprise the motion judge of any prejudice to him from a continuance, nor do we discern any.

In the circumstances of this case, denying the Commonwealth's motion to continue and requiring the Commonwealth to proceed without evidence assured an outcome adverse to the Commonwealth and was tantamount to dismissal with prejudice. [Note 4] See Commonwealth v. Jackson, 27 Mass. App. Ct. 521, 523 (1989) (error to dismiss complaints with or without prejudice where no showing of misconduct by Commonwealth or prejudice to defendant). The judge's ruling suppressed essential evidence, without which further prosecution would be

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virtually impossible. Such a sanction should be reserved for "hard core transgressions," not a situation such as this where there is no basis for concluding that the Commonwealth was not acting in good faith or that the delay was other than unintentional. See Commonwealth v. Ortiz, 425 Mass. 1011, 1012 (1997) (showing of egregious misconduct or serious threat of prejudice required for dismissal with prejudice); Commonwealth v. Gonzalez, 437 Mass. 276, 280 (2002), cert. denied, 538 U.S. 962 (2003). Compare Commonwealth v. Joseph, 27 Mass. App. Ct. 516, 518-519 (1989) (dismissal without prejudice proper remedy when request for continuance properly denied).

Given the innumerable difficulties that attend getting parties, attorneys, witnesses, translators, and court personnel together, we understand that a conscientious judge might be frustrated when a witness with ample advance notice, especially a police officer, fails to appear for a case marked "no further continuances." However, the unexpected can, and often does, happen. The need to "move the business" expeditiously in busy trial courts must not lead to such draconian sanctions as occurred here. See Commonwealth v. Connelly, 418 Mass. 37, 38-39, 39-40 (1994) (Liacos, C.J., concurring). "[T]he public has a substantial interest in prosecuting those accused of crime and bringing the guilty to justice." Commonwealth v. King, 400 Mass. 283, 290 (1987).

Nor was the judge powerless to address Officer Malley's failure to appear. Because Officer Malley had received actual notice, among other options, the judge could deal with his nonappearance, as that of any witness, by issuing a warrant to compel his appearance. See G. L. c. 233, §§ 5, 6; Mass.R.Crim.P. 17(e), 378 Mass. 885 (1979). See also Commonwealth v. Rollins, 441 Mass. 114, 121 & n.3 (2004); Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 633 & n.3 (1992), S.C., 416 Mass. 97 (1993) (bench warrant and contempt power potent mechanism to compel presence of witnesses). When the absent witness later came before the court, the judge could probe any proffered justification for his earlier nonappearance and determine in a more reasoned way, what measures, if any, might be warranted. See Mass.R.Crim.P. 10(b), 378 Mass. 861 (1979) (where continuance causes unnecessary expenses to adverse

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party, judge may assess those expenses as costs). Cf. Commonwealth v. Gomes, 407 Mass. 206, 209 (1990) (hearing required to determine whether defendant's default was wilful or "solid"). That a judge might be reluctant to issue a bench warrant for a police officer without a full understanding of the reason behind his failure to appear merely underscores the importance of not visiting his unexplained nonappearance on the Commonwealth and depriving the public of its substantial interest in prosecuting those accused of crime. See Commonwealth v. King, supra.

b. Requirements for raising a suppression issue. The judge also erred when he ruled that the Commonwealth had failed to demonstrate that the search of the bag and discovery of the marijuana met constitutional requirements. Not every search or seizure implicates constitutional protections under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. D'Onofrio, 396 Mass. at 714. In this regard, Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979), imposes two essential prerequisites on a defendant who seeks to suppress evidence alleged to be the product of an illegal search or seizure: (1) a motion setting forth with particularity, in numbered paragraphs, the grounds, see Commonwealth v. Robie, 51 Mass. App. Ct. 494, 499 (2001); and (2) an affidavit based on personal knowledge of the facts relied on in support of the motion. See Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310, 313 (1986); Commonwealth v. Santiago, 30 Mass. App. Ct. 207, 212-213 (1991). The purpose of the affidavit requirement is "to give the judge considering the motion a statement of anticipated evidence, in reliable form, to meet the defendant's initial burden of establishing the facts necessary to support his motion . . . and . . . to provide the Commonwealth with fair notice of the specific facts relied on in support of the motion set forth in a form, i.e., under oath, which is not readily subject to change by the affiant." Commonwealth v. Santosuosso, supra.

Here, the defendant failed to file any affidavit conforming to the requirements of the rule and, consequently, failed to satisfy his initial burden of demonstrating any expectation of privacy in the bag taken from Heath's vehicle. This failure alone would

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have warranted denial of the motion to suppress without a hearing, see Commonwealth v. Smallwood, 379 Mass. 878, 888 (1980); Commonwealth v. Chase, 14 Mass. App. Ct. 1032, 1034 (1982), or at the very least, the insistence on a proper affidavit before scheduling the motion for hearing. See Commonwealth v. McColl, 375 Mass. 316, 322 (1978).

The requirements of rule 13 are not empty formalities. Notwithstanding the time constraints in busy court sessions, it is incumbent on a judge to ascertain that the requirements of the rule have been satisfied before scheduling an evidentiary hearing on a proffered motion to suppress. See Commonwealth v. Robles, 48 Mass. App. Ct. 490, 491 n.1 (2000). Had such been done here, no evidentiary hearing would have been scheduled on the defendant's motion to suppress without the obvious deficiency first being addressed.

Absent an affidavit from the defendant setting forth a factual basis for a claimed expectation of privacy in the bag, there was no legal basis for concluding that a search in the constitutional sense had occurred. The order allowing the defendant's motion to suppress is reversed.

So ordered.