BOTSFORD, J.
This is an interlocutory appeal brought by the Commonwealth from an order of a Boston Municipal Court judge allowing the defendants' motion to suppress. The procedural history reflects that the Commonwealth's notice of appeal was filed significantly late in the trial court, and its application to the single justice of this court for leave to appeal was filed significantly late in the county court. In neither instance did the Commonwealth file a timely motion to enlarge the time for filing. A single justice allowed the application, and the case was entered in the Appeals Court. In an unpublished order, a panel of that court dismissed the appeal on a jurisdictional ground, believing that it had no authority to authorize the late-filed notice of appeal. We granted the Commonwealth's request for further appellate review. For the reasons explained hereafter, we do not dismiss the appeal. Rather, we affirm the order allowing the motion to suppress. In addition, because there has sometimes been ambiguity in the manner in which the single justices of this court have applied the procedural rules governing the timeliness of interlocutory appeals of orders on motions to suppress, we set out at the end of this opinion a new framework that will apply henceforth to such appeals.
1. Background. a. Facts. On April 28, 2009, complaints issued from the Boston Municipal Court against both defendants, Korey
On April 25, 2009, a shooting occurred at 49 Rosseter Street in the Dorchester section of Boston. A woman suffered a grazed forehead during the event, although it was not clear that a bullet actually caused the injury. After firing his weapon, the shooter entered a Toyota Camry automobile and drove away. The victim described the shooter as a black man between the ages of twenty and twenty-three; she also provided the police with the license plate number of the Camry. Two days later police officers identified a Toyota Camry with the same license plate number near the location of the shooting. The officers observed Jordan and Greene as well as a third person, Phillip Jackson,
Jordan, Greene, and Jackson entered the Camry with Jordan in the driver's seat, Greene in the passenger seat, and Jackson in the back seat. The officers knew that the Camry was rented, but they did not have any information about the identity of the renter or the terms of the rental contract. The officers stopped the Camry shortly after Jordan began driving away; he pulled over immediately.
Officer Serra then proceeded to search the Camry for a "hide" for weapons, something he had expertise in identifying. On entering the car, he noticed "non-factory lines" around the center console area. The officers lifted up the console, exposing the barrel of a hidden firearm. At this point the defendants and Jackson were arrested.
b. Procedural history. The motion judge held an evidentiary hearing on the defendants' motion to suppress on February 3, 2010. He heard arguments from counsel on May 3 and allowed the motion on November 17.
The Commonwealth did not file its application to the single justice for leave to appeal on or before the extended deadline,
On March 31, 2011, 133 days after the issuance of the order allowing the motion to suppress, the Commonwealth filed in the county court its application to the single justice for leave to appeal. The application was not accompanied by any motion to enlarge the time for filing it, nor did it mention that the notice of appeal and the application for leave to appeal were both filed substantially late.
On September 7, 2012 — approximately twenty-two months after the motion judge's suppression order, approximately sixteen months after its interlocutory appeal had been allowed to proceed, and just three days before the case was scheduled to be heard in the Appeals Court — the Commonwealth filed a motion in the county court "to accept as timely filed" both its notice of appeal previously filed in the trial court and its application for leave to pursue the appeal previously filed in the county court.
The case was argued in the Appeals Court on September 10, 2012. On October 17, 2012, a panel of that court issued an unpublished order dismissing the appeal. The panel determined that the Appeals Court lacked jurisdiction to hear this interlocutory appeal because the Commonwealth's notice of appeal had not been timely filed. The panel, apparently believing that the Commonwealth had filed a motion in the trial court for an extension of time in which to file its notice of appeal,
2. Applicable statute and rules. We begin with a review of the applicable statute and court rules. Neither the Commonwealth nor a defendant has an absolute right to take an interlocutory appeal from a trial court ruling on a motion to suppress. However, under G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), both the Commonwealth and a defendant have a right and opportunity to apply to a single justice of this court for leave to pursue such an appeal.
Rule 3 (a) of the Massachusetts Rules of Appellate Procedure, as amended, 378 Mass. 927 (1979), addresses the filing of notices
Rule 15 of the Massachusetts Rules of Criminal Procedure is, in the language of rule 4 (b), a "court rule" that "otherwise provide[s]" the time in which a notice of appeal must be filed. Rule 15 (a) (2)
As rule 15 (b) (1) indicates, its ten-day filing period for the notice of appeal is not absolute. The rule expressly provides that a judge of the trial court or a single justice of this court may grant "additional time" in which to file. How much additional time, when it may be sought, and the standard by which requests for additional time will be evaluated are not defined in the rule itself, but they are addressed in the Massachusetts Rules of Appellate Procedure that deal with extensions of time.
In particular, as the Appeals Court correctly recognized in its order of dismissal in this case, a judge in the trial court has authority under Mass. R. A. P. 4 (c),
Rule 4 (c) addresses only the authority of a trial court judge to enlarge time; different appellate rules govern the authority of a single justice and an appellate court to enlarge the time prescribed by rule 15 (b) (1) for filing the notice of appeal. In particular, Mass. R. A. P. 2, 365 Mass. 845 (1974),
3. Discussion. a. Timeliness of the Commonwealth's appeal. The Commonwealth claims that the Appeals Court erred in concluding that it lacked jurisdiction to reach the merits of this interlocutory appeal. Its delays and lack of explanation may have been regrettable, the Commonwealth argues, but they were essentially irrelevant because the single justice of this court, by exercising his discretion to allow the Commonwealth's application for leave to appeal, effectively cured any and all time-related procedural defects that may have existed. In the Commonwealth's view, the single justice's act of allowing the application and reporting the case to the Appeals Court indicates that he acted implicitly pursuant to Mass. R. A. P. 2 to suspend all rules relating to time limits for filing the notice of appeal and the application for leave to appeal. The Commonwealth claims that because it did in fact file a notice of appeal in the trial court (albeit late), and the single justice did not condition review of the merits in any manner, the Appeals Court was required to treat the appeal as procedurally proper and proceed directly to the merits.
We reject the contention that the single justice acted implicitly pursuant to rule 2 to suspend the otherwise applicable time requirements of the pertinent rules. Rule 2 requires a showing of "good cause" for suspension of the rules; moreover, the suspension of generally applicable procedural rules is an extraordinary, not an ordinary, event. We are loath to conclude that the single justice, on his own motion, without being requested, and without saying that he was doing so, meant to suspend (or should be
That being said, we agree with the Commonwealth that the Appeals Court had jurisdiction to allow the Commonwealth's motion for the late filing of its notice of appeal. As earlier suggested, the letter and spirit of Mass. R. A. P. 2 and 14 (b) gave the Appeals Court the power to act — provided the notice of appeal was filed within one year of the issuance of notice of the order the Commonwealth sought to appeal from, which it was in this case. See Commonwealth v. White, 429 Mass. 258, 263-264 (1999).
The Commonwealth's appeal, in any event, is now before this court for further appellate review, and insofar as the late-filed notice of appeal is concerned, this court is now the "appellate court" for purposes of Mass. R. A. P. 2 and 14 (b). We have thus considered the lateness issue anew. On the present record, we would be well within our discretion to conclude that the Commonwealth's late filing of its notice of appeal and its application for leave to appeal were egregious and inexcusable. The Commonwealth's repeated missteps in terms of compliance with the procedural rules governing interlocutory appeals, individually and collectively, reflect a complete disregard of court rules. The Commonwealth's noncompliance with the rules is exacerbated by the continued absence of any showing of good cause or even explanation for its repeated delays. Rather than dismiss the appeal, however, we shall address the merits. We do so because, we acknowledge, there sometimes has been a lack of clarity in the manner in which the single justices of this court have, in the past, applied the procedural rules governing the timeliness of interlocutory appeals of orders on motions to suppress.
b. The merits: validity of the search of the car. The Commonwealth argues that the motion judge erred in allowing the defendants' motion to suppress because (1) the stop of the Camry was justified because the officers had a reasonable suspicion that the Camry had been involved in a shooting in almost the same location two days earlier; (2) the exit order as well as the search of the Camry console were justified by a reasonable concern for safety on the part of the officers; and (3) in any event, the search of the console for a firearm was permitted under the automobile exception because the police had probable cause to believe the Camry had been involved in the shooting incident two days earlier.
Second, the facts found by the motion judge do not support the Commonwealth's position that there was probable cause to justify the stop of the Camry. The judge found that although the license plate of the Camry in which the defendants were stopped on April 27 matched the license plate of the Camry involved in the shooting two days earlier, the vehicle was rented, and the officers did not know the identity of the renter or the terms of the rental arrangement. The judge concluded from these facts that two days was more than sufficient time to remove a gun from the car, and the absence of details about the car's rental weakened any link between the shooter and the defendants in any event. As for the connection of Jordan and Jackson to a firearm incident that had occurred two months earlier, the judge found that neither Jordan nor Jackson was charged with a crime in relation to that incident and that the Commonwealth was not "forthcoming" with information that connected that incident to the shooting incident occurring two days before the stop. The judge also determined that while Jordan and Jackson matched the victim's description of the shooter (a young, black male), the vague, general character of the description was not adequate to support a finding of probable cause; and that while the two defendants were nervous when stopped, this fact in itself was not enough to establish probable cause. Finally, the judge found that Officer Serra did not discover the "`non-factory' lines" around the center console until he entered the vehicle after the search had begun.
"We accept a judge's findings of fact, in the absence of clear error, and grant substantial deference to the conclusions of law based thereon." Commonwealth v. Motta, 424 Mass. 117, 121 (1997), citing Commonwealth v. Bakoian, 412 Mass. 295, 297-298
In sum, based on the record before us, the Commonwealth has failed to show that the allowance of the defendants' motion to suppress was erroneous. The motion judge's order allowing the motion is affirmed.
c. Rule 15 procedure in future cases. Numerous applications to single justices for leave to pursue interlocutory appeals from orders on motions to suppress are filed in the county court each year by both defendants and the Commonwealth.
Going forward, we shall require a party (the Commonwealth or a defendant) seeking to take an interlocutory appeal from an order on a motion to suppress to demonstrate, to the satisfaction of the single justice, that there has been compliance with the rules concerning timeliness. Pursuant to rule 15 (b) (1), the applicant must file a notice of appeal in the trial court and an application for leave to appeal in the county court within ten days of issuance of notice of the suppression order.
If a single justice is presented with both an application for leave to appeal and a motion to enlarge or suspend the time for filing the notice of appeal, the application, or both, he or she will first rule on the threshold procedural motion. If that motion is denied, the application for leave to appeal will then be summarily denied as well, because of the noncompliance with the timing requirements. The single justice will proceed to rule on the substantive merits of the application for leave to appeal if, and only if, he or she first allows the motion to enlarge or suspend time. The single justice will then determine, as Mass. R. Crim. P. 15 (a) (2) requires, whether allowing the interlocutory appeal "will facilitate the administration of justice." Commonwealth v. Cavanaugh, 366 Mass. 277, 279 (1974).
Implementation of these procedures will help to ensure that in the future, when a single justice of this court allows an application for leave to appeal and reports the appeal to the Appeals Court pursuant to rule 15 (a) (2), the single justice will have been alerted to, and will have already resolved, any questions concerning the timeliness of the notice of appeal and the application. Accordingly, we would expect the Appeals Court, when faced with such an appeal, to focus only on the substantive merits of the interlocutory appeal and not to revisit any questions about late filing. Similarly, if the single justice reports the appeal to this court, we would expect to focus solely on the merits.
If, in a currently-pending appeal, the application for leave to appeal was not timely filed, and there is no indication that this court's single justice previously addressed that issue, the appellate court in which the case is pending, or its single justice, may extend the time for filing if an extension is warranted. We recognize that the appellate rules do not govern extensions of time for filing applications pursuant to rule 15, and that, under a literal interpretation of rule 15 (b) (1), only a "trial judge" or a "single justice of the Supreme Judicial Court" can extend the time for filing an application. We believe, however, with respect to this very limited class of pending, previously-authorized cases, that the spirit of the rule would best be served by permitting either appellate court or a single justice of either court to extend the time for the application. For these cases only, as a matter of general superintendence, we shall recognize the authority of the Appeals Court and its single justices to entertain and act on such motions in cases that are pending there.
d. Possible rule changes. This case has led us to question
We also question the advisability of having a standing order of this court that openly conflicts with a controlling court rule in such an important respect. See note 13, supra. We will therefore refer the standing order to this court's rules committee for its reconsideration.
4. Conclusion. For the reasons discussed, the order allowing the defendants' motion to suppress is affirmed.
So ordered.
It is important to note that rule 4 (c) governs only extensions of time for filing a notice of appeal in the trial court. Neither rule 4 (c) nor any of the other appellate rules governs extensions of time for the ten-day period set out in Mass. R. Crim. P. 15 (b) (1) for filing an application to a single justice of this court for leave to pursue the interlocutory appeal. The authority of a trial court judge or a single justice to extend the time for filing an application derives from rule 15 (b) (1), not from the appellate rules.