LENK, J.
A single justice of this court, treating as petitions brought under G. L. c. 211, § 3, the defendants' respective appeals from court orders compelling each of them to provide a
1. Background. The defendants, Eugene and Leslie Bertini,
In moving for an order to compel the defendants to provide buccal swabs, the Commonwealth presented the following facts. On April 25, 2011, a man wearing a hooded sweatshirt entered
Soon thereafter, police reviewed video surveillance footage of the robbery and recognized Eugene, whom they knew from prior interactions. Police visited the defendants' home, but did not find either Eugene or Leslie. When Eugene learned of the visit, he telephoned the Wakefield police department, using his cellular telephone, to ask why police had been to his home. He told police that he would be willing to speak with them, but that he was in New Hampshire and would not be able to meet them in person for "some time." However, officers were able to trace the location of Eugene's cellular telephone to a motel in Saugus.
Members of the Wakefield and Saugus police departments subsequently located Eugene and Leslie in a room in the motel. After Leslie allowed the officers to enter the room, the officers saw the clothing they had observed Eugene wearing in the video surveillance footage. Leslie told the officers that she and Eugene had been in an automobile driven by her mother, that Eugene had left the automobile at an intersection near the gasoline station, that she had had an "idea" Eugene was going to conduct the robbery, that her mother had not known anything about the robbery, and that she had directed her mother to park on a side street to wait for Eugene to return to the automobile.
Police searched the motel room
On January 19, 2012, the Commonwealth filed a motion in the Superior Court for an order to compel both defendants to provide a buccal swab for the purpose of DNA testing. At a
After the defendants informed the judge, through counsel, that they would not cooperate with the court order, the judge allowed the Commonwealth's motion to employ "such reasonable force as necessary" in obtaining the swabs. The judge allowed the defendants' motions for a stay of the order so that they could pursue interlocutory appeals.
On February 2, 2012, Leslie filed an application before a single justice of this court for leave to pursue interlocutory review of the allowance of the Commonwealth's motion, pursuant to Mass. R. Crim. P. 15 (a) (2),
2. Discussion. a. Propriety of review. The defendants disagree as to the proper means by which to seek review of the judge's order. As stated, Leslie filed her appeal as an application for leave to pursue interlocutory review under Mass. R. Crim. P. 15 (a) (2), while Eugene filed his appeal as a petition for relief under G. L. c. 211, § 3.
The Commonwealth contends, in accordance with Leslie, that the proper means by which the defendants may seek review is an application for interlocutory review under Mass. R. Crim. P. 15 (a) (2). It further argues that the defendants' appeals from the single justice's denial of relief are therefore not properly before us, since a defendant may not appeal to the full court from a single justice's denial of an interlocutory appeal under Mass. R. Crim. P. 15. See Cowell v. Commonwealth, 432 Mass. 1028, 1028 (2000); S.J.C. Rule 2:21 (3). Leslie maintains that, notwithstanding this general rule, she should be permitted to appeal to the full court because the propriety of a court order authorizing the Commonwealth to use force in obtaining a buccal
General Laws c. 211, § 3, establishes this court's "general superintendence" power over "all courts of inferior jurisdiction." A petition pursuant to G. L. c. 211, § 3, is the proper avenue by which to seek relief where "no other remedy is expressly provided." We have previously considered appeals from pretrial orders compelling the production of DNA samples brought by way of petitions under G. L. c. 211, § 3. See, e.g., Brown v. Commonwealth, 445 Mass. 1016, 1016 (2005); White v. Commonwealth, 439 Mass. 1017, 1017-1018 (2003); Cummins v. Commonwealth, 433 Mass. 1005, 1005-1006 (2001).
The Commonwealth relies on language in Matter of Lavigne, 418 Mass. 831, 833 (1994) (Lavigne), in support of its argument that such appeals must instead be brought as applications for leave to pursue interlocutory review of an order deciding a motion to suppress. See Mass. R. Crim. P. 15 (a) (2). In Lavigne, supra, we directed that a party seeking to appeal an order granting (or denying) a police request to access a blood sample that had already been taken pursuant to a search warrant should do so pursuant to Mass. R. Crim. P. 15, even though the party had not been charged with a crime and there was no motion to suppress at issue.
We conclude that it is wise to confine the use of Mass. R. Crim. P. 15 contemplated in Lavigne, supra at 832, to the circumstances at issue there — that is, cases involving a court order permitting the Commonwealth to access blood or perhaps other bodily fluids that have already been taken pursuant to a search warrant, preindictment, and outside the context of a grand jury investigation. See Matter of a Grand Jury Investigation, 435 Mass. 1002, 1002-1003 (2001) (affirming denial by single justice of petition for relief under G. L. c. 211, § 3, from order compelling production of blood sample in connection with grand jury investigation; Lavigne described as distinguishable because blood sample there obtained pursuant to search warrant). Accordingly, we adhere to our established practice and conclude that the single justice correctly treated the defendants'
b. Order of the single justice. The single justice concluded that the defendants' petitions failed to meet the standard of "exceptional circumstances" involving "irremediable error" required to allow interlocutory review under G. L. c. 211, § 3. See Beckman v. Commonwealth, 377 Mass. 810, 812 (1979); Gilday v. Commonwealth, 360 Mass. 170, 171 (1971). We review a decision of the single justice denying relief under G. L. c. 211, § 3, only for "clear error of law or abuse of discretion." Caggiano v. Commonwealth, 406 Mass. 1004, 1005 (1990).
"Generally, we follow a policy of the nonappealability of interlocutory orders." Matter of a Grand Jury Subpoena, 411 Mass. 489, 493 (1992). "Consolidating review of all the issues raised in a case in a single, comprehensive appellate proceeding, it is hoped, eliminates some delay and also fosters better informed decisions." See id., and cases cited. We therefore allow interlocutory review under G. L. c. 211, § 3, only where "there are substantial claims alleging violation of the appellant's substantive rights," and the error complained of is "irremediable so that an order for a new trial in the normal process of appeal will not put the defendant in statu quo." Beckman v. Commonwealth, supra. See Sabree v. Commonwealth, 432 Mass. 1003, 1003-1004 (2000), citing Matthews v. D'Arcy, 425 Mass. 1021, 1022 (1997), and Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996) ("We have repeatedly held that relief under G. L. c. 211, § 3, is properly denied where there are other routes by which the petitioning party may adequately seek relief").
Here, there is no question that the defendants make substantial claims alleging violations of substantive rights, as the taking of a buccal swab implicates "the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures." Commonwealth v. Maxwell, 441 Mass. 773, 777 (2004). The single justice concluded, however, that the error complained of would not be irremediable through
The defendants complain that the motion judge erred in ordering them each to provide a buccal swab.
Here, any harm resulting from the evidentiary use to which the swabs might be put is fully remediable on direct appeal. If either of the defendants provides DNA evidence that is admitted at trial, and if the defendant is then convicted, he or she may obtain review on direct appeal of the propriety of the court order compelling the production of such evidence. To the extent that that defendant was erroneously ordered to provide the buccal swab, and to the extent that the conviction relies on evidence derived from the swab, the conviction may be vacated and a new trial ordered.
Further, the taking of a buccal swab itself, without more, is not a substantial bodily intrusion warranting interlocutory review under G. L. c. 211, § 3. See Gilday v. Commonwealth, supra ("Only in the most exceptional circumstances will we review interlocutory rulings in criminal cases under our general superintendence powers"). "[A] buccal swab is no more intrusive than the taking of a blood sample," Commonwealth v. Maxwell, supra, which is itself a "relatively minor intrusion." See Commonwealth
However, the judge's order did not merely require the defendants each to provide a buccal swab; it further authorized the Commonwealth to use "reasonable force" in obtaining the swabs. Therefore, we must determine whether, in the circumstances, any harm resulting from the forced taking of a buccal swab would be irremediable on direct appeal. See Beckman v. Commonwealth, supra.
Eugene contends that "the harm of physical and forceful bodily intrusion is irreparable." However, as stated, the physical intrusion occasioned by the taking of a buccal swab is not so significant as to warrant interlocutory review under G. L. c. 211, § 3. While the forced, as opposed to the consensual, taking of a buccal swab likely occasions a greater level of intrusion, the judge authorized the Commonwealth to employ only "such reasonable force as necessary" to obtain the swabs. Thus, the authorization to use force will only become relevant to the degree that the defendants refuse to comply with the order — an order that is mandatory, and with which they are legally compelled to comply. See Commonwealth v. Blais, 428 Mass. 294, 300-301 (1998). The defendants have not alleged any facts suggesting that the use of force would give rise to any special, irremediable injuries in this case.
In the circumstances here, we hold that the single justice did
Judgments affirmed.