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Com. v. Davis12/16/1996
defendant cooperated and complied peaceably with the trooper's requests. Compare Commonwealth v. Johnson, 413 Mass. 598, 601, 602 N.E.2d 555 (1992). The defendant had a valid license and registration. Nothing about her clothing or movements suggested that she might be armed and dangerous. Contrast Commonwealth v. Fraser, 410 Mass. 541, 545, 573 N.E.2d 979 (1991). Larose had no knowledge of any facts about the defendant before the frisk that reasonably could have put the officer in fear for her safety. Cf. Commonwealth v. Crowley, 13 Mass. App. Ct. at 915, 430 N.E.2d 450. As a result of the illegality, the fruits of the search must be suppressed. Commonwealth v. Ferrara, 376 Mass. 502, 505, 381 N.E.2d 141 (1978). Commonwealth v. Ellsworth, ante 554, 557 (1996). Accordingly, we affirm the Judge's order.
Also raised on this appeal is a contention by the defendant that the Commonwealth has improperly brought this interlocutory appeal directly to the Appeals Court, rather than first obtaining leave from a single Justice of the Supreme Judicial Court, as required by Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979) (applicable to District Court jury sessions) (as then in effect). We hold that the Commonwealth properly presented this appeal pursuant to Mass.R.Crim.P. 15(a), 378 Mass. 882 (1979) (as then in effect)
The Commonwealth instituted the criminal proceedings at hand against the defendant in March 1994, subsequent to the adoption of the "one-trial system" in the District Courts. At that time, however, Mass.R.Crim.P. 15(a)(2), 378 Mass. 882 (1979) (applicable to District Court nonjury sessions) provided that the Commonwealth could prosecute an interlocutory appeal to the Appeals Court from a District Court Judge's decision granting a motion to suppress. The defendant brought her motion to suppress in the District Court, i.e., the first tier of the one-trial system. Because a District Court Judge hears this type of motion before a defendant is transferred to the second tier of the system, the jury session, rule 15(a) applied to the circumstances of this case. Therefore, the defendant's contention that the Commonwealth should have proceeded under rule 15(b), which at the time of this appeal applied to interlocutory appeals from the Superior Court and jury sessions in the District Court, is incorrect.
Order allowing motion to suppress affirmed.
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