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24-P-1152 Appeals Court
COMMONWEALTH vs. ROBERT IVARSON.
No. 24-P-1152.
Middlesex. September 12, 2025. – January 16, 2026.
Present: Vuono, Massing, & Allen, JJ.
Forfeiture Proceeding. Waiver. Firearms. Search and Seizure, Warrant. Practice, Criminal, Waiver, Judicial discretion. Words, "Public interest."
Indictments found and returned in the Superior Court Department on May 9, 2017, October 26, 2017, and May 29, 2018.
Motions to dispose of seized property and for return of property were heard by Laurence D. Pierce, J.
Robert H. D'Auria for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.
MASSING, J. The defendant, Robert Ivarson, appeals from an
order allowing the Commonwealth's motion to forfeit certain
property seized from the defendant's home during the execution
of a search warrant and denying the defendant's motion to return
the same property. General Laws c. 276, § 3, states that, 2
except for specified categories of stolen property, "property
seized in execution of a search warrant shall be disposed of as
the court or justice orders and may be forfeited and either sold
or destroyed, as the public interest requires, in the discretion
of the court or justice." Under Commonwealth v. James, 493
Mass. 828, 838 (2024), which was decided after the order of
forfeiture at issue here was entered, hearings concerning the
forfeiture of property conducted under § 3 must comport with the
procedures set forth in G. L. c. 276, §§ 4 to 8. For the first
time on appeal, the defendant claims that his forfeiture
proceedings were procedurally flawed because §§ 4 to 8 were not
followed. He also asserts that the motion judge erred in
applying § 3 to seized property that was not described in the
search warrant, and in determining that forfeiture was in the
public interest. Concluding that the defendant waived his
procedural argument, that the waiver is not excused by the so-
called "clairvoyance" exception, and that the judge did not
otherwise err or abuse his discretion in issuing the forfeiture
order, we affirm.
Background. In mid-December 2016 a family reported to the
police that they, the only Black family residing in their
neighborhood, had been the victims of an ongoing campaign of
anonymous harassment over the past year. Between thirty and
forty times, they had found banana peels thrown into their 3
driveway. The week before they called the police the episodes
had escalated; they had found banana peels on their car in the
driveway every day that week. An investigation, which included
video surveillance of the neighborhood, revealed that the
perpetrator was the defendant, who lived on the same street as
the victims.
In early January 2017, the police obtained a warrant
authorizing them to search the defendant's residence for
evidence of criminal harassment, particularly "bananas of any
kind." The officers knew that the defendant had a lengthy
criminal history, including felony convictions for assault and
battery by means of a dangerous weapon and assault with a
firearm, as well as numerous other convictions for firearms
violations. While executing the warrant, the officers had
conversations with the defendant's parents and a friend of the
defendant that led them to believe that the defendant illegally
possessed numerous firearms and was storing them in his bedroom.
Later that day the police obtained a second warrant, which
authorized a search for evidence of unlawful possession of
firearms, specifically, "firearms, ammunition, and any documents
evidencing the purchase, sale, custody or control of those
items." In executing the second warrant, the police seized an
arsenal of firearms and ammunition. They also seized some items
that were not described in the warrant, but were related to the 4
crimes they were investigating, including firearms accessories
such as holsters, scopes, ammunition loading devices, and
cleaning kits, as well as Confederate and Nazi paraphernalia.
A grand jury indicted the defendant on over one hundred
firearms-related charges, including thirty charges of unlawful
possession of assault weapons and large-capacity firearms and
feeding devices. For most of these crimes he was charged as an
"armed career criminal" with two qualifying prior convictions.
See G. L. c. 269, § 10G (b). With respect to the crimes against
his neighbors, the defendant was indicted on charges of criminal
harassment, see G. L. c. 265, § 43A (a), and criminally
violating their civil rights, see G. L. c. 265, § 37. In
February 2023 he pleaded guilty to 111 crimes and to being a
prior violent offender with one predicate offense. See G. L.
c. 269, § 10G (a). He was sentenced to ninety-nine concurrent
State prison terms of from seven to nine years, followed by
twelve concurrent three-year terms of probation.
Following sentencing the Commonwealth filed its motion "to
Dispose of Seized Property" on April 21, 2023, and the defendant
filed his motion "for Return of Property" on June 15. A virtual
hearing was held on August 18 before the same judge who had
taken the defendant's guilty pleas and imposed his sentences.
As explained in more detail below, the judge ordered forfeiture
of most of the property seized in execution of the search 5
warrants, returned some of it to the defendant, and directed
that some items be restored to a third party.
Discussion. 1. Applicability of G. L. c. 276, §§ 4 to 8.
After the judge's order in this case, the Supreme Judicial Court
decided James, holding that the procedures set forth in G. L.
c. 276, §§ 4 to 8, must be followed in forfeiture proceedings
held under G. L. c. 276, § 3. See James, 493 Mass. at 838.
Sections 4 through 6 of c. 276, pertain to notice and scheduling
of the forfeiture hearing. Section 7 provides for the
disposition of property that is forfeited. Section 8 describes
the process for appealing to the Superior Court from a decree of
forfeiture entered in the District Court. See James, supra at
834. The applicable procedures of §§ 4 to 8 were not followed
here, but, unlike in James, the defendant did not raise any
procedural objection in the Superior Court. See James, supra at
838-839 (where defendant raised issue of procedural deficiencies
in renewed motion for return of property, and Superior Court
judge reached merits of defendant's claim, issue not waived).
The defendant argues that we should forgive his failure to
preserve the issue under the clairvoyance exception to the
waiver doctrine.
a. Clairvoyance exception. To assess the applicability of
the clairvoyance exception, we begin by noting that the James
decision turned on "questions of statutory interpretation." 6
James, 493 Mass. at 834.1 The result was dictated by the plain
language of G. L. c. 276, § 3, and §§ 4 to 8, considered in
light of the statute's history. See James, supra at 833-838.
The clairvoyance exception, however, "applies to errors of a
constitutional dimension 'when the constitutional theory on
which the defendant has relied was not sufficiently developed at
the time of trial or direct appeal to afford the defendant a
genuine opportunity to raise his claim at those junctures of the
case.'" Commonwealth v. Randolph, 438 Mass. 290, 295 (2002),
quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984).
Because the James decision did not turn on questions of
constitutional dimension, the clairvoyance exception does not
apply. In any event, the interpretation of the statute that the
court adopted in James was not so novel that defense counsel
would have to have been clairvoyant to think of it. See
Commonwealth v. Ashford, 486 Mass. 450, 453 (2020) ("the
interpretation we give the statute usually reflects the court's
view of its meaning since the statute's enactment" [citation
omitted]). Nor was the argument that G. L. c. 276, §§ 4 to 8,
1 Because James involved issues of statutory construction, the Supreme Judicial Court could have made its decision applicable only to future cases. See Commonwealth v. Ashford, 486 Mass. 450, 453–454 (2020); Commonwealth v. Bastos, 103 Mass. App. Ct. 376, 380-381 (2023). For the purposes of this appeal, we assume that the court intended for the James decision to have full retroactive effect, which is the general rule in such cases. 7
applied foreclosed by established precedent such that the
defendant did not have a genuine opportunity to raise the claim.
See, e.g., Commonwealth v. Vasquez, 456 Mass. 350, 356-359
(2010) (waiver excused where prior binding decision made it
futile to raise claim). The only case even hinting at a
different interpretation of the statute, Beldotti v.
Commonwealth, 41 Mass. App. Ct. 185, 189 (1996), cert. denied,
520 U.S. 1173 (1997), "gave no consideration whether the
procedural requirements in §§ 4 to 8 had been followed, and it
[was] unclear whether either party raised the issue on appeal."
James, 493 Mass. at 838.2 Because the clairvoyance exception is
inapplicable, we do not "review the claim as if it had been
properly preserved." Randolph, 438 Mass. at 295. Rather, we
assume, without deciding, that the claim is reviewable under the
substantial risk of a miscarriage of justice standard. See id.
at 294-295.
b. Review for substantial risk of a miscarriage of
justice. Although the notice of forfeiture proceedings did not
comply with the notice procedures set forth in G. L. c. 276,
§§ 4 to 6, the defendant and other interested parties had
effective, actual notice. The Commonwealth filed its motion for
2 In James, the court stated that "to the extent that Beldotti may be read as allowing forfeiture to be accomplished outside the parameters of §§ 4 to 8, it is not correct and not to be followed." James, 493 Mass. at 838. 8
forfeiture in April 2023; the defendant filed his motion for
return of property, supported by a comprehensive memorandum, on
June 15; and a hearing was held two months later. Counsel for
the defendant appeared and argued the motions. A person
claiming ownership of some of the seized firearms was permitted
to be heard (and in fact was successful in reclaiming that
property). While the defendant's mother did not receive formal
notice, she listened to the hearing and submitted an affidavit a
few days later describing the family history of certain items
that the defendant possessed and wanted returned.
The purpose of "notice and a trial" under §§ 4 to 8 is "so
a judge may evaluate, on a full factual record, the merits of
the competing arguments to determine if a forfeiture decree is
in the 'public interest' under § 3." James, 493 Mass. at 840,
quoting G. L. c. 276, § 3. In James itself the court noted,
"Indeed, this case hinges on numerous factual disputes and thus
requires a fact finder to resolve them." James, supra. Here,
the defendant does not point to any unresolved factual disputes
and does not state what additional evidence, if any, he would
have provided, or how anything would have been different had
there been strict compliance with §§ 4 to 8. The arguments that
the defendant makes on appeal are essentially the same arguments
he made in his motion and at the motion hearing. 9
The Commonwealth, by contrast, points to record materials
that it might have introduced in an evidentiary hearing on
whether forfeiture was in the public interest. In anticipation
of trial, the Commonwealth filed a motion in limine to allow
admission of selected statements the defendant had made in
telephone calls that were recorded while he was held pretrial at
the house of correction. In those calls, the defendant made
racist and antisemitic remarks, said that the "next time" he
would throw a rock at his neighbors instead of banana peels, and
expressed his intent to get a gun "within a day of being out of
here." We are confident that strict adherence to §§ 4 to 8
would not have had a favorable, material influence on the
result; therefore, we discern no substantial risk of a
miscarriage of justice. See Commonwealth v. Alphas, 430 Mass.
8, 13 (1999).
Finally, we note that the defendant's brief makes two
passing references to entitlement to a jury trial on the
forfeiture issue, without argument or citation to legal
authority. Nothing in James suggests the right to a jury trial.
To the contrary, the decision refers to "a judge" evaluating the
evidence and making the public interest determination. James,
493 Mass. at 840. At oral argument, the defendant suggested
that entitlement to a jury trial might derive from G. L. c. 276,
§ 8, which states that appeals from District Court decrees of 10
forfeiture in the Superior Court "shall conform so far as may be
to proceedings in criminal cases." As the issue was not
adequately raised at any time, we decline to address it further.
See Commonwealth v. Richardson, 479 Mass. 344, 357 n.17 (2018)
(appellate court need not consider claims first raised at oral
argument); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996)
(claims "not supported by reasoned argument or citations" do not
rise to level of appellate argument and need not be considered);
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019) (issues presented in brief must be supported with
citations to authorities, and court need not address issues not
argued in brief).
2. Items not described in the warrant. The warrants
issued in this case authorized searches of the defendant's house
for evidence of criminal harassment and for evidence of unlawful
possession of firearms, specifically, "firearms, ammunition, and
any documents evidencing the purchase, sale, custody or control
of those items." In executing the second warrant, the police
seized some items that were not described in the warrant, but
that they recognized as related to the crimes they were
investigating. These items were lawfully seized under the plain
view doctrine, and the defendant does not contend otherwise.
"Under [the plain view] doctrine, if police are lawfully in a
position from which they view an object, if its incriminating 11
character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without
a warrant." Commonwealth v. Santana, 420 Mass. 205, 211 (1995),
quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). See,
e.g., Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307
(2010) (police executing search warrant may seize items in plain
view not covered by warrant "where the particular evidence is
plausibly related to criminal activity of which the police are
already aware"); Commonwealth v. D'Amour, 428 Mass. 725, 731
(1999) (in addition to contraband and fruits and
instrumentalities of crime, police may seize mere evidence "if
the officers recognize it as plausibly related to criminal
activity of which they already were aware").
The defendant argues, as he did in the Superior Court, that
§ 3 does not authorize forfeiture of items unless they were
described in the search warrant.3 We disagree. The first
sentence of § 3 speaks to when "an officer in the execution of a
search warrant finds property or articles therein described" and
authorizes the seizure and safekeeping of such items for use at
3 The firearms and ammunition that the defendant unlawfully possessed were forfeited and delivered to the State police for destruction under G. L. c. 276, § 3 (b) as well as G. L. c. 269, § 10 (e). See James, 493 Mass. at 834 n.10 (§§ 4 to 8 do not apply to items forfeited under "dangerous weapons" exception of § 3 [b]). The judge allowed the return of some of the defendant's personal items, money, credit cards, forms of identification, and documents not relating to firearms. 12
trial. The second sentence of § 3 provides that, with the
exception of stolen goods, which are to be returned to their
owners, "all other property seized in execution of a search
warrant shall be disposed of as the court or justice orders and
may be forfeited and either sold or destroyed, as the public
interest requires, in the discretion of the court or justice"
(emphasis added). Giving effect to the plain and ordinary
meaning of the words of the statute, see Ciani v. MacGrath, 481
Mass. 174, 178 (2019), we have little difficulty concluding that
the forfeiture provision of § 3 encompasses not just items
described in the search warrant, but also any item legally
seized during the execution of the warrant. For examples of
standard English usage of words "execution of a search warrant,"
see, e.g., Commonwealth v. LaPlante, 416 Mass. 433, 440 (1993),
S.C., 482 Mass. 399 (2019) (items not included in search warrant
but identified "during the execution of the warrant" validly
seized under plain view doctrine); Commonwealth v. Pierre, 71
Mass. App. Ct. 58, 66 (2008) (plain view doctrine applies to
property discovered "during the execution of the valid search
warrant"); E.B. Cypher, Criminal Practice and Procedure § 5:113
(4th ed. 2014) (police may seize items in plain view, even
though not mentioned in warrant, if revealed in "the execution
of" search warrant). Indeed, the court in Commonwealth v. Rufo,
429 Mass. 380 (1999), noted the distinction between the 13
reference to property described in the warrant in the first
sentence of § 3 and property subject to disposal under the
second sentence. See id. at 382, quoting G. L. c. 276, § 3
("Property seized pursuant to a search warrant in Massachusetts
is held 'under the direction of the court' and all property
[other than stolen property] 'seized in execution of a search
warrant shall be disposed of as the court of justice orders'"
[emphasis added]).
The defendant misplaces reliance on a parenthetical phrase
from Commonwealth v. Salmons, 96 Mass. App. Ct. 61, 66 (2019),
quoting Rufo, 429 Mass. at 384 ("there is no basis for extending
the reach of G. L. c. 276, § 3, beyond its terms to [cover]
property not seized pursuant to a warrant"). In Salmons, supra
at 69, we held that an order permitting destruction of data from
the defendant's cell phones was not authorized under § 3 because
the seizure "was without a warrant and unlawful, and thus the
public interest standard of G. L. c. 276, § 3, does not directly
apply." The Rufo case concerned the forfeiture of $38,692 in
United States currency seized by a Commonwealth police officer
from the defendant's closed briefcase during a warrantless
inventory search conducted after a traffic stop, later held to
be unlawful. See Rufo, supra at 381. The court held only that
in those circumstances, § 3 did not confer in rem jurisdiction
over the currency sufficient to take precedence over a later 14
Federal forfeiture proceeding. See Rufo, supra at 382-384.
Indeed, the sentence from Rufo quoted in Salmons begins by
stating, "Obviously, there must be a process for returning to
its owner property unlawfully seized without a warrant," and
concludes, "but there is no basis for extending the reach of
G. L. c. 276, § 3, beyond its terms to justify an assertion of
in rem jurisdiction over property not seized pursuant to a
warrant" (emphasis added). Rufo, supra at 384. The Salmons
decision substituted "[cover]" for the words emphasized above.
Salmons, supra at 66. In short, items in plain view that are
lawfully seized during the execution of a search warrant are
subject to forfeiture in the public interest under § 3. Nothing
in Rufo or Salmons suggests otherwise.
3. Judge's exercise of discretion. The defendant contends
that the judge erred in ordering forfeiture and destruction of
three categories of items not particularized in the search
warrant: firearms-related accessories, "such as gun cases, gun
socks, tools, gun cleaning kits, holsters, scopes, hunting tag
holders and ammo pouches" and "ammunition reloading equipment";
antique and replica firearms, including "black powder antique
rifles," "antique handguns," and "antique/replica muzzle loading
guns"; and items related to the criminal harassment and civil
rights crimes, specifically "Confederate flags and pins" and
"World War II Nazi souvenir helmets and artifacts." 15
General Laws c. 276, § 3, specifically gives the "court or
justice" discretion to forfeit and either sell or destroy
property lawfully seized in the execution of a search warrant
"as the public interest requires." Accordingly, we review the
judge's decision for an abuse of that discretion. See
Commonwealth v. Dragotta, 96 Mass. App. Ct. 154, 156 (2019)
(order denying motion for return of property reviewed for abuse
of discretion).
The case law concerning the § 3 public interest standard is
not well developed. In Beldotti, 41 Mass. App. Ct. at 185-186,
189, the defendant, who had been convicted of murder in the
first degree in connection with a brutal, gruesome sex crime,
sought the return of sexually explicit materials that had been
seized from his home pursuant to a search warrant. We suggested
that forfeiture of property with a connection to the defendant's
crime would be in the public interest. See id. at 189. Because
the items he sought to have returned could "be seen as being
directly related to those acts, as having influenced his
behavior, or as being relevant to an understanding of the
psychological or physical circumstances under which the crime
was committed," id., we concluded that "to return the property
would be so offensive to basic concepts of decency treasured in
a civilized society, that it would undermine the confidence that
the public has a right to expect in the criminal justice 16
system." Id. at 190. On the other hand, in James, 493 Mass. at
840, the court stated that "property may not be forfeited based
merely on the speculative concern that harm could occur if the
disputed property were to be returned."
Here, the judge determined that all of the items in the
three contested categories were "related to the crimes the
police were investigating . . . i.e., civil rights and
harassment offenses and numerous offenses involving the
possession of dangerous weapons" and that the public interest
therefore required their destruction. With respect to firearm
and ammunition tools and accessories that "were not inherently
contraband or illegal for [the defendant] to have possessed,"
the judge determined that forfeiture was in the public interest
where the defendant pleaded guilty to "over 100 firearms and
firearms-related offenses."
Given the defendant's criminal history and the convictions
that followed the execution of the two search warrants, we
discern no abuse of discretion in the judge's decision to order
forfeiture of firearms-related items, tools, and equipment for
making ammunition, and antique and replica firearms. These
items all bear a strong connection to the defendant's
convictions for firearms offenses, and there is a strong
likelihood that the defendant might use such items for illegal
purposes in the future, creating a grave risk to public safety. 17
In reviewing for abuse of discretion, we ask whether "the judge
made a clear error of judgment in weighing the factors relevant
to the decision, such that the decision falls outside the range
of reasonable alternatives" (quotation and citation omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Although
the defendant suggests that the judge could have fashioned a
less "draconian" remedy, such as imposing probation conditions
or selling these items to a third party, the judge's decision to
limit the defendant's access to such items by authorizing their
forfeiture and destruction was not outside the range of
reasonable alternatives.
The forfeiture of the defendant's Nazi and Confederate
souvenirs and paraphernalia presents a closer question.
"[P]roperty may not be forfeited simply because it is offensive
or repugnant." Beldotti, 41 Mass. App. Ct. at 189. In
addition, the connection between these items and the defendant's
hate crime is more attenuated than the connection between his
firearms-related items and his firearms-related offenses. As
the defendant points out, he did not display Confederate or Nazi
items when he criminally harassed his Black neighbors.4
4 He also argues, far less persuasively, that "Nazi War helmets may be construed possibly to relate to anti-semitism, but the banana throwing was not related to anti-semitism." See, e.g., Commonwealth v. Babbitt, 430 Mass. 700, 704 (2000) (defendant's "racist statements" included "Heil Hitler" and "white supremacy rules"). 18
But there is a connection. The items illuminate the
defendant's state of mind, motivations, and actions underlying
his criminal convictions, see Beldotti, 41 Mass. App. Ct. at
189, and they were seized because their incriminating character
was immediately apparent to the officers executing the search
warrants. See Santana, 420 Mass. at 211. The judge found that
the public interest required the destruction of these items
because they were "related to" the "civil rights and harassment
offenses" the police were investigating, and to which the
defendant pleaded guilty. Our review is limited to determining
whether the judge considered the relevant factors and arrived at
a decision within the range of reasonable alternatives. The
judge did not order forfeiture of these items because they were
offensive, and we discern no clear error in the judge's
conclusion that these items were related to the defendant's
civil rights and harassment offenses. The judge's decision that
the public interest requires forfeiture and destruction of these
materials is not so unreasonable as to rise to the level of an
abuse of discretion.
Conclusion. So much of the judge's order entered October
15, 2023, allowing the Commonwealth's motion to dispose of
certain seized property and denying the defendant's motion for
return of the same property, is affirmed.
So ordered.