Commonwealth v. Stephen Greany.

• Court: Massachusetts Appeals Court
• Decided: September 4, 2025
• Docket: 24-P-0407
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-407

COMMONWEALTH

vs.

STEPHEN GREANY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Stephen Greany, was charged with possession

of a class B controlled substance with intent to distribute (two

counts), G. L. c. 94C, § 32A (a), possession of a class D

controlled substance with intent to distribute, G. L. c. 94C,

§ 32C (a), possession of a class E controlled substance, G. L.

c. 94C, § 34, possession of ammunition without a firearms

identification card, G. L. c. 269, § 10 (h) (1), and larceny

from a building (two counts), G. L. c. 266, § 20. He filed a

motion to suppress physical evidence, including the drugs and

ammunition, obtained during a warrantless search of his home,

claiming that he did not voluntarily consent to the search.

Following an evidentiary hearing, a judge of the District Court allowed the motion. Thereafter, the Commonwealth obtained leave

to pursue an interlocutory appeal and a single justice of the

Supreme Judicial Court reported the case to us. We agree with

the Commonwealth that the judge erred in finding that the

defendant, a former police officer, who signed a written consent

form, had not voluntarily consented to a search of his home.

Consequently, the order allowing the motion to suppress must be

reversed.

Background. At the motion hearing, two police officers,

Sergeant Jonathan Lagoa and Detective Timothy Soares, testified.

In a handwritten margin endorsement, the judge explicitly

credited the testimony of both officers. We "may supplement a

judge's finding of facts if the evidence is uncontroverted and

undisputed and where the judge explicitly or implicitly credited

the witness's testimony" (citation omitted). Commonwealth v.

Gentile, 466 Mass. 817, 821 n.5 (2014). We summarize the

testimony presented at the hearing as follows.

In March 2023, the Chief of the New Bedford police

department, Paul Oliveira, received information from a city

supervisor that the defendant was stealing city property. At

the time, the defendant was a city employee for the facilities

department. He was also a former police officer, who was "on

the job around the same time" as Oliveira.

2 On March 8, 2023, Oliveira contacted Lagoa and Soares and

relayed the information he had received from the city

supervisor. Around 11 A.M. that day, Lagoa set up surveillance

outside the defendant's home. He saw the defendant and another

city employee arrive in a city truck. The defendant got out of

the truck carrying a dartboard and a backpack and entered his

home. Five or ten minutes later, the defendant came out without

the dartboard and returned to work. Lagoa testified that the

dartboard, identified as city property, "was one of the items of

interest."

About an hour later, Oliveira, Lagoa, and Soares arrived,

in two unmarked cruisers, at the public library where the

defendant was working. The trio, wearing plain clothes,

approached the defendant in the library parking lot. Soares

told the defendant that they received information that he had

taken items from city buildings. The defendant explained that

the items were being discarded and were supposed to be thrown

away.

At some point, Soares read the defendant Miranda warnings,

to which the defendant responded that he knew his rights.

Soares then explained to the defendant that the officers "could

obtain a search warrant for his home based on what was observed

by Sergeant Lagoa earlier, or he could sign a Consent to Search

Form." The defendant replied that he did not want them to

3 obtain a search warrant, and that he would rather sign the

consent to search form. The conversation was described as

"casual," and the defendant was cooperative.

Soares then drove the defendant in an unmarked cruiser to

the defendant's home. The defendant sat in the backseat with

Lagoa. While in the cruiser, Lagoa went over the instructions

for the consent to search form and the defendant signed it.

Oliveira drove to the defendant's home separately.

The defendant entered his home first. He unlocked the

door, secured his dog and "let [the officers] down to the

basement," where he showed them a number of items, including the

dartboard, old fire alarm boxes, a Nintendo Wii game system, and

some lightbulbs. According to the defendant, these items had

been discarded by the city.

While in the basement, the officers saw a safe with a

combination lock on the floor by a desk. One of the officers

asked the defendant to open the safe. The defendant responded

that he did not want to open it because there were photographs

inside that he did not want the officers to see. Lagoa

testified that he informed the defendant that they could apply

for a search warrant for the safe. The defendant then unlocked

and opened it. The safe contained suboxone, for which the

defendant had no prescription, vials of steroids, and alprazolam

pills. In addition, in the same area, the officers found over

4 one thousand grams of marijuana, a scale, .22 caliber

ammunition, and a second safe containing $6,400.

As previously noted, although the judge credited the

testimony of the officers, she concluded that the defendant's

consent to search was not made freely and voluntarily. She

further concluded that the search of the first safe (safe)

exceeded the scope of his consent. Specifically, she wrote:

"After hearing on 12/5/23, this [court] credits the testimony of Sgt. Lagoa (20 yrs NBPD) and Det. Soares (11 yrs NBPD). This [court] finds the information used to search the [defendant] and his property was lacking in detail. Chief Oliveira (who did not testify) called these officers stating [defendant] was suspected of stealing city property. The time frame and specifics about what property was not provided. The basis of the search relied entirely on totem pole hearsay.[1] Based on the improper basis/lack of consent for the search the consent was not voluntary since the NBPD used the threat of seeking a search warrant if the [defendant] did not give consent. Additionally, the NBPD exceeded the scope of the search by searching the safe. This [court] relies on Comm v. Ortiz, 478 Mass. 820 (2018). This motion to suppress is hereby Allowed."

Discussion. "[I]n reviewing a ruling on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of [the

judge's] ultimate findings and conclusions of law" (citation

omitted). Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018).

"The determination of the weight and credibility of the

1 The judge used the expression "totem pole hearsay." The better practice is to use phrasing that is inclusive and legally precise. The Mass. G. Evid. § 805 (2024) uses hearsay within hearsay.

5 testimony is the function and responsibility of the judge who

saw and heard the witnesses, and not of this court" (citation

omitted). Commonwealth v. Gonzalez, 487 Mass. 661, 668 (2021).

"At the same time, we make an independent determination of the

correctness of the judge's application of constitutional

principles to the facts as found" (quotation and citation

omitted). Id.

1. Voluntariness of the defendant's consent to search his

home. The Commonwealth first argues that the judge erred by

concluding that the defendant did not voluntarily consent to the

search because "the basis of the search relied entirely on"

hearsay within hearsay and because the defendant was threatened

with the prospect that the police would obtain a search warrant.

"A search may be conducted without a warrant provided the

search is undertaken with the free and voluntary consent of a

person with the authority to give that consent." Commonwealth

v. Fencher, 95 Mass. App. Ct. 618, 621 (2019). "The

Commonwealth bears the burden of proving that consent was freely

and voluntarily given" (citation omitted). Commonwealth v.

Soto-Suazo, 100 Mass. App. Ct. 460, 467 (2021). "Consent is

free and voluntary where it is 'unfettered by coercion, express

or implied,' and must be more than mere 'acquiescence to a claim

of lawful authority'" (citation omitted). Id. "Whether consent

is free and voluntary is to be determined from all of the

6 circumstances" (citation omitted). Id. "Because a finding of

voluntariness is a question of fact, it should not be reversed

absent clear error by the judge." Commonwealth v. Carr, 458

Mass. 295, 303 (2010).

To begin with, it matters not that the investigation was

initiated by a city employee who alleged that the defendant was

stealing city property. Here, the judge concluded that the

investigation was somehow unfounded as it stemmed from this

hearsay within hearsay. However, the manner in which the

investigation commenced is simply not relevant to the question

whether the defendant's consent was voluntary. Furthermore, any

deficiencies or lack of detail in the city employee's

information was rectified once Lagoa observed the defendant

carrying city property into his house.

Next, based on the uncontroverted testimony of the

officers, the judge erred in concluding that the defendant's

consent was not voluntary because the police "used the threat of

seeking a search warrant." We recognize that the judge is in

the best position to assess the weight and credibility of the

testimony given at the motion hearing. However, the evidence

did not support the judge's finding that the defendant was

threatened, or, more importantly, that the defendant, a former

police officer, was coerced to provide consent based on any

threat.

7 First, the officers' testimony (credited by the judge)

established that the conversations with the defendant, were

"very casual." In this sense, the officers' tone was not

threatening.

Second, while it is undisputed that the police officers

told the defendant that they "could" obtain a warrant or,

alternatively, he "could" consent to a search of his home, this

statement by itself was not sufficient to support the judge's

finding that the defendant's consent was involuntary. See

Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 93 (2010)

("mere mention of the possibility of obtaining a search warrant

in lieu of obtaining . . . consent [is] insufficient to rob the

consent of its validity" [citation omitted]). Most importantly,

because the defendant was a former police officer, he would have

known both that he could refuse to provide consent to search his

home and that, if he did so, the police could apply for and

obtain a warrant. See Commonwealth v. Egan, 12 Mass. App. Ct.

658, 663 (1981) (defendant, an experienced law enforcement

officer, "would have known that he could choose to resist [the

officer's] request to search his car trunk" and that "[h]is

cooperative conduct obviated the need for a search warrant").

Also, because the police officers had informed him that they had

received reports that he had taken property from city buildings,

and he had admitted that he had done so, he would have

8 understood that the officers had probable cause to obtain a

warrant. See 4 W.R. LaFave, Search and Seizure § 8.2(c) (6th

ed. 2020) ("it may generally be said that a threat to obtain a

search warrant is . . . likely not to affect the validity of the

consent if the police had probable cause upon which a warrant

could issue"); id. at n. 122 (citing authorities).

Finally, in signing the consent to search form, the

defendant acknowledged that he was not subjected to threats of

any kind.2 Collectively, these undisputed facts satisfied the

Commonwealth's burden of proving that the defendant's consent to

search was voluntary.

The defendant's remaining arguments in support of the

allowance of his motion to suppress are unavailing. First, even

if the defendant was under arrest when he consented to the

search, that fact did not invalidate his consent. See

Commonwealth v. Franco, 419 Mass. 635, 642 (1995) ("fact that

the defendant consented to the search while under arrest does

not preclude a finding that the consent was voluntarily given").

Second, we are not persuaded that the involvement of the chief

of police and two "high-ranking" officers, without more, was

2 We note that in his affidavit submitted in support of his motion to suppress, the defendant stated that the officers told him that "they would be getting a search warrant for my property" but he did not aver that he had been threatened or coerced. Without further elaboration he just says he "did not voluntarily consent to the search of [his] property."

9 coercive. Although the defendant and the chief worked as police

officers around the same time and may have known each other, the

evidence suggests nothing else, good or bad, about their

relationship. Furthermore, the evidence credited by the motion

judge does not suggest that the defendant was uncomfortable with

these particular officers' involvement. Instead, as noted, the

defendant engaged in casual conversation with the officers and

was compliant and cooperative.

2. Scope of the defendant's consent. The judge concluded

that, even if the defendant had consented to the search of his

home, the officers exceeded the scope of that consent when they

searched the safe. "The standard for measuring the scope of a

suspect's consent under the Fourth Amendment is that of

objective reasonableness -- what would the typical reasonable

person have understood by the exchange between the officer and

the suspect?" (quotation and citation omitted). Commonwealth v.

Ortiz, 478 Mass. 820, 824 (2018).

Here, the defendant signed a consent form for the search of

his home, which expressly permitted the officers "to conduct a

complete search of the premises and property, including all

building [sic] and vehicles, both inside and outside the

property." Moreover, the defendant "let [the officers] down to

the basement" of his home, where the safe was located. Under

these circumstances, an objectively reasonable person would have

10 known that the safe was within the scope of the defendant's

consent to search the home.3,4

Order allowing defendant's motion to suppress reversed.

By the Court (Vuono, Henry & Wood, JJ.5),

Clerk

Entered: September 4, 2025.

3 The defendant argues that even if the scope of the consent to search included the safe, he withdrew his consent by saying that he did not want to open the safe because there were photographs inside that he did not want the officers to see. This argument was not raised below, the judge made no findings on it, and we do not reach it.

4 The defendant’s request to file a motion for costs pursuant to Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017), is allowed. The defendant may do so within thirty days of the issuance of the rescript. See Commonwealth v. Ennis, 441 Mass. 718, 720 (2004); Commonwealth v. Santos, 99 Mass. App. Ct. 360, 365 (2021).

5 The panelists are listed in order of seniority.