Whether a district court judge properly fined the Commonwealth $25,000 for permitting the state police to test evidence in alleged violation of an ex parte order.

Several officers conducted a warrantless search of a car on the basis of a strong odor of fresh (not smoked) marijuana. They seized an unlicensed firearm and a small plastic bag containing four plastic packages of marijuana, and the defendant was arrested.

Defense counsel planned to use an investigator to challenge the officers’ ability to smell fresh marijuana from outside the car. However, counsel feared the officers would offer another basis for their search during the suppression hearing if they knew of the strategy, and that the odor of the marijuana would fade if the investigator did not obtain immediate access. The defendant therefore obtained an ex parte order from the district court judge that all seized evidence be made available to defense counsel “immediately and in any event prior to the transport of said evidence to any lab for testing.” In a hearing that afternoon, the judge ordered the Commonwealth to make the evidence available at 10:00 A.M. the next morning.

The firearm was not brought to court the next morning; instead, state police test-fired and DNA tested the firearm at a crime lab. The marijuana apparently was brought into the court room, but was not drawn to the attention of the judge or defense counsel. Sometime that morning, a single justice of the SJC stayed the judge’s order, and ordered status quo preservation of the evidence.

The district court judge imposed a sanction of $25,000 against the Commonwealth for willful violation of the court order, pursuant to Mass. R. Crim. P. 14(c)(1). The Commonwealth appealed to the single justice, and the single justice reserved and reported the case to the full bench.

1. Scope of the judge’s order. The Commonwealth argues that the judge’s order did not clearly prohibit testing of the firearm, and the marijuana was technically brought to the court room, so no violation occurred.
2. Legitimacy of the judge’s order. The Commonwealth argues that ex parte discovery orders are appropriate only where notice would result in unnecessary disclosure of incriminating information, or where evidence might otherwise be destroyed, but not to conceal trial strategy, citing Commonwealth v. Mitchell, 444 Mass. 786, 793 (2005). The Commonwealth further argues that a judge does not have the power to order the executive branch to refrain from investigating evidence.
   
   The defendant responds that the reporter’s notes to Rule 14 explicitly permit ex parte hearings where appropriate and consistent with law, and that a defendant should not have to choose between seeking appropriate discovery orders and guarding his trial strategy.
3. Sanctions for violation of an invalid order. The Commonwealth argues that violations of an invalid order cannot support sanctions. The defendant argues that sanctions may be inappropriate where a party temporarily disobeys in order to preserve the status quo while challenging the order, or where the judge lacks jurisdiction over the dispute, but not where a party actively disobeys an order and the judge has jurisdiction.
4. Availability of monetary fines as a sanction for violation. The judge issued the sanction pursuant to Mass. R. Crim. P. 14(c)(1), which allows a judge to “make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances.” The Commonwealth argues that “such other order” refers to other accommodations to the opposing party, and would not include monetary penalties. The defendant argues that a monetary sanction could be properly imposed pursuant to Mass. R. Crim. P. 48, and that if the judge did not have the power to impose fines, there would be no recourse where violations were not egregious enough to justify suppression of the evidence.

More interesting than the individual legal issues is the potential for the Court to announce a new framework for sanctioning police and prosecutor misconduct. This case is paired for argument with SJC-10627, which also involves a sanction against the Commonwealth. If the Commonwealth is reacting to a trend in filing these appeals, that trend may indicate a preference for monetary sanctions over evidentiary suppression in disciplining the Commonwealth — a trend that would have substantial implications for both sides.

Individual issues:

1. Scope of the judge’s order. The Commonwealth’s argument is not persuasive; it is hard to see a reasonable reading of the judge’s orders that would permit the Commonwealth to have the firearm tested instead of bringing it to court.
2. Legitimacy of the judge’s order. The judge’s ex parte order may well exceed his authority; the SJC has expressed discomfort with ex parte orders in order to protect trial strategy. (The substance of the order, on the other hand, is likely valid: an order to make the marijuana available to the defense investigator before it aged, and to not inform fact witnesses of the defendant’s investigation, would be eminently reasonable.)
3. Sanctions for violation of an invalid order. The Commonwealth’s argument that it can allow a crime lab to continue testing evidence, despite a court order that the evidence be delivered to the court prior to testing, simply because it disagrees with the order, is not persuasive. Sanctions should be available.
4. Availability of monetary fines as a sanction for violation. The Commonwealth may well be correct that monetary sanctions must issue pursuant to Mass. R. Crim. P. 48, rather than Mass. R. Crim. P. 14(c)(1). Monetary sanctions probably are available on some basis, however. It is not clear whether the SJC will overlook the potential miscite; remand for consideration under the proper rule; or void the sanction on that basis.