Com. v. Dejesus

778 N.E.2d 1003

56 Mass. App. Ct. 523

COMMONWEALTH v. Juan DeJESUS.

No. 00-P-1367.

Appeals Court of Massachusetts, Essex.

Argued November 13, 2001.

Decided November 22, 2002.

COPYRIGHT MATERIAL OMITTED

James A. Janda, Assistant District Attorney, for the Commonwealth.

James E. McCall, Boston, for the defendant.

Present: JACOBS, MASON, &

KANTROWITZ, JJ.

Indicted for trafficking in cocaine, the defendant filed a motion to suppress all evidence seized from his apartment in Lawrence during a search conducted pursuant to a warrant. The warrant had issued based upon an affidavit describing cocaine and drug paraphernalia observed by police officers in the course of a prior warrantless entry into the apartment. After an evidentiary hearing, a Superior Court judge allowed the motion, concluding that the warrantless entry was not grounded on circumstances of impracticability or "compelling necessity." A single justice of the Supreme Judicial Court allowed the Commonwealth to file this interlocutory appeal in which the Commonwealth argues that the police did not need exigent circumstances to enter the apartment. We affirm the order allowing the motion to suppress on grounds additional to those relied upon by the judge. See Commonwealth v. Cruz, 430 Mass. 838, 844, 724 N.E.2d 683 (2000); Commonwealth v. Va Meng Joe, 40 Mass.App.Ct. 499, 503 n. 7, 665 N.E.2d 1005 (1996), S. C., 425 Mass. 99, 682 N.E.2d 586 (1997).

Background. Brian O'Neil, the State trooper who had obtained the search warrant, was the only witness at the suppression hearing. His testimony encompassed considerably more information than was contained in his affidavit in support of his application for the warrant. The facts, based on his uncontroverted testimony and a police affidavit admitted as evidence at the hearing, are as follows: On March 29, 1999, Antonio Graciano was arrested after he delivered 270 grams of cocaine to an undercover police officer in a restaurant parking lot in Lawrence. The defendant and another person who had driven to the restaurant with Graciano from his apartment at 5 Forest Street in Lawrence also were arrested. Shortly before he drove off with Graciano, the defendant had been observed walking to 5 Forest Street from the vicinity of 7 Lynch Street in Lawrence.

Soon after his arrest, Graciano told Trooper O'Neil that the defendant was his supplier and, that same day, had delivered the cocaine to Graciano on foot. Graciano further stated that the defendant lived at 7 Lynch Street, that he had been involved in numerous drug deals with the defendant, and that he had met with him in front of that address on numerous occasions but had never been inside the house. He also said he did not know in which of two apartments at 7 Lynch Street the defendant lived or whether anyone else lived in the defendant's apartment. In the course of a separate investigation, Trooper O'Neil recently had received information from a "[c]onfidential [r]eliable [i]nformant" that an apartment on the third floor of 7 Lynch Street was a "stash location" and the "residence of two individuals involved in cocaine distribution."

After Graciano had accompanied him to 7 Lynch Street, Trooper O'Neil brought him to a police station where Graciano pointed out the defendant. Upon obtaining the keys that had been taken from the defendant at the time of his arrest, O'Neil and another officer returned to 7 Lynch Street and went directly to the third-floor apartment, where they knocked at the door and announced themselves. Receiving no response, they used the defendant's keys to open the door. They then "checked the apartment for occupants" arid, finding no one, "proceeded back to the front hallway and locked the door." In the course of this "sweep for occupants" the officers saw cocaine and cocaine packaging materials in plain view on a kitchen table.¹

The judge found that following the plain view observation "[t]he two officers who had entered the apartment then secured the apartment pending the issuance of a search warrant." Trooper O'Neil thereafter prepared an application for a search warrant and a supporting affidavit. There is no indication that anyone otherwise had initiated the application for a search warrant prior to the officers' leaving the apartment or that it was impracticable to do so.² The evidence at the suppression hearing established only that it was Trooper O'Neil's "intention" to obtain a warrant at the time he entered the apartment.

In his affidavit in support of the application, Trooper O'Neil justified the warrantless entry on the ground that "potential co-conspirators could be aware of the [p]olice detection" of Graciano and the defendant.³ The judge correctly determined that this was the only explanation entered in evidence during the suppression hearing of a "possible reason for entering the apartment in the manner [the police] did," and in effect concluded that there was no exigency, in that the circumstances described did not constitute "such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." See United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980) (using the same words to describe "[t]he ultimate test" for determining exigency). The search conducted pursuant to the warrant resulted in the seizure of numerous items in addition to those on the kitchen table.

On appeal, the Commonwealth argues, citing Commonwealth v. Blake, 413 Mass. 823, 604 N.E.2d 1289 (1992), that the police did not need exigent circumstances to enter the defendant's apartment, but were permitted to "secure the premises from within" and, therefore, their plain view observation while lawfully in the apartment could be used in obtaining a warrant. See Commonwealth v. Forde, 367 Mass. 798, 803, 329 N.E.2d 717 (1975) (a plain view discovery is not a "search" within the meaning of the Fourth Amendment). In Blake, which involved a warrantless forcible entry into a residence, the court, citing Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), stated that "[s]ecuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents." Commonwealth v. Blake, supra at 829, 604 N.E.2d 1289.

Discussion. "We start our discussion by restating the well known rule that warrantless entries are per se unreasonable unless they fall within one of the few narrowly drawn exceptions to the Fourth Amendment warrant requirements." Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 233, 450 N.E.2d 656 (1983). Among the most common exceptions is that of "exigent circumstances," which permits a warrantless police search of premises, upon probable cause and a reasonable belief that evidence or contraband is at imminent risk of destruction. Ibid. Choosing not to contest the judge's determination that there were no exigent circumstances,⁴ the Commonwealth relies on the proposition that police, having probable cause to search, may secure the premises to be searched, pending issuance of a warrant, "to prevent the potential destruction or loss of evidence related to the defendant's drug transactions." As stated, that proposition is based on settled law to the effect that even absent exigency "police officers may secure an area to be searched before a warrant is procured ... as long as the search does not commence before issuance of the warrant" (citation omitted). Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990).

Less than settled, in our view, is the reach of the concept embedded in the word "secure." There is sound basis in the cases for permitting police, upon probable cause and without exigent circumstances, effectively to seize a dwelling, pending the issuance of a search warrant, by securing it from the outside, thereby preventing anyone from entering and destroying evidence of criminality or from carrying away such evidence. See Commonwealth v. Hall, 366 Mass. 790, 803, 323 N.E.2d 319 (1975), and cases cited; Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 165 n. 9, 580 N.E.2d 1014 (1991) (the rationale for requiring that police secure residences from the outside "rather than searching immediately on obtaining probable cause ... is that the police should not be allowed to intrude on the privacy of homes without the authorization of a neutral and detached magistrate" [citations omitted] ). The extension of this principle of external impoundment to permit the securing of a dwelling by unauthorized entry and "sweep" of the inside to protect against possible destruction of evidence is, however, not free from doubt.⁵

Nevertheless, even if we assume that such an extension, purportedly supported by the above quoted language and facts of Commonwealth v. Blake, represents the current state of Fourth Amendment jurisprudence, the factual circumstances in this case call for affirmance of the allowance of the defendant's motion to suppress.

"`The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [and art. 14 of the Massachusetts Declaration of Rights were] designed to circumscribe by the general requirement of a judicial determination of probable cause.' Commonwealth v. Forde, 367 Mass. 798, 805, 329 N.E.2d 717 (1975)." Commonwealth v. Marquez, 434 Mass. 370, 374, 749 N.E.2d 673 (2001). "[T]he `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 [(1972)]." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The "central requirement [of the Fourth Amendment] is one of reasonableness." Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148...