Com. v. Kipp

785 N.E.2d 403

57 Mass. App. Ct. 629

COMMONWEALTH v. Angel KIPP.

No. 01-P-725.

Appeals Court of Massachusetts, Middlesex.

Argued October 8, 2002.

Decided March 24, 2003.

COPYRIGHT MATERIAL OMITTED

Jane Larmon White, Committee for Public Counsel Services, Boston, for the defendant.

Edward C. Dorsey, Assistant District Attorney, for the Commonwealth.

Present: JACOBS, COWIN, & KAFKER, JJ.

COWIN, J.

The defendant appeals from his convictions, after a jury trial, of trafficking in cocaine in an amount over 200 grams, G.L. c. 94C, § 32E(b)(4), trafficking in heroin in an amount over twenty-eight grams, G.L. c. 94C, § 32E(c)(2), and two counts of unlawful possession of a firearm, G.L. c. 269, § 10(a). He claims that it was error to deny his motion to suppress evidence found on him during a search incident to arrest, as well as evidence obtained as the result of a protective sweep of his residence followed by a consensual search. We determine that evidence was properly obtained from the defendant during a search incident to an arrest. See G.L. c. 276, § 1. We assume, without deciding, that the protective sweep of the defendant's residence was impermissible, but conclude that the subsequent consent by the defendant to a search of his residence was voluntary and was not a product of any prior illegality. Accordingly, we affirm.

1. Material facts. Absent clear error, we rely on the motion judge's findings of fact, reserving to ourselves the review of ultimate legal conclusions to be drawn from such findings. Commonwealth v. Accaputo, 380 Mass. 435, 448 n. 18, 404 N.E.2d 1204 (1980). Commonwealth v. Rivera, 33 Mass.App.Ct. 311, 312, 599 N.E.2d 245 (1992). We supplement the judge's findings where appropriate with uncontested evidence presented at the suppression hearing. Commonwealth v. Rivera, supra. This evidence helps present a more complete picture of the events, but does not affect the outcome.

The case commenced when Carmen Rosario called 911 to summon the Lowell police to her apartment at 345 Hildreth Street. When the police arrived, she explained that a man known to her as "Tuleen" was storing drugs and guns in her apartment, and she feared that she would be implicated. She directed an officer to a green duffel bag that contained drugs, guns, and various other drug paraphernalia. Knowing that "Tuleen" was the defendant, the police showed Rosario an array of photographs, from which she identified him as the owner of the green duffel bag.

With this information, police detectives went to the defendant's residence. The defendant and his wife, Felicita Reyes, were outside. The police arrested the defendant,¹ conducted a pat frisk, and found a beeper, money and a loop of keys. Two of the keys were later identified by Rosario as keys to the exterior and interior doors of her apartment. When the defendant was arrested, he spoke to his wife in Spanish, a language not spoken by the officers present, and Reyes went immediately into the couple's apartment. Two officers accompanied her inside, one sitting with her at the kitchen table, the other conducting a sweep of the apartment. During the sweep, a blue money bag was observed.²

The defendant was taken to the police station. Reyes was not arrested, but voluntarily accompanied the police to the station. The defendant was given Miranda warnings and agreed to speak to the police, but refused to consent to a search of his apartment. At this point, communications with the defendant were turned over to Officer Rivera, a Spanish-speaking officer known to the defendant. Officer Rivera stated to the defendant that the police had located a money bag within the defendant's apartment; they would apply for a search warrant; if they searched pursuant to a warrant, they would damage the apartment; if, however, the defendant consented to a search, the police would show a little courtesy and not be destructive; and, if drugs were found on the premises, the defendant's wife would also be arrested. Shortly after this conversation, the defendant consented to a search of his home. The defendant testified at the suppression hearing regarding his giving of consent to Officer Rivera: "So, I say, I'm going to do it for you because you're talking to me like a man."

Officer Rivera then spoke to Reyes, giving her essentially the same information that he had given to the defendant. Reyes also consented to a search. Pursuant to the consents obtained from the defendant and Reyes, the police searched the apartment and seized both a scale box and the blue money bag which contained $7,000. They did not find narcotics.

2. The search incident to arrest. We are not persuaded by the defendant's argument that seizure of the keys during the search of the defendant at the time of his arrest was improper. "A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape." G.L. c. 276, § 1. Property seized in violation of the statute is not admissible in evidence. Ibid. The defendant argues that the Commonwealth failed to establish the required nexus between the drug and firearm offenses for which he was arrested and the keys that were in his possession.

Probable cause to arrest the defendant for the offenses in question was provided by the statements of Rosario. She identified the defendant as the owner of the green duffel bag with contraband which the defendant, despite her protests, kept at her apartment. The scope of a permissible search incident to an arrest is defined in part by the crime or crimes for which the suspect was arrested. See Commonwealth v. Stafford, 18 Mass.App.Ct. 964, 965, 469 N.E.2d 1267 (1984). Here, the crime involved the possession of unlawful items stored not at the suspect's own residence, but rather at the apartment of another. The likelihood that the defendant would store the contraband at premises controlled by Rosario without having his own means of access to those premises was small to non-existent. Therefore, it was reasonable for the police to view the loop of keys found on the defendant³ as likely to include keys to Rosario's apartment and, if so, as evidence that corroborated her statements that the defendant was the owner of the green duffel bag. The keys were potentially "evidence of the crime for which the arrest has been made," and accordingly their seizure was permitted by G.L. c. 276, § 1.

3. The consent to search. The Commonwealth does not press the proposition that the sweep might have been justified as a search for evidence of the crimes for which the defendant was arrested. See Commonwealth v. Olivares, 30 Mass. App.Ct. 596, 600, 571 N.E.2d 416 (1991). It does argue, however, that the defendant's statement in Spanish to his wife, followed immediately by her entry into the apartment, justified reliance on an exception to the warrant requirement that permits a quick and limited search of premises incident to an arrest to protect the safety of police officers and others. See Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Commonwealth v. Dubois, 44 Mass.App.Ct. 294, 296, 690 N.E.2d 466 (1998). Because we assume, without deciding, that the sweep of the defendant's residence was unlawful, the Commonwealth cannot rely on the proposition that the blue money bag was lawfully observed because it was in plain view. See Commonwealth v. DeJesus, 56 Mass.App.Ct. 523, 534, 778 N.E.2d 1003 (2002). We proceed to consider whether the use by the police of their observations of the blue money bag invalidated the subsequently obtained consent to search the premises.

The police obtained separate consents from the defendant and Reyes to search the apartment. Either consent, if validly. obtained, would be sufficient. See Commonwealth v. Noonan, 48 Mass.App.Ct. 356, 362, 720 N.E.2d 828 (1999). The defendant asserts that both consents were improperly obtained for two reasons, either of which would be adequate to invalidate them: first, they were products of the impermissible sweep of the apartment at the time of the defendant's arrest; and, second, they were otherwise rendered involuntary by virtue of threats and misrepresentations on the part of the police.

"When consent to search is obtained through exploitation of a prior illegality, particularly very close in time following the prior illegality, the consent has not been regarded as freely given." Commonwealth v. Midi, 46 Mass.App.Ct. 591, 595, 708 N.E.2d 124 (1999). Evidence gathered during a search brought about by such compromised consent is considered tainted by the illegality and is, therefore, inadmissible. Ibid. If, however, there is an attenuation between the prior illegality and the consent, the consent is cleansed of the effect of the prior illegality and is deemed valid. See Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Commonwealth v. Yehudi Y., 56 Mass.App.Ct. 812, 817, 780 N.E.2d 150 (2002). We take this to mean that the consent is valid if it can rationally be determined that it did not come about by virtue of the prior illegality, but rather was given for reasons independent of the earlier unlawful act or event.

Attenuation can occur by reason of lapse of time, intervening circumstances or a disconnection between the...