Com. v. Mullane

840 N.E.2d 484

445 Mass. 702

COMMONWEALTH v. David MULLANE.

Supreme Judicial Court of Massachusetts.

Middlesex.

Argued November 9, 2005.

Decided January 9, 2006.

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David W. Cunis, Assistant District Attorney, for the Commonwealth.

George Hassett, Milton, for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

A Middlesex County jury convicted the defendant, David Mullane, of owning, or assisting in the management or control of, a place for unlawful sexual intercourse, G.L. c. 272, § 6; and keeping a house of ill fame, G.L. c. 272, § 24. The Appeals Court reversed the defendant's convictions. See Commonwealth v. Mullane, 63 Mass.App.Ct. 317, 826 N.E.2d 207 (2005). We granted the Commonwealth's application for further appellate review. The defendant raised eight issues on appeal, including improper denial of his motions to suppress, various errors at trial, ineffective assistance of counsel, and improper denial of his motions for required findings of not guilty. Because we find no ground to reverse, we affirm the defendant's convictions.

Facts. We recite the facts, reserving certain details for our discussion of the issues. In 1973 and 1982, the defendant purchased two adjacent buildings at 238 Broadway and 163 Harvard Street in Cambridge (238 Broadway) that were later connected by internal bridges at the top three levels. Several of the defendant's businesses were located at 238 Broadway, including the Oasis Group, consisting of chiropractic care and massage therapy; the Broadway Institute of Massage Therapy (school); and, at one point, the Broadway Health Club.

The first investigation of 238 Broadway was in January of 1998, when the Cambridge police department's vice-narcotics unit investigated the Broadway Health Club for prostitution. The Broadway Health Club was shut down immediately after the January, 1998, investigation and execution of a search warrant.

On February 9, 1999, the defendant transferred ownership of the school to his son, Patrick, and his daughter, Katherine. The defendant, as owner of 238 Broadway, then executed a written lease with Katherine permitting her use of the premises for the school. The only registered business at 238 Broadway was the school; however, Oasis Group also was being operated out of the same location, separated from the school by a door. Some students attending the school also worked in the Oasis Group.

In August of 1999, the Cambridge police department commenced another investigation of prostitution at 238 Broadway. On August 27, 1999, based on their observations and an informant's tip, the police obtained and executed a search warrant for the school and the Oasis Group.

Detective Thomas Ahern, who participated in the August, 1999, raid, testified that he entered 238 Broadway shortly after noon. He carried a pager that was to sound about fifteen to twenty minutes after he entered the building to alert him that a team of approximately fifteen police officers was commencing the execution of the warrant. The detective approached the front desk, asked for a half-hour massage, paid, and was then immediately led by a woman named "Adrianne," who was later identified as Lisa Ulwick, to a room containing a massage table.

Once the detective had disrobed and lay face down on the massage table, he and Adrianne engaged in casual conversation. Adrianne asked the detective if he had ever had a massage. The detective said that he had. Adrianne then asked the detective if he was a police officer, to which he replied no. The officer then asked what he "could get." Adrianne stated that he could get "anything" he wanted. After some discussion about price, Ahern then told Adrianne that he had seventy dollars, to which Adrianne said "that would be fine," and told him he could roll over on his back any time he wanted.

The detective became apprehensive at this point, because only about five minutes had passed since he had entered the building. He rolled over, and Adrianne, then completely nude, began manually to stimulate Ahern's genitals. He said he needed to use the bathroom, where he stalled for time. Later, when he returned to the massage room, Adrianne asked him if he wanted her to finish. At that point, the beeper sounded, and the officer leading the team executing the warrant knocked on the exterior door of the building and announced the police team's entry into the premises.

Based on their statements and the evidence seized in the raid, Katherine and Patrick Mullane were sentenced to probation for keeping a house of ill fame. They denied that their father had any involvement in the businesses. However, on June 29, 2000, a grand jury returned indictments charging the defendant, inter alia, with the crimes of which he was convicted.

Discussion. 1. Motions to suppress. In two separate motions, the defendant moved to suppress the evidence seized at the time of the execution of the search warrant, first, on the ground that the warrant was not issued on sufficient probable cause; and second, on the ground that the warrant was improperly executed. The defendant argues that the denial of his motions was improper.

a. Probable cause. A valid search warrant must be based on a finding of probable cause. G.L. c. 276, § 1. Commonwealth v. Upton, 394 Mass. 363, 368, 476 N.E.2d 548 (1985). In this case, a judge issued the search warrant based on the affidavit of Detective Louis F. Cherubino, Jr., of the Cambridge police department. The affidavit included details from the sworn notarized statement of Linda Mullins, a former student-employee at the school and the Oasis Group, to the Department of Education; and various facts gleaned from the detective's interview with Mullins. The defendant does not challenge the basis of knowledge prong of the Aguilar-Spinelli test; however, he argues that the veracity prong was not satisfied by the affidavit.¹ Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). We disagree. "Although police knowledge of the informant's `identity' and `whereabouts' would not be adequate standing alone to confirm the informant's reliability, it is a factor that weighs in favor of reliability." Commonwealth v. Alfonso A., 438 Mass. 372, 376, 780 N.E.2d 1244 (2003). Based on the level of detail given both in Mullins's sworn statement and at the subsequent meeting between her and Detectives Cherubino and Michael Maffei, we conclude that the informant was reliable, and therefore, her statements were sufficient to establish probable cause. See id. at 375 n. 3, 780 N.E.2d 1244 (where probable cause grounded in statements of named informant, strict requirements that govern analysis of anonymous informant's trustworthiness somewhat relaxed).

Mullins described at length and in detail the illicit sexual activity occurring at the massage school, which we need not recount here. Suffice it to say that Mullins claimed that she was expected to give various sexual favors to customers, including the "hand release," the manual manipulation of a man's penis to ejaculation, which was the technique Lisa Ulwick performed on Detective Ahern. Mullins also stated that it was common knowledge and openly discussed among the staff that the school was set up to provide a front for the illicit sexual activity occurring at the Oasis Group. The therapists from the Oasis Group, several of whom Mullins was able to describe in great detail, carried condoms on their person and discussed in front of each member of the Mullane family the sexual acts they performed and the lucrative payments they received for those acts. The defendant advised employees to be vigilant of whether the customer was an undercover police officer, in which case, the therapist was to give a "straight massage." As to her personal involvement in the enterprise, she stated that in a two-month period she had only received about fifteen minutes of actual instruction at the school; she had been called out of class on multiple occasions to service clients at the Oasis Group.

Finally, Mullins gave specific information regarding the internal operation of the premises. She noted that the defendant, who she described as a white male in his early sixties with gray hair, was usually present from 10 A.M. until noon or 1 P.M., and that he had an office adjacent to the front desk in the Oasis Group, where the therapists' schedules were kept. She also described the videotape surveillance system and the women's locker room. Based on this evidence, there was probable cause to issue the search warrant. The defendant's motion to suppress on this ground was properly denied.

b. Improper execution of the warrant. The defendant also argues that the execution of the warrant violated the "knock and announce" requirement, the requirement to show the warrant, and the requirement that the place to be searched must be described with particularity. These arguments have no merit. We take the following facts from the motion judge's findings of fact, which are fully supported in the record.

The police officers knocked and announced their presence on entering the lobby of the building. The officers approached the glass sliding window separating the lobby from the office area where Katherine and Patrick Mullane were sitting. The officers displayed the warrant through the window. Katherine and Patrick Mullane were unresponsive to Detective Cherubino's showing the warrant, and in fact, they appeared to be stalling. The officers, fearing the destruction of evidence, were forced to use a battering ram to enter an internal door in the building that led to the area where the massages were taking place. Based on these facts, the officers' actions were proper.

The warrant also was sufficient. Addendum B to the search...