Com. v. Webster

913 N.E.2d 890

75 Mass. App. Ct. 247

COMMONWEALTH v. Steven WEBSTER.

No. 08-P-31.

Appeals Court of Massachusetts, Suffolk.

Argued November 4, 2008.

Decided September 25, 2009.

Brownlow M. Speer, Committee for Public Counsel Services (Bruce R. Bono, Committee for Public Counsel Services, with him) for the defendant.

David D. McGowan, Assistant District Attorney, for the Commonwealth.

Present: McHUGH, SIKORA, & RUBIN, JJ.

McHUGH, J.

Steven Webster, the defendant, was indicted on eight charges, five arising out of a shooting on February 11, 2004, and three arising out of his arrest and the search of his home on February 18, 2004. Only the latter three are relevant to this appeal, and those charges are (1) possession of a firearm outside a home or business without a license to carry, second offense, see G.L. c. 269, § 10(a); (2) possession of a firearm without a firearm identification card, see G.L. c. 269, § 10(h); and (3) possession of ammunition without a firearm identification card, see G.L. c. 269, § 10(h). The first of these charges refers to a .32 caliber pistol taken from the defendant's waistband at the time of his arrest (waistband pistol), the second refers to a .380 caliber pistol found under a mattress during a search of his home (mattress pistol), and the third refers to ammunition found with the mattress pistol.

The defendant filed a motion to suppress the pistols and the ammunition. After an evidentiary hearing, a judge in the Superior Court denied the motion. At a subsequent jury trial, the defendant was convicted of illegal possession of ammunition and acquitted of all five charges related to the shooting. In a later jury-waived trial, he was convicted of the charges arising from possession of the pistols. He appeals, claiming that the motion to suppress should have been allowed. We affirm in part and reverse in part.

Facts. The motion judge's findings of fact, "occasionally supplemented with undisputed evidence from the record," Commonwealth v. Townsend, 453 Mass. 413, 419, 902 N.E.2d 388 (2009), reveal the following chain of events. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007).

A Boston police investigation of the February 11, 2004, shooting of a man named Steven Nixon led to a warrant for the defendant's arrest. Nixon identified the defendant as the shooter, so there is no question that the warrant was supported by probable cause. At approximately 11:00 A.M. on February 18, 2004, Boston police Officers Fabiano and Griffin, accompanied by Boston police Sergeant Detective Bailey, went to 402 Centre Street, where the defendant lived with his mother, Jackline Webster, to execute the warrant because, the motion judge found, the officers "had information that [the defendant] was returning to the apartment." The record does not reveal the source of that information.

As the officers approached the apartment building, they encountered a man named Stephen Smith, Ms. Webster's fiancé, who lived in the apartment with her. With respect to that encounter, the judge found as follows:

"The police officers approached and asked his name. He identified himself as [Stephen] Smith and stated that he did live on the second floor with his girlfriend and her son. He was shown a picture of the defendant and acknowledged it was his girlfriend's son....

"The police explained they had an arrest warrant for the defendant. He was asked if he had a key to [the] apartment and Mr. Smith indicated he did. An officer stated that was good because otherwise they would have to break down the door to gain entrance to see if [the defendant] was there. They asked if he would open the door. He agreed."¹

After opening the apartment door, Smith left for work and Officers Fabiano and Griffin entered in accordance with Sergeant Detective Bailey's instructions that they should "freeze" the apartment while he went for a search warrant. Their search revealed that no one was in the apartment, so the officers remained to await the defendant's arrival. One officer left briefly to move the marked cruiser in which they had arrived so that, as the motion judge found, "it would not be obvious."²

Eventually, the officers heard footsteps on the stairway and a key in the lock.³ The door opened and the defendant stepped into the apartment.⁴ The judge found that "the officers announced their presence. [The defendant] slammed the door and ran back outside." Officer Griffin gave chase while Officer Fabiano remained in the apartment and broadcast over his radio an alarm that the chase was in progress.

Pursuit ended with the defendant on the ground in the custody of Officer Griffin and another officer who, alerted by the broadcast, had joined the chase. Upon hearing Officer Griffin tell the other officer that the defendant was probably armed, the defendant stated, "[I]t's in my waistband," and that he carried it "for protection because it's crazy out there." Officer Griffin seized the pistol, gave the defendant Miranda warnings, transported him to a police station for booking, and returned to the apartment.

The defendant's mother, Ms. Webster, had left the apartment at about 7:15 A.M. to attend an educational seminar. She returned at about 2:30 P.M. to find the apartment occupied by police. The officers told her they had secured the apartment and were waiting for a search warrant due to her son's arrest. The police told Ms. Webster to sit at a table in the kitchen, where, at some point, she was joined by a friend.

The judge found that, while the two women were sitting at the kitchen table, "Officer Fabiano, who chews tobacco[,] was spitting the residue into the sink. He had a conversation with Ms. Webster about some porno videos that she had hidden in her room. The officer also made comments about other paraphernalia associated with the pornographic videos." During the afternoon, the telephone rang several times, but the police would not allow the women to answer it, and asked instead about the names indicated by the telephone's "call identification" ("caller ID"), and about one of the defendant's friends generally.

The search warrant finally issued at about 6:00 P.M., seven hours after the officers first entered the apartment. Execution of the warrant produced, among other things, the mattress pistol and two rounds of ammunition.

On those facts, the judge denied the motion to suppress, concluding that (1) the police entered the defendant's home lawfully because they had a warrant and a reasonable belief that he was home; (2) removal of the firearm from the defendant's waistband resulted from a search incident to lawful arrest and from volunteered information; (3) though police were not warranted in securing the premises from inside, and at least one officer conducted a search of the apartment before obtaining a warrant, no information obtained from the apartment was used in the affidavit in support of the search warrant and, so, the resulting search warrant was not tainted; and (4) in any event, if police had secured the apartment from outside, the mattress pistol and the ammunition would have been discovered when executing the search warrant, and the exclusionary rule only requires suppression of evidence that police could not independently acquire by lawful means.

Discussion. "In considering the defendant's arguments on appeal, we accept the judge's unchallenged findings of fact as supplemented by undisputed evidence. We review de novo [her] `application of constitutional principles' to those established facts." Commonwealth v. Jackson, 73 Mass.App.Ct. 411, 413, 898 N.E.2d 510 (2008), quoting from Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007). See Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004).

a. Seizure of the defendant. In a case decided shortly before the defendant's arrest, the Supreme Judicial Court held that art. 14 of the Massachusetts Declaration of Rights, "like the Fourth Amendment, requires that police with a valid arrest warrant have a reasonable belief that the location to be searched is the arrestee's residence, and a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed." Commonwealth v. Silva, 440 Mass. 772, 778, 802 N.E.2d 535 (2004). If police have that reasonable belief, no separate warrant is required for entry because "[a]n arrest warrant `encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant.'" Id. at 776, 802 N.E.2d 535, quoting from Commonwealth v. Nova, 50 Mass.App.Ct. 633, 634-635, 740 N.E.2d 1021 (2000). See Commonwealth v. Allen, 28 Mass.App.Ct. 589, 592-593, 554 N.E.2d 854 (1990).

"Reasonable belief," like reasonable suspicion, is an objective standard. Commonwealth v. Silva, supra at 779 n. 8, 802 N.E.2d 535. See Commonwealth v. DeJesus, 439 Mass. 616, 621, 790 N.E.2d 231 (2003). A reasonable belief, therefore, "may not be based on good faith or a hunch, but [must rest instead] on specific, articulable facts and inferences that follow from the officer's experience." Commonwealth v. Grandison, 433 Mass. 135, 139, 741 N.E.2d 25 (2001). See Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996), quoting from Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("The standard is objective: `would the facts available to the officer at the moment of the [entry] "warrant a man of reasonable caution in the belief" that the action taken was appropriate?' ").

Here, the police surely had a reasonable belief that the defendant lived in the apartment they targeted. No one argues otherwise. Neither the judge's subsidiary findings nor the record on which she based them, however, support her ultimate conclusion that the police reasonably believed that the defendant was in the apartment when they entered it.⁵ Indeed, the judge explicitly found only that "[t]he officers had information that [the defendant] was returning to the...