Commonwealth v. Gentile

466 Mass. 817

2 N.E.3d 873

COMMONWEALTH

v.Conan GENTILE.

SJC–11372.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 7, 2013.

Decided Jan. 14, 2014.

Cathryn A. Neaves for the defendant.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that police who enter an individual's residence to execute an 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). See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives where there is reason to believe the suspect is within”). In Silva, supra at 776–777, 802 N.E.2d 535, we stated that the “ reasonable belief” standard is “less exacting than probable cause.” The issue presented in this case is how much less exacting. We conclude that a “ reasonable belief” requires more than was known here at the time of entry. Therefore, the entry was unconstitutional under both the Fourth Amendment and art. 14, and the observation and subsequent seizure of the stolen property allegedly received by the defendant in this case should have been suppressed as a fruit of the illegal entry. Because both of the defendant's convictions for receipt of stolen property, in violation of G.L. c. 266, § 60, rest entirely on this illegally seized property,we vacate the convictions and remand the case to the Superior Court for entry of an order of dismissal.

Background. We summarize the relevant evidence in the Commonwealth's case-in-chief at trial, and reserve the evidence presented at the motion to suppress hearing for our discussion of that motion.

Approximately one week before the defendant's arrest, State Trooper David Napolitano spoke to the defendant in an unrelated incident and viewed his Massachusetts identification card, which identified his address as an apartment in Leominster. On June 24, 2010, Trooper Napolitano, assisted by Leominster Detective Scott Wolferseder and two police officers, went to this address to execute two outstanding arrest warrants.

After the trooper knocked on the back door several times, a teenage girl, Daisy Stanley, answered the door and her mother, Maura Stanley, came out of a bedroom and approached the door.¹ After speaking briefly with Maura, the trooper entered the apartment, pushed open the door of the bedroom that faced the back door, and found the defendant. After the trooper noticed the “butt end” of what appeared to be a rifle (but was actually an antique musket) sticking out from under the bed, the trooper handcuffed the defendant and asked him if there were any weapons in the apartment. The defendant replied that there were no firearms, but that a knife was on the dresser. The trooper then removed the musket from beneath the bed, at which point he observed three firearm cases. He opened two of the cases and found a shotgun in each; the third, labeled “Beretta,” which the trooper knew was a type of firearm, was empty. The trooper asked the defendant about the firearms, and the defendant said they were not his and he did not know where they had come from. The defendant then began “yelling that [the officers] were illegally searching his bedroom.” The trooper noticed a large sword and scabbard in the corner of the bedroom, but the officers seized only the musket, firearms, and firearm cases.

The officers transported the defendant to the State police barracks, where he was advised of and waived his Miranda rights, and agreed to speak to the police. A Sterling police officer arrived with a police report about a breaking and entering that had occurred on June 15, 2010, in which the musket and firearms seized from the defendant's bedroom, among other items, had been stolen. The trooper “relayed” the list of stolen items, which also included a sword and three BB guns, to the defendant. The defendant told the officers that the musket and the firearms seized from the bedroom had been taken in that burglary, and that the sword and one of the BB guns were still in the apartment. The defendant denied having stolen the items, but said he knew who had committed the crime and did not want to tell the police who it was. The trooper asked for the defendant's consent to search the apartment for the sword and BB gun. The defendant agreed to the search and signed a “consent to search” form. The officers then returned to the apartment and found the sword behind the door of the bedroom where the defendant had been arrested and the BB gun near the closet on the other side of the room.

The defendant was charged in five indictments alleging receipt of stolen property, with each indictment charging receipt of one of the five items of property found in the bedroom.² A Superior Court jury convicted the defendant only of the two indictments alleging receipt of the stolen sword and of the BB gun.³

The defendant appealed, and we transferred the case here on our own motion. On appeal, the defendant argues that the judge erred in denying his motion to suppress because the arrest warrants did not authorize the police to enter the apartment where they did not have a “reasonable belief” that he was present in the apartment, and that the subsequent seizure of the sword and BB gun was the “fruit” of this unconstitutional entry.⁴

Discussion. “In reviewing a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error.’ ” Commonwealth v. Pacheco, 464 Mass. 768, 769, 985 N.E.2d 839 (2013), quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). But we “independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004). We summarize the judge's rather spare findings of fact regarding the entry into the home, made orally following an evidentiary hearing where Trooper Napolitano was called to testify by the Commonwealth, and Detective Wolferseder and Daisy were called to testify by the defendant. We supplement the judge's findings with additional details from the testimony of Trooper Napolitano because the judge found his testimony to be “credible in its entirety.” See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C.,450 Mass. 818, 882 N.E.2d 328 (2008), and cases cited. ⁵

Trooper Napolitano was “an experienced [seventeen-year] veteran of the State Police.” His duties for the two years prior to the motion hearing included executing outstanding arrest warrants, during which he had arrested more than 200 people on warrants, including more than one hundred people in their homes. According to the motion judge, “[t]he trooper has developed a sense of sincerity or credibility when he's executing these warrants, because he's often found that people will misrepresent ... a person's presence in the dwelling.”

At some time during the week before the arrest, the trooper encountered the defendant and saw the defendant's Massachusetts identification card that indicated that his address was an apartment in Leominster. The trooper subsequently learned that two valid arrest warrants had been issued against the defendant.⁶ On June 24, 2010, after confirming that the address on the defendant's identification card matched the address listed on the defendant's driver's license, the trooper, assisted by Leominster police officers, went to the apartment at approximately 9:30 a.m. and spoke with Maura. The judge found that the trooper's “observations of her, based on his experience and training, led to a reason to believe the defendant was present in the house.”

The trooper testified that, before he knocked on the door, he had no information to indicate that the defendant was home. When Maura came to the door, he told her that he was looking for the defendant and had a warrant for his arrest. There was a young girl standing with her, whom he later learned was her daughter. Maura appeared nervous. She said, “No, he's not here,” and looked toward a bedroom that was straight across from where the trooper stood, the door to which was “probably half to three-quarters open.” She stated that the defendant was not there “a couple times.” He heard other “movement,” indicating to him that somebody else was in the apartment, but he could not see anyone else in the apartment and “didn't know who was there.” ⁷ He told Maura that he believed the defendant was there, walked past her into the apartment, and entered the bedroom straight across from him, where he found the defendant.

The defendant correctly does not challenge the judge's finding that the officers had a reasonable belief that the defendant resided at the apartment. Therefore, we limit our analysis to whether the evidence at the suppression hearing was sufficient to support a “reasonable belief that the arrestee [was] in his residence at the time the arrest warrant [was] executed.” Commonwealth v. Silva, 440 Mass. at 778, 802 N.E.2d 535. Reasonable belief is an objective standard. Commonwealth v. Webster, 75 Mass.App.Ct. 247, 251, 913 N.E.2d 890 (2009), citing Silva, 440 Mass. at 779 n. 8, 802 N.E.2d 535. Trooper Napolitano's good faith subjective belief that the defendant was in the house was not enough, by itself, to satisfy the standard. See Webster, supra, quoting Commonwealth v. Grandison, 433 Mass. 135, 139, 741 N.E.2d 25 (2001). Rather, a law enforcement official's belief must...