Commonwealth v. Pearson

486 Mass. 809

162 N.E.3d 645

COMMONWEALTH

v.Washington PEARSON.

SJC-12930

Supreme Judicial Court of Massachusetts, Middlesex..

Argued November 6, 2020.

Decided February 12, 2021.

Edward Crane, Cambridge, for the defendant.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, & Kafker, JJ.

BUDD, C.J.

At the conclusion of two separate jury trials in the Superior Court in Norfolk County and Middlesex County, the defendant, Washington Pearson, was convicted of multiple offenses arising from a burglary spree in both Brookline and Cambridge. Prior to the trials, the defendant moved in each case to suppress evidence seized from his residence during the execution of a search warrant, arguing that the warrant was tainted by discoveries made during an earlier unlawful entry of his residence by police. Both motion judges agreed that the earlier entry was unlawful, but each judge concluded that the evidence seized during the execution of the warrant was exempt from exclusion as "fruit of the poisonous tree" under the independent source doctrine.

The convictions were affirmed by the Appeals Court in separate opinions. See Commonwealth v. Pearson, 96 Mass. App. Ct. 299, 135 N.E.3d 240 (2019) ( Pearson II ) (Middlesex cases);¹ Commonwealth v. Pearson, 90 Mass. App. Ct. 289, 58 N.E.3d 375 (2016) ( Pearson I ) (Norfolk cases). We granted the application for further review of the Middlesex convictions, 484 Mass. 1104, 143 N.E.3d 1045 (2020). We now vacate the Middlesex convictions, with the exception of a conviction of intimidation of a witness, and remand the matter to the Superior Court for an evidentiary hearing on the motion to suppress. In so doing, we provide clarification regarding the application of the independent source doctrine.

Background. 1. Facts. We summarize the relevant facts from the motion judge's findings in the Norfolk cases, which were later adopted by the motion judge in the Middlesex cases and are supported by the record. See Commonwealth v. Estabrook, 472 Mass. 852, 857, 38 N.E.3d 231 (2015). In early 2012, there was a rash of residential burglaries in Brookline and Cambridge, resulting in the theft of jewelry, credit cards, electronics, and other items. Aided by, among other things, a driver's license belonging to the defendant's wife that was left behind at one of the burgled homes, video surveillance footage captured at local retail stores of a woman and a man using the stolen credit cards to make purchases, and positive photographic identifications made by a clerk employed at one of the stores, police officers focused on the defendant and his wife as suspects and applied for warrants for their arrest.

Without waiting for the warrants to issue, police officers proceeded to a house in Lynn where they understood the defendant and his wife were residing. When the defendant's wife opened the front door, the officers inaccurately represented that they had a warrant for her arrest,² and took her into custody. At the defendant's wife's direction, the officers then proceeded to a second-floor bedroom, where they observed some of the stolen and fraudulently purchased items. Eventually, the officers also located the defendant in the third-floor bathroom and placed him under arrest.

After the defendant and his wife were booked, they both agreed to be interviewed by police. During her interview, the defendant's wife made various inculpatory statements. Meanwhile, back at the house in Lynn, which had been secured by police, a man identifying himself as the stepfather of the defendant's wife and as the owner of the house informed the police that his stepdaughter and the defendant had been residing there for several weeks. Later, that same individual alerted the officers to several items in a trash can outside the house, including a prescription bottle labeled with the name of one of the victims of the burglaries.

Thereafter, a Brookline police detective sought and secured a warrant to search the Lynn premises.³ According to the affidavit filed in support of the warrant, police made the decision to seek the warrant after the defendant's wife informed them that she could not consent to a search because the house belonged to her stepfather. The affidavit also included references to the evidence the police observed when they initially entered the home to make the arrests, including the stolen and fraudulently purchased items. Predictably, those items were again "discovered" during the execution of the search warrant and seized.

2. Prior proceedings. In late 2012, the defendant was indicted in both Norfolk County and Middlesex County for an array of offenses, including multiple counts of breaking and entering in the daytime with the intent to commit a felony, larceny over $250, identity fraud, and improper use of a credit card. In 2013, he also was indicted in Middlesex County for intimidation of a witness, arising from alleged threats made against his codefendant wife, who eventually testified for the Commonwealth pursuant to a cooperation agreement. The Middlesex and Norfolk cases were not joined for trial, and the Norfolk cases proceeded on a faster track.

The defendant filed a motion in the Norfolk cases to suppress, among other things, all items seized during the execution of the search warrant, arguing that because the officers were not in possession of an arrest warrant at the time they entered the home to arrest the defendant, the evidence observed during that time was the product of an unlawful search. The motion judge agreed that the initial entry was unauthorized; however, after excising the information obtained as a result of the unlawful entry from the affidavit supporting the warrant application, the judge concluded that the remaining information was sufficient to establish probable cause for the search. Accordingly, pursuant to the independent source rule, the judge denied the motion with respect to the evidence recovered at the time of the search.⁴ See Commonwealth v. Tyree, 455 Mass. 676, 692, 919 N.E.2d 660 (2010) ("Evidence obtained during a search pursuant to a warrant that was issued after an earlier illegal entry and search is admissible as long as the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause to search the premises ‘apart from’ observations made during the initial illegal entry and search" [citation omitted]). The defendant subsequently was convicted on all counts, and the Appeals Court affirmed. See Pearson I, 90 Mass. App. Ct. at 289, 294, 58 N.E.3d 375.

The defendant fared no better in the Middlesex prosecution. In deciding the defendant's motion to suppress, which was based on the same arguments that the defendant had made in the Norfolk cases, the motion judge in the Middlesex cases adopted the factual findings and legal conclusions reached by the motion judge in the Norfolk cases. The defendant subsequently was convicted on all counts in the Middlesex cases; the convictions were affirmed on appeal.⁵ See Pearson II, 96 Mass. App. Ct. at 300, 135 N.E.3d 240. We allowed the defendant's application for further appellate review, limited to the question whether the independent source exception applies to the evidence obtained as a result of executing the search warrant.

Discussion. "[T]he exclusionary rule bars the use of evidence derived from an unconstitutional search or seizure." Commonwealth v. Fredericq, 482 Mass. 70, 78, 121 N.E.3d 166 (2019), citing Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, there are exceptions to this general rule, including, as relevant here, that information "received through an illegal source is considered to be cleanly obtained when it arrives through an independent source." Murray v. United States, 487 U.S. 533, 538-539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), quoting United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986).

The purpose of the "independent source" doctrine, recognized under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, has been described by the United States Supreme Court in this way:

"[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation."

Murray, supra at 537, 108 S.Ct. 2529, quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). See Commonwealth v. DeJesus, 439 Mass. 616, 624, 790 N.E.2d 231 (2003).

1. The standard. The Commonwealth bears the burden of showing by a preponderance of the evidence that the challenged evidence is admissible pursuant to the independent source exception to the exclusionary rule. See Estabrook, 472 Mass. at 865, 38 N.E.3d 231. To do so, the Commonwealth must make two showings: (1) the officers’ decision to seek the search warrant was not prompted by what they observed during the initial illegal entry, and (2) the affidavit supporting the search warrant application contained sufficient information to establish probable cause, "apart from" any observations made during the earlier illegal entry. See DeJesus, 439 Mass. at 625, 627 n.11, 790 N.E.2d 231, citing Murray, 487 U.S. at 541-543, 108 S.Ct. 2529.

We begin by noting that our articulation of the independent source test in prior cases appears to have led to some confusion. In DeJesus, 439 Mass. at 628 n.11, 790 N.E.2d 231, we acknowledged the first prong of the standard, but only in a footnote because the defendant had not challenged the applicability of that prong....