Opinion
14-P-1684
04-05-2016
COMMONWEALTH v. STEVEN GOMES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Steven Gomes, appeals his convictions of possession of heroin with intent to distribute, in violation of G. L. c. 94C, § 32(a); possession of oxycodone with intent to distribute, in violation of G. L. c. 94C, § 32A(a); and possession of cocaine, in violation of G. L. c. 94C, § 34. The defendant challenges his convictions for two reasons. First, the defendant argues that probable cause did not exist to substantiate the issuance of a no-knock provision in the search warrant. Second, the defendant maintains that the evidence found during the execution of the search warrant at his apartment was fruit of the poisonous tree and should be subject to the exclusionary rule.
Background. We summarize the facts found by the motion judge, reserving some facts for later discussion.
Detective Arthur Hegarty (Det. Hegarty) was told by a confidential informant that the defendant was operating a drug distribution service out of his residence. The informant also told Det. Hegarty that he or she had called the defendant and requested heroin from him. The informant identified the defendant from a photograph Det. Hegarty obtained from the registry of motor vehicles as the person from whom the informant had purchased drugs in the past.
Within seventy-two hours of applying for the search warrant, Det. Hegarty arranged for the informant to make a controlled purchase of heroin. Det. Hegarty heard the informant call the defendant and request the drugs. Prior to making the controlled buy, Det. Hegarty searched the informant to ensure that he or she was not in possession of any drugs. Det. Hegarty observed the informant go into the defendant's residence. When the informant left the defendant's residence, he or she met with officers and told them that he or she exchanged the money given to him or her by police officers for heroin, which he or she gave to the police.
Det. Hegarty checked the defendant's probation record, which showed that he had been convicted of trafficking a Class B substance and possessing both Class A and Class B substances with the intent to distribute. The record also showed that the defendant had been charged with other offenses including other drug offenses, unlawful possession of a firearm, assault and battery by means of a dangerous weapon, and assault and battery on a police officer.
Det. Hegarty applied for a search warrant of the defendant's residence, requesting permission for the police to enter the defendant's residence without knocking and announcing themselves. To support the application for a no-knock warrant, Det. Hegarty stated that in his experience it is common for people involved with illegal drugs to destroy evidence of the drugs when they learn that the police are about to conduct a search. Det. Hegarty also stated that the defendant had had a lot of interaction with the members of the Organized Crime Intelligence Bureau (OCIB) and would be able to identify its members. Det. Hegarty stated that the defendant "has an extensive history involving drug activity including current open cases for drug distribution as well as arraignments for gun possession and assault and battery. Because of the possibility of observing and recognizing approaching detectives a no-knock warrant would help gain quick entry into the residence, reducing the possibility of a dangerous situation for both members of the OCIB as well as [the defendant] and any occupants of the residence." Finally, the street on which the defendant's apartment is located is heavily traveled and people routinely loiter in the area, which would give them an opportunity to alert the defendant that the police were approaching.
This is referred to as a "no-knock" warrant.
Det. Hegarty also stated,
"During this investigation a Board of Probation query was conducted on [the defendant]. . . . The records indicated one-hundred and twenty-five (125) adult entries. These entries included but were not limited to the following: Trafficking Class A, Trafficking Class B on multiple occasions with at least one guilty finding, Possession to Distribute Class A on multiple occasions with at least one guilty finding, Possession to Distribute Class B on multiple occasions with at least one guilty finding, multiple School Zone Violations, Possession of a Firearm, Assault and Battery with a Dangerous Weapon, Assault and Battery on a Police Officer."
The magistrate issued the search warrant and authorized the police to enter the defendant's residence without announcing themselves. The search warrant was executed on August 25, 2012, at the defendant's residence.
Discussion. 1. Standard of review. When reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). Although we give the facts found by the judge deference, "[w]e independently determine whether the judge correctly applied constitutional principles to the facts as found." Ibid.
2. Exclusionary rule. The defendant argues that because the no-knock provision was not supported by probable cause, the evidence obtained during the execution of the search warrant was fruit of the poisonous tree and subject to the exclusionary rule. Although we agree with the defendant and the judge that the magistrate lacked probable cause to issue the no-knock provision, the exclusion of evidence seized following a violation of the knock and announce rule is not automatic and was not required in the current case. See Commonwealth v. Gomes, 408 Mass. 43, 46 (1990). "If the policies underlying the rule are substantially fulfilled the circumstances in which the police enter [the] premises to be searched, evidence seized pursuant to a valid search warrant need not be suppressed, even if, as here, the police did not knock and announce their presence as they should have. In such a situation, the need to deter future police violations of the rule by suppression of the evidence is not substantial, particularly when the entry is not violent." Commonwealth v. Wornum, 421 Mass. 220, 222 (1995). In determining if evidence seized in violation of the knock and announce rule should be excluded, "[t]he interests to be considered are these: (i) 'the degree to which the violation undermined the principles underlying the governing rule of law' and (ii) 'the extent to which exclusion will tend to deter such violations from being repeated in the future. . . .'" Commonwealth v. Lopez, 31 Mass. App. Ct. 547, 549-550 (1991), quoting from Commonwealth v. Gomes, 408 Mass. at 46.
The underlying policies for the knock and announce rule are to decrease the potential for violence, protect privacy, and prevent unnecessary damage to property. See Commonwealth v. Jimenez, 438 Mass. 213, 215-216 (2002). We first note that the entry to the defendant's residence here was not violent. There was no unnecessary invasion into the defendant's privacy as the police announced their presence and purpose, after forcing open the exterior door of the building, while entering the open door into the defendant's apartment. See Commonwealth v. Lopez, 31 Mass. App. Ct. at 550 ("[T]he front door was wide open, permitting the unobstructed sight of the defendants gathered inside, and where, according to the finding of the judge, the police announced their presence, identified themselves, and cautioned those present not to move, all done as 'the first officer crossed the threshold,' none of the underlying principles was threatened or undermined, and the first test was satisfied").
We recognize that there was some damage done to the exterior door of the building. However, this damage was minimal as the police officer used a breaching tool (ram) on the lock of the door and the officer testified that it appeared that the only damage was to the lock mechanism.
Because all of the underlying principles of the knock and announce rule were satisfied, we look to determine if excluding the evidence recovered at the defendant's residence will deter future police violations. The facts of the present case contrast with those of Gomes, supra. The Supreme Judicial Court in Gomes noted that police officers are required to have a reasonable degree of knowledge of what the law prohibits, and therefore excluded evidence where police officers applied for a no-knock provision without providing any information that would support such a provision. 408 Mass. at 46. In this case, Det. Hegarty submitted in good faith a detailed affidavit that made a colorable case for obtaining a no-knock provision that included concerns for officer safety and the safety of others as well as the destruction of evidence. We also note, again, that the officers announced their presence before entering into the open interior door of the defendant's apartment, even though it was not required by the warrant they possessed. In the present case, the police officers did more than what was required when executing the warrant. The police also submitted a colorable case to establish probable cause for a no-knock warrant to the magistrate. Contrast id. at 47 ("[Police officer] had actual knowledge that the affidavit contained no particularized facts which would have shown probable cause to believe that a 'no-knock' warrant should issue"). Therefore, there is no police officer misconduct that would be deterred by suppression of this evidence.
Because the underlying principles of the knock and announce rule were satisfied and exclusion of the evidence would not deter future police misconduct, see id. at 46, suppressing the evidence would have been inappropriate in this case.
Judgments affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: April 5, 2016.