COMMONWEALTH vs. JUAN DEJESUS.

JACOBS, J. Indicted for trafficking in cocaine, the defendant

Page 524

filed a motion to suppress all evidence seized from his apartment in Lawrence during a search conducted pursuant to a warrant. The warrant had issued based upon an affidavit describing cocaine and drug paraphernalia observed by police officers in the course of a prior warrantless entry into the apartment. After an evidentiary hearing, a Superior Court judge allowed the motion, concluding that the warrantless entry was not grounded on circumstances of impracticability or "compelling necessity." A single justice of the Supreme Judicial Court allowed the Commonwealth to file this interlocutory appeal in which the Commonwealth argues that the police did not need exigent circumstances to enter the apartment. We affirm the order allowing the motion to suppress on grounds additional to those relied upon by the judge. See Commonwealth v. Cruz, 430 Mass. 838 , 844 (2000); Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499 , 503 n.7 (1996), S.C., 425 Mass. 99 (1997).

Background. Brian O'Neil, the State trooper who had obtained the search warrant, was the only witness at the suppression hearing. His testimony encompassed considerably more information than was contained in his affidavit in support of his application for the warrant. The facts, based on his uncontroverted testimony and a police affidavit admitted as evidence at the hearing, are as follows: On March 29, 1999, Antonio Graciano was arrested after he delivered 270 grams of cocaine to an undercover police officer in a restaurant parking lot in Lawrence. The defendant and another person who had driven to the restaurant with Graciano from his apartment at 5 Forest Street in Lawrence also were arrested. Shortly before he drove off with Graciano, the defendant had been observed walking to 5 Forest Street from the vicinity of 7 Lynch Street in Lawrence.

Soon after his arrest, Graciano told Trooper O'Neil that the defendant was his supplier and, that same day, had delivered the cocaine to Graciano on foot. Graciano further stated that the defendant lived at 7 Lynch Street, that he had been involved in numerous drug deals with the defendant, and that he had met with him in front of that address on numerous occasions but had never been inside the house. He also said he did not know in which of two apartments at 7 Lynch Street the defendant lived or whether anyone else lived in the defendant's apartment.

Page 525

In the course of a separate investigation, Trooper O'Neil recently had received information from a "[c]onfidential [r]eliable [i]nformant" that an apartment on the third floor of 7 Lynch Street was a "stash location" and the "residence of two individuals involved in cocaine distribution."

After Graciano had accompanied him to 7 Lynch Street, Trooper O'Neil brought him to a police station where Graciano pointed out the defendant. Upon obtaining the keys that had been taken from the defendant at the time of his arrest, O'Neil and another officer returned to 7 Lynch Street and went directly to the third-floor apartment, where they knocked at the door and announced themselves. Receiving no response, they used the defendant's keys to open the door. They then "checked the apartment for occupants" and, finding no one, "proceeded back to the front hallway and locked the door." In the course of this "sweep for occupants" the officers saw cocaine and cocaine packaging materials in plain view on a kitchen table. [Note 1]

The judge found that following the plain view observation

Page 526

"[t]he two officers who had entered the apartment then secured the apartment pending the issuance of a search warrant." Trooper O'Neil thereafter prepared an application for a search warrant and a supporting affidavit. There is no indication that anyone otherwise had initiated the application for a search warrant prior to the officers' leaving the apartment or that it was impracticable to do so. [Note 2] The evidence at the suppression hearing established only that it was Trooper O'Neil's "intention" to obtain a warrant at the time he entered the apartment.

In his affidavit in support of the application, Trooper O'Neil justified the warrantless entry on the ground that "potential co-conspirators could be aware of the [p]olice detection" of Graciano and the defendant. [Note 3] The judge correctly determined that this was the only explanation entered in evidence during the suppression hearing of a "possible reason for entering the apartment in the manner [the police] did," and in effect concluded that there was no exigency, in that the circumstances described did not constitute "such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant." See United States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980) (using the same words to describe "[t]he ultimate test" for determining exigency). The search conducted pursuant to the warrant

Page 527

resulted in the seizure of numerous items in addition to those on the kitchen table.

On appeal, the Commonwealth argues, citing Commonwealth v. Blake, 413 Mass. 823 (1992), that the police did not need exigent circumstances to enter the defendant's apartment, but were permitted to "secure the premises from within" and, therefore, their plain view observation while lawfully in the apartment could be used in obtaining a warrant. See Commonwealth v. Forde, 367 Mass. 798 , 803 (1975) (a plain view discovery is not a "search" within the meaning of the Fourth Amendment). In Blake, which involved a warrantless forcible entry into a residence, the court, citing Segura v. United States, 468 U.S. 796, 810 (1984), stated that "[s]ecuring a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents." Commonwealth v. Blake, supra at 829.

Discussion. "We start our discussion by restating the well known rule that warrantless entries are per se unreasonable unless they fall within one of the few narrowly drawn exceptions to the Fourth Amendment warrant requirements." Commonwealth v. Amaral, 16 Mass. App. Ct. 230 , 233 (1983). Among the most common exceptions is that of "exigent circumstances," which permits a warrantless police search of premises, upon probable cause and a reasonable belief that evidence or contraband is at imminent risk of destruction. Ibid. Choosing not to contest the judge's determination that there were no exigent circumstances, [Note 4] the Commonwealth relies on the proposition that police, having probable cause to search, may secure the premises to be searched, pending issuance of a warrant, "to prevent the potential destruction or loss of evidence related to the defendant's drug transactions." As stated, that proposition is based on settled law to the effect that even absent exigency "police officers may secure an area to be searched before a warrant is procured . . . as long as the search does not

Page 528

commence before issuance of the warrant" (citation omitted). Commonwealth v. Yesilciman, 406 Mass. 736 , 743 (1990).

Less than settled, in our view, is the reach of the concept embedded in the word "secure." There is sound basis in the cases for permitting police, upon probable cause and without exigent circumstances, effectively to seize a dwelling, pending the issuance of a search warrant, by securing it from the outside, thereby preventing anyone from entering and destroying evidence of criminality or from carrying away such evidence. See Commonwealth v. Hall, 366 Mass. 790 , 803 (1975), and cases cited; Commonwealth v. A Juvenile (No. 2), 411 Mass. 157 , 165 n.9 (1991) (the rationale for requiring that police secure residences from the outside "rather than searching immediately on obtaining probable cause . . . is that the police should not be allowed to intrude on the privacy of homes without the authorization of a neutral and detached magistrate" [citations omitted]). The extension of this principle of external impoundment to permit the securing of a dwelling by unauthorized entry and "sweep" of the inside to protect against possible destruction of evidence is, however, not free from doubt. [Note 5]

Nevertheless, even if we assume that such an extension,

Page 529

purportedly supported by the above quoted language and facts of Commonwealth v. Blake, represents the current state of Fourth Amendment jurisprudence, the factual circumstances in this case call for affirmance of the allowance of the defendant's motion to suppress.

" 'The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the

Page 530

Fourth Amendment [and art. 14 of the Massachusetts Declaration of Rights were] designed to circumscribe by the general requirement of a judicial determination of probable cause.' Commonwealth v. Forde, 367 Mass. 798 , 805 (1975)." Commonwealth v. Marquez, 434 Mass. 370 , 374 (2001). "[T]he 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' United States v. United States District Court, 407 U.S. 297, 313 [(1972)]." Payton v. New York, 445 U.S. 573, 585 (1980). The "central requirement [of the Fourth Amendment] is one of reasonableness." Illinois v. McArthur, 531 U.S. 326, 330 (2001). We review the facts and the case law through the prism of that central requirement.

The Commonwealth relies primarily on Commonwealth v. Blake, supra, and the Supreme Court decision cited therein, Segura v. United States, 468 U.S. 796 (1984). [Note 6] Both decisions utilized the same wording: "securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents" (emphasis supplied). Id. at 810. Commonwealth v. Blake, 413 Mass. at 829. In Blake, the arrest of the defendant for distributing drugs at a gasoline station was followed by police officers leaving the station, going to the defendant's house, and securing it from within while another officer at the station applied for a search warrant. Id. at 824. In Segura, the Court held "that where officers, having probable cause, enter premises, and . . . secure the premises from within . . . while others, in good faith, are in the process of obtaining a warrant" (emphasis supplied), there is no Fourth Amendment violation. [Note 7] Segura v. United States, supra at 798. There is ample reason for distinguishing these cases

Page 531

from the one before us based upon the absence of an ongoing warrant application process. To extend the holdings of Blake and Segura to include a circumstance where the application for a search warrant has not been commenced but is, at most, merely the unexpressed intention of the officer making the entry, is tantamount to abolishing the warrant requirement. [Note 8] The preparation and processing of a warrant application by officers other than those making the entry serves as a safeguard against inexpedient and premature police intrusion into a home. That safeguard is the awareness by the participants in the entry of an essentially simultaneous judicial review of the propriety of the search. If police officers are informed by our decisions that an entry into a home will be upheld if they later testify that they intended to apply for a warrant, the salutary effect of concurrent judicial evaluation will be significantly diminished. Moreover, "[t]he incentives for such illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainty, and many 'confirmatory' searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant." Murray v. United States, 487 U.S. 533, 546-547 (1988) (Marshall, J., dissenting). As Justice Jackson observed in Johnson v. United States, 333 U.S. 10, 13-14 (1948), "[t]he point of the Fourth Amendment,

Page 532

which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

Even if we assume that a warrant application had been initiated in this case, we must next examine the nature of the police intrusion and its claimed justification. Accepting fully the proposition that a brief sweep, such as here involved, constitutes primarily a seizure of the defendant's apartment, and not a search of it, and that "[t]herefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue," Segura v. United States, 468 U.S. at 810, experience and common sense nevertheless dictate that some modicum of reasonably expected privacy is invaded by police officers rushing through and looking into various rooms of a residence. Just as evidence of criminality may, as here, incidentally fall within the plain view of the officers checking for occupants, so also may personal aspects of home life normally shielded by the walls of the residence be exposed. "Nowhere are expectations of privacy greater than in the home, and '[i]n the home . . . all details are intimate details . . . .' " Commonwealth v. Balicki, 436 Mass. 1 , 12 n.14 (2002), quoting from Kyllo v. United States, 533 U.S. 27, 37 (2001). "Consequently, . . . [we] balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable." Illinois v. McArthur, 531 U.S. at 331.

The predicate for securing a dwelling is the existence, immediately prior to the moment of seizure, of facts within the knowledge of the police, establishing probable cause to search. [Note 9] We assume, without deciding, that those facts, as developed at the suppression hearing, establish a sufficient nexus between the

Page 533

drug activity in which the defendant was implicated and his apartment to support probable cause to believe illegal drugs might be found in that apartment. See Commonwealth v. Blake, 413 Mass. at 829. Once probable cause to search exists, the decision to secure a dwelling from within requires an objectively reasonable level of police concern that evidence of criminality will be destroyed in order to justify intruding, albeit minimally, on the reasonable expectation of privacy of the residents of that dwelling. [Note 10] Absent such an acceptable level of concern, the standard supporting warrantless police entry would reduce simply to probable cause to believe that evidence of criminality is contained in the premises. Such a shrunken standard would undermine significantly the warrant requirement of the Fourth Amendment.

Here, given the absence of exigency, as found by the judge and essentially conceded by the Commonwealth, the threat of imminent destruction is ruled out as a basis for police concern. Nor does the record support other recognized levels of concern such as the "probability of destruction." Illinois v. McArthur, supra at 337 (Souter, J., concurring), or "a founded or reasonable suspicion" justifying an unobtrusive search. Commonwealth v. Alvarez, 422 Mass. 198 , 210 (1996). That leaves, as the only plausible basis for concern, Trooper O'Neil's statement that "potential co-conspirators could be aware" of the arrest of Graciano and the defendant. Even giving the Commonwealth the benefit of a generous interpretation, that statement reflects, at

Page 534

most, a mere possibility of destruction founded on speculation that (1) the third floor apartment was occupied when the officers arrived; (2) the occupant had learned of the defendant's arrest or would learn of it during the time it would take to obtain a search warrant; and (3) such occupant would destroy the evidence. [Note 11] "We cannot speculate . . . to justify the warrantless entry into a private residence." Commonwealth v. Huffman, 385 Mass. 122 , 127 (1982). In view of the highly speculative nature of the police concern and the absence of a contemporaneous effort to obtain a warrant, even the minimal intrusion in issue was not reasonable.

Accordingly, since the entry was constitutionally invalid, "the police had no legal justification for being present . . . and cannot rely on the 'plain view' doctrine." Commonwealth v. Forde, 367 Mass. at 807. Compare Commonwealth v. D'Amour, 428 Mass. 725 , 731 (1999) ("The police are lawfully in a position from which they view an object if they did not violate the Fourth Amendment"). Given Trooper O'Neil's exploitation of his unlawful entry in his affidavit in support of the application for a warrant and the absence of a recitation of sufficient independent sources in that affidavit to alone support the issuance of the warrant, see note 1, supra, the fruits of the subsequent search of the defendant's apartment were irretrievably tainted. Wong Sun v. United States, 371 U.S. 471, 484-488 (1963). Commonwealth v. Balicki, 436 Mass. at 15-16. Contrast Murray v. United States, 487 U.S. at 535-536 ("In applying for the warrant, the agents did not mention the prior entry, and did not rely on any observations made during that entry"); Segura v. United States, 468 U.S. at 814 ("None of the information on which the warrant was secured was derived from or related in any way to the initial entry into [the] apartment"); Commonwealth

Page 535

v. Blake, supra at 830 ("[T]he affidavit in support of the warrant was based wholly on evidence independent of the entry into the apartment").

The order allowing the motion to suppress is affirmed.

MASON, J. (concurring in result). I agree that the order allowing the motion to suppress in this case should be affirmed. I would state flatly, however, that absent one of the well defined exigent circumstances previously identified in the case law, police officers may not enter a private premises without a warrant even if they have probable cause to believe that evidence or contraband is contained therein and are in the process of obtaining a warrant. I believe that this is the law.

Indeed, in Segura v. United States, 468 U.S. 796 (1984), six members of the United States Supreme Court indicated in separate opinions that they regarded it as settled that "an entry in the absence of exigent circumstances is illegal." Id. at 812 (separate opinion of Burger, C.J.), 820 (Stevens, J., dissenting). No member of the Court suggested a contrary view. See Coolidge v. New Hampshire, 403 U.S. 443, 478 (1971) ("searches and seizures inside a man's house without a warrant are per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances' "); Vale v. Louisiana, 399 U.S. 30, 34-35 (1970) (absent a demonstrable threat of imminent destruction of evidence, the authorities may not enter a residence without a warrant in order to preserve that evidence).

I do not read the opinion of the Supreme Judicial Court in Commonwealth v. Blake, 413 Mass. 823 (1992), as establishing any different rule. Indeed, the court explicitly noted in Blake that, unlike the circumstances existing in the present case, the police had not used any of the observations made at the time of their initial entry into the defendant's home to subsequently obtain a warrant to search the home. 413 Mass. at 830. This circumstance would have been irrelevant if the initial entry had been lawful. See Commonwealth v. Alvarez, 422 Mass. 198 , 210-211 (1996).

Page 536

Chief Justice Burger did state in Segura that "securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents." Segura v. United States, 468 U.S. at 810 (opinion of Burger, C.J.). He also indicated (in a part of his opinion for the court which was joined by only one other Justice) that, for purposes of this rule, it should make no difference that the police had secured the building from within rather than from without. Id. at 811. Contrast Illinois v. McArthur, 531 U.S. 326 (2001) (temporary seizure of private premises from outside pending the attaining of a warrant is not prohibited by Fourth Amendment). The Chief Justice made these statements, however, only in the context of the circumstances of that case, where a defendant was claiming that an initial warrantless seizure of his home required the suppression of all items subsequently obtained from the home, regardless of whether the police had made any observations of contraband during such initial seizure, or had thereafter used such observations to obtain a warrant to search the premises. The Chief Justice nowhere suggested that, if the police had made any such observations while making their warrantless seizure from within without exigent circumstances, the observations would not have constituted an unlawful search (as distinct from an unlawful seizure) requiring a suppression of all the fruits of that search. To the contrary, as noted above, the Chief Justice specifically recognized in Segura that "an entry in the absence of exigent circumstances is illegal." Id. at 812. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002) ("police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home"); LaFave, Search and Seizure § 6.5(c), at 366-367 (3d ed. 1996).

In the present case, the Commonwealth made no sufficient showing that there were exigent circumstances justifying the initial warrantless entry of the defendant's apartment. Nor did it even contend that the information contained in the affidavit subsequently submitted to obtain a warrant was sufficient, absent the observations made during the initial warrantless entry, to

Page 537

establish probable cause. [Note Mason-1] Nor did the judge find that Trooper O'Neil would have sought the warrant even if he had not made the improper observations, which is an additional prerequisite to a finding that the warrant was not "tainted" by the initial unlawful entry. See Murray v. United States, 487 U.S. 533, 542-544 (1988). In these circumstances, I conclude that the motion to suppress was properly allowed.

KANTROWITZ, J. (concurring in part, dissenting in part).

I

I agree that observations made while securing the premises may not be included in the warrant application. Commonwealth v. Blake, 413 Mass. 823 , 830 (1992). I further agree with the opinion's central holding: the police, who possess probable cause to believe that evidence of criminal activity is present, and are in the process of securing a search warrant, [Note Kantrowitz-1] may enter the apartment so long as they have a reasonable basis for concluding the evidence will be destroyed.

Page 538

II

Here, two affidavits, totaling fourteen pages, accompanied the warrant application. [Note Kantrowitz-2] One sentence concerned observations made while inside the apartment. [Note Kantrowitz-3] By striking that single sentence, [Note Kantrowitz-4] I believe that probable cause still existed for the issuance of the warrant. As such, I respectfully disagree with the majority on this point.

The case law involving search warrants is well known. "The standard for issuing a search warrant is probable cause. . . . The law requires probable cause to believe that items sought are related to criminal activity under investigation and that the items may reasonably be expected to be located in the place to be searched" (citation omitted). Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 8-1 (2001). "[I]nformation in an affidavit supporting an application for a search warrant should be considered 'in an ordinary, commonsense manner without hypertechnical analysis' . . . ." Commonwealth v. Perez-Baez, 410 Mass. 43 , 46 (1991), quoting from Commonwealth v. Melendez, 407 Mass. 53 , 60 (1990) (Greaney, J., dissenting).

After striking the one offensive sentence contained in the affidavit, we are left with the following. The defendant was arrested with two others, Graciano and Polanco, selling a significant quantity of cocaine. "It [is] reasonable to assume that drugs, drug paraphernalia, and money, the items specified in the warrant and seized, would be located in the residence of a person engaged in drug transactions." Commonwealth v. Singer, 29 Mass. App. Ct. 708 , 715 (1991). Graciano volunteered information, making statements against penal interest, admitting

Page 539

his participation in this and numerous past drug deals with DeJesus, whom he identified as his supplier. He further told the police that he met with DeJesus in front of DeJesus's apartment, which he identified. It may be inferred that this is where Graciano received the drugs from his supplier. A confidential informant, whose reliability is questionable, told the police that there was a cocaine distribution operation at 7 Lynch Street, floor 3, Lawrence. Keys taken from DeJesus fit the outside door to 7 Lynch Street and an apartment on the third floor, which corroborated both the information received from Graciano that the defendant in fact lived in that location and the untested informant's information that drugs were being dealt from there. "[I]ndependent police corroboration or mutual corroboration of multiple informants may compensate for deficiencies in the individual sources." Commonwealth v. Russell, 46 Mass. App. Ct. 513 , 517 (1999).

The question is this: after reading the affidavits in toto, did probable cause exist to conclude that cocaine "may reasonably be expected to be located in the place to be searched"? I believe that, while a close question, it did, and, as such, the warrant was properly issued. [Note Kantrowitz-5]