COMMONWEALTH vs. ANDRE MATOS.

MCHUGH, J. The defendant, Andre Matos, was charged with numerous offenses involving firearms possession, possession of cocaine and marijuana with intent to distribute, and receiving stolen property. A judge of the Superior Court allowed the defendant's motion to suppress, and the Commonwealth brought this interlocutory appeal. We reverse.

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Background. "We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing." Commonwealth v. Washington, 449 Mass. 476 , 477 (2007).

On January 23, 2007, just before 6 A.M., approximately thirteen members of the Springfield police department's tactical response team went to 165 Princeton Street, a two and one-half story single-family house, to execute a warrant for the defendant's arrest on drug distribution charges. Team members were wearing camouflage uniforms clearly indicating that they were police, and the officers were armed. Lieutenant Rupert Daniel, the team leader, was familiar with the defendant and knew that he had a prior arrest for a firearms offense. Other members of the team were also informed of the defendant's prior firearms offense before executing the warrant. On the basis of this information, the team members planned to fan out to all floors of the house upon their entry to determine whether there was a threat, in accordance with tactical response team protocol. Daniel had also determined that three people, the defendant, his mother (mother), and his mother's seven year old niece (niece), lived in the house. [Note 1]

Upon arrival at the house, Daniel knocked on the door, and the mother answered. [Note 2] Daniel asked her where the defendant was, and she pointed upstairs. Daniel saw the defendant, who was at the top of the stairs on the second floor, run into a bedroom and close the door. Daniel and about five other officers ran up the stairs, kicked open a door, and secured the defendant. The other team members immediately and simultaneously separated to conduct a protective sweep. As Daniel and his group were moving up the stairs to secure the defendant, two officers went

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into the basement and, finding no one, quickly came back upstairs. Two other officers went into the second floor bedroom where the niece was sleeping. [Note 3] They found no one else. Another group of officers swept by Daniel and proceeded to the third floor, an attic area containing a small bedroom. In that room, in plain view, one of the officers saw a bag of marijuana, what appeared to be "crack" cocaine, and other drug paraphernalia, together with a black safe on the floor.

After speaking with Daniel, Officers Wadlegger and Mazza, part of the group that had gone to the third floor, returned to the police station to prepare an application for a search warrant based on their observations in the attic bedroom. The officers returned with the warrant at about 8:20 A.M. In the ensuing search of the third floor, they seized a safe containing three firearms, "crack" cocaine and marijuana, digital scales, currency, and packaging materials.

At some point prior to arrival of the search warrant, an officer asked the mother for her consent to search the house and told her that he could report her to the Department of Social Services if she did not sign the consent form because she was the guardian of her niece. The motion judge found that the mother signed the form as a result of this statement, and any consent she may have given was coerced.

On March 30, 2007, the defendant was charged with four counts of possession of a firearm or ammunition without a firearm identification (FID) card, possession of a large capacity firearm, possession of a firearm in the commission of a felony, possession of cocaine with intent to distribute, possession of a Class D substance with intent to distribute, and two counts of receiving stolen property. On November 14, 2007, the defendant filed a motion to suppress, and a judge allowed the motion.

The motion judge found that the police obtained the search warrant based on plain view observations they made during the protective sweep of the house, but that they did not possess specific and articulable facts necessary to support the sweep. The judge also found that the police conducted a search prior to obtaining the warrant. The judge based that finding on evidence

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that, although the defendant was taken to a cruiser within ten minutes of his detention, police remained on the third floor for thirty minutes.

Discussion. The judge's findings do not support the suppression order. While executing an arrest warrant, police may conduct a protective sweep, "a quick and limited search of the premises" to protect the officers' safety, if they have a reasonable belief based on "specific and articulable facts" that the area could harbor a dangerous individual. Maryland v. Buie, 494 U.S. 325, 327, 334 (1990). As we said in Commonwealth v. DeJesus, 70 Mass. App. Ct. 114 , 120 (2007), those articulable facts can be found in a defendant's "record of violent felonies and firearm possession charges." Daniel and the other members of the tactical response team knew, prior to executing the arrest, that the defendant had prior arrests related to firearms offenses. On the basis of this information, the tactical response team planned to conduct a protective sweep of the house for possible threats. See id. at 115-116. Thus, contrary to the motion judge's findings, the police did have the necessary "specific and articulable facts" to show that a protective sweep was warranted. Even after the defendant was in custody on the second floor, officers on the third floor could reasonably continue the protective sweep "to determine whether confederates are present who may pose a danger to the officers." Commonwealth v. DeJesus, 439 Mass. 616 , 624 n.8 (2003). See Commonwealth v. Walker, 370 Mass. 548 , 556, cert denied, 429 U.S. 943 (1976). [Note 4]

As noted, the motion judge found that the officers saw contraband items on the third floor in plain view. The plain view doctrine applies to objects the police observe inadvertently if they are lawfully in a position to view the objects, they have a

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lawful right of access to the objects, and, in cases concerning contraband, weapons, or other items illegally possessed, the incriminating character of the objects is immediately apparent. Commonwealth v. Sliech-Brodeur, 457 Mass. 300 , 306 (2010). Because the officers were lawfully on the third floor, "[t]he admission in evidence of things inadvertently observed in plain view during the course of [the protective sweep] would . . . be justified under the plain view doctrine." Commonwealth v. DeJesus, 439 Mass. at 624 n.8. Here the team members took the intermediary step of identifying the items that they had seen during their protective sweep in an affidavit in support of a search warrant, rather than seizing them immediately. Thus, the items that the officers recovered pursuant to a search warrant, which were initially seen inadvertently and in plain view on the third floor during the course of a lawful protective sweep, are admissible.

The invalidity of the mother's consent, and the defendant's claims that officers remained on the third floor too long, or that they otherwise exceeded the scope of a protective sweep and searched the second or third floor, are immaterial, because the officers nonetheless obtained the search warrant based on plain view observations made during the protective sweep, and the items were therefore not the fruits of an impermissible search. See id. at 624-625; Commonwealth v. Streeter, 71 Mass. App. Ct. 430 , 438-440 (2008).

Order allowing motion to suppress reversed.

GRAHAM, J. (dissenting). At approximately 6 A.M. on January 23, 2007, thirteen Springfield police officers, led by police Lieutenant Rupert Daniel, entered the home of the defendant's mother (mother) and arrested the defendant on a warrant charging him with distribution of a class D substance. As the majority notes, Daniel had information, prior to executing the warrant, that the only occupants of the home were the mother, her seven year old niece, and the defendant. [Note Graham-1] Daniel knocked on the

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door, spoke to the mother, and informed her of the warrant for the defendant. The mother pointed up the stairs and stated that the defendant was "up there." Daniel, at that time, saw the defendant standing on the top of the stairs wearing a T-shirt and boxer shorts.

The defendant ran into a room on the second floor, and Daniel followed the defendant, kicked in the door to the room, ordered the defendant to the floor, and handcuffed him without incident. Approximately ten minutes later, the defendant was taken outside and placed in a cruiser. [Note Graham-2]

Several of the officers went past the second floor of the house to the attic, where they remained for one-half hour, knowing that the defendant had been arrested. [Note Graham-3] The judge made implicit findings of bad faith on the part of these officers. [Note Graham-4]

Clearly, the safety of police officers executing an arrest warrant is paramount. See Commonwealth v. DeJesus, 70 Mass. App. Ct. 114 , 119 (2007). However, as we said in Commonwealth v. Nova, 50 Mass. App. Ct. 633 , 635 (2000), quoting from Maryland v. Buie, 494 U.S. 325, 334 (1990), "the [United States Supreme] Court concluded that in order to conduct even a cursory search of areas beyond the immediate arrest site (the so-called 'lunge area,' which defines the limits of a search incident to arrest, see G. L. c. 276, § 1), there must be 'articulable

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facts' that 'would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.' " Here, the police knocked on the door of the mother's home, and she answered the door. After the police entered the home, the mother was at their side, and the defendant was clearly visible on the second floor. Thus, the police were immediately aware of the locations of the only adults in the home and had those individuals in their sight. On this record, there were no "articulable facts" to support an inference that anyone was in the home at the time of the sweep who posed a danger to the police.

Therefore, I would affirm the order of the motion judge, who properly concluded that, to the extent that the warrant here ultimately was obtained on the basis of observations made during the improper sweep search, all evidence obtained pursuant to that warrant must be suppressed.