COMMONWEALTH vs. REINALD SILVA, JR.

IRELAND, J. This case raises the first impression question of what standard police must meet under art. 14 of the Massachusetts Declaration of Rights to justify entry into a suspect's residence pursuant to a valid arrest warrant -- probable cause or a reasonable belief. We conclude that a reasonable belief is the proper standard.

Background. The defendant was charged in the Holyoke District Court with breaking and entering in the daytime with the intent to commit a felony (G. L. c. 266, § 18); possession of a class A drug with the intent to distribute (G. L. c. 94C, § 32); possession of a class A drug (G. L. c. 94C, § 34); and a school zone violation (G. L. c. 94C, § 32J). Prior to trial, he filed a motion to suppress the heroin seized by the police in the course of arresting him in an apartment, alleging, inter alia, that "there was no probable cause to execute an arrest warrant and enter the premises." After an evidentiary hearing, the judge granted the defendant's motion. A single justice of this court allowed the Commonwealth's interlocutory appeal to the Appeals Court. We then granted the Commonwealth's application for direct appellate review. Because we conclude that the police, in executing a valid arrest warrant at the suspect's alleged residence, possessed the requisite reasonable belief that the suspect both lived in, and was present at, the residence, and there is no merit to the defendant's claims concerning violation of the "knock and announce" rule and the seizure of drugs at the residence, we reverse the motion judge's order allowing the defendant's motion to suppress, and remand the case for further proceedings consistent with this opinion.

Facts. In reviewing the allowance of a motion to suppress, we will not disturb a judge's findings of fact absent clear error. Commonwealth v. Torres, 433 Mass. 669, 670 (2001). We supplement the facts found by the motion judge with uncontroverted testimony of the police officers at the motion hearing. [Note 1] Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). We

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recognize that the sequence of events and some of the facts at first blush do not appear to make sense. However, these are, indeed, the circumstances of this case.

The judge found that at approximately midday on November 16, 1999, a confidential informant told Detectives Kenneth Ferris and William Lempke [Note 2] of the Holyoke police department that three men were selling drugs through a hole in the wall of apartment no. 401 at 275 Main Street in Holyoke. The detectives were also informed that the apartment door was fortified. Lempke testified that, after receiving this information, the officers went to the apartment, knocked on the door that was ajar (the lock was broken) but secured by something behind it, and announced that they were the police. While Lempke remained in the hallway, Ferris went to the police station and telephoned the building owner. The building owner put the police in touch with the apartment building manager, who informed the police that Danny Acevedo was the sole lessee of apartment no. 401.

The motion judge found that, after checking records, the police determined that there were several outstanding warrants for Acevedo's arrest. Ferris and Detective Dennis Egan viewed Acevedo's photograph before going to the apartment. Ferris, Egan, and Officer Ron Mihalek then went to the apartment, but did not bring Acevedo's photograph with them. Approximately one hour after Lempke and Ferris first arrived at the apartment, the officers knocked on the door, which was barricaded, as the police later discovered, by three two-by-four inch boards and a full-size refrigerator. No one answered the door, but the officers heard movement and the toilet flushing inside the apartment.

Lempke was able to see inside the apartment through a two and one-half to three inch hole in a piece of plywood that, as the motion judge found, "apparently had been used to cover the apartment window." Through this hole, Lempke saw three men in the bathroom, including the defendant, whom Lempke thought to be Acevedo. Lempke did not have the opportunity to see Acevedo's photograph, because it had not been brought to

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the scene. Lempke based his identification on a very general description of Acevedo -- Hispanic male, five feet, seven inches to five feet, eight inches tall, with facial hair -- that he had gleaned from the building manager and from Acevedo's outstanding arrest warrants.

Lempke told the other officers that he thought he saw Acevedo in the apartment. The officers testified that they knocked and announced that they were the police, but did not state that they had an arrest warrant for Acevedo. They then forced the apartment door open. The officers found the kitchen and the combination bedroom-living room empty. There was a smell of marijuana in the apartment. Egan tried to open the bathroom door, but the handle came off in his hand. However, the bathroom door opened and three men, including the defendant, walked out. [Note 3] The police officers detained the men and placed them under arrest for breaking and entering. [Note 4]

As the men were being secured, Lempke walked into the bathroom that he described as "a very small" room with a shower stall. Lempke saw "the end of a plastic bag in the bottom of the [toilet] bowl." The officers lifted the toilet off its foundation and discovered a plastic bag, which contained heroin. Acevedo was nowhere to be found.

The judge found that the officers never "indicated to any defendant that they had a warrant for his arrest." The judge also found that the Commonwealth offered no evidence that the officers tried to ascertain whether the defendants had permission to be in the apartment.

Discussion.

1. Standard of review. When reviewing the allowance of a motion to suppress, we give substantial deference to the judge's legal conclusions, but independently review the application of constitutional principles to the facts. Commonwealth v. Torres,

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433 Mass. 669, 671-672 (2001). See Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002); Commonwealth v. Jones, 375 Mass. 349, 354 (1978) (judge's legal conclusion "a matter for review . . . particularly where the conclusion is of constitutional dimensions").

2. Reasonable belief. The Commonwealth argues that the motion judge erred in holding that the police officers needed a search warrant even though the officers entered the apartment pursuant to a valid arrest warrant for the apartment's resident. According to the Commonwealth, when the police possess a valid arrest warrant for a suspect, art. 14, like the Fourth Amendment to the United States Constitution, only requires that the police have a "reasonable belief," as opposed to probable cause, that the suspect is inside his residence before the police may enter to make an arrest. We agree.

An arrest warrant "encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant." Commonwealth v. Nova, 50 Mass. App. Ct. 633, 634-635 (2000). See Commonwealth v. Pietrass, 392 Mass. 892, 897 (1984) (arrest warrant allows police to enter dwelling). A separate search warrant is not required. Commonwealth v. Acosta, 416 Mass. 279, 281 (1993). See Commonwealth v. Allen, 28 Mass. App. Ct. 589, 592 (1990) ("A person's home is not a castle against execution of a lawful arrest warrant directed against that person"). Cf. Steagald v. United States, 451 U.S. 204, 213 (1981) (separate search warrant required to enter third party's residence to execute arrest warrant).

The Supreme Court of the United States has held that for the purposes of the Fourth Amendment, "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." Payton v. New York, 445 U.S. 573, 603 (1980). Most of the circuits of the United States Court of Appeals that have addressed this issue have agreed that, under the Payton decision, "police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable belief that the arrestee could be found within the residence at the time of the entry." Valdez v. McPheters, 172

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F.3d 1220, 1224 (10th Cir. 1999), and cases cited. Every Federal circuit court of the United States Court of Appeals that has addressed the issue, except the Ninth Circuit, [Note 5] has held that the "reason to believe" language was meant to employ a standard less exacting than probable cause. [Note 6] The vast majority of State courts have followed suit. [Note 7]

Whether art. 14 is more stringent than the Fourth Amendment is the issue of first impression. See Commonwealth v. Rivera, 429 Mass. 620, 623-624 (1999) (whether "art. 14 requires more than a reason to believe that the defendant was within the apartment

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to justify a forcible entry" is "a proposition that we do not reach"); Commonwealth v. DiBenedetto, 427 Mass. 414, 418 (1998) ("This court has not yet decided whether art. 14 . . . requires that police, with a valid arrest warrant, have more than reason to believe a suspect is in a dwelling"). We conclude that art. 14, like the Fourth Amendment, requires that police with a valid 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.

Our holding is supported by the language of art. 14, practical considerations, and our pre-Payton decisions. Article 14 recognizes that "[e]very subject has a right to be secure from all unreasonable searches . . . of . . . his houses," and provides that warrants can be issued only if certain requirements are met. It does not specify, however, what level of certainty the police must have that the suspect is within his residence before entering to execute the arrest warrant. Accordingly, we conclude that the reasonableness requirement of the article's first line governs. Commonwealth v. Smigliano, 427 Mass. 490, 499 & n.2 (1998) (Fried, J., concurring) ("Reasonableness is . . . the touchstone of art. 14").

Moreover, requiring probable cause would be overly burdensome, "particularly when it may be said that a set routine of looking for the defendant first within his own premises is generally sound." 3 W.R. LaFave, Search and Seizure § 6.1(a), at 228 (3d ed. 1996 & Supp. 2003). People v. Sprovieri, 95 Ill. App. 2d 10, 14-15, aff'd, 43 Ill. 2d 223 (1969) (most "rudimentary police procedure dictates that a suspect's residence be eliminated as a possible hiding place before a search is conducted elsewhere"). The "reasonable belief" standard protects suspects against "unreasonable searches" because, where the police have a valid arrest warrant, an impartial magistrate has already found probable cause to believe that the suspect committed a crime. Commonwealth v. Allen, 28 Mass. App. Ct. 589, 592 (1990) ("The determination by a judicial officer of probable cause [for the arrest warrant] acts as a screen between the overzealous official and the citizen"). The "reasonable belief" standard would allow the officer who has already

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secured a valid arrest warrant to determine, while on the scene, and based on the information available at the time, whether the suspect is within his residence. United States v. Route, 104 F.3d 59, 62 (5th Cir.), cert. denied, 521 U.S. 1109 (1997). Furthermore, this standard would prevent a person for whom an arrest warrant has issued from using his own residence as a haven. Commonwealth v. Allen, supra. [Note 8]

This court has used a Payton-like reasonableness test well over a century before the United States Supreme Court adopted a comparable standard as a matter of Federal law. In Barnard v. Bartlett, 10 Cush. 501, 503 (1852), we essentially adopted a reasonableness standard when we said that an officer who enters a dwelling to serve criminal process on an occupant is "justified, if the officer acted bona fide, and under a belief that the [person] was there" (emphasis added). A few years later, this court used the term "reasonable," mandating that the officer have a "reasonable cause to believe" that the subject of the arrest warrant is within the residence. Commonwealth v. Irwin, 1 Allen 587, 589 (1861). This "reasonable cause to believe" test gained acceptance in later cases and has never been disavowed. Commonwealth v. Reynolds, 120 Mass. 190, 196 (1876) ("an officer who, holding a warrant against an alleged offender, has reasonable cause to believe that he is within such house, [may] forcibly enter[]"). Blatt v. McBarron, 161 Mass. 21, 22 (1894) (officer may enter third person's home in search of subject of arrest warrant if officer has "reasonable cause to believe" that suspect is there).

The defendant attempts to distinguish these cases [Note 9] and claims that their validity has been cast into doubt by Steagald v. United

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States, 451 U.S. 204, 222 (1981), where the Court held that police must obtain a separate search warrant before entering a third party's residence to execute an arrest warrant. However, because the Steagald decision concerned only the authority of the police, under the Fourth Amendment, to enter a third person's home, the portions of our earlier cases pertaining to a suspect's own residence remain undisturbed, leaving the "reasonable belief" standard intact.

The police did not have probable cause to believe that Acevedo was in the apartment. However, they did have a "reasonable belief" that apartment no. 401 was Acevedo's dwelling, and that Acevedo was within that dwelling at the time the officers sought to execute an arrest warrant. The building manager informed the officers that Acevedo was the sole lessee, "actively paying rent at that time." On their arrival at apartment no. 401, the police noted that the door was ajar, implying that someone was within. Commonwealth v. DiBenedetto, 427 Mass. 414, 417 (1998) ("the fact that the police found that the . . . door was ajar justified an expectation that someone was likely to be there"). The police could also tell that the door was barricaded.

Additionally, the police looked through the hole and "observed activity in the apartment . . . that suggested the occupant was home." Commonwealth v. Acosta, 416 Mass. 279, 282 (1993). Furthermore, the police made a tentative identification of Acevedo before entering the apartment -- Lempke looked into the hole and concluded that he saw Acevedo based on the description he obtained from the building manager and from the arrest warrants. That the person Lempke saw turned out to be the defendant does not render Lempke's belief that he saw Acevedo unreasonable. [Note 10] United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996) ("the officers' assessment need not in

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fact be correct"). Considering all the circumstances, the police had a reasonable belief that Acevedo rented the apartment and was within it at the time they sought to execute the arrest warrant. [Note 11] The police entry was, therefore, lawful.

3. Knock and announce. The defendant contends that the police violated the requirement that they "knock and announce" before entering an apartment to execute an arrest warrant. [Note 12] However, the defendant's motion to suppress made no mention of the "knock and announce" issue, and the defendant never requested permission to amend his motion. Nor was the issue adequately raised during the suppression hearing.

A motion to suppress "shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity." Mass. R. Crim. P. 13 (a) (2), 378 Mass. 871 (1979). [Note 13] Commonwealth v. Robles, 48 Mass. App. Ct. 490, 491 n.1 (2000). This requirement alerts the judge and the Commonwealth to the suppression theories at issue, and allows the Commonwealth to limit its evidence to these theories. There is no reason for the Commonwealth to extend unnecessarily the length of the suppression hearing by presenting evidence on issues not raised by the defense. When a defendant attempts to raise a new issue after the completion of the hearing's evidentiary phase, the evidence on that issue is likely to be "scant" or nonexistent. Commonwealth v. Rivera, 429 Mass. 620, 623 (1999). Therefore, the doctrine of waiver precludes the defendant from raising a fresh issue after the

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close of the evidence. See id., and cases cited (waiver doctrine precludes defendant who did not properly alert motion judge to issue from raising it on appeal).

In his motion to suppress, the defendant contended that "(1) there were no factors to justify a threshold inquiry; (2) there was no probable cause for the search; (3) there was no search warrant; and (4) there was no probable cause to execute an arrest warrant and enter the premises." The motion made no mention of any failure to knock and announce prior to entry. The Commonwealth focused its evidence accordingly. Relying on snippets of questions and arguments made by counsel for the codefendant, and on defense counsel's adoption of "all of the issues mentioned by [his] brother attorney" after the close of the evidence, the defendant claims that the "knock and announce" issue, although not set forth in his motion, was "specifically identified" during the suppression hearing. However, the transcript does not support this assertion. The codefendant's counsel's comments were made in the context of an argument concerning the officers' alleged shortcomings in identifying Acevedo, and not as part of a "knock and announce" argument. [Note 14] These "brief comment[s] by [co]defense counsel in

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his argument to the motion judge in support of the suppression motion did not adequately raise the issue." Commonwealth v. Ruggerio, 32 Mass. App. Ct. 964, 965 (1992). Because the defendant did not properly alert the judge to the "knock and announce" argument, the waiver doctrine precludes him from doing so on appeal.

4. Destruction of evidence. Even had the defendant properly preserved the issue, the result would be no different. The requirement that the police knock, identify themselves, and announce their purpose "[b]efore attempting forcibly to enter a private dwelling to execute a warrant," Commonwealth v. Antwine, 417 Mass. 637, 638 (1994), may be suspended where necessary to "avoid the potential destruction of evidence." Commonwealth v. Macias, 429 Mass. 698, 701 (1999). See Commonwealth v. Jimenez, 438 Mass. 213, 216 (2002) (failure to knock and announce justified where there is "fear that a substantial portion of the evidence . . . might be destroyed or secreted"). To justify the unannounced entry, the Commonwealth must show that there is probable cause to believe that the evidence will be destroyed if the knock and announce rule is observed. Id. at 216-217. Commonwealth v. Scalise, 387 Mass. 413, 420 (1982). This showing must be made in advance in an affidavit submitted to the magistrate together with the

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warrant application. Commonwealth v. Jimenez, supra. The showing may also be made after the fact, "if exigent circumstances arise at the threshold of the search [or arrest] justifying both the unannounced entry and the failure to obtain prior judicial authorization." Id. at 217. See Commonwealth v. Scalise, supra at 422 n.8.

In deciding whether enough facts were present to amount to probable cause to believe that the evidence would be destroyed, we "do not examine each fact in isolation, but rather we examine all of the facts together." Commonwealth v. West, 55 Mass. App. Ct. 467, 470 (2002). Even several factors "innocent of themselves," when combined, may amount to probable cause. Commonwealth v. Fisher, 54 Mass. App. Ct. 41, 44 (2002). The police officers' expertise and experience may be considered as a factor in the probable cause determination. Commonwealth v. West, supra. See Commonwealth v. Feijoo, 419 Mass. 486, 498 (1995) (officer's experience in investigating child abuse is factor supporting probable cause).

In this case, the police knocked and identified themselves, but did not state their purpose before forcibly entering apartment no. 401. That failure to announce their purpose was justified by the officers' concern about the imminent destruction of the evidence. Here, the confidential informant told the police that drugs were being sold out of the apartment, one of the officers looked through the hole in the wall and saw three men in the bathroom, and when the police knocked and identified themselves, they heard movement and a toilet flushing inside the apartment. Considering these facts and reasonable inferences drawn from them, we conclude that the entry was supported by probable cause to believe that the extra time afforded the occupants of the apartment "would allow a significant additional portion of the evidence sought to be destroyed." Commonwealth v. Macias, supra at 703.

The continuing concern about the destruction of evidence also justified police entry into the bathroom and search of the toilet. [Note 15] Having heard the flushing sounds, the police could have had legitimate concerns that evidence was being destroyed, with

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perhaps only a brief period of time before all traces would be eliminated by the operation of the plumbing system. The officers were entitled to seize the plastic bag to prevent the destruction of evidence. See Commonwealth v. DeJesus, 439 Mass. 616, 624 n.8 (2003). The police properly used their expertise in investigating narcotics violations, Commonwealth v. Franco, 419 Mass. 635, 637 (1995), in deducing that the plastic bag found in the toilet contained contraband: the informant spoke of drug dealing, the apartment door was barricaded, the police heard scurrying and flushing of the toilet inside the apartment (which, the officers knew, was a common method of disposing of narcotics), and on entering the apartment, the police smelled marijuana. Lempke's extensive training and special expertise in narcotics investigations further support the conclusion that the contraband nature of the contents of the plastic bag was immediately apparent to him. See Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 34-35 (2001) (object's criminal nature may be immediately apparent where special expertise permits officer to recognize contraband). The fact that Lempke could not see heroin in the bag "is all but irrelevant: the distinctive character of the [bag] itself spoke volumes as to its contents -- particularly to [his] trained eye." Texas v. Brown, 460 U.S. 730, 743 (1983). Once the officers discovered the bag, they were entitled to remove it from the toilet bowl and seize it.

Conclusion. For the reasons set forth above, we hold that art. 14 requires that police, with a valid arrest warrant, have a reasonable belief that the location to be searched is the suspect's residence, and that the suspect is in his residence at the time the arrest warrant is executed. Furthermore, the defendant waived the "knock and announce" argument, but even if he did not, the entry into the apartment and into the bathroom was justified by the "destruction of evidence" exception. We also conclude that

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the police properly seized the plastic bag they discovered in the bathroom.

The order allowing the defendant's motion to suppress is reversed. The case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.