COMMONWEALTH vs. SHANE W. CATANZARO.

SPINA, J. The Commonwealth was granted leave to appeal from an order of a judge in the Superior Court suppressing over twenty-eight grams of cocaine seized from the purse of the defendant's girl friend, Meredith Gravina. Police seized the evidence during a search of the couple's apartment pursuant to a warrant that expressly authorized police to search "any person present." Police had detained the defendant and Gravina in the driveway outside their apartment building in Hyannis, shortly after they saw them leave through the front door. During their conversation with the officers, both the defendant and his girl friend acknowledged that the apartment was theirs. After showing them the warrant, reading them both their Miranda rights, and placing the defendant in handcuffs for safety purposes, police walked the pair back to the apartment for the ensuing search.

The motion judge, relying on Michigan v. Summers, 452 U.S. 692 (1981), determined that the detention of Gravina outside the apartment did not violate the Fourth Amendment to the United States Constitution. He concluded, however, that art. 14 of the Massachusetts Declaration of Rights required the police, when applying for a search warrant, to obtain judicial authority to detain people encountered outside as well as inside the premises. Finding that the police failed to request such authority, the judge ruled that the detention of Gravina was illegal, and suppressed the evidence seized from her purse. [Note 1]

A single justice allowed the Commonwealth's application under G. L. c. 278, § 28E, and Mass. R. Crim. P. 15 (a) (2), as

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appearing in 422 Mass. 1501 (1996), to pursue an interlocutory appeal from the order granting the motion to suppress, and the appeal was reported to the full court. We affirm the judge's decision as to the Fourth Amendment, and because we conclude that the police acted reasonably in the circumstances, conformably with art. 14, we vacate the order for suppression and remand the case to the Superior Court for entry of an order denying the motion to suppress.

1. Facts. We recount the facts as found by the motion judge, supplemented by uncontroverted testimony from the hearing on the motion. See Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). In September, 2000, Detective Sean E. Balcom of the Barnstable police department began investigating the defendant after an informant reported that the defendant sold cocaine out of the apartment he shared with his girl friend. [Note 2] Another informant, who had provided information in the past resulting in another individual's conviction of trafficking in cocaine, also told Barnstable police that the defendant sold cocaine out of his apartment. This informant additionally reported that the defendant had purchased a handgun for protection after he was robbed at gunpoint by other drug dealers. The robbery was verified by Barnstable police department records.

Following two controlled purchases of cocaine from the defendant using an informant, the Cape Cod drug task force obtained a "no-knock" warrant to search the defendant's apartment for cocaine. The warrant, which permitted police to conduct the search at night as well as to enter the premises without announcement, also authorized them to search the defendant specifically and "any person present who may be found to have such property [cocaine] in his or her possession or under his or her control or to whom such property may have been delivered."

Balcom testified that on October 5, 2000, he and other members of the task force arrived in the vicinity of the apartment building with the search warrant at approximately

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4:15 P.M. They set up surveillance to determine whether anyone was inside. The apartment was on the lower level of a two-story, multi-unit building located behind a restaurant on Main Street in Hyannis. An alley or driveway approximately one hundred feet long runs alongside the restaurant and ends in a parking area in front of the apartment building.

Balcom further testified that at approximately 4:50 P.M., he saw the defendant and a woman, later identified as Meredith Gravina, the defendant's girl friend, leave the apartment. The two were on the front step "for a short period of time," according to Balcom, and then began walking toward Main Street. [Note 3] After Balcom radioed the other officers, he and two lieutenants approached the pair when they were about one-half to three-quarters of the way down the driveway, just "[a]bout three minutes" after they left the apartment, according to the judge. [Note 4]

The motion judge found that as Balcom, Lieutenant John Allen of the State police, and another lieutenant converged on the defendant and Gravina, Allen immediately informed the pair that police had a warrant to search apartment no. 5. Gravina "blurted out" that it was her apartment. Allen testified that he then showed the search warrant to the defendant and Gravina, and read them both their Miranda rights. At that time, the defendant (but not Gravina) was patted down and handcuffed for safety reasons. [Note 5]

Gravina told the officers she had a puppy inside the apartment and expressed concern about the police going in, according to the officers' testimony. Allen testified that he asked her to accompany them back to the apartment and she agreed to do so. The group, which now included three more police officers, began making its way up the driveway. Balcom and a State

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trooper led the defendant, while Gravina, Allen, and two other officers walked behind them. As they walked, Allen asked Gravina for a key to the apartment, which she produced. Allen unlocked the door and the group, led by one of the officers, entered the apartment.

Once inside, Balcom testified that he and another officer took the defendant into the bathroom to be searched more thoroughly, while other officers interviewed Gravina in the kitchen. Balcom found $108 in cash and a plastic bag of marijuana on the defendant and placed him under arrest. Balcom testified that he then asked the defendant "where the cocaine was." He replied that it was in Gravina's purse, but that it belonged to him and "she had no idea about his drug dealing." As a result of the disclosure, officers searched Gravina's purse, where they discovered two bags containing over twenty-eight grams of cocaine. A further search of the premises turned up $1,170 in cash in a bedroom closet and $2,174 inside an envelope in a bureau drawer.

The defendant was charged with trafficking in cocaine, G. L. c. 94C, § 32E (b) (2), and possession of marijuana, G. L. c. 94C, § 34. [Note 6] He filed a motion to suppress the evidence, arguing that police lacked probable cause to detain Gravina and search her purse. The defendant also claimed in a supplemental memorandum that he and Gravina were illegally detained under Massachusetts law.

2. Discussion. When reviewing a motion to suppress evidence, we adopt the motion judge's subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge's application of constitutional principles to the facts as found. See Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), and cases cited. See also Commonwealth v. Eckert, 431 Mass. 591, 592-593 (2000).

The motion judge found, and the Commonwealth does not dispute, that Gravina was seized outside the apartment for purposes of the Fourth Amendment and art. 14 of the Massachusetts

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Declaration of Rights. [Note 7] The Commonwealth argues that upholding the detention of Gravina under the principles articulated in Michigan v. Summers, 452 U.S. 692 (1981), would not offend art. 14. The defendant, on the other hand, argues that the judge erred in ruling that under Michigan v. Summers, supra, the seizure did not violate the Fourth Amendment. [Note 8] We address each issue separately.

a. Fourth Amendment. The motion judge ruled that because Gravina was an occupant of the apartment, her detention while police executed the search warrant did not violate the Fourth Amendment. See Michigan v. Summers, supra at 705. Contrary to the defendant's claim, the judge did not err in finding that Gravina was an occupant. [Note 9] Black's Law Dictionary 1106 (7th ed. 1999) defines "occupant" as "[o]ne who has possessory rights in, or control over, certain property or premises." Webster's Third New International Dictionary 1560 (1993) defines "occupant" as "one who takes possession under title, lease, or tenancy at will" and "one who occupies a particular place or premises: TENANT, RESIDENT." [Note 10] On learning of the search warrant, Gravina stated, "That's my apartment," and the

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defendant does not challenge that Gravina made that statement. [Note 11] Thus, the judge's finding that Gravina was an occupant of the apartment is supported by the record.

The United States Supreme Court has held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, supra at 705. In Michigan v. Summers, supra at 693, police officers who were about to execute a warrant to search the defendant's home for narcotics encountered the defendant going down his front steps. They asked him to let them in, and detained him while they searched the home. Id. On discovering drugs in the basement, the police arrested the defendant and searched him, finding an envelope containing heroin in his pocket. Id.

The Court stated that both the law enforcement interests and the nature of "articulable facts" to support the detention of the occupants are relevant in evaluating the seizure. Michigan v. Summers, supra at 702. The government has an interest in preventing flight by the occupants, minimizing the risk of harm to the officers, and facilitating the orderly completion of the search. See id. at 702-703. As for the nature of the articulable

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facts, the Court asserted that the detention of an occupant is only an "incremental intrusion" on his or her liberty when police have a valid search warrant. Id. at 703. Further, the very existence of the warrant objectively justifies the detention, because a neutral magistrate has determined there is "probable cause to believe that someone in the home is committing a crime." Id. Thus, the Court reasoned that the occupant's connection to the home gives police an "easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. at 704. The Court concluded that it is constitutionally reasonable to require persons to remain on the premises while police execute a valid warrant to search their home. Id. at 705.

Here, the defendant and Gravina had walked fifty to seventy feet down the driveway when the police stopped them, "as soon as practicable" after they had left the apartment. United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991), cert. denied, 502 U.S. 1093 (1992). Contrast United States v. Boyd, 696 F.2d 63, 65 n.2 (8th Cir. 1982), cert. denied, 460 U.S. 1093 (1983) (holding Summers unavailing when police stopped resident several blocks from his home to effect search warrant). The detention of Gravina just outside her apartment comported with the requirements of the Fourth Amendment. [Note 12] See Michigan v. Summers, supra at 705. There was no error.

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b. Article 14. The Commonwealth contends the judge based his ruling on clearly erroneous findings of fact, and erred as a matter of law when he ruled that the detention of Gravina outside the apartment building violated art. 14 of the Massachusetts Declaration of Rights. It argues that the legitimate law enforcement interests that justified the stop upheld in Michigan v. Summers, supra, do not conflict with art. 14, and moreover, that art. 14 was not offended here because the police acted reasonably in obtaining the search warrant and subsequently detaining Gravina. [Note 13]

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We agree with the Commonwealth that the judge premised his ruling on clearly erroneous findings of fact. First, the judge found that the task force "had reason to believe that [the defendant] and Gravina would be present" at the apartment. Although the affidavit in support of the application for the search warrant states that a confidential informant had told investigators that the defendant lived at the apartment with his girl friend, [Note 14] the affidavit did not identify or describe Gravina. There was also no testimony at the hearing to support the judge's finding. On the contrary, Balcom testified only that "[w]e didn't even know if they were home." Second, the judge found that "[t]he police planned to watch [the apartment building] for the departure of [the defendant], to detain him outside of the premises, and to bring him back to the premises for the purpose of gaining entry and having him present while the Task Force executed the warrant." Again, the evidence fails to support this finding. Balcom testified only that part of the purpose of setting up surveillance was "to find out if anyone was there." Furthermore, the police had a no-knock warrant; they did not need the defendant (or Gravina, for that matter) to let them into the apartment.

We must now inquire whether the detention of Gravina was permissible under art. 14. In certain circumstances we have concluded that art. 14 provides greater protection against searches and seizures than the Fourth Amendment. See Commonwealth v. Rodriguez, 430 Mass. 577, 582, 584 n.7 (2000). A warrantless search or seizure violates art. 14 only if it is unreasonable. See Landry v. Attorney Gen., 429 Mass. 336, 348

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(1999). There is no ready test for reasonableness except by balancing the need to search or seize against the invasion that the search or seizure entails. See id., quoting Commonwealth v. Shields, 402 Mass. 162, 164 (1988). The reviewing court "must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Commonwealth v. Thomas, 429 Mass. 403, 407 (1999), quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979). See K.B. Smith, Criminal Practice and Procedure § 153 (2d ed. 1983 & Supp. 2003).

The Commonwealth asserts that the police had legitimate interests in detaining Gravina outside the building. The police had information that the defendant lived with his girl friend, and they saw him leave the apartment with an unknown woman. It was Gravina who, on learning of the search warrant, voluntarily blurted out that it was her apartment, without any prior questioning by police. At that point, the Commonwealth claims, the State had an interest in preventing her from fleeing in the event that they found incriminating evidence inside; in minimizing the risk of harm to officers (who had probable cause to believe that the defendant owned a firearm); and in completing the search in an orderly fashion, with minimal delay and damage. See Michigan v. Summers, supra at 702-703.

The intrusiveness of the detention, by the same token, was minimal. The defendant and Gravina were intercepted shortly after they walked out the door, when they were one-half to three-quarters of the way down the driveway. At that time the police admittedly had no information that Gravina had committed a crime, and were not concerned that she was armed. She was neither pat frisked nor handcuffed. Balcom testified that most of the conversation during the initial encounter that took place among the defendant, Gravina, and the three police officers who first approached them, was a "collective conversation." After volunteering that the apartment was hers, and expressing concern about the police entry, Gravina agreed to accompany the group back to the apartment so the officers could execute the warrant.

Under our art. 14 jurisprudence, the police needed reasonable suspicion that Gravina was committing, had committed, or was

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about to commit a crime, to justify detaining her and bringing her back to the apartment. See, e.g., Commonwealth v. Eckert, 431 Mass. 591, 599 (2000). See also J.A. Grasso & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 4-2(e) (2003). Gravina's spontaneous acknowledgment that it was her apartment provides such a basis, because a neutral, detached magistrate had already determined there was probable cause to believe narcotics were being sold there. [Note 15] See Michigan v. Summers, supra at 703. "The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant" while the police search the home pursuant to a valid warrant. Id. at 703-704.

Although Gravina was not inside the apartment but some fifty to seventy feet away when police detained her, her detention at that point was incremental and barely, if at all, more intrusive than if it had originated inside. See Michigan v. Summers, supra at 702 n.16. Moreover, it is reasonable to "assume that most citizens -- unless they intend flight to avoid arrest -- would elect to remain in order to observe the search of their possessions." Id. at 701. We think that for purposes of art. 14, like the Fourth Amendment, "it is constitutionally reasonable to require [a] citizen to remain while officers of the law execute a valid warrant to search his home." Id. at 705.

The motion judge faulted the police for failing to request and obtain authorization from the magistrate "to seize [the defendant] and any other occupant of Apt. 5" outside the premises, despite their "anticipation" that the defendant would be present. His reliance on Commonwealth v. Scalise, 387 Mass. 413, 420-423 (1982), however, is misplaced, because that opinion imposes no such requirement on police. Moreover, there is no challenge to the validity of the no-knock warrant in this case. The warrant application did seek permission to search both the defendant and "any person present" inside the apartment

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and the warrant commanded police to do so. [Note 16] See Commonwealth v. Smith, 370 Mass. 335, 348, cert. denied, 429 U.S. 944 (1976) (explaining in what circumstances an "any person present" clause authorizes a valid search). On their arrival, the police did what they were supposed to do: "[M]ake a threshold reappraisal of the actual threat of the destruction of evidence" to determine whether an unannounced entry was necessary. See Commonwealth v. Scalise, supra at 421. While they were doing so, they unexpectedly encountered Gravina and the defendant in the driveway. [Note 17] For the purposes of our analysis, it is unimportant how we label the encounter. See 4 W.R. LaFave, Search and Seizure § 9.1(c), at 10 (3d ed. 1996) ("It is the reasonableness of the officer's conduct, not what the state chooses to call it, which is in issue"). We conclude that the police acted reasonably under the circumstances, and therefore their conduct did not offend either the Fourth Amendment or art. 14. [Note 18]

We vacate the order of suppression and remand the case to the Superior Court for entry of an order denying the motion to suppress.

So ordered.

IRELAND, J. (dissenting). Because the warrant in this case specifically authorized the search of only the defendant (named as an "occupant") and "any person present," I would affirm the allowance of the defendant's motion to suppress evidence seized from Meredith Gravina, for four reasons: (1) the warrant did not specifically authorize the seizure of persons outside of the apartment; (2) I conclude that art. 14 of the Massachusetts Declaration

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of Rights grants individuals more protection than does the Fourth Amendment to the United States Constitution; (3) the police illegally detained Gravina when they first approached her and the defendant; and (4) even if Michigan v. Summers, 452 U.S. 692 (1981), did apply in some circumstances, it would not apply in the circumstances of this case.

The motion judge found that three minutes after police officers saw the defendant and an unidentified female (Gravina) leave the apartment that was the subject of the search warrant, three armed police officers approached the pair in a parking lot. [Note Ireland-1] It is uncontroverted that the parking lot was some fifty to seventy feet from the apartment. The motion judge further found that, at that moment, Gravina was unknown to the officers; she was not identified on the warrant as an occupant of the apartment. The police immediately stated that they had a search warrant for the apartment. Gravina blurted out that it was her apartment. Police officers displayed the search warrant. State and Federal law enforcement officers, by now numbering five, gave the defendant and Gravina the Miranda warnings, handcuffed the defendant, and led the two back to the apartment. The motion judge found, and I agree, that Gravina was seized outside the apartment for purposes of the Fourth Amendment and art. 14.

Article 14 states that a search warrant is not proper unless it has a "special designation of the persons or objects of search, arrest, or seizure." [Note Ireland-2] Our cases concerning search warrants have upheld the particularity requirement, and I see no reason to depart from their holdings. Commonwealth v. Pellier, 362 Mass. 621 (1972), addressed facts similar to the facts of this case: The defendant was an occupant of an apartment that was the subject of a search warrant, which, like the warrant in this case, authorized both the search of another man, referred to by the name Fernando, as well as "any persons present" who might have contraband in their possession (first warrant). On the night

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the police executed the first warrant, Pellier was stopped when he and Fernando pulled up in front of the building that was the subject of the first warrant in a vehicle with a registration plate that matched the one described in a second search warrant (second warrant) the police also were executing. The police officers went up to the car and asked Pellier and Fernando their names and addresses. The police officers learned that Pellier was an occupant of the apartment that was the subject of the first warrant when Pellier identified himself and stated his address. Police officers searched both men and found a bag of heroin on Pellier. In the meantime, police officers also searched the apartment pursuant to the first warrant and found heroin and other contraband.

On appeal, the court stated a search of Pellier pursuant to the first warrant was not proper and, therefore, the heroin found on Pellier's person could only be the basis for convicting him if it was properly seized pursuant to the second warrant. The court also focused on the "any person present" language as an improper basis to introduce the heroin found on Pellier's person. Id. at 625-626 & n.3 (" 'any person or persons present' . . . lacks specificity and is of dubious meaning").

In Commonwealth v. Smith, 370 Mass. 335, cert. denied, 429 U.S. 944 (1976), the court departed from Pellier when it held that the "any person present" language contained in a search warrant was constitutional. Id. at 339- 342. However, the court also said that the "law requires a particular description of the persons to be searched pursuant to a warrant" and "the 'any person present' clause" does not relax the particularity requirement as it applies to all identifiable persons known to be on the premises" (emphasis added). Id. at 339, 344. The court expressed concern about innocents being swept up in the search and required that applications for search warrants indicate whether any person unconnected with the illegal activity had been seen at the premises. Id. at 345. See Commonwealth v. Rutkowski, 406 Mass. 673, 675 (1990) (items to be seized must be described with sufficient particularity pursuant to art. 14).

In this case, the officers knew that the defendant lived with his girl friend, yet she was not named or identified on the warrant

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as an occupant subject to search. [Note Ireland-3] I would conclude from this that the police did not have probable cause to believe the girl friend was involved in criminal activity and it was entirely proper to omit her from the warrant, in light of the caution expressed in Commonwealth v. Smith, supra. Moreover, it is foreseeable that, by happenstance, an occupant of an apartment could be leaving her residence at the same time police officers execute a search warrant, particularly in the circumstances of this case. Here, officers had authority to search at night without having to knock, but they went to the apartment at approximately 4 P.M. At that time of day, it is foreseeable that occupants would be leaving (or arriving at) their residences. The officers, on showing probable cause, should have asked the magistrate to issue a warrant covering, within explicit limits as to time and distance, those individuals the police observed leaving the apartment at the time the warrant would be executed.

Based on our case law and the plain language of art. 14, I conclude that art. 14 confers broader protection on individuals than does the Fourth Amendment. [Note Ireland-4]

To support its holding, the court relies both on the fact that Gravina blurted out that she lived in the apartment and on Michigan v. Summers, 452 U.S. 692 (1981). I do not agree with the court that, because Gravina was with the defendant, she demonstrated the requisite "suspicious conduct [to give] the officer[s] reason to suspect that [she had] committed, [was] committing, or [was] about to commit a crime." Commonwealth v. Grandison, 433 Mass. 135, 139 (2001), quoting Commonwealth

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v. Silva, 366 Mass. 402, 405 (1974). See Commonwealth v. Rodriguez, 430 Mass. 577, 579 (2000). I believe that Gravina was illegally seized at the moment the first three armed police officers approached her and the defendant in the parking lot, and therefore the exclusionary rule applies to her statement that she lived in the apartment, as well as to the drugs found in her purse. See Commonwealth v. Stoute, 422 Mass. 782, 783 (1996) (person seized under art. 14 once police officer has initiated pursuit of person with obvious intent of requiring him to submit to questioning). [Note Ireland-5] See also Commonwealth v. Balicki, 436 Mass. 1, 15 (2002) (evidence excluded because fruit of unlawful actions of police officers).

Furthermore, even assuming that the holding in Michigan v. Summers, supra, did not violate art. 14, it would not apply to this case, because it can be distinguished on the facts. In Summers, as police were about to execute a search warrant, "they encountered respondent descending the front steps" (emphasis added). Id. at 693. In this case, however, the police set up surveillance to determine whether anyone was home and, therefore, had not approached the apartment to execute the warrant. They saw the defendant and Gravina leave the apartment from their point of surveillance. As the motion judge found, three minutes elapsed before police officers approached the pair. It is uncontroverted that, by then, the defendant and Gravina were walking across a parking lot, some fifty to seventy feet from the apartment. Thus, unlike the police in the Summers case, the police in this case were not executing a search warrant and did not "encounter[] [Gravina or the defendant] descending the front steps." Id.

For the reasons stated above, I respectfully dissent.

COWIN, J. (dissenting, with whom Marshall, C.J., joins). Had Meredith Gravina been inside her apartment at the time the search was executed, the search warrant in this case, which authorized the search of apartment no. 5 at 521 Main Street,

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Hyannis, and of "any person present," would have justified detention and search of her person. See Commonwealth v. Smith, 370 Mass. 335, 344-346, cert. denied, 429 U.S. 944 (1976). However, at issue in this case is Gravina's status outside the apartment. The police detained Gravina in an alley [Note Cowin-1] next to a restaurant after she had left her apartment, stopped "for a short . . . time" on the front steps, walked through the apartment building's parking area, and then proceeded another fifty to seventy feet down that alley toward Main Street in Hyannis. This detention occurred at least two minutes after Gravina left her apartment. Today the court concludes, citing to Michigan v. Summers, 452 U.S. 692 (1981) (Summers), that Gravina's detention, because it occurred prior to the police executing a search warrant inside her apartment, did not violate the Fourth Amendment to the United States Constitution. The court further determines that this detention did not violate art. 14 of the Massachusetts Declaration of Rights. I disagree. I am not persuaded by the reasoning of Michigan v. Summers, supra, and would not rely on that case to answer the defendant's challenge under the Massachusetts Constitution. As to his Federal claim, because the facts in this case differ from those in Summers, even if this court adopted the exception to the warrant requirement announced in Summers, the seizure in this case would still be invalid. I respectfully dissent. [Note Cowin-2]

In Summers, the United States Supreme Court created an

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exception to the warrant requirement under the Fourth Amendment, and concluded that the temporary detention of occupants of premises without an arrest warrant, while a search warrant is being executed, will in some cases pass constitutional muster. Id. at 704-706. See Illinois v. McArthur, 531 U.S. 326, 331 (2001). This exception was premised on the Court's assessment that some seizures are "so much less severe" than traditional arrests that "the opposing interests" of law enforcement can outweigh the privacy interests implicated by the seizure. Michigan v. Summers, supra at 697-698, quoting Dunaway v. New York, 442 U.S. 200, 209 (1979). In Summers, the Supreme Court held that the additional intrusion caused by requesting a departing occupant to assist the police in gaining access to the premises and detaining him on the front steps of his house, rather than inside the premises, was outweighed by the legitimate interests of (1) minimizing the possibility of harm to the police officers, (2) preventing flight, and (3) facilitating orderly completion of the search. Id. at 702-703.

Because art. 14 may provide greater protection against governmental intrusion than does the Fourth Amendment, see Commonwealth v. Rodriguez, 430 Mass. 577, 584-585 n.7 (2000), this court can and should reject Summers, which posits that a little bit of illegal seizure is acceptable if the personal privacy which that seizure threatens is outweighed by law enforcement interests. Id. at 697-698.

Summers, of course, was an exception to the requirement that searches and seizures by police must be based on probable cause, purportedly following the reasoning of Terry v. Ohio, 392 U.S. 1 (1968) (Terry) (police officers who suspect criminal activity may stop suspect on less than probable cause), and United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (Brignoni-Ponce) (border patrol agents justified in making brief vehicle stops based on less than probable cause). See Michigan v. Summers, supra at 698-699. In those cases, the Supreme Court allowed narrow exceptions to the Fourth Amendment's probable

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cause requirement due to the particular law enforcement interests involved. Id. at 707 (Stewart, J., dissenting). In Terry, the particular interest that justified the stop was the need for police officers to be able to conduct some sort of investigation when they have less than probable cause but more than a hunch (i.e., they can point to "specific and articulable facts") that criminal activity is in progress. Terry v. Ohio, supra at 21. In Brignoni-Ponce, the interest was the difficult task of preventing illegal entry of aliens at the Mexican border. United States v. Brignoni-Ponce, supra at 878- 882. In both cases, the Court stated that the interests at stake exceeded or were independent of the government's ordinary interests in investigating crime and apprehending wrongdoers. See United States v. Brignoni-Ponce, supra at 883; Terry v. Ohio, supra at 23. See also Michigan v. Summers, supra at 709 (Stewart, J., dissenting). Because of the unusual and important nature of those interests, the Court abandoned the " 'long-prevailing standards' of probable cause" and instead employed a balancing test, the result of which was to allow minimal intrusions into personal privacy where the privacy implications were outweighed by the unique law enforcement interests present in those cases. Michigan v. Summers, supra at 708-712 (Stewart, J., dissenting), quoting Dunaway v. New York, supra at 208.

As the dissent in Summers elucidated, however, it is an inappropriate leap in logic to suggest that Terry and Brignoni-Ponce endorse the notion that "courts may approve a wide variety of seizures not based on probable cause, so long as the courts find, after balancing the law enforcement purposes of the police conduct against the severity of their intrusion, that the seizure appears 'reasonable.' " Michigan v. Summers, supra at 706 (Stewart, J., dissenting). The law enforcement interests invoked in Summers (minimizing the possibility of harm to police who do not have articulable suspicion that a suspect is armed and dangerous, preventing flight, and facilitating an orderly search) may be laudable, but they are not sufficient to justify conducting this exceptional balancing test. Id. (Stewart, J., dissenting). Instead, when ordinary law enforcement interests are at stake, the "Fourth Amendment itself has already performed the

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constitutional balance between police objectives and personal privacy." Id. (Stewart, J., dissenting). If the traditional balancing already performed by the Fourth Amendment were to be abandoned in considering these ordinary law enforcement interests, and the reasoning of Summers were to be followed to its logical conclusion, privacy concerns would have to be weighed against law enforcement interests by the courts in every case, and by the police in every encounter with a citizen.

The Summers dissent also questioned, correctly in my estimation, whether the asserted justifications for the detention reflected legitimate police interests in the circumstances of that case. There was no suggestion there that the defendant posed a threat to police officers or anyone else. Summers, supra at 709 n.1 (Stewart, J., dissenting). Indeed, he was leaving the premises the police were about to search. As to the government's asserted interest in preventing flight, Justice Stewart stated: "If the police, acting without probable cause, can seize a person to make him available for arrest in case probable cause is later developed to arrest him, the requirement of probable cause for arrest has been turned upside down." Id. at 709 (Stewart, J., dissenting). [Note Cowin-3] Finally, if a detention without probable cause is permissible in order to "facilitate" a search warrant that is not accompanied by an arrest warrant, "the fundamental principle that the scope of a search and seizure can be justified only by the scope of the underlying warrant has suffered serious damage." Id. (Stewart, J., dissenting). Moreover, as the dissent pointed out, a superficial reading of the Summers opinion "may suggest a minor intrusion of brief duration." Id. at 711. (Stewart, J., dissenting). However, "a detention 'while a proper search is being conducted' can mean a detention of several hours." Id. (Stewart, J., dissenting), quoting Michigan v. Summers, supra at

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705. Thus, a person may be made a prisoner in his own home for a long period of time. [Note Cowin-4]

Even though this court has accepted the reasoning in Summers, the facts of the present case cannot be shoe-horned into that narrow exception, because here the intrusion into personal privacy is greater and is not outweighed by any legitimate police interests. The character of the intrusion here was greater than that in Summers. It did not occur on the doorstep of a private home, as in that case, but in an alley adjacent to a parking area located between a restaurant and the entrance to a multi-unit apartment building, and at least fifty to seventy feet from that entrance. While Summers did not specify geographic distances by which to measure the intrusiveness of a detention, other courts have recognized that the level of intrusiveness of a Summers detention increases when the suspect is stopped in a place that is itself not the subject of the search warrant. See, e.g., United States v. Sherrill, 27 F.3d 344, 346 (8th Cir.), cert. denied, 513 U.S. 1048 (1994) (refusing to extend Summers to a detention occurring on the street, one block away from premises to be searched, because the distance from the premises made the intrusiveness "much greater"). Accord United States v. Boyd, 696 F.2d 63 (8th Cir. 1982), cert. denied, 460 U.S. 1093 (1983). See also Leveto v. Lapina, 258 F.3d 156, 169 (3d Cir. 2001) (detention of suspect in parking lot of business for which search warrant had been issued increased the level of intrusiveness); United States v. Edwards, 103 F.3d 90, 93-94 (10th Cir. 1996) (streetside stop of defendant three blocks from premises did not comport with Summers); United States v. Taylor, 716 F.2d 701, 707 (9th Cir. 1983) (distinguishing Summers because suspect was detained while attempting to drive away from the premises, and not "in or adjoining the place being searched"). Cf. United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991), cert. denied, 502 U.S. 1093 (1992) (seizure and return of resident "a short distance from his residence" valid under Summers).

The increased intrusiveness at issue here is not outweighed by any of the legitimate law enforcement interests enumerated

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in Summers. First, the increased intrusiveness does not assist in protecting the safety of law enforcement officers. Detective Balcom testified that the police did not consider Gravina a threat to their safety. Indeed, when the police accosted her she was neither placed in handcuffs nor frisked. In addition, a person who is at some distance from and walking away from the premises to be searched does not pose any risk to officers, unlike those inside or just on the doorstep. See, e.g., United States v. Edwards, supra at 94 (suspect who has left area and is unaware of search warrant poses no threat to officers); United States v. Hogan, 25 F.3d 690, 693 (8th Cir. 1994) (where police seized defendant in his car miles from the premises subject to the warrant, no risk of harm to officers conducting search). Cf. United States v. Cochran, supra at 339 & n.3 (Summers detention on street valid because police needed suspect's assistance to handle guard dog located on premises). Second, preventing Gravina's flight was not a legitimate interest here. [Note Cowin-5] If the illegal stop and detention had not occurred, Gravina would have proceeded to Main Street and been unaware of any reason to flee. See, e.g., United States v. Edwards, supra at 93-94; United States v. Hogan, supra at 693. Third, at the time they apprehended her, the police had no reason to believe that Gravina had a key to the premises. In any event, Gravina's possession of such a key is not in itself enough to conclude that her presence was necessary for an orderly completion of the search. United States v. Edwards, supra at 92-94 (obtaining keys from suspect did not convert illegal seizure into valid Summers detention). Surely, in most cases, the police do not need the assistance of the occupant to gain access to the premises without major

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damage. Further, the court assumes that those who may be charged with a crime desire to remain on the premises with police officers and protect their property. Neither common sense nor the facts of this case support such an assumption. Finally, there is no reason to believe that the presence of a suspect facilitates the orderly progression of a search.

There is an even more important distinction between Summers and the present case. The objective justification for the detention in Summers was to a great extent premised on the connection of the defendant to the premises in question. Michigan v. Summers, supra at 703-704. As the Summers Court stated, because a "judicial officer has determined . . . someone in the home is committing a crime . . . [t]he connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. The court today points to this connection as providing the requisite "articulable facts" under the Fourth Amendment and "reasonableness" under art. 14 to justify the detention. [Note Cowin-6] In fact there was no such connection between Gravina and the premises. The

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court states that justification for her detention, i.e., her "connection" to the premises, was provided by her status as an "occupant" of the premises for which the warrant was issued. This status, the argument goes, was established by her statement, "That's my apartment," prior to being shown the warrant or read her Miranda rights, in other words, before she was detained. [Note Cowin-7]

In this case, however, the record compels the finding that the detention of Gravina occurred prior to the police learning of her status as an "occupant," in other words, prior to the asserted objective justification for that detention. Regarding the initial encounter, the judge found that four distinct elements occurred in the following order: (1) Gravina and the defendant were informed by the police of the existence of the warrant; (2) Gravina stated that the apartment to be searched was hers; (3) Gravina and the defendant were shown the warrant and then; (4) Gravina and the defendant were Mirandized. However, the only officers who testified both testified that Gravina was read her Miranda rights before her statement (Detective Balcom on direct and redirect examination, and Detective Lieutenant Allen during direct and cross-examination). In argument during the motion hearing, the district attorney also stated that Gravina made her statement after being shown the warrant and advised of her Miranda rights, and the Commonwealth's own appellate brief recites the facts in this order as well. Only once on the record (during the cross-examination of Detective Balcom), does it appear that Gravina made her statement before being Mirandized. Thus, the record does not support the judge's finding that Gravina made her statement prior to being shown the warrant. To the contrary, the judge's finding is clearly erroneous. At the time Gravina was detained, the police were not aware of

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articulable facts that provided the requisite connection between Gravina and the premises, and her detention therefore was not reasonable. [Note Cowin-8]

Even if the judge's finding was not erroneous, and even if Gravina had admitted to living in the apartment prior to her detention, there was still no valid justification for that detention. Absent the suggestions in Summers, which might favor the validity of Gravina's detention, the only arguably legitimate rationale for the seizure can be found in Terry v. Ohio, supra. Under Terry, an officer has the right to "make a threshold inquiry where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime." Commonwealth v. Watson, 430 Mass. 725, 729 (2000), quoting Commonwealth v. Silva, 366 Mass. 402, 405 (1974). In evaluating the validity of a Terry-type stop, we consider both "whether the initiation of the stop was proper in the circumstances and whether the scope was justified by the circumstances." Commonwealth v. Grandison, 433 Mass. 135, 139 n.6 (2001), quoting Commonwealth v. Watson, supra. The scope of the intrusiveness of the stop includes the length of the encounter, the nature of the inquiry, the possibility of flight, and danger to the safety of the officers. Commonwealth v. Williams, 422 Mass. 111, 118 (1996). The scope must be proportional to the "degree of suspicion the police reasonably harbor." Id. at 116. When a detention follows from a threshold inquiry that does not reveal further suspicious activity or circumstances, that detention will normally be invalid. See Commonwealth v. Torres, 424 Mass. 153, 157-159 (1997); Commonwealth v. Borges, 395 Mass. 788, 790-791 (1985); Commonwealth v. Loughlin, 385 Mass. 60, 62 (1982).

The circumstances in this case arguably may have justified a threshold inquiry of Gravina in order to ascertain her connection to the defendant and the illegal activity under investigation. However, no such inquiry was made by the police. Gravina's mere association with the defendant, and her admission that the apartment under investigation was hers, were not sufficient to

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provide reasonable suspicion proportionate to her detention (which was for an indeterminate time, see note 8, supra), and her involuntary return to the apartment, see note 2, supra. The detention of Gravina exceeded the scope of a valid Terry-type stop.

In Summers, the Court stated that "the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention." Id. at 701. This misses the point. Constitutional guarantees do not depend on suppositions that police officers will not "exploit" unauthorized detentions or that such detentions will not normally produce useful information. Nor do these guarantees envision subsequent case-by-case analysis of the balance between law enforcement needs and individual privacy rights. That balance was struck in both the Fourth Amendment and art. 14, resulting in the requirement that detentions of this nature be preceded by warrants. It is not our function to revisit it.

What is even more unnerving is that the court today not only embraces for art. 14 purposes the reasoning of Summers; it expands on it. In Summers, the police detained a suspect whom they inadvertently encountered on the doorstep of his home, searched for and found narcotics in the basement, and then arrested the suspect. Id. at 693. Today, this court concludes that the police may wait until a nonsuspect emerges from the premises to be searched, detain that nonsuspect whom they only later learn is connected to the particular residence, bring her back to the premises specified in the search warrant, detain her for an unspecified period of time, and then search the bag she is carrying. Even the logic of Summers does not justify this detention and search. Clearly the heightened protection provided by art. 14 does not countenance this further erosion of the warrant requirement.