Commonwealth v. Sespedes

• Decision Date: 29 May 2003
• Docket Number: No. 01-P-1697.,01-P-1697.
• Citation: 58 Mass. App. Ct. 907
• Parties: COMMONWEALTH v. DANNY SESPEDES.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. DANNY SESPEDES.

No. 01-P-1697.

Court of Appeals of Massachusetts.

May 29, 2003.

Search and Seizure, Affidavit, Probable cause. Constitutional Law, Search and seizure. Probable Cause. Controlled Substances.

Convicted of trafficking in heroin (100 grams or more) and in cocaine (200 grams or more), the defendant seeks reversal of the judgments, based on (1) the denial of his motion to suppress keys seized from his person during a search of his third-floor apartment, as well as drugs found in the false ceiling of a vacant second-floor apartment to which access was gained by means of the seized keys; and (2) the denial of his motions for required findings of not guilty on both indictments. We discern no errors in the challenged rulings and affirm the judgments of conviction.

Brownlow M. Speer, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Factual Summary. In the course of conducting surveillance on the third-floor, right hand apartment at 399 Orange Street, Springfield (where the defendant was known to reside), the police obtained a no-knock search warrant for the targeted apartment, authorizing a search for crack cocaine and related paraphernalia as well as a search of any persons found on the premises.[¹] While awaiting the arrival of the warrant, the surveillance officers observed the defendant in the second-floor apartment, where he had apparently entered and turned on the lights. The officers saw the defendant looking around outside from the second-floor apartment porch, then return inside for several minutes, after which the lights went off. Shortly thereafter, the officers observed a male ascend to the third-floor apartment, and the door to the apartment was opened by the defendant.

As the officers (wearing clothing and badges prominently identifying them as police) were ascending to the rear third-floor landing to execute the warrant, they saw the defendant looking out the window. Immediately after the defendant made eye contact and looked at the officers, he ran from the window into the interior of the apartment. The police broke down the door with a battering ram and seized the defendant as he ran towards the front of the apartment. A search of the defendant's pockets produced forty dollars and two keys. After an intensive search of the third-floor apartment, including probing into the drop ceilings, moldings, and electrical fixtures, the

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police found some paraphernalia but no drugs. While the search was progressing, an officer tried the keys taken from the defendant in the several doors of the third-floor apartment, but they did not open any of them. The police then tried the keys in other vacant apartments in the building, discovering that both keys fit the doors to the second-floor apartment where the defendant had been observed earlier.

After securing the front and back doors of the apartment, the police obtained a second search warrant for the second-floor apartment. It was entirely vacant, without furniture, appliances, curtains, or any personal effects. Another intensive search revealed a drop ceiling, behind which the police found several plastic bags containing almost 2,000 grams of both powder and crack cocaine (worth between $60,000 and $80,000), plus two bags containing over 125 grams of 88.2 per cent pure heroin with a retail value of $125,000.

Discussion. 1. a. Contrary to the defendant's contention, the affidavit supporting the first search warrant provided sufficient, reliable facts establishing probable cause for the no-knock provision. The particularly pertinent facts were: the easy destructibility of the drugs (being sold from the apartment in small packages for street distribution); the lookout activity by occupants of the apartment, as observed by police; the occupants' awareness of police presence; and the enterprise's controlled method of operation, requiring the placement of advance orders by customers who were carefully monitored as they approached the building to effect their transactions. See Commonwealth v. Scalise, 387 Mass. 413, 418, 421-423; Commonwealth v. Benlien, 27 Mass. App. Ct. 834, 836-837; Commonwealth v. Mendez, 32 Mass. App. Ct. 928, 930.

b. The motion judge correctly rejected the defendant's argument that the officers made no threshold reappraisal before entering the third-floor apartment pursuant to the no-knock warrant. The approaching police were in fact observed by the defendant as they came up to the rear door of the apartment in clothing clearly identifying them as police. The defendant was "looking at us through the window that looks from the kitchen out to back porches." The defendant then ran from the window to the interior of the apartment. The officers immediately realized that the defendant actually knew of, and was reacting to, their presence. Under such circumstances — far more exigent than the police had anticipated — to have required the police to knock and announce would have been a useless gesture and could have afforded the defendant additional time to escape or dispose of the contraband. See Commonwealth v. Antwine, 417 Mass. 637, 639-641.

c. The defendant's assertion that the seizure of the keys improperly exceeded the scope of the first search warrant is unfounded. The...