Com. v. Allen

• Citation: 28 Mass.App.Ct. 589,554 N.E.2d 854
• Decision Date: 23 May 1990
• Docket Number: No. 89-P-586,89-P-586
• Parties: COMMONWEALTH v. Dennis A. ALLEN.
• Court: Appeals Court of Massachusetts

Page 854

554 N.E.2d 854

28 Mass.App.Ct. 589

COMMONWEALTH v. Dennis A. ALLEN.

No. 89-P-586.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 11, 1990.

Decided May 23, 1990.

Mary Ann Driscoll, Dorchester, for defendant.

Nijole Makaitis, Asst. Dist. Atty., for Com.

Before BROWN, DREBEN and KASS, JJ.

KASS, Justice.

An arrest warrant was out for the defendant Dennis A. Allen when police searched him and the apartment--not his--in which they found him. We conclude that a motion to suppress incriminating evidence found during those searches was rightly denied. There are several lesser points on appeal.

A high speed car chase in the afternoon of August 26, 1987, had triggered the chain of events which led to the defendant's arrest. The principal prey in the chase had been Everton (Doc) Douglas, wanted for drug dealing and in connection with a recent shooting. The police did not catch Doc but did apprehend a passenger in the vehicle being pursued--he had leapt out--who gave information which led to a stakeout of apartment no. 2 at 247 Woodrow Avenue, Dorchester.

Surveillance began at about 6 P.M. from a van. Three police officers in an unmarked chase car kept an eye on a rear exit of the apartment house. From his post in the van, fifteen to twenty feet to the front of the building under watch, Detective Kee observed a man intermittently peering out of one of the basement apartment windows. Kee believed that man to be the defendant, whom he knew as Anthony Sudlow (an alias). To Kee's knowledge there were warrants for Sudlow's arrest on charges of assault with a dangerous weapon and assault with intent to murder. Kee also understood Sudlow and Doc to be friends and members of the same gang or posse. ¹

A man made several short visits to the apartment. Each time the lights went on when he arrived and went off after the visitor left. After a third visit, this man emerged with another man, thought by Kee to be Sudlow, and a woman. As the trio entered an automobile, the lights in the apartment, which had been on, switched off, allowing Kee to deduce that someone, probably Doc, was still inside. Kee radioed the chase car to intercept and search the car that was just leaving with the two men and one woman. That assignment was carried out by the chase car with an excess of efficiency, i.e., about ten feet from 247 Woodrow Avenue and within an unobstructed line of sight from the apartment under surveillance. The man who Kee thought was Sudlow turned out to be someone else.

Kee and the surveillance team were now apprehensive that an alerted Sudlow and Doc would slip away. Ten officers, equipped with a battering ram, moved in. They knocked at the door of the apartment they had been watching and announced--so it was found--"Boston Police. Would you please open up." Then they used the battering ram and the door flew open. What they saw was the defendant pointing a handgun at them. There was a scramble for cover, then a rush at the defendant, whom the police subdued and searched. The weapon was a Colt .45 caliber automatic pistol, fully loaded. In the defendant's pockets, the police found six to eight rounds of hollow nose .357 caliber ammunition. That action took place in a living room. The police then made a sweep search of the apartment to see if anybody else was in it. No one was, but the police found eleven pounds of marihuana in an open bag on a bed in an adjoining bedroom. In response to questioning at the police station, the defendant told the police he did not live in the apartment at 247 Woodrow Avenue. There was no evidence that the defendant had any relation to the landlord of the apartment, Aquality Associates, or to the tenant under written lease, Arthur Atkinson.

Now revealed by his true name, Dennis A. Allen, the defendant was tried before a jury and convicted of assault by means of a dangerous weapon and unlawful possession of a firearm. On the charge of possession of marihuana with intent to distribute, the jury failed to reach a verdict, producing a mistrial as to that indictment. The defendant was acquitted on a charge of distributing marihuana.

1. The suppression motion. Evidence of the circumstances of the arrest and search was generated during the course of a pretrial hearing on a motion to suppress the firearm which the defendant pointed at the police, the ammunition, and the marihuana. ² That evidence supports the findings of the motion judge, from which we have drawn our recitation of facts. The defendant protests that the police had no search warrant with which to enter the apartment and that there were not exigent circumstances which might justify the search of a residence without a search warrant.

The arrest warrants sufficed. Law enforcement officers, acting under an arrest warrant, ³ do not do violence to the safeguards of the Fourth Amendment to the United States Constitution if they enter the dwelling in which the suspect named in the arrest warrant lives when they have reason to think the suspect is there. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). The determination by a judicial officer of probable cause acts as a screen between the overzealous official and the citizen. Id. at 602, 100 S.Ct. at 1388. A person's home is not a castle against execution of a lawful arrest warrant directed against that person. The police may not, however, so far as the rights of the person who lives there are concerned, use an arrest warrant for a suspect to enter the dwelling of someone else because they think the suspect is present. Steagald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981). For that purpose the authorities would require a search warrant. Ibid. See also Commonwealth v. Pietrass, 392 Mass. 892, 898 n. 9, 467 N.E.2d 1368 (1984). That rule deters the use of an arrest warrant as a pretext to search the dwelling of someone other than the subject of the arrest warrant. To illustrate: the police could enter apartment no. 2 at 247 Woodrow Avenue pursuant to an arrest warrant--and without a search warrant--if it were Allen's dwelling. Assuming that it was Arthur Atkinson who lived in the apartment, ⁴ Atkinson could demand that the police have a search warrant to look for Allen and could demand suppression of evidence incriminating Atkinson which the police, lacking a search warrant to look for Allen, turned up while pursuing Allen. In relation to Atkinson's expectation of privacy within his own dwelling and his rights which flowed from that expectation, the police entry into Atkinson's apartment to arrest Allen offended the Fourth Amendment.

That, however, is not the end of the story for the defendant. It is the idea of the sanctity of a person's home that is at the center of the Fourth Amendment and what we are discussing. See Payton v. New York, 445 U.S. at 585, 100 S.Ct. at 1379; Mascolo, Arresting a Suspect in the Home of a Third Party: The Issue of Standing or Legitimate Expectations of Privacy, 4 Western New Eng.L.Rev. 381, 392-395 (1982). If the person whose home it is cannot insist that the police be equipped with a search warrant if they have an arrest warrant for him, a relative stranger may not stand in a better position. It would produce an unacceptable paradox to afford the subject of an arrest warrant greater protection in the home of another than in his or her own home. Although the person who lived in apartment no. 2 may have had certain rights, had there been an occasion to claim them, we do not think any right of the defendant under the Fourth Amendment, art. 14 of the Declaration of Rights of the Massachusetts Constitution, or G.L. c. 276, § 1, was violated.

This is not an occasion for invoking the doctrine of "automatic standing," announced in Commonwealth v. Amendola, 406 Mass. 592, 596-601, 550 N.E.2d 121 (1990). ⁵ What underlies the conferring of automatic standing in a search and seizure case is that the defendant should not be placed in the self-contradictory position of, with one hand, disclaiming any interest in the premises where incriminating evidence is found and thereby lose standing to challenge the search and seizure, ⁶ and, with the other hand, claiming a privacy interest in the premises and thereby identifying with incriminating material found in the premises. No similar irreconcilable choice faces the subject of an arrest warrant: police may enter premises in which he claims a privacy interest to arrest him; if, as here, the subject of the arrest warrant disclaims interest in the premises, he is neither better nor worse off. Relieved of awkward choices, there is no salutary purpose in permitting someone who has no interest in a dwelling to assert rights based on the sanctity of a dwelling.

Once inside apartment no. 2 to execute the arrest warrant for the defendant, the police could search him incident to his arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Commonwealth v. Bowden, 379 Mass. 472, 477, 399 N.E.2d 482 (1980). Commonwealth v. Stafford, 18 Mass.App.Ct. 964, 965, 469 N.E.2d 1267 (1984). The police also acted within permissible bounds in making, incident to the arrest, a quick and limited search of the premises, a "protective sweep," to secure themselves against harm from other persons who might be in the apartment. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). ⁷ Commonwealth v. Bowden, 379 Mass. at 478, 399 N.E.2d 482. Commonwealth v. Stafford, 18 Mass.App.Ct. at 965, 469 N.E.2d 1267.

On our analysis, it is not necessary to consider whether exigent circumstances justified the entry of the police into apartment no. 2 without a search warrant. See Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975); Commonwealth v. Donoghue, 23 Mass.App.Ct. 103, 499 N.E.2d 832 (1986). ⁸

2. The "knock and announce" question. As matter of common law, except in limited circumstances, police must knock,...