Com. v. Antwine

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation632 N.E.2d 818,417 Mass. 637
PartiesCOMMONWEALTH v. Linwood ANTWINE.
Decision Date02 May 1994

Lawrence P. Murray, Boston (Henry F. Owens, III, with him) for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Before WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

WILKINS, Justice.

Shortly before midnight on January 23, 1991, State and Lynn police officers executed a warrant at the defendant's residence, an apartment on the second floor at 13 1/2 Lowell Street in Lynn. One officer knocked on a door of the apartment several times with his flashlight and identified himself as "police." He did not announce the officers' purpose for being there. The officers knew that there were three warrants outstanding for the defendant's arrest and that the defendant was in the apartment. They heard no noise in the apartment. Approximately twenty seconds after the first knock, but before one minute had passed, the police forced their way into the apartment.

The defendant challenges the denial of his motion to suppress, arguing that the forcible entry by the police without an announcement of their purpose for entering his apartment violated the common law "knock and announce" rule. 1 We transferred the appeal to this court on our own motion. There was no error in the denial of the motion to suppress, nor did the trial judge err in interrupting the defendant's closing argument to the jury. We affirm the conviction of unarmed robbery.

1. Before attempting forcibly to enter a private dwelling to execute a warrant, police must knock, announce their identity, and state their purpose, unless the circumstances justify dispensing with one or all of the requirements. A definitive history of this so-called "knock and announce" rule is presented in Commonwealth v. Cundriff, 382 Mass. 137, 140-147, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). The policies underlying the announcement rule at common law include decreasing the potential for violence, the protection of privacy, and the prevention of unnecessary damage to homes. Commonwealth v. Cundriff, supra at 140-141, 415 N.E.2d 172. See Commonwealth v. Goggin, 412 Mass. 200, 202, 587 N.E.2d 785 (1992); Commonwealth v. Gomes, 408 Mass. 43, 45, 556 N.E.2d 100 (1990); Commonwealth v. Sepulveda, 406 Mass. 180, 182, 546 N.E.2d 879 (1989); Commonwealth v. Scalise, 387 Mass. 413, 417, 439 N.E.2d 818 (1982); Commonwealth v. Osorno, 30 Mass.App.Ct. 327, 330-331, 568 N.E.2d 627 (1991); Commonwealth v. Gondola, 28 Mass.App.Ct. 286, 290, 550 N.E.2d 880 (1990). This court has recognized certain exceptions that may excuse noncompliance with the rule, such as (a) where police have reason to fear for their own safety or for the safety of people within the location to be entered (Commonwealth v. Cundriff, supra, 382 Mass. at 147, 415 N.E.2d 172); (b) where police are reasonably acting to prevent the destruction of evidence or a suspect's escape (Commonwealth v. Scalise, supra, 387 Mass. at 418, 439 N.E.2d 818); and (c) "where the person inside the dwelling to be entered has knowledge of the officers' purpose and presence" (id., quoting Commonwealth v. Cundriff, supra, 382 Mass. at 147 n. 15, 415 N.E.2d 172).

It is this last exception with which we are concerned here. It is commonly characterized as the "useless gesture" exception, the basic principle of which is that law enforcement officers should be relieved of having to engage in meaningless procedural formalities that do nothing to further the policies behind the knock and announce rule. See United States v. One Parcel of Real Property, 873 F.2d 7, 9-10 (1st Cir.) (announcement of purpose would have made no practical difference), cert. denied sub nom. Latraverse v. United States, 493 U.S. 891, 110 S.Ct. 236, 107 L.Ed.2d 187 (1989); United States v. Wylie, 462 F.2d 1178, 1186-1187 (D.C.Cir.1972) ("express notice of purpose is unnecessary where from the officer's view of the situation the occupant must surely have known why admittance into a habitation was desired"); 2 W.R. LaFave, Search & Seizure § 6.2(e), at 619-620 (2d ed. 1987). If facts known to the police at the time of entry make it "virtually certain" that the person in the dwelling already knows the police's purpose, the useless gesture exception excuses the police from full compliance with the rule. See Commonwealth v. McDougal, 2 Mass.App.Ct. 820, 309 N.E.2d 891 (1974), following United States v. Wylie, supra at 1186. See also Miller v. United States, 357 U.S. 301, 310, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958).

In United States v. One Parcel of Real Property, supra, the court considered a similar situation where the police knocked and announced their presence, but not their purpose. In discussing the Miller case, supra and the uselessness in the case before it of any announcement of the police's purpose, the Court of Appeals for the First Circuit said:

"The Court acknowledged, however, that an express announcement would be a useless gesture if the house's occupant already knew the police's purpose. [Miller v. United States, supra at 309-310, 78 S.Ct. at 1195-1196]. The focus, therefore, is properly not on what 'magic words' are spoken by the police, but rather on how these words and other actions of the police will be perceived by the occupant. Cf. Bosley v. United States, 426 F.2d 1257, 1263 (D.C.Cir.1970) (no announcement or further knocking required where officers believed sleeping occupant unable to hear them). Officers murmuring, 'Police,' as in Miller, may cause the occupant who hears them doubt as to their purpose. No such doubt will exist--although considerable apprehension is likely--when officers pound on the door, yelling 'Police!' They want in, presumably to search or arrest, not census-taking. We cannot think it would have made any difference to claimant's perceptions had the police here, in addition to yelling 'Police,' shouted 'Search Warrant.' " United States v. One Parcel of Real Property, supra at 9-10.

With this background we are in a position to consider the application of the useless gesture exception in this case. As we have said, the police knew that the defendant was at home. They received no response to their several knocks on the door and the announcement that they were the police. The motion judge took the view that, if the defendant heard the knock and identification, "given the hour and the three default warrants, he could have guessed the purpose." If the defendant were asleep or otherwise preoccupied so that he did not hear the knock or identification, the judge reasoned that the...

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20 cases
  • Commonwealth v. Jimenez
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 12 December 2002
    ...of a search warrant has long been a part of our common law. Commonwealth v. Macias, 429 Mass. 698, 700 (1999). See Commonwealth v. Antwine, 417 Mass. 637, 638 (1994) (holding that, as general rule, police "must knock, announce their identity, and state their purpose"); Commonwealth v. Scali......
  • Walker v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 27 February 2004
    ...procedural formalities that do nothing to further the policies behind the knock and announce rule," Commonwealth v. Antwine, 417 Mass. 637, 639, 632 N.E.2d 818, 819 (1994), has also been recognized by state and federal courts. See, e.g., State v. Shelly, 58 Wash.App. 908, 795 P.2d 187 (1990......
  • Commonwealth v. Silva
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 November 2003
    ...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. 69......
  • Com. v. Santiago
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 17 November 2008
    ...438 Mass. 213, 215, 780 N.E.2d 2 (2002). See Commonwealth v. Macias, 429 Mass. 698, 700, 711 N.E.2d 130 (1999); Commonwealth v. Antwine, 417 Mass. 637, 638, 632 N.E.2d 818 (1994); Commonwealth v. Scalise, 387 Mass. 413, 418 n. 5, 439 N.E.2d 818 (1982). The rule arises from a long common-law......
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6 books & journal articles
  • Trial Proceedings and Motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • 31 July 2016
    ...or evidence or the guilt of the defendant; the conduct also violates the ABA Standards of Criminal Justice. Commonwealth v. Antwine , 417 Mass. 637, 632 N.E.2d 818 (Mass. 1994). Counsel does not have a right to assert his or her opinion that a fact is true, although counsel may properly arg......
  • Trial proceedings and motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • 31 July 2017
    ...or evidence or the guilt of the defendant; the conduct also violates the ABA Standards of Criminal Justice. Commonwealth v. Antwine , 417 Mass. 637, 632 N.E.2d 818 (Mass. 1994). Counsel does not have a right to assert his or her opinion that a fact is true, although counsel may properly arg......
  • Trial Proceedings and Motions
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Trial Proceedings and Motions
    • 5 May 2019
    ...or evidence or the guilt of the defendant; the conduct also violates the ABA Standards of Criminal Justice. Commonwealth v. Antwine , 417 Mass. 637, 632 N.E.2d 818 (Mass. 1994). Counsel does not have a right to assert his or her opinion that a fact is true, although counsel may properly arg......
  • Trial proceedings and motions
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • 31 July 2018
    ...or evidence or the guilt of the defendant; the conduct also violates the ABA Standards of Criminal Justice. Commonwealth v. Antwine , 417 Mass. 637, 632 N.E.2d 818 (Mass. 1994). Counsel does not have a right to assert his or her opinion that a fact is true, although counsel may properly arg......
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