Com. v. Antwine
Court | United States State Supreme Judicial Court of Massachusetts |
Citation | 632 N.E.2d 818,417 Mass. 637 |
Parties | COMMONWEALTH v. Linwood ANTWINE. |
Decision Date | 02 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.
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) (); 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:
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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