Com. v. Cundriff

Decision Date16 December 1980
Citation415 N.E.2d 172,382 Mass. 137
Parties, 17 A.L.R.4th 287 COMMONWEALTH v. Jamie CUNDRIFF.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William J. Leahy, Boston, for defendant.

Leonard J. Henson, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

The defendant was found guilty by a jury on seven indictments charging him with armed robbery while masked (G.L. c. 265, § 17), and one indictment charging armed assault with intent to rob (G.L. c. 265, § 18), and was sentenced to concurrent terms of from fifteen to twenty-five years imprisonment at the Massachusetts Correctional Institution at Walpole. 1 The defendant appealed pursuant to G.L. c. 278, §§ 33A-33G. On appeal Cundriff raises three issues: (1) the denial of a motion to suppress evidence based on a claim that the police entered Cundriff's apartment without an announcement of their identity and purpose; (2) the denial of a motion to grant a mistrial because a statement made to police by the defendant was not disclosed prior to trial; and (3) an erroneous instruction to the jury. We granted the defendant's application for direct appellate review. We find no error and affirm the convictions.

We summarize the facts. About two o'clock on the afternoon of August 23, 1978, four men wearing stocking masks and carrying guns entered the Casa de Hombre hairdressing salon at 1222 Blue Hill Avenue in Boston's Mattapan neighborhood. The nine customers and employees present in the shop at the time were ordered to lie on the floor, then were tied up or bound and robbed of money and jewelry. The robbers also took a telephone, a telephone answering machine, and a backgammon set. Three of the men remained masked throughout the robbery, but the fourth man raised his mask momentarily, allowing one of the victims to see part of his face.

About 2:30 P.M. that day, two Boston police detectives, who had not yet learned of the robbery, saw four men running across a street not far from the Casa de Hombre. When the four split into two groups, the police followed one pair, later identified as Jamie and Cedric Cundriff, and stopped them. Cedric, who was carrying a telephone and a telephone answering machine, was placed under arrest for receiving stolen property. Jamie, who was carrying a backgammon set, was not arrested.

As the police were taking Cedric to the police station, they received a radio dispatch telling them of the holdup at the Casa de Hombre, and they drove to the scene. Upon their arrival, several persons identified Cedric as one of the participants in the robbery, and the proprietor of the hairdressing salon identified the telephone answering machine as the one taken from the shop. A search of Cedric revealed several black nylon stocking caps and a number of pieces of jewelry taken in the robbery.

The forcible entry of Cundriff's apartment. On October 13, 1978, at approximately 6:45 A.M., a group of police officers went to Jamie Cundriff's apartment with an arrest warrant. It was still dark when the police arrived and knocked at the door. When a woman inside the apartment asked, "Who is it?" one officer answered, "School bus."

A woman opened the door, and several officers rushed into the apartment with their weapons drawn. One officer remained outside while the other officers entered rooms throughout the apartment. Several officers went into a bedroom, where Jamie Cundriff, only partially clothed, was lying on the bed, next to a young child. Cundriff was placed under arrest. One of the officers, who had been present when the two Cundriff brothers were stopped on the street the day of the robbery, saw a backgammon set in Jamie Cundriff's apartment recognized it as the one Jamie Cundriff had been carrying that day, and seized it. 2

Cundriff claims that the judge erred by failing to suppress the backgammon set seized as a result of an unlawful entry into the apartment. He argues that the entry of the police into his apartment was unlawful, since the police failed to identify themselves and did not state their purpose, in violation of our common law rule that officers cannot make an unannounced entry into a dwelling house 3 except in limited circumstances not here present. The judge assumed that the knock and announce rule was a part of our common law, ordered a hearing, and then ruled that making such an announcement would have endangered the lives of the officers or other persons, and hence, the failure of the officers to knock and announce their identity and purpose was justified. We conclude that the judge was correct both in recognizing the rule as a part of our common law and in recognizing that the failure of the police to make an announcement may sometimes be justified.

Our examination of the history of this rule must begin with the English common law. 4 Three reasons appear as the basis for the development of the rule in England. In medieval England private persons often used self-help to recover stolen chattels. At that time possession was protected since "to allow men to make forcible entries on land or to seize goods without form of law, is to invite violence." 2 F. Pollock & F. Maitland, The History of the English Law, 41 (2d ed. 1899). In addition to using the announcement requirement as a means of decreasing potential violence, the requirement of an announcement also served to protect the peace, tranquility, and privacy of an owner. "The possessor's possession is protected, not indeed because he has any sort of right in the thing, but because in general one can not disturb his possession without being guilty, or almost guilty, of some injury to his person, some act which, if it does not amount to an assault, still comes so dangerously near to an assault that it can be regarded as an invasion of that sphere of peace and quiet which the law should guarantee to every one of its subjects." Id. at 41-42. Lastly, the requirement of a statement of identity and purpose gave the property owner an opportunity to permit peaceable entry and thereby protect the home from physical destruction. See Lee v. Gansel, 98 Eng.Rep. 935, 938 (K.B.1774), where Lord Mansfield set forth the need to prevent those executing warrants from breaking doors or windows, for "otherwise the consequences would be fatal: for it would leave the family within, naked and exposed to thieves and robbers." 5

The first case applying a knock and announce requirement on public officers is Semayne's Case 77 Eng.Rep. 194, 195 (K.B.1603), which contains the following dictum. "In all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K(ing)'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ...." The requirement that royal officers first identify themselves and announce their purpose before entering rested in part on the notion that the "house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...." Id.

Following Semayne's Case, the English courts, in Curtis's Case, 168 Eng.Rep. 67 (Crown 1756), dealt directly with the knock and announce requirement in a criminal case. The court held that "peace-officers having a legal warrant to arrest for a breach of the peace, may break open doors after having demanded admittance and given due notice of their warrant." Id. at 68. The majority also held that "no precise form of words is required" to constitute adequate notice, as long as the announcement suffices to inform the occupant that the person demanding entry is not a trespasser but someone who "claim(s) to act under a proper authority." Id.

In Launock v. Brown, 106 Eng.Rep. 482, 483 (K.B.1819), the judge stated that while he did not know if the announcement rule should apply to felony cases, "in the case of a misdemeanour, such previous demand is requisite." The judge reasoned that the rule was required in such a case because if no demand is made, "how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the outmost." Id. at 483.

The early English authorities are in accord. Sir Matthew Hale wrote, "A man, that arrests upon suspicion of felony, may break open doors, if the party refuse upon demand to open them ...." 1 Hale, Pleas of the Crown 583 (1800). See 2 Hawkins Pleas of the Crown c. 14, § 1 (6th ed. 1787); Foster, Crown Law 320-321 (1762). See also Ker v. California, 374 U.S. 23, 47-48 n.1, 83 S.Ct. 1623, 1636-1637 n.1, 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting) ("the leading commentators upon the English criminal law affirmed the continuing vitality of (Semayne's Case)"). 6

British search policies generally are acknowledged to have spurred on revolutionary sentiment in colonial Massachusetts. Opposition to the search policies centered upon the use by British customs house officers of the writs of assistance, general warrants which allowed officers of the crown to search, at their will, wherever they suspected untaxed goods to be, and granted the officials the right of forcible entry. See generally, O. M. Dickerson, The Navigation Acts and the American Revolution (1974); N.B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1970); H.H. Miller, The Case for Liberty, 121-144 (1965). 7

It is not clear how often forcible entries were preceded by a knock and announcement of purpose. The colonists did not list the failure of the king's officers to announce their identity and purpose among their complaints about the writs. 8 Nevertheless the colonists' memory of the use and abuse of the writs...

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