Com. v. DiSanto

• Decision Date: 15 November 1979
• Citation: 8 Mass.App.Ct. 694,397 N.E.2d 672
• Parties: COMMONWEALTH v. Thomas E. DiSANTO (and thirteen companion cases) 1
• Court: Appeals Court of Massachusetts

Page 672

397 N.E.2d 672

8 Mass.App.Ct. 694

COMMONWEALTH v. Thomas E. DiSANTO (and thirteen companion cases)¹

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 7, 1979.

Decided Nov. 15, 1979.

David A. Mills, Boston (Walter J. Hurley, Boston, with him), for James F. Brady, III.

Jeffrey E. Rossman, Boston (David D. Patterson, Boston, with him), for Thomas E. DiSanto.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GRANT and KASS, JJ.

GRANT, Justice.

In the early afternoon of April 29, 1977, two Boston police detectives in an unmarked car happened upon the scene of an armed robbery which was being committed on the sidewalk next to a bank building in Mattapan Square. The detective who was driving the car ran it up onto the sidewalk and against the side of the building; the detectives were met with a hail of gunfire; both were wounded, as was a civilian bystander; four young men fled in a waiting car which sped off in the direction of Cummins Highway.

Thomas E. DiSanto, James F. Brady, III, Richard W. Gadsby and Kenneth Wightman were each separately indicted for armed robbery while masked, armed assault with intent to murder the two detectives and the bystander, assault and battery on all three persons by means of a dangerous weapon, and the unauthorized use of an automobile. All the indictments were tried together in the Superior Court, where a jury convicted each defendant on every indictment against him. DiSanto's and Brady's appeals are now before us. ² The appeals were argued together, but we shall discuss them separately because each defendant has argued different points. ³

DiSANTO'S APPEAL.

1. DiSanto complains first of the denial of his motion to suppress certain articles which were seized in his apartment during the afternoon of the day of the robbery and shootings. The following is a summary of the relevant evidence at the pretrial hearing on that motion.

Other police officers discovered the detectives who had been shot within minutes after the incident. Those officers obtained brief descriptions of three of the four men who had climbed into the getaway car, including the fact that one of them had been wearing dark clothing, as well as a description and the registration number of the getaway car. The first police radio broadcast of the shootings, which included those descriptions, occurred at 1:42 P.M. At 1:55 P.M. another broadcast advised that the getaway car had been discovered at the end of a dead- end road leading into an abandoned quarry located near Cummins Highway in the Hyde Park district of Boston and known as Barry's Ledge. A man who lived at the end of that road informed the police that he had seen three young white men abandon the car, one of them carrying a case of a kind suitable for carrying a gun. The police were advised of the direction in which the men had fled, and Lieutenant (now Superintendent) Connolly of the Boston police assumed command of approximately 100 men, fifty vehicles and a State police helicopter which had joined the search for those who had entered the quarry.

The back window of the getaway car had been shot out. Connolly and some of his men examined the interior of the car, discovered that the ignition lock had been removed, and observed bullets, spent shell casings and a cotton work glove. Connolly, who was then communicating with his forces by walkie-talkie, ordered officers to enter the quarry from all the dead end roads leading into its perimeter. He and several officers under his immediate direction then entered the quarry, where they followed a trail consisting of several cotton work gloves similar to the one found in the car, a package of cigarettes, discarded clothing (including a blue denim jacket), a chrome plated revolver, a carrying case for a rifle or a submachine gun, and a holster. No one was found. The geography and terrain of the quarry, the locations of the dead end roads, the direction of the trail of objects which had just been found and the positioning of his forces that Connolly had already ordered were such that he reasonably concluded that the pursuit should be continued straight ahead in the direction of the extension of the American Legion Highway, which by then was the nearest public way not already covered by Connolly's forces. On the near side of the highway there was a Bradlee's store with its parking lot; on the far side was a complex of apartment buildings surrounded by secondary roads. Connolly radioed directions that both areas be checked. Having in mind that he had discovered a denim jacket, Connolly specifically alerted the searchers to the possibility that one of the men they were looking for might be bare chested or wearing a T shirt. Every one had already been advised that the men in question were armed and dangerous.

Within minutes two police officers who had heard all the relevant radio broadcasts and who had already checked the Bradlee's parking lot arrived at the apartment complex. They encountered and questioned two young boys to whom they gave the broadcast descriptions, including the possibility that one of the men in question might be bare chested or wearing a T shirt. The boys advised that they had seen two men such as those described (one of them bare chested) running in the direction of an apartment building which faced on Navarre Street and contained four doors approximately at ground level. The officers drove their cruiser to the parking lot adjacent to the four doors, where they encountered a handyman who had seen no one running but who advised that persons meeting the broadcast descriptions lived in apartment 33A.

The door to 33A was flanked by two windows with the blinds drawn. One of the officers knocked on the door and rang the bell twice; there was no response. Both officers looked through a broken peephole in the door; they observed that lights were on in the apartment and heard the sound of a radio or stereo, but no person or movement was detected. Believing that the persons they wanted were inside, the officers dispatched two other officers who had just arrived to find the apartment manager and a pass key. The manager advised those officers that the apartment had recently been leased to DiSanto and proceeded to the apartment with a pass key. Meanwhile two detectives had arrived. The manager unlocked the door, and the first two officers and the two detectives entered.

The entry was made without a warrant approximately ten minutes after the first two officers had arrived at 33A, approximately twenty minutes after their receipt of Connolly's order to check the apartment complex, and approximately one hour and twenty minutes after the first broadcast of the shootings. No one was in the apartment, but the officers observed in plain view on the kitchen table some ammunition, a dent puller and the cylinder of an automobile ignition lock. ⁴ A search warrant was promptly obtained, and the police then seized the items already described, as well as other incriminating items which were received in evidence at trial. ⁵

The findings and rulings of the judge who heard and denied the motion to suppress conclude with the following: "The Court finds that the police had probable cause to believe that desperate armed men could be in 33A and that under the exigent circumstances the Commonwealth has satisfied its burden of proof that the initial entry into Apt. 33A without a warrant was justified. The Court finds the entry was made in the course of fresh pursuit. The Court rules the initial entry and subsequent entry and seizure under the warrant obtained were not unreasonable under the Fourth Amendment to the (United States) Constitution." DiSanto's attack is directed to the finding of exigent circumstances and to the ruling that the initial entry was not unreasonable. ⁶

Subsequent to the decisions of the United States Supreme Court in Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), a plurality of the Supreme Judicial Court, in Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975), opined that "(t)he Fourth Amendment prohibits a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant" (367 Mass. at 806, 329 N.E.2d at 722) and formulated a pragmatic check list of factors to be considered in determining whether a particular warrantless entry into a dwelling has been reasonable in the Fourth Amendment sense. For present purposes the factors on that list may be enumerated as follows: (1) the crime in question was one of violence and the suspect had been reported to be armed and dangerous; (2) probable cause to believe that the suspect has committed a felony and strong reason to believe the suspect is in the particular dwelling; (3) the entry has been made peaceably (preferably in the daytime); (4) a likelihood that the delay attendant upon securing a warrant would facilitate the destruction of evidence or property; (5) a likelihood that the suspect would escape if not promptly apprehended; and (6) some showing of a reasonable basis for believing that delay would subject the officers or others to physical harm (367 Mass. at 807, 329 N.E.2d 717). A majority of the court have subsequently adhered to the Forde decision in determining the validity of warrantless entries to arrest. See Commonwealth v. Moran, 370 Mass. 10, 12, 345 N.E.2d 380 (1976); Commonwealth v. LeBlanc, 373 Mass. 478, --- - ---, 367 N.E.2d 846 (1977); Commonwealth v. Boswell, 374 Mass. ---, ---, ---, --- ^A, 372 N.E.2d 237 (1978); Commonwealth v. Franklin, --- Mass. ---, --- - ---, --- - ---, --- ^B, 385 N.E.2d 227 (1978).

There is no real question as to the existence of any of the factors enumerated as (1) through (3) above. DiSanto, however, points to the agreed fact that the police were able to secure...