Com. v. Gomes

• Decision Date: 12 July 1990
• Citation: 408 Mass. 43,556 N.E.2d 100
• Parties: COMMONWEALTH v. Raymond GOMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 100

556 N.E.2d 100

408 Mass. 43

COMMONWEALTH v. Raymond GOMES.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 4, 1990.

Decided July 12, 1990.

Eric Brandt, Committee for Public Counsel Services, Jamaica Plain, for defendant.

Laura Burnham, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Suffolk Superior Court convicted the defendant of trafficking in cocaine. On appeal, he challenges the denial of his pretrial motion to suppress evidence seized pursuant to a warrant. We conclude that the evidence should have been suppressed.

The warrant in question, which contained a "no-knock" provision, was executed at an apartment in the Dorchester section of Boston on April 23, 1987. Upon arriving at the apartment, the officers beat the door down with a sledgehammer, while yelling "police." The officers rushed into the apartment, and found the defendant coming down a staircase from the second floor. While one of the officers secured the defendant, the others searched the apartment. In a second floor room they found, lying on a table in plain view, a substance which later was determined to be 131.80 grams of cocaine. The officers also found other drugs and drug paraphernalia in various places throughout the apartment. Aside from the defendant, no other person was found in the apartment.

In his motion to suppress, the defendant argued that the application provided the magistrate with no factual basis for including a "no-knock" provision in the warrant, and that it therefore violated the principles set forth in Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818 (1982). While indicating his agreement with this point, the judge nonetheless denied the motion to suppress solely on the ground that the defendant, who did not reside in the apartment, had no reasonable expectation of privacy therein, and consequently lacked standing to challenge the "no-knock" search.

Subsequent to the motion judge's decision, we decided Commonwealth v. Amendola, 406 Mass. 592, 550 N.E.2d 121 (1990). Under the rule announced in Amendola, which is based on art. 14 of the Massachusetts Declaration of Rights, the defendant, who is charged with a possessory offense, clearly has standing to challenge the search and seizure. Id. at 601 & n. 4, 550 N.E.2d 121. The Commonwealth now concedes the point. The Commonwealth also admits that the insertion of the "no-knock" provision in the warrant violated the principles set forth in Scalise, supra, and Commonwealth v. Cundriff, 382 Mass. 137, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). The Commonwealth argues, however, that we should hold that the evidence was properly admitted, either by applying an "inevitable discovery" rule to the facts, or by concluding that some type of "good faith" exception excuses what occurred. Since the Commonwealth did not anticipate the Amendola decision, we choose to exercise our discretion to consider its admittedly new arguments. We reject both as inappropriate to this case.

Although not constitutionally required, the so-called "knock and announce" rule has long featured prominently in our common law. See Commonwealth v. Sepulveda, 406 Mass. 180, 181, 546 N.E.2d 879 (1989); Commonwealth v. Scalise, supra 387 Mass. at 420, 439 N.E.2d 818; Commonwealth v. Cundriff, supra 382 Mass. at 139-140, 415 N.E.2d 172. The same is also true of the Federal jurisprudence. See Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332 (1958) (stating that the requirement is "embedded in Anglo-American law"). The rule serves the vital purposes of "decreasing the potential for violence, protect[ing] ... privacy, and prevent[ing] ... unnecessary damage to homes." Cundriff, supra 382 Mass. at 146, 415 N.E.2d 172. See Sepulveda, supra 406 Mass. at 182, 546 N.E.2d 879. We have expressly held that police officers, when seeking a "no-knock" warrant, must convince the issuing magistrate that probable cause exists to believe that the evidence will be destroyed if the "knock and announce" rule is not dispensed with. Scalise, supra 387 Mass. at 421, 439 N.E.2d 818. The fact that drugs are involved is, by itself, insufficient to provide the necessary showing. Id.

In Commonwealth v. Manni, 398 Mass. 741, 500 N.E.2d 807 (1986), we held that the defendant was entitled to suppression of evidence seized pursuant to a "no-knock" search where the officer had information available that would have justified dispensation with the requirement but had not presented the information to the issuing magistrate. Recently, in Commonwealth v. Gondola, 28 Mass.App.Ct. 286, 550 N.E.2d 880 (1990), the Appeals Court upheld suppression of evidence seized during a "no-knock" search. Like this case, the warrant contained a "no-knock" provision, but there was no basis shown for it. The Appeals Court relied on the Manni case and rejected arguments by the Commonwealth that "the judge should have engaged in a cost-benefit analysis, balancing the seriousness of the violation against the harm caused by suppression of the evidence." Id. at 287, 550 N.E.2d 880.

We agree with the Commonwealth that, as a general rule, the mere fact that an unlawful search and seizure has occurred should not automatically result in the exclusion of any illegally seized evidence. See, e.g., Commonwealth v. Rutkowski, 406 Mass. 673, 676 n. 5, 550 N.E.2d 362 (1990); Commonwealth v. Sheppard, 394 Mass. 381, 391, 476 N.E.2d 541 (1985). We further agree that this principle would apply to violation of the "no-knock" rule, which is not clearly constitutionally based. Rather, the decision whether to exclude such evidence should properly turn on: (1) the degree to which the violation undermined the principles underlying the governing rule of law, see Rutkowski, supra 406 Mass. at 677, 550 N.E.2d 362, and (2) the extent to which exclusion will tend to deter such violations from being repeated in the future, see Commonwealth v. O'Connor, 406 Mass. 112, 114-115, 546 N.E.2d 336 (1989). See also 1 W.R. LaFave, Search & Seizure § 1.1(f), at 16-17 (2d ed.1987) (describing the purposes of the exclusionary rule as including deterrence of police misconduct and...