Com. v. McAfee, 03-P-1660.
| Decision Date | 09 May 2005 |
| Docket Number | No. 03-P-1660.,03-P-1660. |
| Citation | 827 N.E.2d 224,63 Mass. App. Ct. 467 |
| Parties | COMMONWEALTH v. Stephen P. McAFEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James Dilday, Boston, for the defendant.
Gregory H. Matthews, Assistant District Attorney, for the Commonwealth.
Present: PERRETTA, DOERFER, & MILLS, JJ.
Before us is the defendant's interlocutory appeal from the denial of his motion to suppress evidence obtained after the police made a warrantless entry into his dwelling to impound the premises while a search warrant was sought. Broadly put, the issues raised here concern whether the warrantless intrusion was constitutionally permissible and, if not, whether the independent source or inevitable discovery rules nonetheless rendered the evidence admissible. The motion judge held evidentiary hearings and made written findings of fact and rulings of law. We begin by summarizing the explicit findings and the undisputed evidence.
Background. During January and February, 2002, the Woburn police conducted an investigation of the defendant, whom they suspected of dealing drugs from a dwelling at 88 Creston Avenue in Woburn. They had focused on a man named Patrick Mallon when they learned from a confidential informant (CI) in early January, 2002, that Mallon was buying crack cocaine from a man named "Steve" at 88 Creston Avenue. On January 14, 2002, the police arranged to make a controlled buy of cocaine through Mallon using the CI. First the police searched the CI and found he had no cocaine. They then surveilled the CI, who met with Mallon and a woman named Robin Berry. The police followed the three as they drove together to 88 Creston Avenue. The officers observed Mallon exit the vehicle, enter 88 Creston Avenue, emerge a short time later, and reenter the vehicle. The vehicle was followed back to a predetermined location, where the CI produced to police four grams of cocaine. The CI reported that he bought the cocaine from Mallon after Mallon had obtained it from Steve at 88 Creston Avenue.
During the first week of February, 2002, the police spoke with Berry and Mallon. Berry told them that she had been buying cocaine with Mallon for six months, that she purchased cocaine at 88 Creston Avenue, and that she had gone there to buy cocaine with the CI and Mallon on January 14, 2002. Mallon told them that he had been buying cocaine from Steve for six months, that the modus operandi was to page Steve and then go to the rear door on the first floor of 88 Creston Avenue, and that he would wait in the kitchen while Steve went upstairs to get the cocaine. Mallon confirmed the January 14, 2002, transaction.
The investigation culminated when police observed, during a surveillance of 88 Creston Avenue at 6:42 P.M. on February 11, 2002, a truck arrive and its driver go to the rear door. A light on the second floor went on for a minute. The individual exited the house, returned to his truck, and drove off. The police stopped and questioned him about his activities at the address in question. He was identified as Derrick Shattuck and told the police that he had just purchased cocaine from "Steve" at that address. Shattuck produced cocaine to the police. He said he was introduced to Steve by Mallon and had been buying from Steve at that address for about three months. According to Shattuck, Steve always had cocaine readily available. Shattuck also confirmed the modus operandi, described by Mallon, of waiting in the kitchen while Steve went upstairs to get the cocaine. Shattuck declined to do a controlled buy.
The police determined to seek a search warrant and to secure the premises while the warrant was being sought and prior to its execution. Some police officers continued to hold Shattuck incommunicado while others went to 88 Creston Avenue, which was a few blocks away. The place where they detained Shattuck was not visible from 88 Creston Avenue, and there was no evidence that the defendant was aware of Shattuck's detention.
When the police arrived at 88 Creston Avenue, they knocked on the door. Through the window panes at the top of the door they saw the defendant, who matched a general description of "Steve." An officer asked through the door if they could speak with the defendant, who said "no" and then walked quickly out of the officers' sight.1 An officer then forced open the door with a pry bar. Announcing "police," five or six officers entered the premises and restrained and arrested the defendant as he was coming down from upstairs.
As the defendant was being pat frisked, he stated to the officers, without first being questioned, that he had a .25 caliber weapon upstairs in a dresser drawer and marijuana in his pocket. A bag of marijuana was recovered from the defendant's person. The officers then finished securing the interior of the home by sweeping it for occupants, but did not at that time further search it.
The police then submitted their application for a search warrant shortly after midnight, which included information about the events both prior and subsequent to their entry into the premises. The warrant issued at 12:15 A.M., and upon its execution at 12:30 A.M. the police found a .25 caliber handgun in an upstairs dresser drawer (which was where the defendant had said it was), approximately $1,600 in cash, and two "cut, clear plastic sandwich baggies." Apparently, no cocaine was found.
A complaint issued in District Court charging the defendant with possession of cocaine with intent to distribute; drug distribution in a school zone; possession of marijuana; unlawful possession of a firearm; and defacement of a firearm serial number. He brought a pretrial motion to suppress the physical evidence and his statement to police, and evidentiary hearings were held on May 19 and May 28, 2003. The judge denied the motion in a memorandum of decision dated August 26, 2003, ruling that A single justice of the Supreme Judicial Court permitted the defendant to bring this interlocutory appeal.
Discussion. " (Footnote omitted.) Commonwealth v. DeJesus, 439 Mass. 616, 619, 790 N.E.2d 231 (2003).
Although the defendant does not challenge the judge's determination that the police had probable cause to believe the defendant was distributing cocaine that was located on the premises, he contends that they had no justification for entering the premises without a warrant. The judge ruled that "[t]he police had reasonable belief that the cocaine would be removed or destroyed unless preventive measures were taken," relying on DeJesus, supra at 621, 790 N.E.2d 231, and thus took the view that the police permissibly impounded the interior of the premises to preserve cocaine and related evidence during the time necessarily taken to obtain the search warrant. We examine the contours of the doctrine invoked.
1. Impoundment of premises to preserve evidence during the warrant application process. State and Federal case law has recognized generally that no unreasonable search occurs when police "secure" a dwelling, on the basis of probable cause, in order to prevent the destruction or removal of evidence while a search warrant is being sought. Id. at 620-621, 790 N.E.2d 231, and cases cited. The precise boundaries of this police authority are less well explored. In DeJesus, 439 Mass. at 621-622, 790 N.E.2d 231, the Supreme Judicial Court for the first time drew an art. 14 distinction between, on one hand, securing a dwelling on its exterior and, on the other hand, entering and controlling it from the inside. In so deciding, the court "adhere[d]" (under art. 14) to Professor LaFave's analysis of Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), that although the Fourth Amendment allows, without exigent circumstances, a warrantless exterior impoundment of premises pending obtaining a search warrant—i.e., a seizure alone—a physical entry to effect an interior impoundment involves both a seizure and a search. See DeJesus, supra at 621-622, 790 N.E.2d 231, citing 3 LaFave, Search & Seizure § 6.5(c), at 365-366 (3d ed.1996). This warrantless search, albeit a limited one, requires a greater justification than does the external seizure: "We conclude that there is a fundamental difference between securing or controlling the perimeter of a dwelling from the outside and the entry and physical surveillance of a dwelling from the inside." DeJesus, supra, at 621, 790 N.E.2d 231. The court therefore announced that justification of a warrantless entry into a dwelling to conduct an interior impoundment for preventing destruction or removal of evidence requires circumstances of the following form: "specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken." Ibid.2
We next consider how the court applied this rule in DeJesus itself. The police had probable cause to believe that cocaine was being kept at the defendant...
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