Com. v. Navarro

• Decision Date: 24 August 1995
• Docket Number: No. 93-P-1537,93-P-1537
• Parties: COMMONWEALTH v. Ann Elizabeth NAVARRO.
• Court: Appeals Court of Massachusetts

Page 71

654 N.E.2d 71

39 Mass.App.Ct. 161

COMMONWEALTH v. Ann Elizabeth NAVARRO.

No. 93-P-1537.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 14, 1994.

Decided Aug. 24, 1995.

Dennis M. Powers, Boston, for defendant.

Marguerite T. Grant, Asst. Dist. Atty., for Com.

Before SMITH, GILLERMAN and IRELAND, JJ.

SMITH, Justice.

The defendant was the subject of a three-count complaint charging her with (1) possession of heroin with intent to distribute, (2) illegal possession of Xanax, and (3) possession of a hypodermic needle. After her suppression motion was denied, she was found guilty of all three counts at a bench trial. She appealed to a jury-of-six session. Her suppression motion was again denied, and she then waived a jury. After a jury-waived trial she was found guilty of all three counts.

On appeal, the defendant argues that the judge committed error in (1) denying her suppression motion, (2) allowing hearsay testimony in evidence, and (3) denying her motion for a required finding of not guilty on the charge of possession of heroin with intent to distribute. ¹

1. Denial of the defendant's suppression motion. The defendant filed a suppression motion in which she claimed that the police conducted a warrantless entry and search of the premises where she was arrested and that no exigent circumstances existed to justify a warrantless search. She also claimed that a subsequent search pursuant to a warrant was illegal because there was no probable cause to support the issuance of the warrant.

We summarize the judge's findings. We supplement those findings with certain undisputed facts from the testimony of the only witness at the suppression hearing--a police officer, one Inspector Hyde.

Hyde, who was experienced in narcotics investigations, telephoned a certain number in October, 1991, and asked to speak to "Ann." He also told the person who had answered the phone that he wanted to buy some heroin. He then drove to a certain location in Somerville where he called the same number again and talked to the same person. That person was not the defendant. Then he waited by the telephone as instructed.

After about ten or fifteen minutes, Deborah McLean drove up in a car and parked opposite where Hyde was standing. She gave him three glassine bags, each bearing a blue skull-and-crossbones logo, for $75. Hyde then arrested McLean. She told him that there were more drugs at her apartment. She also stated that the defendant was sleeping in the apartment.

a. Warrantless entry. Hyde made arrangements for a search warrant to issue. While waiting for the warrant, Hyde and another officer went to the apartment to secure it. The police were concerned that, when McLean did not return, the defendant, who remained in the apartment, might become alarmed and remove or destroy the drugs.

At the apartment, the officers noticed that it was listed under McLean's name. Hyde knocked, and the defendant opened the door. Hyde identified himself and asked to speak to her. Just inside the front door to the apartment, Hyde told the defendant that McLean had been arrested for distribution of heroin and that the police were applying for a warrant to search the apartment. The defendant was then informed that she could either stay in the apartment to await the arrival of the warrant or leave, but, if she left, anything she took with her would be subject to search. The defendant said she wanted to leave and take some clothes with her.

The defendant walked toward the rear of the apartment. Hyde followed her. The defendant entered a bedroom and "lunged" toward a bed. Hyde, concerned about his safety, also lunged and grabbed whatever the defendant was trying to reach. It was a woman's open pocketbook. Hyde saw in plain view, inside the open pocketbook, a hypodermic needle and syringe, five glassine bags containing white powder, and clear plastic bags containing pills. The five bags of powder (later identified as heroin) bore the same blue skull-and-crossbones logo as the three bags that Hyde had bought from McLean. The defendant was arrested. Further search of her pocketbook revealed five empty glassine bags, $460 in cash, and the defendant's Massachusetts driver's license. Hyde did not notice anything else in plain view on the bed.

At the time the police went to the apartment, they were in the process of obtaining a search warrant. Their purpose in going to the apartment was to secure it to prevent the removal or destruction of drugs before they were able to search it pursuant to the warrant. "Securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of the dwelling or its contents." Commonwealth v. Blake, 413 Mass. 823, 829, 604 N.E.2d 1289 (1992), citing Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984). Here, the police had learned from McLean that there were drugs in the apartment and that another person was also in the apartment, although sleeping. The police, therefore, had probable cause to believe that heroin was present in the apartment and, because the apartment was occupied, that there was a danger the heroin would be removed or destroyed. The warrantless entry by the police into the apartment was reasonable in the circumstances.

b. Warrantless seizure of contraband from the defendant's pocketbook. The defendant argues that the warrantless seizure of the drugs and hypodermic needle from her handbag was unreasonable and not based on exigent circumstances. We disagree.

After securing the premises while awaiting the arrival of a search warrant, the police cannot conduct a search until a copy of the warrant is in their possession at the premises to be searched. Commonwealth v. Guaba, 417 Mass. 746, 752-756, 632 N.E.2d 1217 (1994). Here, the police did not conduct a search before having the warrant in their possession.

The same exigent circumstances that permitted a warrantless entry to secure the apartment--prevention of the destruction or removal of the drugs--allowed Hyde to follow the defendant to the rear of the apartment and into a bedroom. Once the defendant "lunged" toward her pocketbook on the bed, an additional factor--fear for his personal safety--allowed Hyde to grab the pocketbook. Because the drugs and needle were in plain view inside the open pocketbook and he was lawfully on the premises, Hyde could seize them without a warrant. Horton v. California, 496 U.S. 128, 141-142, 110 S.Ct. 2301, 2310-2311, 110 L.Ed.2d 112 (1990). The subsequent search of the pocketbook was proper as it was incident to the defendant's arrest.

c. Search pursuant to a warrant. After Hyde obtained a search warrant, he returned to the apartment with other officers. There was a blanket on the bed near where Hyde had seized the defendant's pocketbook. One of the officers picked up the blanket, and a brown paper wrapper fell out onto the sheets. It contained twenty-seven glassine bags of white powder (later identified as heroin) which bore the same blue skull-and-crossbones logo as the three bags that Hyde had bought from McLean and the five bags that Hyde had seized from the defendant. The twenty-seven bags were broken down into two bundles of ten, each wrapped with an elastic band, plus an additional seven bags, also wrapped with an elastic band. Elsewhere in the apartment the police found metal spoons, a beeper, and hypodermic needles.

The defendant argues that, because Hyde's warrantless entry into the apartment was illegal, his subsequent observations were the "fruit" of that illegality and could not be used to support probable cause for the warrant. The short answer is that Hyde's entry into the apartment was not illegal. In addition apart from Hyde's observations, there was other information in the warrant application, including McLean's statement that drugs were in the apartment, that supported probable cause for its issuance. See Commonwealth v. Blake, 413 Mass. at 830, 604 N.E.2d 1289.

2. Admission of hearsay evidence at the trial. Over an objection, Hyde was allowed to testify at the trial that on October 8, 1991, he made a telephone call and asked for "Ann." He testified, also over an objection, that he told the person who answered the telephone, whom he later identified as McLean, that he wanted to buy heroin. The Commonwealth argued that Hyde's testimony concerning his statements to the person who answered the telephone was admissible because it was made during the course of a joint enterprise. See Commonwealth v. Cartagena, 32 Mass.App.Ct. 141, 143-144, 586 N.E.2d 43 (1992) (hearsay statements made outside the presence of a defendant may be admitted against the defendant if made during the course of a joint enterprise and if there is sufficient nonhearsay evidence to establish an adequate probability that the declarant and the defendant were engaged in the joint enterprise). The defendant claims the judge committed error because Hyde's statements were hearsay that were not made during the course of a joint enterprise.

We first address a technical problem concerning the defendant's objection to the admission of the evidence. After the defendant objected to the testimony relating to what Hyde said to the person who answered the telephone call, the judge admitted the testimony de bene. Thereafter, the defendant did not move to strike that portion of Hyde's testimony. "Where evidence is admitted conditionally it is incumbent upon the objecting party later to move to have it struck...." Peterson, petitioner, 354 Mass. 110, 115, 236 N.E.2d 82 (1968). Because of the lack of the motion to strike, our review is limited to the substantial risk of a miscarriage of justice standard, if we find error.

The admission of Hyde's testimony concerning his statement to the person who answered the telephone call was error. The statements were made by Hyde, not by...