Com. v. Ocasio

• Decision Date: 29 February 2008
• Docket Number: No. 06-P-1831.,06-P-1831.
• Citation: 71 Mass. App. Ct. 304,882 N.E.2d 341
• Parties: COMMONWEALTH v. Orlando OCASIO, Jr.
• Court: Appeals Court of Massachusetts

882 N.E.2d 341

71 Mass. App. Ct. 304

COMMONWEALTH v. Orlando OCASIO, Jr.

No. 06-P-1831.

Appeals Court of Massachusetts, Hampden.

Argued January 10, 2008.

Decided February 29, 2008.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Present: GREEN, KATZMANN, & GRAINGER, JJ.

GRAINGER, J.

The defendant, Orlando Ocasio, Jr., was convicted by a jury in the Superior Court of possession of a firearm without an identification card, G.L. c. 269, § 10(h), and of resisting arrest, G.L. c. 268, § 32B. He appeals the denial of his motion to suppress items seized in the apartment of his mother, Elizabeth Santos, and appeals his conviction of resisting arrest, asserting insufficient evidence supporting the charge.

Background. We summarize the underlying facts as found by the motion judge, which we supplement with testimony that was "uncontroverted and undisputed and [that] the judge explicitly or implicitly credited." Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007). On the morning of the defendant's arrest, Miguel Delvalle called the Springfield police department to complain that the defendant had threatened him with a sawed-off shotgun when Delvalle went to the defendant's apartment to collect money the defendant owed him. Officers Starks and Cornejo were dispatched to the reported address. Delvalle, who knew the defendant, directed the officers to the apartment, which was located on the thirty-first floor. The officers and Delvalle went together to the hallway outside the apartment, where they knocked on the door. When the defendant opened the door, Delvalle stated, "That's him." The officers "grabbed" the defendant, who was unarmed, and handcuffed him. As they did so, the apartment door closed. Officer Starks asked the defendant if he had a key to the apartment. The defendant stated that he did not and that no one else was in the apartment.

Another officer, Lieutenant Lynch, arrived at that point. Lieutenant Lynch then summoned a building employee, the director of operations. The employee informed the officers that the defendant did not belong in the apartment, and that the apartment was occupied by a female tenant, who was later identified as Santos.¹ Lieutenant Lynch asked the employee to attempt to contact the female tenant and request that she telephone or return to her apartment.

In order to ascertain whether there was anyone else present in the apartment who might have access to a weapon that might be used against the officers or others present, the officers asked the employee to open the door to the apartment. After verifying that no one else was in the apartment, the officers returned to the hall, leaving the front door ajar. Shortly after they returned to the hall, the telephone in the apartment rang. Officer Starks answered and the caller identified herself as Santos, the defendant's mother, and confirmed that she lived in the apartment. Officer Starks told her that the defendant "was taken into custody because he was accused of committing a serious crime and that it happened in the doorway of her apartment." He asked her if the defendant "belonged here," and she told him that she allowed her son to stay at the apartment. Officer Starks asked her this question to verify that the defendant was indeed her son and not an intruder.

Within about fifteen minutes, Santos arrived at the apartment building. Lieutenant Lynch spoke with her in the building's management office located on the first floor. Officer Starks was present when Santos signed a consent form that permitted the police to search the apartment without first obtaining a search warrant.² According to Officer Starks, Santos signed the consent form without being threatened, coerced, or promised anything. Santos did not appear to have any difficulty understanding the officers, nor did the officers have any problem communicating to her. After Santos gave her consent, the officers reentered the apartment. Although the defendant was handcuffed in the hallway outside the apartment, there is no evidence to suggest that he said anything at that time, either in objection or approval of the search. Officer Starks searched the apartment and, in a bedroom closet, found a black duffel bag which contained a sawed-off shotgun and one shotgun shell. He also found a handgun beneath the bag.

The additional facts from the trial are recited in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). When the officers told the defendant that they were taking him into custody, the defendant said that he "didn't do it," despite not having been told what crime he was accused of committing. As the officers were escorting the defendant to the elevator in order to leave the building, the defendant began yelling. The defendant said that he "wasn't going back to ... jail." As the officers attempted to place the defendant in the cruiser, he kept kicking his feet away from the cruiser. Two officers were needed to get the defendant into the cruiser.

The jury acquitted the defendant of possession of a sawed-off shotgun and of assault and battery by means of a dangerous weapon, but convicted him of possession of a firearm (the handgun) and of resisting arrest.³

Discussion. 1. The consensual search of the apartment. a. Consent from a cotenant. The motion judge found, with ample support in the record, that Santos's consent to the search of her apartment "was given freely, voluntarily and intelligently with the knowledge that she was free to refuse to consent to the search."⁴ The defendant asserts that the consent of one tenant of shared premises was not sufficient to pass constitutional muster under the recent holding in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).⁵ We therefore recite the facts deemed dispositive in that decision. Georgia v. Randolph involved a husband who objected and his wife who consented, to a search of the marital residence by police officers. The husband was in the home and asserted his objection unambiguously. Id. at 107, 126 S.Ct. 1515. A majority of the United States Supreme Court held that the consenting wife's permission was not sufficient for a reasonable search, and that the wife, as a cotenant, could not waive the objector's rights under the Fourth Amendment to the United States Constitution "if a potential defendant with self-interest in objecting is in fact at the door and objects." Id. at 121, 126 S.Ct. 1515. The decision acknowledges the anomaly of a constitutional right, the existence of which is dependent on the knowledge that it is about to be violated:

"we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

"This is the line we draw, and we think the formalism is justified. So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it" (emphasis added).

Id. at 121-122, 126 S.Ct. 1515.

The defendant here seeks to portray himself as falling on the protected side of the "fine line" drawn by the Supreme Court. See id. at 121, 126 S.Ct. 1515. We disagree. While he was clearly at the threshold of the apartment, the record contains no evidence of any protest or objection, despite the fact that not one, but two searches occurred while he stood at the door.⁶ He argues on appeal that "his refusal of consent [was] obvious from the facts that he knew the police desired to enter the apartment ..., but [he] never signified assent to that action." This approach would extend the holding in Georgia v. Randolph to require active participation by a potential defendant to legitimize the consent granted by a cotenant, an extension directly contradicted by the "fine line," on one side of which a potential objector "not invited to take part in the threshold colloquy, loses out." Ibid.⁷ b. The taint of the illegal entry. The defendant argues that the officers' reentry into the apartment to answer the telephone was improper.⁸ We agree. We nonetheless affirm the motion judge's ultimate denial of the motion to suppress, as we conclude that the evidence seized during the later consensual search was not tainted by the illegal entry. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997) ("An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings").

"[W]here the defendant seeks to suppress information obtained after unlawful police conduct, the issue is whether the evidence challenged has been obtained by exploiting the illegality or by means sufficiently distinguishable to dissipate the taint." Commonwealth v. Fredette, 396 Mass. 455, 458-459, 486 N.E.2d 1112 (1985). See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Several factors guide us in our determination whether a subsequent consensual search is sufficiently attenuated from a prior illegality: "lapse in time, intervening circumstances, and disconnection between the prior illegality and the person giving consent to search." Commonwealth v. Midi, 46 Mass.App.Ct. 591, 595, 708 N.E.2d 124 (1999). Also relevant is "the purpose and flagrancy of the official misconduct." Commonwealth...