Com. v. Sepulveda

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before LIACOS; O'CONNOR
• Citation: Com. v. Sepulveda, 546 N.E.2d 879, 406 Mass. 180 (Mass. 1989)
• Decision Date: 05 December 1989
• Parties: COMMONWEALTH v. Joaquin G. SEPULVEDA.

Page 879

546 N.E.2d 879

406 Mass. 180

COMMONWEALTH v. Joaquin G. SEPULVEDA.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 12, 1989.

Decided Dec. 5, 1989.

R. Michael Cassidy, Asst. Atty. Gen., for the Commonwealth.

Thomas Kerner, for defendant.

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

O'CONNOR, Justice.

This is the Commonwealth's interlocutory appeal from the allowance by a Superior Court judge of the defendant's motion to suppress evidence that the Massachusetts State police had obtained as a result of searching the defendant's apartment. The judge granted the motion on the ground that the warrant authorizing the search had been executed unlawfully in that the police failed to announce their identity and purpose before entering the apartment. The warrant did not authorize entry without announcement.

The judge made the following findings relative to the execution of the search warrant. State Trooper Dennis L. Brooks first approached the defendant's apartment in an undercover capacity. After knocking, he was admitted to the apartment by the defendant, who had previously sold him cocaine. Brooks and the defendant negotiated a price for a new sale of cocaine and then Brooks left the apartment, ostensibly to obtain purchase money from his automobile. Brooks returned to the apartment, accompanied by other officers, and again he knocked on the door. After the second knock, the defendant opened the door wide enough for Brooks to step inside. Brooks took two steps into the apartment, leaned against the door and the defendant, and announced his identity as a State trooper. The other officers then followed Brooks inside. The judge found that "[i]t is clear ... that the officer first knocked and was admitted consensually by the defendant."

The defendant was arrested on the basis of the evidence seized during the search, and he was indicted for trafficking in cocaine in excess of 200 grams in violation of G.L. c. 94C, § 32E(b )(4) (1988 ed.). The defendant subsequently filed his motion to suppress, arguing that the police had violated the terms of the search warrant by crossing the threshold of his apartment before announcing their purpose and identity. The judge granted the defendant's motion. We reverse that ruling.

The Commonwealth's knock and announce rule is a common law rule. A knock and announce rule is not constitutionally required. Commonwealth v. Scalise, 387 Mass. 413, 420, 439 N.E.2d 818 (1982). Commonwealth v. Cundriff, 382 Mass. 137, 139-140, 146, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). The defendant does not contend otherwise. Historically, only forcible entries implicated the knock and announce requirement. For a full discussion of the long history of the rule dating back to the English common law, see Commonwealth v. Cundriff, supra 382 Mass. at 140-147, 415 N.E.2d 172. It is not surprising, then, that statutes in other jurisdictions dealing with the issue either explicitly require knock-and-announce only as a prerequisite to forcible entries, see, e.g., 18 U.S.C. § 3109 (1982); Cal.Penal Code § 1531 (Deering 1982); Iowa Code § 808.6 (1988); Nev.Rev.Stat. § 179.055 (1987); or have been judicially interpreted that way. See, e.g., State v. Williamson, 42 Wash.App. 208, 211, 212, 710 P.2d 205 (1985); State v. Clarke, 387 So.2d 980, 981 (Fla.Dist.Ct.App.1980); Commonwealth v. Morgan, 517 Pa. 93, 96 534 A.2d 1054 (1987) (interpreting rule of criminal procedure).

The reason for the knock and announce rule is the desirability of "decreasing the potential for violence [initiated by residents in response to a sudden and unexpected invasion of their premises, provoking further retaliatory violence by the police], protection of privacy, and the prevention of unnecessary damage to homes." Commonwealth v. Cundriff, supra 382 Mass. at 146, 415 N.E.2d 172. A peaceful entry, even though obtained by a nonthreatening ruse, as here, does not raise those concerns. Therefore, with respect to such entries, the reason for the knock and announce rule does not exist. It logically follows, then, that the rule should not apply in such circumstances.

In concluding that suppression was required, the judge appears to have relied on Commonwealth v. Manni, 398 Mass. 741, 500 N.E.2d 807 (1986), as does the...